Opinion
G060353
12-22-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVID FORTINO SANCHEZ, Defendant and Appellant.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, A. Natasha Cortina, and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 19CF2786, Michael J. Cassidy, Judge. Reversed and remanded with instructions.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Collette C. Cavalier, A. Natasha Cortina, and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P.J.
INTRODUCTION
As we very recently stated, there is enshrined in California law a procedural mechanism by which a criminal defendant may "raise the issue of ineffective assistance of counsel by means of a motion to discharge his or her attorney and appoint a new one." (People v. Whitmore (2022) 80 Cal.App.5th 116, 128.) "The seminal case regarding [such a motion is People v. Marsden (1970) 2 Cal.3d 118], which gave birth to the term of art, a 'Marsden motion.' [The California Supreme Court] 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.'" (People v. Smith (1993) 6 Cal.4th 684, 690 (Smith).)
Unfortunately, so few of these motions have any merit that they are sometimes given short shrift. After the 99th meritless Marsden motion, it sometimes becomes difficult to believe the 100th should be the one in which the court should exercise its discretion in the defendant's favor.
But the trial court's discretion is not unlimited in such motions. It must give a criminal defendant a full opportunity to outline his or her concerns about counsel's representation. Here, no such opportunity was given. We cannot be sure this error was harmless beyond a reasonable doubt and must therefore reverse.
FACTS
On the night of October 5, 2019, Daniel Samarin, a police officer for the City of Orange, was on patrol near the intersection of Chapman Avenue and Main Street when he saw a vehicle pass by at about 35 to 40 miles per hour with its passenger side door open. Screaming was audible from the vehicle. He and his partner officer stopped the vehicle with guns drawn, because both passenger and driver-side doors were open.
Reaching the passenger door, Officer Samarin observed a woman named Jennifer covered in blood; it was on her face, hands, shirt, and jeans. Two children under the age of five were screaming in the back. Jennifer, too, was hysterically crying and had a terrified look in her eyes. The officers found appellant in the driver's seat, with blood on his face and bloody hands still on the steering wheel. Relative to Jennifer, appellant appeared calm.
In fact, blood was the "[f]irst thing [Officer Samarin] noticed."
Jennifer told police she and appellant had been on their way home from a friend's house and had gotten into an argument in the car regarding the timing of their departure. She said appellant struck her multiple times in the face while driving. She had attempted to call her mother and take the keys out of the car to get appellant to stop. Appellant struck her again and threw her phone out the window when she threatened to call 911. Jennifer told Officer Samarin appellant had abused her before, and she already had a protective order requiring only peaceful contact between the two of them. The protective order stemmed from a 2017 incident in which appellant had violently awakened Jennifer, called her a "whore," and assaulted her for having connections with others on Facebook.
On October 17, 2019, appellant was charged with domestic battery and assault, child endangerment, witness intimidation, and violating the protective order. Trial took place on January 13, 2020.
Jennifer had recanted her accusation against appellant in 2017, and when it came time to try appellant in this case, she once again recanted on the stand. She testified she wanted appellant to be a present father for her children and did not want him to go to jail. She seemed to blame her own anger management issues for the violence between them. With respect to the events of October 5, 2019, she said she and appellant were moving into a house together, and her injuries were caused by the force of a medium- sized item on her lap jamming into her mouth when appellant slammed on his brakes to avoid rear-ending another vehicle.
Appellant's counsel sought to introduce the testimony of a prison doctor who had examined appellant on October 12, 2019, one week after the incident, regarding a broken jaw he had suffered. An X-ray performed by said doctor on November 7, 2019, showed the left side of his jaw was indeed fractured. The doctor was prepared to testify appellant had indicated to her he was having jaw pain from a car accident on October 5, 2019, and would opine that his injury seemed consistent with blunt trauma from hitting his face against the steering column of a vehicle, but the trial court would not allow the doctor's testimony, finding it irrelevant and hearsay. Appellant chose not to testify and the defense rested.
During closing arguments, appellant's counsel urged the jury to ignore Jennifer's testimony entirely and find appellant not guilty. The jury chose otherwise, and convicted appellant on all counts.
All further references to Marsden shall be to People v. Marsden (1970) 2 Cal.3d 118.
After numerous continuances owing to the COVID-19 pandemic, sentencing was set for March 5, 2021. But the proceedings that day began with a closed session Marsden hearing. Appellant explained that he had not met his trial counsel until about one month prior to trial, in December 2019. Counsel, he claimed, had promised to visit him prior to trial to "go over everything," but he "never once" did. Appellant said his car had been towed with his property inside and he was not notified. He and counsel had not been able to talk about the case until the first day of trial. At that point, counsel told him he already had a defense in mind. Appellant responded by handing counsel a stack of papers he had accumulated, asking him to go over it. It was not clear whether counsel reviewed this material. There were witnesses appellant desired to subpoena, and he claimed counsel had failed to do so. He also claimed to be in possession of text messages and phone calls that would be relevant to his defense.
The trial court turned to defense counsel for a response. Counsel said he had met with appellant prior to trial and thought they had agreed on "where the Defense was going." According to counsel's recollection, appellant had been focused on his broken jaw and counsel pointed out he had tried to introduce the prison doctor's testimony on this. He had also pursued appellant's request to find the officers' body-worn camera recordings. Once appellant began voicing his dissatisfaction with counsel's representation, their rapport began to break down. Appellant indicated he wanted to make a Marsden motion, and counsel said this put communication between him and his client at a "standstill." Counsel says he told appellant that any mistakes made by counsel in the representation could be raised on appeal.
The court asked appellant whether he had understood what his counsel had said. Appellant said he did not agree with counsel's version of events and reiterated he had no idea what his defense was going to be before trial. He claimed he had wanted to subpoena an officer who might testify to his spitting out blood at the time he was detained. He also wanted to be able to read out notes he took to document his meetings with counsel, saying it would take him only a few minutes to do so. The trial court would not allow it and denied the Marsden motion, commenting: "That's something that you can appeal, if you don't think you had a fair trial. Right now we're here for sentencing."
Appellant eventually received a sentence of eight years in prison.
DISCUSSION
Appellant argues the trial court wrongly denied his Marsden motion without permitting him an opportunity to present the factual basis of his concerns. We may only reverse the trial court's decision if it has abused its discretion and committed prejudicial error. "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.) Put differently, a defendant must have made a showing "that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (Id. at p. 696.)
For our purposes, Marsden was seminal not just for vesting discretion in the trial court, but also in its edict that said discretion be exercised with the benefit of a detailed factual record. The high court felt a trial judge could not "thoughtfully exercise its discretion" on a substitution motion without allowing the defendant to "relate specific instances of misconduct" before making its decision. (Marsden, supra, 2 Cal.3d at pp. 123-124.) The question before us in this case is whether the trial court's inquiry met the Marsden standard. After careful consideration, we conclude it was not.
In the 52 years since Marsden was decided, our Supreme Court and many other appellate courts have provided us with useful guideposts in our inquiry. We know that a denial of a Marsden motion will be reversed when the trial court fails to hold a hearing at all. In People v. Sanchez (2011) 53 Cal.4th 80, our high court reversed the denial of such a motion where the trial court appointed a '"conflict"' counsel in order to evaluate the defendant's complaints about his attorney's advice on entering a plea, but did not actually hold a hearing on the matter. (Id. at p. 92.) The Sanchez court clarified that a trial court is "obligated . . . to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney" at any point in the proceedings if defendant seeks a substitution. (Id. at pp. 90, 92). Said opportunity can only properly come through a hearing on the record. (See id. at pp. 89-90; see also People v. Hill (1983) 148 Cal.App.3d 744, 753 (Hill) ["As Marsden and its progeny emphatically hold, a court may not go outside the record of the immediate prosecution and base the disposition of defendant's request upon observations of the attorney on other occasions. It follows that where a judge does question defendant's present and/or former attorneys concerning his complaints, that inquiry must be conducted in open court and in the presence of the defendant."].)
We also know that the court must actually consider any information the defendant does put on the record. In People v. Solorzano (2005) 126 Cal.App.4th 1063, a case cited by appellant, a defendant first sought a substitution when the issue of his competency to stand trial was raised. (Id. at pp. 1066-1067.) He told the court his counsel had argued with him and had failed after several weeks to obtain his medical and school records. The trial court said it was not the right time to raise a Marsden motion, because if the defendant was found incompetent, the issue with his counsel would be moot. (Ibid.) It thereafter found him competent to stand trial and reinstated the criminal proceedings. (Id. at p. 1067.) Defendant again asked to substitute his counsel about one week later, after the case was transferred to a new judge. The new judge held a hearing at which the defendant was permitted to air his grievances at more length. (Id. at p. 1067.) The Fifth District Court of Appeal reversed the eventual judgment against defendant, finding the trial court committed prejudicial error in failing to fully consider the information defendant had proffered prior to evaluating his competence. It reached this conclusion even though the new judge had conducted the appropriate hearing after criminal proceedings had been reinstated. (Id. at pp. 1070-1071.)
The California Supreme Court very recently clarified that the trial court is not required to call witnesses in order to "adequately evaluate" a Marsden motion, but in some cases, such an evaluation will necessitate witness testimony. (See People v. Ng (2022) 13 Cal.5th 448, 500.) Where counsel's performance is being questioned, he or she is likely the best witness. In People v. Abilez (2007) 41 Cal.4th 472, a case cited by respondent, the defendant laid out four specific concerns about the representation he was receiving, and his counsel was able to address each concern. "Counsel had adequate explanations for all of defendant's complaints, and '"[t]o the extent there was a credibility question between defendant and counsel at the hearing, the court was 'entitled to accept counsel's explanation.'"'" (Id. at p. 488.)
In contrast, this case leaves us with some doubts. To be sure, as respondent argues, the trial court gave appellant a chance to "talk about [his] lawyer," and his lawyer was given a chance to respond generally. The trial court was indeed authorized to make a credibility determination as between appellant and his counsel. But absent an understanding of appellant's specific concerns and the extent to which counsel's explanations addressed these specific concerns, if at all, the trial court could not fairly make such a determination.
Defendant raised four separate concerns: (1) his lawyer had not consulted with him prior to trial to prepare a defense, (2) his lawyer had failed to protect his interest in his vehicle, (3) his lawyer did not review the material he had provided, and (4) his lawyer did not gather all relevant evidence (text messages, witness testimony, and documents).
On the first issue, appellant and his counsel had a clear difference in their recollections. Appellant said counsel had not visited him once before trial, and counsel said he had indeed visited him prior to trial and thought they had agreed upon a defense. The trial court seemed to accept counsel's version. But it failed to consider all evidence in doing so. Appellant claimed he had taken contemporaneous notes of counsel's visits and it would take him only two minutes to read them aloud. Though its haste to bring a long-pending criminal case to resolution is understandable, the trial court erred by not permitting appellant to present this evidence, which would have been directly pertinent to the credibility assessment it was making. We recognize that "'the number of times one sees his attorney, and the way in which one relates [to] his attorney, does not sufficiently establish incompetence.'" (People v. Hart (1999) 20 Cal.4th 546, 604.) Thus, the number of visits, standing alone, do not meet appellant's burden. But the amount of communication between counsel and client is but one relevant factor in deciding whether a robust defense will be presented.
The second issue has little or no bearing on appellant's representation in the criminal trial and would not have been a proper ground for substitution.
As to the third, counsel never said whether he reviewed the stack of materials appellant had given him. To this day, we do not know what this stack contained, or whether the documents in it might have been exculpatory or in some other way helpful to the defense.
The fourth issue is unclear. Counsel recognized that appellant wanted to bring in the prison doctor to testify about his broken jaw, and we know the trial court duly considered and refused that request. Counsel also said appellant had "an issue . . . about a body-worn camera" which he had pursued, but the meaning of this statement is opaque. At a certain point, counsel admitted he began to scale back his communications with appellant. With several unresolved factual details, we cannot see how the trial court could determine whether appellant's right to assistance of counsel was substantially impaired. "It is the trial court's duty at a Marsden hearing to 'listen to and evaluate a defendant's claim that counsel are failing to perform adequately.'" (People v. Clark (2011) 52 Cal.4th 856, 918, quoting People v. Memro (1995) 11 Cal.4th 786, 855.) The record here does not reflect such an evaluation.
Respondent rightly points out appellant was not entitled to a substitution based on his disagreement with tactical or strategic decisions, which are the attorney's purview. (See Hill, supra, 148 Cal.App.3d at p. 753.) But while the trial court indicated it felt appellant's concerns "sound[ed] like [they were] all strategy decisions from an attorney," such a conclusion could not be drawn without undertaking a more particularized inquiry into what the concerns actually were. For instance, if counsel failed to review documents in appellant's possession, it would be a failure to gather evidence, not a strategy decision.
Perhaps more worrisome to us is the misconception apparently shared by both defense counsel and the court, which manifested itself at the hearing. Both told appellant his complaints were better suited for an appeal based on ineffective assistance of counsel. This erroneous belief had serious constitutional repercussions.
For one thing, a defendant cannot meet his burden to reverse a Marsden denial without the benefit of a sufficient record. Thus, "[f]ailure to inquire adequately into a defendant's complaints results 'in a silent record making intelligent appellate review of defendant's charges impossible.'" (Hill, supra, 148 Cal.App.3d at p. 755, quoting People v. Cruz (1978) 83 Cal.App.3d 308, 317.) And in Cruz, the inquiry was inadequate even though the trial court there had not "cut off defendant or prevent[ed] him from offering his reasons for his dissatisfaction," as happened to appellant here. (Ibid.)
Second, if he desires to make such an argument, the defendant bears the burden on appeal to establish the constitutional inadequacy of his appointed counsel's performance. So, "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (People v. Wang (2020) 46 Cal.App.5th 1055, 1088.)
Here, appellant's counsel told the court and his client that, if mistakes were made, "that's what the appeal is for." The trial court asked appellant if he understood, as if acquiescing in the notion. When appellant reiterated his belief that counsel had not visited him before trial, the court told him trial was "over." Appellant acknowledged this, but said he asked counsel after trial whether he had done '"those things"' he had '"told [him he] would do,"' including subpoenaing the detaining officer who allegedly witnessed him spitting out blood. He said his notes could prove when counsel had visited him, and he also wished to present his mother's testimony about counsel's frequent broken promises to visit. The court responded "What does that have to do with what we're here for today? We're here for the trial on the priors . . . and sentencing." Appellant then asked if he could read his notes, but the court disallowed it, saying "There's no reason to read anything." The court inquired whether the notes contained "[m]ore or less . . . the same things" appellant had already discussed, but appellant seemed to disagree. The court then said the following: "You may at some point have grounds for an appeal, but that's not what we're here for. We're here for sentencing and the trial on the priors. What you are telling me is nothing to do with that. Nothing to do with it at all ...." "So there's no grounds for a Marsden." Ironically, the trial court's mistaken belief that appellant could only raise his concerns on appeal left appellant with too little record with which to perfect one.
Since we have determined the trial court failed to hold an adequate Marsden hearing, "[r]eversal is required unless the record shows beyond a reasonable doubt that [the defendant] was not prejudiced." (See People v. Reed (2010) 183 Cal.App.4th 1137, 1148, citing Marsden, supra, 2 Cal.3d at p. 126 and Chapman v. California (1967) 386 U.S. 18, 24.) As respondent's own authority states, it is a "rare case that does not compel reversal under that standard." (See People v. Winn (2020) 44 Cal.App.5th 859, 871 (Winn).) In Winn, reversal was not required because the evidence against the defendant therein was overwhelming. He had been on trial for first degree murder in the stabbing death of a man, and he did not dispute he stabbed the victim. (Id. at p. 862.) His claim of self-defense was very weak and was not supported by the evidence. (Id. at p. 871.)
In contrast here, appellant claims his counsel failed to follow up on evidence which might have indicated he was not at fault for Jennifer's injuries. Appellant had not admitted to striking Jennifer, so far as we can tell from the record. His counsel suggested there was a vehicular incident in which he had to slam on his brakes to avoid a collision, and injuries resulted. Indeed, appellant claims there were police witnesses who might have testified that he had facial injuries. We do not know what this evidence might have yielded.
The People insist appellant's only viable defense was to highlight Jennifer's inconsistent statements, which his counsel did, and the Marsden motion was simply sour grapes because the jury did not find her recantation sincere. Such a statement is speculative, as our record does not give us a clear picture of the potentially helpful evidence counsel may have disregarded. And even if appellant had previously abused Jennifer, it did not mean he had committed battery in this particular instance.
All of which we offer primarily as guidance for the Marsden motion which must now be re-conducted. While there may be nothing here, the inclination of court and counsel that they felt this matter was irrelevant at the time set for the sentencing and was matter for an appeal necessitates reversal. No appeal on the basis of inadequate assistance of counsel is possible without a record; the procedure espoused below would have necessitated a review by habeas corpus, a review much less effective and economical than expanding the Marsden motion here to allow appellant to read his notes, examine counsel, call his mother to the stand, and hear appellant out.
We offer no opinion on how this should be resolved. Whether there is substance to appellant's complaint is a matter correctly committed to the trial court's discretion. We hold only that the trial court needs more information than it had.
DISPOSITION
The judgment is conditionally reversed and remanded to the trial court, with instructions to conduct an adequate Marsden hearing in accordance with this opinion as soon as possible. Should the trial court deny appellant's motion after doing so, the judgment shall be reinstated.
WE CONCUR: MOORE, J., GOETHALS, J.