People v. Smith CA4/1 ( 2014 )

Filed 5/9/14 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064142
Plaintiff and Respondent,
v. (Super. Ct. No. SCD246263)
RICHARD F. SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia
Eyherabide, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
At the request of defendant Richard Smith, and following his guilty plea, the trial
court in this case conducted two Marsden1 hearings. At both Marsden hearings, Smith
claimed his counsel was ineffective and requested new counsel. At the first Marsden
hearing, the trial court found that Smith had adequate legal representation at the time of
his plea and there were no other grounds to withdraw his plea. The trial court gave Smith
leave to retain new counsel. When Smith appeared again, Smith made a second Marsden
motion which the trial court also denied. Our review of the record shows that Smith was
adequately represented at all material times.
FACTUAL BACKGROUND:
On the evening of February 12, 2013, Jason Mikell reported a burglary at his
residence. Police responded and when they arrived, they found Smith leaving Mikell's
residence and arrested him. The police found a ladder on the side of the building and a
pick ax in a hot tub on the property.
A window was smashed on the balcony of Mikell's residence. On the balcony
police found a backpack containing Smith's drivers' license, a laptop computer, a black
tablet case, a stethoscope, a blood pressure cuff and a second silver and black case.
Mikell reported that the laptop and tablet cases belonged to Allen Mercier, a deceased
former roommate. According to Mikell, Mikell was the executor of Mercier's estate.
Mikell further stated that the stethoscope and blood pressure cuff belonged to a friend of
1 People v. Marsden (1970) 2 Cal. 3d 118, 123.
2
Mikell and Mercier. Mikell told officers Smith was a former resident of the building who
had moved out a year earlier.
After waiving his Miranda rights, Smith told the officers: "I was living in the
house approximately three weeks ago. I got into an argument with Mikell and he
demanded that I move out. Today, I [was] waiting for Mikell to leave the property and I
took a ladder, placed it against the rear of the house and climbed onto the second story
balcony. I used a pick axe to break a glass panel on the door so I could gain entry to the
home. I placed the pick axe in the hot tube because I didn't want it to be used against me.
I removed the DVD recorder because I didn't want Mikell to know it was me that entered
the home. I put the items in my backpack and then got arrested."
PROCEDURAL BACKGROUND
On February 15, 2013, a complaint was filed against Smith alleging first degree
burglary. (Pen. Code, §§ 459, 460.) Following a preliminary hearing, on
April 5, 2013, Smith entered a guilty plea to one count of a lesser charge of second
degree burglary. (Pen. Code, § 459.) At a sentencing hearing on May 7, 2013, Smith
indicated that he wanted to withdraw his guilty plea. The court conducted a Marsden
hearing in response to Smith's request.
During the hearing, Smith alleged his trial counsel had not conducted a thorough
investigation and did not present evidence that would serve to exculpate Smith.
Specifically, Smith argued that he actually lived at the residence, and the items that were
apparently stolen actually belonged to him. Smith argued that if his counsel had
3
reviewed surveillance recordings at the residence or interviewed his mother or brother,
counsel would have discovered that Smith was a resident of the building.
Smith's counsel stated that he had investigated Smith's claims that he was a
resident of the building, and his investigator interviewed Smith's mother and brother.
Counsel determined that there was no evidence which would support Smith's contention
that he lived in the residence. Smith's counsel stated he advised Smith that if Mikell was
illegally retaining property that belonged to Smith that the proper course of action was to
file a report with the police, not break into the residence.
The trial court found that Smith had been adequately represented and denied his
motion for new counsel. Smith requested a continuance to find another lawyer and to
withdraw his plea.
At the June 12, 2013 continued hearing, Smith renewed his request for new
counsel and the trial court conducted a second Marsden hearing. At the second Marsden
hearing Smith stated he was actually innocent of the burglary. In particular, Smith stated
that his court appointed counsel, Douglas Miller, had refused to communicate with him
and did not investigate Smith's contention that the items the police recovered actually
belonged to Smith. Because Smith believed the property belonged to him, he argued that
he had no burglarious or felonious intent when he broke into Mikell's house. Smith also
complained that a second public defender, Mignon Hilts, had been assigned to take over
his case for purposes of trial. Smith stated that Hilts had ordered him to plead guilty.
4
In response, Miller stated that the issues Smith raised had been addressed at the
first Marsden hearing. Miller repeated that there was no evidence that Smith was a
resident of Mikell's house. With respect to Hilts's representation, Miller responded that
Hilts wanted more trial experience and that if Smith's case went to trial she would
represent him at trial. Miller reiterated that the decision to plead guilty to second degree
burglary was Smith's own decision.
The trial court denied Smith's second Marsden motion.
DISCUSSION
The principles governing a Marsden motion made on the grounds counsel was
ineffective in providing assistance with respect to a plea were fully considered by the
court in People v. Smith (1993) 6 Cal. 4th 684, 690-697 (Smith). In recapitulating a
defendant's rights to new counsel, the court stated:
"The seminal case regarding the appointment of substitute counsel is Marsden,
supra, 2 Cal. 3d 118, which gave birth to the term of art, a 'Marsden motion.' We there
held that 'the decision whether to permit a defendant to discharge his appointed counsel
and substitute another attorney during the trial is within the discretion of the trial court,
and a defendant has no absolute right to more than one appointed attorney.' " (Smith,
supra, 6 Cal.4th at p. 690.)
"We also established in Marsden that the trial court must give the defendant the
opportunity to explain the reasons for desiring a new attorney. (Marsden, supra, 2 Cal.3d
at pp. 123-125.) '[T]he trial court cannot thoughtfully exercise its discretion in this matter
without listening to [the defendant's] reasons for requesting a change of attorneys.' (Id. at
5
p. 123.) Accordingly, 'When a defendant moves for substitution of appointed counsel, the
court must consider any specific examples of counsel's inadequate representation that the
defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion.
Denial of the motion is not an abuse of discretion unless the defendant has shown that a
failure to replace the appointed attorney would "substantially impair" the defendant's
right to assistance of counsel.' " (Smith, supra, 6 Cal.4th at pp. 690-691.)
The focus of a Marsden motion is on the representation the defendant has been
provided: "It is the very nature of a Marsden motion, at whatever stage it is made, that
the trial court must determine whether counsel has been providing competent
representation. Whenever the motion is made, the inquiry is forward-looking in the sense
that counsel would be substituted in order to provide effective assistance in the future.
But the decision must always be based on what has happened in the past." (Smith, supra,
6 Cal.4th at p. 695.)
Like the defendant herein, the defendant in Smith entered a plea and then asked to
have new counsel appointed for the purpose of making a motion to withdraw his plea on
the grounds his trial counsel had not been effective in representing him prior to and at the
time of the plea. The trial court, after listening to the defendant's complaints about
counsel and counsel's explanation, denied the motion for new counsel. On appeal, the
Court of Appeal reversed, holding new counsel should be appointed if the trial court
determined on remand that the defendant had a "colorable" claim of ineffective assistance
of counsel. The Court of Appeal reasoned that a defendant's burden in making a posttrial
Marsden motion based on conduct that did not occur at trial is not as high as when a
6
Marsden motion is based on conduct that did occur at trial or had an impact on the trial.
(Smith, supra, 6 Cal.4th at p. 691.) On review, the Supreme Court disagreed and
reversed the judgment of the Court of Appeal. (Id. at p. 697.) The Supreme Court found
that a defendant's burden under Marsden is the same at all stages of a criminal
proceeding: "[T]he trial court should appoint substitute counsel when a proper showing
has been made at any stage. A defendant is entitled to competent representation at all
times, including presentation of a new trial motion or motion to withdraw a plea. . . . In
those cases in which counsel was ineffective, this is best determined early. Thus, when a
defendant satisfies the trial court that adequate grounds exist, substitute counsel should be
appointed. Substitute counsel could then investigate a possible motion to withdraw the
plea or a motion for new trial based upon alleged ineffective assistance of counsel.
Whether, after such appointment, any particular motion should actually be made will, of
course, be determined by the new attorney.
"We stress equally, however, that new counsel should not be appointed without a
proper showing. A series of attorneys presenting groundless claims of incompetence at
public expense, often causing delays to allow substitute counsel to become acquainted
with the case, benefits no one. The court should deny a request for new counsel at any
stage unless it is satisfied that the defendant has made the required showing. This lies
within the exercise of the trial court's discretion, which will not be overturned on appeal
absent a clear abuse of that discretion. [Italics added.]
7
"We thus hold that substitute counsel should be appointed when, and only when,
necessary under the Marsden standard, that is whenever, in the exercise of its discretion,
the court finds that the defendant has shown that a failure to replace the appointed
attorney would substantially impair the right to assistance of counsel. . . ." (Smith, supra,
Cal.4th at pp. 695-696.)
In Smith, the court went on to determine that the trial court did not abuse its
discretion in denying the defendant's Marsden motion. (Smith, supra, 6 Cal.4th at p.
696.)
II
As Smith makes clear, where the reasons stated by a defendant at a Marsden
hearing do not, in light of any explanation offered by counsel, show any inadequacy of
counsel or irreconcilable differences, a Marsden motion should be denied. (Smith, supra,
6 Cal.4th at p. 696.) Here, the record the fully supports the trial court's determination that
counsel's representation was adequate.
At the outset it bears noting that Smith was initially charged with burglary in the
first degree, a strike. (See Pen. Code, § 667.5 subd. (c)(21)). Smith's counsel advised
him to take the prosecution's offer of a plea to second degree burglary which is not a
strike. Thus, the plea provided Smith with a substantial benefit.
Importantly, the record shows that Smith's original counsel, Miller, fully
investigated Smith's claim of being a resident of the home. After his investigator
interviewed the witnesses Smith suggested, Miller found that there was no evidence to
support Smith's claim that he was a resident of the home. Miller properly advised Smith
8
that if the property in question was in fact his, Smith should have filed a police report.
The record with respect to the plea Smith entered establishes that both Miller and Hilts
informed Smith of his rights during all relevant stages of the proceedings. Given this
record, the trial court could reasonably conclude Miller and Hilts performed their duties
to Smith adequately, and that Smith had no claim for ineffective assistance of counsel.
Smith nevertheless argues that trial counsel did not conduct a proper investigation
because counsel did not review the surveillance recordings of the residence. Appellant
argues that if Smith were given new counsel, new counsel would retrieve the recordings
and present evidence which would prove Smith lived at the residence. Smith additionally
argues that the communication breakdown between Smith and counsel was so severe that
ineffective assistance of counsel resulted.
The surveillance recordings would not have provided Smith with any defense. By
his own admission, Smith took the recording device from Mikell's residence so that he
could not be identified as the intruder. Thus, even if the recordings showed that Smith
had previously been in the home, the circumstances under which the police recovered the
recordings show fairly conclusively that Smith understood he had no right to enter
Mikell's residence on the evening of February 12, 2013, by use, no less, of a pick axe.
Counsel's full explanation of his conduct of the case shows that there was no
substantial breakdown in communication.
Because the record shows that Smith received adequate representation, the trial
court properly denied his Marsden motions.
9
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
IRION, J.
10