People v. Lopez

On appeal, Lopez contends the trial court erred by denying his request to discharge his retained counsel and incompletely advising him about various consequences of his plea. We conclude Lopez was denied his right to counsel of choice under

THE COURT: But you're the attorney of record.

MR. HAMMOND: I am the attorney of record, yes.

THE COURT: I'm really not inclined to grant that request. The matter is almost two years old. It will be two years old on January 29th. And you've been in the case since when, June?

MR. HAMMOND: I got retained pretty much from the get go.

THE COURT: From the beginning.

MR. HAMMOND: Yes.

THE COURT: Okay. And you're prepared to go to trial next week?

MR. HAMMOND: I am.

The trial court then addressed Lopez, stating, "Mr. Lopez, this is simply not the time when-when you ask for a new lawyer. We're set. This case has been pending for some time. There's been an offer that's been made I understand from the District

Lopez then pleaded no contest to two of the charges of non-forcible lewd acts upon a child under 14 years old and the charge of forcible rape. In connection with the rape charge, he also admitted the special allegation that a victim was 14 years of age or older and he committed offenses against more than one victim. On the prosecution's motion, the trial court dismissed the remaining counts and allegations. Lopez was sentenced to a total term of 35 years to life in prison, composed of a term of eight years for one of the lewd-acts counts, a consecutive term of two years for the other one, and a consecutive term of 25 years to life for the rape and accompanying special allegation.

In May 2016, Lopez appealed and requested a certificate of probable cause in propria persona. In January 2017, while his request was still pending, he filed a petition for writ of mandate in this court ( Lopez v. Superior Court of Napa County , A150352). This court issued an order indicating the trial court had jurisdiction to rule on the request. The trial court then granted the request, and this court dismissed the writ petition as moot.

DISCUSSION

A. General Legal Standards.

Few restrictions apply when a defendant wants to discharge his or her retained counsel. The right to retained counsel of choice is generally "guaranteed under the Sixth Amendment to the federal Constitution. [Citations.] In California, this right 'reflects not only a defendant's choice of a particular attorney, but also his [or her] decision to discharge an attorney whom he [or she] hired but no longer wishes to retain.' " (

"The right to discharge a retained attorney is, however, not absolute." ( Verdugo, supra , 50 Cal.4th at p. 311, 113 Cal.Rptr.3d 803 , 236 P.3d 1035 .) A trial court may deny a request to discharge retained counsel "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.' " ( Ortiz, supra , 51 Cal.3d at p. 983, 275 Cal.Rptr. 191 , 800 P.2d 547 .) As Ortiz explained, "the 'fair opportunity' to secure counsel of choice provided by the Sixth Amendment 'is necessarily [limited by] the countervailing state interest against which [this] 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." ' " ( Id. at pp. 983-984, 275 Cal.Rptr. 191 , 800 P.2d 547 .) Here, the only issue we need address is whether Lopez's request was properly denied as untimely, as the trial court did not suggest it was concerned about potential prejudice to Lopez, and the Attorney General does not argue that the ruling was justified on this basis.

Ortiz held that the right to discharge retained counsel applies equally whether a defendant is nonindigent or indigent, as similar concerns about the attorney-client relationship and effectiveness of counsel apply regardless of the defendant's economic status. ( Ortiz, supra , 51 Cal.3d at p. 984, 275 Cal.Rptr. 191 , 800 P.2d 547 .) "In fact, ... it may be even more important for an indigent defendant to be able to discharge retained counsel: if his [or her] motion is denied, he [or she] must choose between proceeding with no legal assistance or continuing with a retained attorney reluctantly serving on a pro bono basis. ... [¶] The risk in compelling a defendant to go to trial with unpaid counsel against his [or her] wishes and those of his [or her] attorney, is that the defendant will 'get what he [or she] paid for.' " ( Id . at pp. 984-985, 275 Cal.Rptr. 191 , 800 P.2d 547 .)

We review a trial court's denial of a request to discharge retained counsel for an abuse of discretion. ( Verdugo, supra , 50 Cal.4th at p. 311, 113 Cal.Rptr.3d 803 , 236 P.3d 1035 .) A trial court "must exercise its discretion reasonably: 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.' " ( Ortiz, supra , 51 Cal.3d at p. 984, 275 Cal.Rptr. 191 , 800 P.2d 547 .) The erroneous denial of a defendant's right to discharge retained counsel is presumptively prejudicial and automatically requires

Lopez argues that his request to discharge retained counsel was not untimely and that the trial court erred by not inquiring into "whether justice would be unjustifiably delayed by granting the motion." We agree.

Although the Attorney General does not contend otherwise, we begin by observing that Lopez's request was not untimely as a matter of law. People v. Lara (2001) 86 Cal.App.4th 139 , 103 Cal.Rptr.2d 201 ( Lara ) is instructive. In that case, the defendant's "trial was delayed over one and one-half years," and "[o]n the day the trial was scheduled to begin, [the defendant] requested to discharge his [retained] attorney." ( Id. at p. 144, 103 Cal.Rptr.2d 201 .) The trial court incorrectly construed the request as a Marsden motion and denied it. ( Id. at pp. 146, 155, 103 Cal.Rptr.2d 201 .) In reversing, Lara rejected the Attorney General's argument "that a motion to discharge retained counsel on the first day of trial was necessarily untimely." ( Id. at pp. 162-163, 166, 103 Cal.Rptr.2d 201 .) To support its conclusion, the appellate court observed that the trial had been repeatedly continued at the request of both parties, the defendant made his request "prior to the [trial] court's consideration of any other motions or the commencement of jury selection," the prosecutor did not object that the request was untimely, and there was "no evidence to suggest that [the defendant] raised [his] complaints in an effort to improperly delay the proceedings." ( Id. at p. 162, 103 Cal.Rptr.2d 201 .)

The facts are similar here: the case was old and both parties had successfully requested continuances of the trial, Lopez asked to discharge Hammond before it was clear whether the trial would proceed, and the prosecutor did not object to the request. In addition, the trial court did not indicate it believed Lopez had improper motives in seeking to discharge his counsel and, if anything, the record suggests the contrary. Lopez was clearly unsure whether to accept the prosecution's offer, and previous continuances were granted based on Hammond's difficulties in meeting with him. Moreover, Lopez had not retained Hammond for trial, raising the specter discussed in Ortiz : the risk that Lopez would " 'get what he paid for' " if he was forced "to go to trial with unpaid counsel against his wishes and those of his attorney." ( Ortiz, supra , 51 Cal.3d at p. 985, 275 Cal.Rptr. 191 , 800 P.2d 547 .) Lopez may have legitimately wished to obtain counsel who could better help him evaluate the prosecution's offer and, if he decided to reject it, provide more motivated representation at trial. In short, under Lara , even though Lopez's case was two years old and he brought his motion right before trial was set to begin, those circumstances alone do not justify the trial court's ruling.

The Attorney General suggests that, even if not dispositive, "[t]he timeliness/disruption factor noted in Ortiz ... weigh[ed] heavily in favor of

If anything, the Bland factors better track the relevant considerations under Marsden , the other California decision the Ninth Circuit cited. (See People v. Smith (2003) 30 Cal.4th 581 , 606-607, 134 Cal.Rptr.2d 1 , 68 P.3d 302 [three factors discussed in Bland "are consistent with California law under [ Marsden ] and its progeny"].) As we have said, under Marsden , an indigent defendant seeking to replace appointed counsel must establish either an irreconcilable conflict with counsel or counsel's incompetence. (

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

We concur:

Dondero, J.

Banke, J.

The trial court then denied the "request to dismiss Mr. Hammond" and passed the matter to allow Lopez to consult with Hammond about the prosecution's offer. When they were back on the record, Hammond said, "Well, I thought we had an agreement, and things seem to have gone south. [¶] ... [¶] So I think my client is ... concerned about the way that the statutes read. And perhaps he doesn't understand some of the language in the statutes as they're pled in the Complaint." The court confirmed the details of the offer with the prosecutor and explained to Lopez the three charges and the multiple-victim allegation to which he would be pleading.

The trial court also explained that if Lopez accepted the prosecution's offer, he would receive a sentence of 35 years to life, and he had to

This case is also distinguishable from People v. Keshishian (2008) 162 Cal.App.4th 425 , 75 Cal.Rptr.3d 539 , which affirmed the denial of a request to discharge retained counsel in a murder case as untimely. ( Id. at p. 429, 75 Cal.Rptr.3d 539 .) As was true here, the case was about two years old, the defendant made the request on the day his trial was to start, and he "had neither identified nor retained new counsel." ( Id. at pp. 427-429, 75 Cal.Rptr.3d 539 .) In Keshishian , however, "[t]he prosecution vigorously opposed a further continuance, citing the passage of time since the incident, the age of the case[,] and problems with witnesses." ( Id. at p. 428, 75 Cal.Rptr.3d 539 .) In contrast, the prosecution in this case previously requested a continuance of trial and did not object to Lopez's request. In addition, the Keshishian defendant "asked for and was given an opportunity to address the [trial] court concerning his desire to discharge counsel and his reasons for doing so," and he stated only that he had " 'lost confidence' in his attorneys." ( Id. at p. 429, 75 Cal.Rptr.3d 539 .) But here, the trial court did not give Lopez the opportunity to speak or inquire into his concerns.

" '[A] court faced with a request to substitute retained counsel must balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution. [Citation.]' [Citation.] Blanket generalizations about possible delay will not suffice. 'To exercise the power of judicial discretion [in ruling on [a] motion to relieve retained counsel], all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision.' " ( Munoz, supra , 138 Cal.App.4th at p. 870, 41 Cal.Rptr.3d 842 , some brackets in original.) In other words, a court cannot assume that the discharge of counsel would require "substantial delay in the administration of justice" based only on the request's timing. ( Id. at pp. 869-870, 41 Cal.Rptr.3d 842 .) Here, however, the only inquiry the trial court made was into how long Hammond had represented Lopez and whether Hammond had been retained for trial, and it did not explicitly weigh any concerns about the case's progress against Lopez's right to discharge his retained attorney.

The Attorney General argues at length that Lopez had the responsibility to "come forward with any conflicts he was having with his attorney" and that the record is devoid of any suggestion "that actual conflict existed." This focus on whether a conflict existed is misguided. The Attorney General structures his discussion around three factors from a federal habeas case, Bland v. California Dept. of Corrections (9th Cir. 1994) 20 F.3d 1469 ( Bland ) (overruled in part on other grounds by Schell v. Witek (9th Cir. 2000) 218 F.3d 1017 ). Bland addressed whether a California trial court's denial of a request to discharge retained counsel violated the defendant's Sixth Amendment rights. ( Id. at pp. 1472, 1475.) The Ninth Circuit Court of Appeals set forth the standard governing the trial court's ruling as follows:

When reviewing the denial of a motion to substitute counsel for abuse of discretion, we consider the following three factors: "(1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense." [Citation.] These elements required under the Sixth Amendment are consistent with California state law which protects the defendant's constitutional right to counsel of his [or her] choice. See, e.g ., People v. Ortiz , 51 Cal.3d 975 , 275 Cal.Rptr. 191 ,196-97, 800 P.2d 547 , 552-53 (1990) ; People v. Marsden , 2 Cal.3d 118 , 84 Cal.Rptr. 156 , 159-61, 465 P.2d 44 , 47-49 (1970).

( Bland , at pp. 1475-1476.)

In sum, we conclude that the trial court erred by denying Lopez's request to discharge retained counsel, and reversal is therefore required. ( Ortiz, supra , 51 Cal.3d at p. 988, 275 Cal.Rptr. 191 , 800 P.2d 547 .) On remand, the court must permit Lopez to discharge Hammond, and "[o]nce new counsel is appointed, the case shall proceed anew from the point [Lopez] originally sought to discharge his attorney." ( Munoz, supra , 138 Cal.App.4th at p. 871, 41 Cal.Rptr.3d 842 .) Thus, the court must permit Lopez to withdraw his plea.