Filed 2/3/21 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074515
v. (Super.Ct.No. SWF1800385)
MANUEL ARTURO GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III,
Judge. Reversed with directions.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U.
Le, Deputy Attorneys General, for Plaintiff and Respondent.
1 On the eve of trial, appellant Manuel Arturo Gonzalez faced several charges
related to drug and gun possession and resisting arrest. He also had a plea offer under
which he would admit to negligent discharge of a firearm, resisting a peace officer, and
possession of methamphetamine in return for dismissal of other serious charges and
recommendations that Gonzalez enter a residential substance abuse treatment program or
serve a maximum term of two years in prison. Gonzalez balked and instead asked the trial
judge to allow him to replace his retained attorney with a new attorney. The trial judge
sent the matter out to another judge for what he characterized as a Marsden hearing,
which is the procedure when a criminal defendant seeks to replace appointed counsel, not 1 retained counsel.
At the hearing, the new judge also treated the hearing as a Marsden hearing. He
found the conflict between Gonzalez and his retained attorney not serious and based
primarily on Gonzalez’s misunderstanding of his legal situation. The new judge
counseled Gonzalez to face the facts as he understood them and to seriously consider
taking the plea, which the judge characterized as excellent because he would face a
substantially longer state prison sentence if found guilty only on the charges of
possessing a firearm while under the influence and discharging a firearm. In the end, the
judge “den[ied] the Marsden motion, because what’s clear to this Court is the lines of
1 People v. Marsden (1970) 2 Cal.3d 118.
2 2 communication between both of you are open.” Gonzalez then took the plea and, after
being turned down for the residential treatment program, received a two-year sentence
from the new judge.
On appeal, Gonzalez argues the judge abused his discretion by denying his motion
to discharge retained counsel based on the legal standard in Marsden. The correct
standard for retained counsel is found in People v. Ortiz (1990) 51 Cal.3d 975 and
requires no finding of conflict between a defendant and his counsel. Because error in
denying the right to counsel of choice is structural, Gonzalez asks us to reverse the
conviction and remand to the trial court so he may withdraw his plea. Though we agree
with the trial judge’s assessment of the plea offer, we agree we must reverse and remand.
I
FACTS
The Riverside County District Attorney filed a felony complaint against Gonzalez
on June 5, 2018. Initially, a public defender represented Gonzalez. However, he later
retained a private attorney, who first appeared at an April 17, 2019 hearing. The trial
court allowed the substitution of new counsel but noted both parties had a right to a
speedy trial and commented that the case was already “very old,” and he was granting the
motion “with the anticipation that the case must move forward.”
The hearing transcript is entitled “Reporter’s Sealed Transcript on Appeal 2 Marsden Hearing.”
3 Two months later, the prosecution filed an information charging appellant with six
separate offenses: discharging a firearm in a grossly negligent manner (Pen. Code,
§ 246.3), resisting an executive officer (Pen. Code, § 69), personally possessing a firearm
while under the influence of a controlled substance (Health & Saf. Code, § 11550, subd.
(e)), possessing methamphetamine while armed with a loaded, operable firearm (Health
& Saf. Code, § 11370.1), possessing an opium pipe or device used to inject or smoke a
controlled substance (Health & Saf. Code, § 11364), and resisting a peace officer (Pen.
Code, § 148, subd. (a)(1)). They alleged Gonzalez personally used a firearm in
committing the first count. (Pen. Code, § 1192.7, subd. (c)(8).) Later, the prosecution
amended the information to add a count for possession of a controlled substance. (Health
& Saf. Code, § 11377.)
On December 9, 2019, the case was set for trial after having been trailed from an
earlier date. The parties had announced they were ready the previous week. When the
case was called, defense counsel, Bryce Armendariz, asked for an in-camera hearing and
then informed Judge Monterosso that Gonzalez wanted to make a motion for substitution
of new counsel. Judge Monterosso told Gonzalez he was “always free to hire another
lawyer,” and he would grant the motion if the new attorney was present and “ready to go
today.”
However, Gonzalez didn’t yet have a new attorney. He said, “this is something . . .
recent, and so I was hoping that maybe I could get some time to find new counsel.” When
the judge expressed concern because the case had already been pending for 18 months,
4 the matter was set for trial, and the parties had said they were ready to proceed just the
week before, Gonzalez explained, “[a]fter we announced ready, there was a change in
circumstances of Mr. Armendariz and I aren’t able to see—agree on a—we had discussed
a plan for my defense.” The judge interrupted Gonzalez so he wouldn’t reveal a
privileged conversation with his attorney.
Judge Monterosso asked the prosecutor for her position, and she responded, “if we
do that, I run into vacation time around the holidays.” The judge didn’t think that would
be an obstacle because he believed new counsel would need two to three months to
prepare for trial. The judge then remarked “this is sort of a Marsden motion,” and said,
“[b]ecause we have private counsel and I think the Court’s going to need to examine
exactly what the conflict is and whether there’s good cause, [it] seems to me, Mr.
Armendariz, maybe this needs to be done in camera?” Defense counsel agreed, and the
trial judge said, “I’ll send you to Judge Dickerson, Department S103, forthwith, to have
an in-camera hearing regarding your client’s request to continue the matter to hire new
counsel because of the conflict with his lawyer.”
Judge Dickerson presided over the hearing, which he too referred to as a “Marsden
hearing.” When the court asked Gonzalez about his reason for “want[ing] to fire [his]
lawyer,” he said his counsel disagreed with his desire to file a motion to compel
discovery of exculpatory evidence, which he believed the prosecution was withholding.
He said there was evidence showing the officers were wearing body-worn cameras at his
5 arrest, which contradicted the prosecution’s representation. He also said he believed the
police had used excessive and unnecessary force in his arrest.
Mr. Armendariz informed Judge Dickerson that the conflict stemmed from
Gonzalez’s belief that he had been harassed by the authorities for a period of years,
culminating in his arrest. As a result, he said, they disagreed over the defense. Gonzalez
wanted him to file a motion to compel video footage of the arrest from body cameras and
the two disagreed whether Gonzalez should take the stand and testify about the
harassment he alleged. Counsel noted Gonzalez believed there was a statute requiring
officers to wear body cameras and reported he had explained to Gonzalez there was no
such law. Counsel also said he had already asked the prosecution for any available
videos, and they had represented there were none. Finally, counsel informed the court
that Gonzalez was refusing to pay his fees for proceeding to trial.
Judge Dickerson explained to Gonzalez that the prosecution was already under an
obligation to turn over all exculpatory evidence, his attorney could not file a motion that
he believes is unsupported, and, though a defendant has input on his defense, counsel has
the final say in filing motions. The judge emphasized counsel had already asked for any
exculpatory video evidence in the prosecution’s possession, and the prosecution indicated
there were no videos. Without contrary evidence, Gonzalez’s belief that the prosecution
was withholding exculpatory video footage would be speculation, making a motion futile.
The judge also explained the prosecution was unlikely to be hiding video footage, since
any resulting conviction would be overturned if they withheld exculpatory evidence. As
6 for his belief the officers used excessive force by using a police dog to subdue him and
had engaged in a pattern of harassment before the arrest, the court explained Gonzalez
could present evidence of such conduct at trial—including his own testimony. The judge
did note, however, that the trial judge might exclude the evidence as not relevant to the
charges he faced.
Judge Dickerson then asked about the plea offered by the prosecution and
expressed his opinion that his attorney had negotiated a good deal, even if Gonzalez were
not guilty of some of the charges. Judge Dickerson admonished Gonzalez not to tell him
about the facts of the case but advised him to evaluate his advice against the facts as he
understood them. “[I]f you have no defense to discharging a firearm and being under the
influence, you’d be looking at prison just for those, even if the jury found you not guilty
on the [charge of section] 69 resisting [arrest] by force.” The judge said, “So you need to
think about this very carefully. Don’t just focus on the police dog. Don’t just focus on
harassment. The issue is whether you have got a drug problem and whether you had
access to a firearm and whether you fired that firearm. If you did—and only you know
it—I am not going to ask you, but you have been charged with it. If you know you can’t
get out from under that, you need to think about the offer that your attorney got you.
That’s an incredible offer.”
Near the end of proceedings, Judge Dickerson asked Gonzalez, “If we brought
down the D.A., do you want to settle in this court, rather than upstairs and get this
handled?” Gonzalez responded, “that’s doable.” Judge Dickerson then said, “Let me do
7 this. Let me have the D.A. come down, right. Let’s see if we can get this handled.” He
then denied Gonzalez’s motion to replace his counsel, saying, “I’m denying the Marsden
motion, because what’s clear to this Court is the lines of communication between both of
you are open, but it’s difficult. This is a difficult environment. So that is done.”
After conferring with his attorney and speaking with the prosecutor, Gonzalez pled
guilty to the counts for negligently discharging a firearm, resisting a peace officer, and
possessing methamphetamine. In exchange, the prosecution dismissed the remaining
charges and agreed to a term of probation with 365 days of custody and screening for the
residential substance abuse treatment program, with a maximum possible sentence of
three years in prison. The plea also indicated if Gonzalez was found ineligible for the
residential treatment program, the case would be brought back for sentencing
reconsideration. Gonzalez agreed to a Cruz waiver, permitting his release from custody in 3 exchange for his promise to return for sentencing.
On December 13, 2019, Gonzalez failed to appear for sentencing. Defense counsel
said he was at home but refused to leave his room. According to counsel, Gonzalez “had
doubts and he maybe wanted to withdraw his plea and about our defense.” Judge
Dickerson issued a warrant for his arrest. At the request of Mr. Armendariz, the judge
relieved him as counsel. The court later appointed a public defender to represent
Gonzalez.
3 People v. Cruz (1988) 44 Cal.3d 1247.
8 On January 9, 2020, Gonzalez was found ineligible for the residential treatment
program, and Judge Dickerson sentenced him to a two-year term for negligently
discharging a firearm and a concurrent 60-day term for each of the other two counts. On
the prosecution’s motion, Judge Dickerson dismissed the remaining counts and
allegations.
Gonzalez filed a notice of appeal the same day. On March 6, 2020, he filed an
amended notice of appeal and requested a certificate of probable cause, which was
granted.
II
ANALYSIS
Gonzalez argues the trial court erroneously handled his request to discharge his
retained counsel by treating it as a Marsden motion. He argues, correctly, that the
Marsden standard was not required because his attorney was retained rather than
appointed. He argues he had the right to discharge his appointed counsel even if there
was no irreconcilable conflict, and the court’s failure to consider the request under the
appropriate standard requires reversal of his conviction. He seeks remand to give him the
opportunity to withdraw his guilty plea.
A. Legal Background Governing Requests to Substitute Counsel
“‘The right to retained counsel of choice is—subject to certain limitations—
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
9 also his decision to discharge an attorney whom he hired but no longer wishes to retain.”
[Citations.] When a defendant makes a ‘timely motion to discharge his retained attorney
and obtain appointed counsel,’ unlike when a defendant seeks to substitute one appointed
counsel for another, he is not required to demonstrate ‘inadequate representation by his
retained attorney, or to identify an irreconcilable conflict between them.’” (People v.
Maciel (2013) 57 Cal.4th 482, 512.)
A defendant who seeks to replace appointed counsel must show good cause for the
change because their right to appointed counsel does not include the right to demand
appointment of more than one counsel. (People v. Ortiz, supra, 51 Cal.3d at p. 980.)
“Substitution of appointed counsel threatens to waste public resources by creating
‘duplicative representation and repetitive investigation at taxpayer expense.’ [Citation.]
Free substitution as a matter of right would present an ‘undesirable opportunity to “delay
trials and otherwise embarrass effective prosecution” of crime.’ [Citations.] Denial of
substitution presumably will not deprive the defendant of effective counsel, because he or
she ‘will continue to be represented by an attorney at public expense.’” (People v. Lara
(2001) 86 Cal.App.4th 139, 151 (Lara).)
“Few restrictions apply when a defendant wants to discharge his or her retained
counsel.” (People v. Lopez (2018) 22 Cal.App.5th 40, 46.) “In contrast to situations
involving appointed counsel, a defendant may discharge his retained counsel of choice at
any time with or without cause. [Citation.] ‘The right of a nonindigent criminal defendant
to discharge his retained attorney, with or without cause, has long been recognized in this
10 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.” (Lara, supra, 86 Cal.App.4th at p. 152.)
The right to discharge a retained attorney is not absolute. “‘The trial court has
discretion to “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.’”’” (People v. Maciel, supra, 57 Cal.4th at p. 512.) “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.” (Lara, supra, 86
Cal.App.4th at p. 153.) “While we do require an indigent criminal defendant who is
seeking to substitute one appointed attorney for another to demonstrate either that the
first appointed attorney is providing inadequate representation [citations], or that he and
the attorney are embroiled in irreconcilable conflict [citation], we have never required a
nonindigent criminal defendant to make such a showing in order to discharge his retained
counsel.” (People v. Ortiz, supra, 51 Cal.3d at p. 984.)
Where an error of this sort occurs, we don’t evaluate it for harmlessness,
“Reversal is automatic . . . when a defendant has been deprived of his right to defend with
counsel of his choice. [Citation.] The right to counsel of choice, including the right to
discharge retained counsel, furthers the dual goals of due process: (1) ensuring the
reliability of the guilt-determining process by reducing to a minimum the possibility that
11 an innocent person will be punished; and (2) protecting the ideal of human individuality
by affirming the state’s duty to refrain from unreasonable interference with a defendant’s
desire to defend himself in whatever manner he deems best. [Citations.] 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
violation of that right in order to have his conviction reversed.” (People v. Ortiz (1990)
51 Cal. 3d 975, 988.)
B. Application
The facts of this case are nearly indistinguishable from the facts of Lara, cited by
Gonzalez. There, as here, on the day trial was set to begin, defendant expressed
dissatisfaction with his privately retained counsel over his preparation and legal tactics.
The trial court explicitly treated the complaint as a Marsden motion, which it denied
because Lara had not shown an irreconcilable conflict. (Lara, supra, 86 Cal.App.4th at
p. 155.) The appellate court noted the correct standard when a defendant seeks to
discharge retained counsel is to allow the move at any time, with or without cause, as
long as they haven’t been unjustifiably dilatory and substitution won’t interfere with
expeditious judicial administration. (Id. at p. 153.)
As in this case, the People in Lara argued for affirmance on the ground that the
defendant’s request was untimely. They argued that even though “the court never
addressed the Ortiz factors, . . . appellant’s request occurred on the scheduled first day of
trial, and the court would not have abused its discretion if it had denied an Ortiz motion
12 as untimely.” (Lara, supra, 86 Cal.App.4th at p. 159.) The Court of Appeal declined to
affirm on the basis that Lara’s day-of-trial request to discharge retained counsel was
untimely, because there was no evidence (1) Lara’s request was made in an effort to
delay the proceedings or (2) that a delay would interfere with the prosecution of the case
after a delay for substitution of counsel. (Id. at pp. 162-163.) The lack of evidence traced
to the trial court’s misapprehension of the correct legal standard. “The trial court
considered the supposed Marsden motion on its merits and did not make any findings as
to the motion’s being untimely. We thus lack any factual findings that [Lara’s] motion
was necessarily untimely or that it would have disrupted the orderly process of justice.”
(Id. at p. 163.)
The appellate court concluded “there is no way 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. It can certainly
be speculated that it would have been disruptive to cancel the travel plans for
[prosecution witnesses] and reschedule their trip, but it is equally possible that such a
cancellation could have been accomplished with a minimum of disruption since these
witnesses had not yet been made available to the defense. We are thus left with an
incomplete record upon which to conclude that such a motion was necessarily untimely.”
(Lara, supra, 86 Cal.App.4th at pp. 163-164.) The appellate court concluded, that
“[g]iven the court’s misunderstanding of the nature of appellant’s motion, we cannot say
13 the court properly exercised its discretion in its treatment of appellant’s attempt to
discharge his retained counsel” and for that reason reversed the conviction. (Id. at p. 166.)
The same logic applies to Gonzalez’s case. Arguably, his request to replace his
counsel came too late. However, we have no record upon which to reach that conclusion.
As in Lara, Gonzalez said his dissatisfaction with his attorney was recent. When Judge
Monterosso, who was set to hold the trial, asked whether he had already retained counsel,
Gonzalez said he didn’t yet have a new attorney because “this is something . . . recent,
and so I was hoping that maybe I could get some time to find new counsel.” He
explained, “[a]fter we announced ready, there was a change in circumstances of Mr.
Armendariz and I aren’t able to see—agree on a—we had discussed a plan for my
defense.” The judge interrupted Gonzalez so he wouldn’t reveal a privileged conversation
with his attorney and sent the issue to Judge Dickerson, who didn’t consider the issue of
timeliness, so we have no further information upon which to conclude the request was
untimely. (Lara, supra, 86 Cal.App.4th at p. 164.)
There’s similarly inadequate information about any difficulty a delay would have
presented to the prosecution. From the record, it appears that the witnesses against
Gonzalez would have been law enforcement officers. The charges concerned drug use,
gun possession, and resisting arrest. At the Marsden hearing, the prosecutor indicated
they had a blood sample to support the drug use charges. And it appears that the
remaining charges would be supported by the testimony of officers who were present at
the time of arrest. Thus, the evidence that a delay would have disrupted the prosecution’s
14 ability to litigate its case is even more lacking than in Lara, where the prosecution had
arranged for witnesses to travel from out of state to testify. (Lara, supra, 86 Cal.App.4th
at p. 164.)
The People argue “the trial court reasonably exercised its discretion when it denied
[Gonzalez’s] motion” based on the fact that Judge Monterosso mentioned the two to three
month delay substituting new counsel likely would cause. However, Judge Monterosso
did not decide Gonzalez’s motion. Instead, he referred the issue to Judge Dickerson, who
considered only the Marsden factors in deciding Gonzalez hadn’t established good cause
for discharging and replacing his current attorney.
It is entirely possible that Gonzalez decided to replace his counsel not out of lack
of confidence in his representation, but in an effort to put off the day he would have to
reckon with his own culpability. However, because the judge who conducted the
Marsden hearing misunderstood the applicable legal standard, he did not develop a
record on the issues of timeliness and disruption that would have been required to
properly exercise his discretion in denying the motion. Application of the wrong legal
standard is an abuse of discretion. (Costco Wholesale Corp. v. Superior Court (2009) 47
Cal.4th 725, 733.) Though we may believe it would be a mistake for Gonzalez to
withdraw his guilty plea and go to trial on all the charges he faces, our constitutional
system places that decision with him, not with us.
15 III
DISPOSITION
We reverse the judgment and remand to the trial court, where the trial court shall
allow Gonzalez to withdraw his guilty plea.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
MILLER Acting P. J.
FIELDS J.