Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS043225
RUSHING, P.J.
Defendant Cain Albert Beltran appeals a judgment entered following a guilty plea. On appeal, defendant asserts the trial court erred in denying his request to discharge retained counsel at the sentencing hearing.
Because this appeal relates to defendant’s request to discharge his retained counsel at sentencing, we omit the underlying facts of the crime as irrelevant.
Defendant was charged by criminal complaint with one count of murder in the first degree, with the special circumstances of attempted robbery and burglary (Pen. Code, §§ 187, 190.2, subds. (a)(17)(A) & (G)), as well as kidnapping for robbery (§ 209, subd. (b)), attempted robbery (§§ 211, 664), and second degree burglary (§ 459). For each count, the complaint alleged defendant was the principal armed with a weapon. (§ 12022, subd. (a)(1).)
All further statutory references are to the Penal Code.
Defendant was arraigned on December 14, 2004, and his retained counsel, Thomas Worthington, made a general appearance.
The question of whether defendant in fact had retained counsel, rather than appointed counsel was initially disputed by the Attorney General in its respondent’s brief. Subsequent to that filing, defendant moved this court to accept additional evidence in the form of a declaration from Thomas Worthington that he was retained in the instant matter in the trial court. We granted the motion, and accepted the declaration into evidence for consideration in this appeal.
In August 2005, defendant pleaded guilty and not guilty by reason of insanity. Defendant waived his right to a preliminary hearing and a jury in exchange for the prosecution not seeking the death penalty. The court ordered defendant undergo two psychological evaluations in preparation for the sanity trial.
On November 9, 2005, defendant withdrew his not guilty by reason of insanity plea.
At the sentencing hearing on December 15, 2005, defendant told the court he wished to withdraw his plea because there was exculpatory evidence he had not provided to his counsel. Defendant further told the court that he did not believe his attorney could do a good job for him, because he (defendant) had lied to him, and his attorney no longer trusted him.
The trial court held an in camera hearing, and treated defendant’s request and statements regarding his attorney’s representation as a Marsden motion, finding a “lack of any indication of showing that Mr. Worthington’s representation has been in any way inadequate . . . .”
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On December 15, 2005, the court imposed a sentence of life in prison without parole for the murder charge, life in prison for the kidnapping for robbery charge, stayed pursuant to section 654, and three years on the two remaining charges, stayed.
Discussion
Defendant asserts the trial court erred in treating his request to discharge his retained counsel as a Marsden motion, and requiring him to show cause why his attorney should be removed.
Factual Background
At the sentencing hearing on December 15, 2005, defendant’s attorney stated: “there is legal cause why sentencing cannot proceed, and that is that Mr. Beltran wishes to make a motion, a triple [sic] Marsden motion.”
The matter continued in camera, during which defense counsel stated: “Mr. Beltran wishes to make a motion to withdraw his plea. I feel I cannot support that motion, and, therefore, I told him he would have to address the Court in discharging me. I told him that—I explained to him what a Marsden motion is; it’s called a Marsden motion, and that he would have to address the Court himself. I also told him that he is doing this against my advice.”
Defense counsel informed the court that he could not support defendant’s motion to withdraw his plea, because he could not do so ethically. He also told the court that he advised defendant that if defendant wanted to pursue the new defense that counsel found unethical, counsel would ask the court to discharge him.
The court inquired of defendant what his concerns were. Defendant told the court he wanted to withdraw his plea, because he knew of exculpatory evidence that was not disclosed to his counsel. The court asked defendant at length about the evidence. The court also asked defendant about his attorney, to which defendant said: “He’s done a good job for me so far, but I’ve lied to him, and I don’t think he would fight for me, because I don’t think he trusts me right now.”
The court stated that it found “no substance whatsoever to [defendant’s] assertion that there’s additional evidence that might be of benefit to him.” The court went on to state “the request to withdraw the plea is denied.”
In addition to denying defendant’s request to withdraw his plea, the court stated that in its observation, defense counsel had worked hard for defendant, and there was a “lack of indication or showing that Mr. Worthington’s representation has been in any way inadequate,” and “[t]he Marsden motion is denied.”
Legal Analysis
Unlike situations involving appointed counsel, a defendant may discharge his retained counsel of choice at any time with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 982-983 (Ortiz).) “The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state [citations], and is governed by Code of Civil Procedure section 284, subdivision 2 [citations]. The right to discharge retained counsel is based on ‘ “necessity in view both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust.” ’ [Citation.] . . . [Citation.] Thus, we conclude that the right to counsel of choice reflects not only a defendant’s choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.” (supra, 51 Cal.3d at pp. 983; see also People v. Lara (2001)86 Cal.App.4th 139, 152, fn. omitted (Lara).)
Although a trial court’s denial of a defendant’s Marsden motion is reviewed under the deferential abuse of discretion standard, reversal is automatic when a defendant is deprived of his right to discharge retained counsel and defend with counsel of his choice. (United States v. Gonzalez-Lopez (2006) 548 U.S. ___ [126 S.Ct. 2557].) “The right to counsel of choice is one of the constitutional rights most basic to a fair trial. Accordingly, it is clear that a criminal defendant need not demonstrate prejudice resulting from a violation of that right in order to have his conviction reversed.” (Ortiz, supra, 51 Cal.3d at p. 988.) Ortiz reasoned that the improper denial of a defendant’s right to discharge retained counsel was similar to the violation of other “ ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . . .’ ” (Ibid., quoting Chapman v. California (1967) 386 U.S. 18, 23.)
In the present case, there is dispute between the parties as to whether defendant in fact made a motion to discharge his retained counsel. The People assert defendant merely asked to withdraw his plea, to which his attorney would not concur and indicated a new attorney would need to be appointed if defendant wished to proceed in that matter. The People further assert that defendant’s request to discharge his attorney was actually contingent on proceeding with the motion to withdraw his plea.
We note that although defendant did not specifically move to discharge his counsel, he implicitly requested such discharge by communicating to the court that he feared his lawyer would no longer fight for him because defendant had lied to him. Several cases have held that similar types of “implicit” motions to discharge retained counsel are valid. (Lara, supra, 86 Cal.App.4th at p. 158; Bland v. California Dept. of Corrections (9th Cir. 1994) 20 F.3d 1469.) In Lara, supra, 86 Cal.App.4th 139, the defendant was represented by retained counsel. On the date the case was assigned for trial, counsel informed the court that the defendant had some complaints about his representation. The prosecutor started to leave the courtroom in anticipation of a Marsden motion. The court instructed the prosecutor to remain in the courtroom, and asked counsel for clarification as to whether the defendant was making a Marsden motion. Counsel stated: “I don’t think [defendant] knows the name, but I have a feeling that is probably what it is.” (Id. at p. 146.) The trial court then asked the defendant if he had “some question that you want the Court to respond to with regard to a disagreement between you and [counsel].” (Ibid.) Defendant replied that he did, and the court cleared the courtroom and held the Marsden hearing. At the end of the hearing, the court found the conflict between the defendant and counsel was a “tactical difference and doesn’t rise to the level in the type of breakdown in the attorney/client relationship that Marsden is looking at. And, therefore, at the present time I am going to deny your request in the Marsden . . . .” (People v. Lara, supra, 86 Cal.App.4th at p. 148.)
On appeal, the Lara court first explained that a Marsden motion was an inappropriate device to consider the defendant’s complaints about his retained counsel. The court then considered whether the defendant’s comments amounted to a request to discharge his retained attorney. The court held that they did. It noted that the trial court had interpreted the defendant’s complaints as being sufficient to raise a Marsden motion, and that the trial court’s factual interpretation of the situation indicated that defendant’s comments about his counsel were “sufficient to implicate his right to discharge his retained counsel, and either hire a new attorney or request the appointment of counsel.” (Lara, supra, 86 Cal.App.4th at p. 158.)
Based on the record in the present case, we conclude that appellant’s comments were likewise sufficient to constitute a request to discharge retained counsel. Although defendant made no express request to substitute counsel at his in camera hearing, expressing instead that he believed his attorney could not longer represent him because he had lost trust in defendant, it is clear the trial court treated defendant’s complaint as a Marsden request to substitute counsel. Indeed, at the end of the hearing, the court stated: “The Marsden is denied.” Given these facts, we conclude that although defendant did not make an express motion to discharge his retained counsel, his comments, along with those of the trial court, were sufficient to implicate his right to discharge retained counsel.
By our review of the record, it is clear the trial court’s focus during the in camera hearing was defendant’s counsel’s competence. Implicitly finding that defendant had not demonstrated incompetence of counsel, the court denied what it perceived to be defendant’s request to discharge his retained counsel. In basing its denial on defendant's failure to show incompetence of counsel, pursuant to Marsden, supra, 2 Cal.3d 118, the court applied the wrong legal standard. In Ortiz, supra, 51 Cal.3d 975, 984, the court held that where the counsel sought to be discharged is defendant’s own retained counsel, the defendant need not demonstrate that counsel is providing inadequate representation or that defendant and counsel are embroiled in irreconcilable conflict.
However, Ortiz also stated: “A nonindigent defendant’s right to discharge his retained counsel . . . is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ [citations] . . . . [Citation.] [T]he ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.” ’ ” (Ortiz, supra, 51 Cal.3d at pp. 983-984.)
This point was also emphasized in People v. Turner (1992) 7 Cal.App.4th 913, 918: “A trial court need not permit a defendant to discharge retained counsel where: (1) it would cause ‘ “significant prejudice” ’ to the defendant, e.g., by forcing him to trial without adequate representation; or (2) it is untimely and would ‘result in . . . “disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” ’ [Citation.]”
Here, because the trial court applied the Marsden standards to defendant’s request, there is no indication in the record that the trial court considered the relevant factors for a request to discharge retained counsel, such as timeliness and possible prejudice. Therefore, the court cannot be said to have exercised its discretion. “A court which is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.” (Lara, supra, 86 Cal.App.4th 139, 165-166.) When the defendant does not discuss and the trial court does not consider the relevant factors, “there is no way [for an appellate court] to determine whether allowing appellant to discharge his retained counsel and granting a continuance would have been prejudicial to the prosecution and disrupted the orderly process of justice.” (Id. at pp. 163-164.)
In such an instance, the appropriate remedy for this error is a limited remand allowing the trial court to determine, after considering the relevant factors, whether defendant’s motion should be granted.
Disposition
The judgment is reversed. The case is remanded to the trial court for a determination whether defendant’s request to discharge his retained attorney should have been granted based on the relevant factors of the timeliness and disruptive potential of defendant’s request, and whether such request would prejudice defendant. If the trial court denies this request, the trial court shall reinstate the original sentence. If the trial court grants this request, defendant will be entitled to proceed with a new attorney.
WE CONCUR: PREMO, J., ELIA, J.