People v. Stevens

• Decision Date: 07 June 1984
• Docket Number: No. 6674,6674
• Citation: 203 Cal.Rptr. 505,156 Cal.App.3d 1119
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Edward STEVENS, Defendant and Appellant. Crim.
• Court: California Court of Appeals Court of Appeals

Page 505

203 Cal.Rptr. 505

156 Cal.App.3d 1119

The PEOPLE, Plaintiff and Respondent, v. Frank Edward STEVENS, Defendant and Appellant.

Crim. No. 6674.

Court of Appeal, Fifth District, California.

June 7, 1984.

Certified for Partial Publication. ¹

[156 Cal.App.3d 1121] Betty L. Dawson, Merced, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Anthony L. Dicce and Ward A. Campbell, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Acting Presiding Justice.

Appellant Frank Edward Stevens was convicted of possession of a controlled substance (amphetamines) for sale (Health & Saf.Code, § 11378) and admitted a prior felony conviction (Pen.Code § 667.5, subd. (b)). We reverse the judgment of conviction because the record shows the court unjustifiably denied appellant's request to relieve his volunteer attorney and appoint new counsel.

Trial Evidence

On May 5, 1982, at approximately 9:15 p.m. in Modesto, appellant, driving his 1960 Chevrolet pickup, was stopped by Stanislaus County sheriff's deputies. Appellant's truck had been under surveillance by Deputy Carrillo for 30 to 45 minutes prior to the stop which was undertaken to conduct a search of appellant and his vehicle for controlled substances. ² Appellant was and had been the sole occupant of the truck during the period of observation.

Appellant was ordered out, handcuffed and placed in a patrol car while the officers searched the vehicle. Above the transmission housing, between the bucket seats, the officers found a razor blade to which a small amount of whitish powder adhered. Concealed behind the console between the seats was a cigarette package containing nine plastic bags of a yellowish-tan powder. In the glove compartment, the officers found several empty clear plastic bags. The bindles of powder in the cigarette packet, totaling 13.25 grams, were found to contain amphetamine. Carrillo estimated the street value of the amphetamine to be $1,060. A presumptive test was conducted on the residue on the razor blade, with negative results. Carrillo testified that razor blades are commonly employed by users and dealers of amphetamines to "line out" the powder prior to ingesting it, or to mix it with cutting agents in preparation for sale.

Defense

Appellant testified he did not place the drugs or other paraphernalia in his truck and had no knowledge of their presence. On May 5, 1982, in the early afternoon, he went to see his parole officer, Ron Schumacher, and mentioned that he was going to a friend's house to discuss the possibility of working in Alaska. Thereafter, appellant went to Oakdale to apply for a job at Hunt-Wesson.

At approximately 5 p.m., appellant went to Sandy Bolton's house to meet one of her friends to discuss a job in Alaska. Bolton had been introduced to appellant by his sister a week earlier. Appellant dated Bolton two times but did not know her very well. On the evening of May 5, Bolton borrowed appellant's truck from about 5 to 7 p.m. Appellant testified he had no idea how the drugs came to be in his vehicle "... except for I went over to [Bolton's] house and she used my car." ³

Ronald Schumacher testified that appellant met with him on the afternoon of May 5 and mentioned he was going to talk with someone about going to Alaska to work as a welder.

Victoria Osborn testified she had known appellant for nine years. She never knew appellant to use drugs or to offer them; also, appellant did not smoke cigarettes. After appellant was arrested, he called Osborn and told her to contact Bolton. Appellant did not ask Osborn to contact appellant's sister.

Appellant's attorney argued to the jury that Bolton, the "mysterious missing witness," had intentionally or unintentionally left the drug and other paraphernalia in appellant's truck. "[W]ith the somewhat mysterious missing witness, the absence of control by the defendant of his vehicle for two hours ... you have plainly a reasonable doubt setting." Counsel also argued it would be illogical to assume appellant put the drugs in the truck, because he had driven in it to visit his parole officer earlier that afternoon.

The district attorney argued that appellant's story was incredible and that the location of the items found in the truck overwhelmingly proved appellant was aware of their presence. The prosecutor repeatedly stated that the officers were entitled to claim a privilege given to law enforcement to withhold information regarding Bolton's police contacts. The district attorney argued if appellant wanted corroboration that another person used his car before the officers searched it, the defense was the logical party to call the "missing witness" into court.

DISCUSSION

The crucial question is whether appellant, an indigent, was denied the right to effective assistance of counsel by the trial court's refusal of appellant's request to discharge his volunteer attorney and appoint the public defender. Although the circumstances of this case are unusual, well-settled principles mandate an affirmative answer. The violation of Appellant's right to counsel requires reversal (see People v. Holland (1978) 23 Cal.3d 77, 87, 151 Cal.Rptr. 625, 588 P.2d 765).

I

Appellant was represented throughout the trial by Attorney Cliff McGhee, who volunteered to represent appellant without compensation because appellant was married to McGhee's sister. McGhee appeared with appellant at the preliminary hearing and at appellant's arraignment in superior court. At the arraignment, the court set a hearing on the alleged prior conviction for July 21, 1982, a pretrial conference for July 29, and a jury trial date of August 2.

On July 21, the date set for hearing on the validity of the prior, McGhee failed to appear. Appellant immediately told the judge that the attorney was his brother-in-law and, "I would like to have a Public Defender appointed." Further, appellant informed the court he had called his attorney's office "for the last three weeks and he's been gone all the time." The judge refused to substitute counsel, indicating he would not relieve the attorney without notice. ⁴ The court recessed briefly; when the matter was called again, the judge stated he had been unable to reach appellant's attorney and would continue the hearing one week to attempt to contact McGhee by letter. Appellant mentioned that his wife, McGhee's sister, was present and might have information. Upon the court's inquiry, she responded: "... he has a drinking problem. He's not going to show up in court." The hearing continued as follows:

"THE COURT: Is he presently on a toot of some kind?

"MRS. STEVENS: Yes.

"THE COURT: Do you know where he is?

"MRS. STEVENS: No. I can find him, I hope.

"THE COURT: Well, all right. I would appreciate it because before he's relieved as attorney of record, he should at least have the opportunity to appear in court and indicate what his reasons are. We will attempt, however, to notify him and it may well be that this case is going to have to be continued. Certainly would be true if we have to appoint different counsel. But we will continue this until July 28th at 8:30.

"THE DEFENDANT: Your Honor, I am supposed to be back in court on the 29th.

"THE COURT: I know. That's for pre-trial. If we have to appoint new counsel for you, if we don't have Mr. McGhee here and he's not able and prepared to go to trial, unquestionably it will probably mean there will have to be a continuance of the trial date, but that would happen anyway. I'm certain if I appointed the Public Defender there would be no way he would be ready on August 2nd.

"THE DEFENDANT: I realize that.

"MR. RITCHEY: What was the date, Your Honor?

"THE COURT: July 28th, a week from today."

On July 28, appellant appeared with McGhee. The judge asked McGhee where he had been on July 21. McGhee said he was ill and, although he had asked another attorney to appear for him, there was some confusion about the time of the hearing. The court then inquired whether appellant had discussed his dissatisfaction with McGhee's representation. McGhee responded that appellant wanted to relieve McGhee, and because appellant was indigent the public defender's office should be appointed. The judge stated: "I don't know that I am prepared to do that. The matter is now set for trial, unless there's some good reason for doing it." Asked by the court to state his wishes, appellant said, "Well, I just, rather, you know, get a different lawyer." The judge rejoined, "Well, I am not disposed at this point to grant--to appoint counsel to represent you when you're already represented by an attorney, especially where that would require a continuance of the trial, which it would."

McGhee explained he and appellant did not communicate well and were "diametrically opposed" on the proper strategy, motions and approach to the case. The court indicated it did not consider such differences a ground to relieve McGhee. Appellant stated he felt there was a conflict of interest because appellant was married to McGhee's sister. Appellant alluded to problems with his wife and said, "I just don't think I could get a fair representation." The court concluded it was necessary to hold a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44), and cleared the courtroom of spectators and the district attorney.

In camera, the judge asked appellant to state his concerns "a little more explicitly...." Appellant said McGhee twice had failed to make court appearances, once in municipal and once in superior court. Appellant thought McGhee failed to appear at the latest superior court hearing because McGhee was intoxicated. McGhee denied the latter charge, stating he was ill, but was unable to recall whether or not he was absent in municipal court. McGhee said, "It may be that [appellant's] interests are best served by some other lawyer."

Asked whether there was...