Defense Counsel, right to/change (Marsden)
Category > Defense Counsel, right to/change (Marsden)
Updated 7/12/2024The trial court conducted an insufficient Marsden inquiry following defendant’s motion to dismiss the SVP petition after 12 years awaiting trial. After awaiting trial on the sexually violent predator petition for 12 years, defendant moved to dismiss the petition, and at the same time filed a Marsden motion to replace appointed counsel. The trial court conducted an insufficient Marsden inquiry and failed to investigate a potential conflict of interest that could have prevented counsel from litigating the motion to dismiss. The court further erred by instructing defendant to file a motion to dismiss pro se. The matter was remanded for further inquiry regarding the Marsden motion and motion to dismiss.id: 28314
Updated 3/7/2024The appellate division erred in refusing to appoint counsel where defendant had an appointed lawyer at trial and was subject to incarceration.Defendant was convicted of a misdemeanor (making harassing phone calls) and granted probation that included one day in jail. The appellate division of the superior court erred in denying her request for appointment of appellate counsel because she was subject to incarceration and had been represented by the public defender’s office at trial. id: 26357
Updated 3/4/2024The trial court erred in denying defendant counsel of his choice based on its concern that the new firm could seek delays even though it announced ready for trial.The trial court properly denied defendant’s first three requests to substitute in the Castaneda firm because the firm's lawyers were not ready for trial and the case had been pending for four years. However, the court erred in denying the fourth request where the Castaneda firm announced it was ready subject to a few witness scheduling issues that the deputy public defender also had. While the court feared the new firm would seek additional delay there was no evidence to dispute their claim that they were ready to go. The denial of defendant’s constitutional right to counsel of his choice was structural error requiring reversal of his conviction.id: 28169
Updated 2/26/2024The trial court prejudicially erred in denying defendant his right to retained counsel of his choice following the request made on the day set for trial.On the morning set for trial, and shortly after a denial of his Marsden request, defendant sought to replace his appointed attorney with a recently retained private counsel. Counsel informed the court she would need a four month continuance in the complex special circumstance murder case especially where she had other trials scheduled as well. The trial court prejudicially erred in denying the motion to substitute retained counsel. The request was not dilatory or untimely under the circumstance and the length of the requested continuances did not justify the denialid: 27256
Updated 2/26/2024The trial court erred during the post-verdict Marsden motion by failing to inquire into defendant’s claim that counsel prevented him from testifying. The trial court erred during a post-verdict Marsden hearing by failing to inquire into defendant’s claim that his counsel deprived him of the opportunity to testify in his defense, focusing instead on counsel’s performance. However, remand for a new hearing was not required given the overwhelming evidence of guilt.id: 26442
Updated 2/23/2024The trial court erred in failing to appoint appellate counsel for the defendant convicted of misdemeanors and placed on probation.Defendant was convicted of two misdemeanors and placed on summary probation. California Rules of Court, rule 8.851 (a) provides that the superior court must appoint appellate counsel for a defendant convicted of a misdemeanor if defendant was represented by appointed counsel at trial and is subject to incarceration. Defendant was “subject to incarceration” because if she violates probation she is subject to imprisonment.id: 26910
Updated 2/1/2024Two of the three murder convictions were reversed under McCoy where defendant objected to defense counsel’s strategy of conceding that he killed the victims.Defendant’s attorney violated his autonomy-based right to determine the objective of his defense as described in McCoy v. Louisiana (2018) 138 S. at 1500. While defendant agreed to concede guilt as to one homicide, he objected to such a strategy for the other two. The error required reversal as to those two counts as well as the multiple murder special circumstance finding.id: 27972
Counsel committed McCoy error by presenting a defense other than the one urged by defendant, the he did not commit the act underlying the attempted murder charge.Defendant was charged with the attempted murder of a police officer. He insisted he didn’t commit the act, but defense counsel overrode defendant’s stated goal of maintaining his innocence, and conceded the actus reus but denied that defendant had the required mental state. Counsel committed structural error under McCoy v. Louisiana (2018) 138 S. Ct. 1500, by presenting that defense over defendant’s objections.id: 26151
Defendant was entitled to appointed counsel to respond to the prosecution’s appeal of the suppression order in a misdemeanor case.With the help of court-appointed counsel, a criminal defendant facing misdemeanor charges filed a successful suppression motion, and the prosecution appealed. Defendant was entitled to the help of appointed counsel in responding to the prosecution’s appeal.id: 26123
Trial counsel violated defendant’s Sixth Amendment right under McCoy by conceding guilt to manslaughter during closing argument. Under the Sixth Amendment as interpreted in McCoy v. Louisiana (2018) 584 U.S. ___, the defendant has an absolute right to decide the objective of his defense and to insist that counsel refrain from admitting guilt even where counsel’s experience-based view is that confessing guilt might yield the best outcome at trial. Counsel violated defendant’s right to maintain his innocence by conceding during closing argument that defendant committed manslaughter, a strategy defendant had opposed. The error required reversal of the murder conviction.id: 26118
The trial court erred by denying defendant’s request to discharge his retained counsel.The trial court erred by denying defendant’s request to discharge his retained counsel. He had a right to counsel of his choice under People v. Ortiz (1990) 51 Cal.3d 975. The court erred in finding his request was untimely where it failed to inquire into the potential delay that would result from granting the motion, and the record did not show the request was made for an improper purpose.id: 25610
The trial court erred by refusing the deliberating jury’s request to review exhibits that hadn’t been admitted into evidence without notifying counsel.The trial court’s ex parte communication with the jury who had requested to see exhibits not admitted into evidence violated the defendant’s right to be present at all critical stages of a trial, and his right to counsel. However, the error was harmless where even if the jurors had seen the letter the codefendant had written to defendant, it wouldn’t have impacted the case given all of the oral testimony on the matter.id: 25463
The failure to explain the role of a penalty phase jury rendered defendant’s waiver of a jury trial invalid and required reversal of the death judgment. Defendant was convicted at a court trial of capital murder (and other offenses) and thereafter sentenced to death. He acted as his own lawyer. His jury trial waiver regarding guilt and the truth of the special circumstances allegation was knowing and intelligent, as the record showed his desire had always been to accept responsibility for the charged crimes even though there had been no discussion as to whether he understood the nature of the jury right he was waiving. However, the record did not show what defendant hoped to achieve at the penalty phase, and the penalty phase of a capital trial is the only proceeding where the jury decides punishment. None of the advisements defendant received touched on the characteristics of a penalty phase jury, and his waiver of that right was not knowing and intelligent.id: 25348
The trial court erred in denying defendant’s request for the appointment of appellate counsel following a restitution order in connection with a misdemeanor conviction.An order requiring the payment of restitution is a “significant adverse collateral consequence” within the meaning of California Rules of Court, rule 8.51(a)(1)(A), requiring the appointment of counsel for an indigent defendant on appeal in a misdemeanor case.id: 25321
The trial court erred by failing to conduct a Marsden hearing after receiving a letter seeking the discharge of replacement counsel and the substitution of another attorney.Defendant wrote the trial court a letter complaining about court-appointed counsel. Once the lawyers were removed, the failure to hold a Marsden hearing was moot. However, defendant wrote a similar letter seeking the discharge of replacement counsel. The trial court erred by failing to conduct a Marsden motion at that time. The matter was remanded to allow the court to hold a Marsden hearing. If it finds counsel’s performance was inadequate then his plea will be vacated, but if counsel’s assistance was adequate the judgment will be reinstated.id: 25213
The trial court did not err by supplying jurors with a clean “not guilty” verdict form after receiving an unintelligible form, but the court did err by failing to inform counsel and excusing the jurors after then receiving a “guilty” verdict form.The trial court, after receiving a signed “not guilty” verdict with the words “withdraw” and “void” written across the face of it, supplied the jury with a clean not guilty verdict form and further instructed the jury. Shortly thereafter, the jury submitted a guilty verdict, and it was then polled and excused. The court did not err by giving the clean not guilty verdict form because the original verdict form did not show an intent to acquit. The court did err by having the ex parte communication with the jury after receiving the first irregular verdict. The court further erred by not informing counsel that it had received the conflicting verdicts. It excused the jurors after apparently believing the guilty verdict was proper. This violated defendant’s right to counsel. The error was not prejudicial since the first verdict did not show an unequivocal intent to acquit.id: 24692
Defendant was denied his right to be present and to counsel where the court resentenced him in his absence following a remand.Defendant was denied his right to counsel and to be present when the court resentenced him in his absence on remand. Because the trial court changed the previously imposed term to his detriment, defendant demonstrated that he was prejudiced by not being permitted to be present and to confer with his attorney.id: 24608
The trial court erred by resentencing defendant without defense counsel present after granting the Prop 47 petition.The trial court granted defendant’s Prop 47 petition after finding his felony burglary conviction was reclassified as misdemeanor shoplifting. The court resentenced defendant on all counts to a five year prison term, but neither defendant nor defense counsel were present for the resentencing. Defendant was entitled to the assistance of counsel at the resentencing hearing, which is a “critical stage” of a prosecution, so the matter was remanded for another resentencing. id: 24570
The trial court’s duty to conduct a Marsden hearing was triggered by counsel’s request for the appointment of substitute counsel to investigate a motion to withdraw the plea due to IAC. The trial court erred in failing to conduct a Marsden hearing when defendant indicated his desire to withdraw his pleas and admissions based on incompetence of defense counsel. Moreover, the court erred by appointing substitute counsel without a proper showing and by reappointing the public defender’s office to represent defendant after substitute counsel announced his conclusion that there was no basis for filing a motion to withdraw the plea. id: 21833
Defendant has “use immunity” for statements made during a Marsden hearing and the trial court erred by advising defendant he would waive his Fifth Amendment rights if he provided details.The trial court erred in a post-trial presentence Marsden hearing by advising the defendant that he would waive his right to remain silent if he discussed the circumstances of the robbery. Defendant then failed to fully articulate his complaints against counsel. However, a defendant must be able to fully articulate his grounds during a Marsden inquiry. Contrary to the court’s statement, a defendant would not waive his Fifth Amendment rights in further proceedings, including the pending Romero motion and at sentencing. The matter was remanded for a proper Marsden hearing. id: 24219
The trial court properly dismissed the child molest charges for outrageous government conduct after the prosecutor inserted a false confession into the transcript of defendant’s interrogation and gave it to defense counsel.The prosecutor deliberately altered an interrogation transcript to include a confession from the defendant, and sent it to defense counsel at a time when counsel was trying to persuade the defendant to settle the case. This was egregious misconduct that directly interfered with the attorney-client relationship and it prejudiced defendant’s right to counsel. Dismissal of the charges was the appropriate sanction for the prosecutor’s misconduct. id: 24032
The trial court erred by refusing to conduct a Marsden hearing at defendant’s SVP trial.Defendant in an SVP trial has a constitutional right to the effective assistance of counsel, and as part of that right, to a Marsden hearing. The trial court erred by refusing to conduct a hearing, and reversal for a postrial Marsden hearing was required under the Chapman standard since the right to the effective assistance of counsel in the civil proceeding is protected by federal due process principles.id: 23333
When a defendant seeking to withdraw a plea indicates that current counsel rendered ineffective assistance, the trial court should appoint new counsel for all purposes. A trial court is obligated to conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint new counsel when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance only where there is at least some clear indication by the defendant or counsel that defendant wants a substitute attorney. If a defendant requests substitute counsel and makes a showing during a Marsden hearing that the right to counsel has been substantially impaired substitute counsel must be appointed as attorney of record for all purposes. The court disapproved of the procedure of appointing substitute or “conflict” counsel solely to evaluate the complaint that counsel was incompetent with respect to advise given regarding the guilty or no contest plea.id: 22512
The trial court erred by failing to admonish defendant regarding his right to counsel at a probation revocation/deferred sentencing hearing.The trial court erred by failing to inform the defendant of his right to counsel at the probation revocation and deferred sentencing hearings. The probation revocation/sentencing orders were conditionally reversed and the matter remanded for a hearing to determine whether defendant wishes to waive his right to counsel after proper admonishments.id: 23003
The trial court interfered with defendant’s right to counsel by prohibiting counsel from discussing a witness’s sealed declaration with the client, but defendant failed to show prejudice.Defendant argued the trial court interfered with his right of counsel by barring his attorney from discussing with him the existence or contents of a sealed transcript of a witness’s plea agreement proceedings and a sealed declaration executed by the witness as part of those proceedings. Reversal of a conviction is automatic in some cases involving the interference with counsel. However, this was not such a case and defendant failed to show prejudice.id: 22677
While the trial court's replacement of appointed counsel with a potential conflict with another appointed attorney did not violate defendant's right to counsel, it was an abuse of discretion for failing to properly explain the alternatives. Before trial, and over defendant's objection, the trial court replaced defendant's appointed counsel, the public defender, because of a perceived conflict of interest arising from the public defender's previous representation of a potential prosecution witness in defendant's case. In replacing appointed counsel, the court did not violate defendant's right to counsel under either the federal or state constitution. The replacement of counsel was an abuse of the trial court's discretion under Code of Civil Procedure section 128, section 128, subd.(a)(5) because of its failure to explain the potential pitfalls of keeping counsel with a conflict and without advising defendant of his alternatives. However, the error was harmless where there was no claim that replacement counsel was deficient.id: 21498
Supreme Court says first appearance triggers right to counsel even if prosecutor is unaware of it.Texas police arrested plaintiff for being a felon in possession of a firearm based on an erroneous record showing that he had a prior felony conviction. He was promptly brought before a magistrate, who found probable cause and informed plaintiff of the charges against him. Plaintiff later made several requests for appointed counsel, but counsel was not appointed until six months later when a grand jury indicted. Appointed counsel showed the prosecutor that plaintiff had never been convicted of a felony, so the charges were dismissed. In this civil rights action, plaintiff alleged that if he had been provided an attorney within a reasonable time after his initial appearance before the magistrate, he would not have been indicted or jailed. In an opinion joined by seven other justices, Justice Souter concluded that plaintiff’s Sixth Amendment right to counsel attached when plaintiff was brought before the magistrate, even though the prosecutor was not aware of plaintiff’s arrest or appearance before the magistrate and the officers who arrested plaintiff had no authority to institute a prosecution against him.id: 21431
Supreme Court holds that appointed habeas counsel may not represent defendant in state retrial.A federal statute, 18 U.S.C. §3599, provides for the appointment of counsel to represent an indigent defendant in federal habeas proceedings challenging his conviction and sentence. The statute provides that once appointed, counsel shall represent a defendant “throughout every subsequent stage of available judicial proceedings,” including trial, and that counsel shall represent the defendant in “proceedings for executive or other clemency.” The government asserted that if interpreted to reach state clemency proceedings, the statute would also authorize appointed counsel who succeeded in overturning death sentence to represent a defendant at his state retrial. The Supreme Court, in an opinion by Justice Stevens, held that the statute did not apply to state-court proceedings after the issuance of a federal writ of habeas corpus and therefore did not authorize or require an attorney appointed to represent a habeas petitioner to continue to represent that petitioner at a subsequent state trial. id: 21414
The trial court erred by denying defendant’s Marsden motion after counsel refused to let defendant plead NGI. The trial court erred in failing to substitute new counsel after learning that defense counsel refused to allow defendant to exercise his prerogative to enter a plea of not guilty by reason of insanity. However, the error was harmless given the lack of credible evidence for an insanity defense following counsel’s vigorous efforts to find such evidence.id: 21145
The trial court improperly forced defendant to choose between his right to speedy trial or the assistance of counsel when it relieved counsel a few days before trial based on counsel’s assertion of a conflict of interest. The trial court erred in relieving defense counsel just a few days before trial based on the attorney’s assertion that a conflict of interest existed. While counsel spoke of threats by the client, he did not say he was afraid and said the threats were directed to his staff, not him. To the extent the “conflict” was a product of counsel’s conclusion that defendant might perjure himself if he testified, this was conjecture on his part since he did not personally know the truth, and counsel could have allowed defendant to testify in the narrative. By relieving, counsel, defendant was improperly forced to choose between his right to a speedy trial and his right to counsel. The conviction was reversed where the appellate court was not convinced the result would not have been different if defendant had the assistance of counsel at trial.id: 20581
The trial court prejudicially erred by refusing to hear defendant's Marsden motion during the Penal Code section 1368 proceedings.During proceedings to determine whether defendant was mentally competent to stand trial, defendant made a Marsden motion seeking the appointment of new counsel. The trial court's refusal to hear the motion required the reversal of his subsequent conviction.id: 18368
The trial court committed harmless error by failing to inform the defense that a juror asked the bailiff whether he could bring a dictionary into the deliberation room.A juror brought a dictionary to deliberations and asked if he could use it. The bailiff told him he could not. Defendant may have been denied the right to counsel when the judge failed to advise the defense about this incident. However, there was no prejudice as no defense attorney would have disapproved of the bailiff’s response that the juror could not bring the dictionary into deliberations. id: 20800
Trial counsel’s representation of defendant following his resignation from the State Bar with charges pending deprived defendant of his state constitutional right to counsel.Defendant’s state constitutional right to counsel was violated by his attorney’s mid-trial resignation from the State Bar with charges pending, and the violation required reversal without inquiry into attorney competence. id: 20739
The trial court erred in denying defendant’s midtrial Marsden motion as untimely where it was based on developments that arose after the same issue was addressed pretrial. Before trial, defendant made a Marsden motion for new counsel based on a potential conflict of interest in the (PD’s office) previously representing potential prosecution witnesses. The motion was denied. During trial, there were further developments regarding the potential conflict and defendant made another Marsden motion. The trial court thereafter erred by denying that motion as untimely. The matter was remanded to allow the trial court to conduct a posttrial Marsden hearing and to exercise judicial discretion to order a new trial. id: 20687
The trial court erred in failing to hold a Marsden hearing after defendant moved for a new trial based upon the ineffective assistance of counsel.The trial court’s failure to hold a hearing on defendant’s grievance in his new trial motion about the competence of his trial counsel required a remand for a Marsden hearing. The trial court was informed that counsel failed to call potential witnesses, but conducted no inquiry. Moreover, the court was on notice of defendant’s request for a Marsden hearing once defendant informed his attorney that he was moving for a new trial based on counsel’s incompetence. id: 20280
The court erred by appointing second counsel to investigate claims of counsel's misconduct rather than holding a Marsden hearing. The trial court erred by failing to conduct a Marsden hearing when, at the initial sentencing hearing, defendant stated he wanted to withdraw his plea and provided the court with a letter detailing his attorney's alleged misconduct. The court erred by appointing a second counsel to investigate the claims rather than holding the Marsden hearing.id: 19411
Collect-only telephone system violated right to counsel where attorney refused to accept collect calls from jail inmates.Substantial evidence supported the trial court's determination that appellant's collect-only telephone system denied inmates at the jail reasonable access to counsel. The court's order requiring a free telephone line connecting the jail with the public defender's office was affirmed.id: 12234
In order to appoint previously discharged retained counsel the court was required to conduct a Marsden hearing.When a court appoints previously discharged counsel to represent an indigent defendant, the defendant, upon request, must be afforded a Marsden hearing in which he has the opportunity to explain why he believes appointment of that attorney will impair his right to counsel.id: 12257
When a criminal defendant makes a timely motion to discharge retained counsel he should not be required to demonstrate counsel's incompetence.Defendant had retained counsel, became indigent and made a timely motion to discharge his attorney and obtain court-appointed counsel. The trial court erred by requiring defendant to demonstrate inadequate representation by his retained counsel, or to identify an irreconcilable conflict between them before it would approve the defendant's motion to discharge his retained counsel and obtain appointed counsel.id: 12278
Posted jail guards infringed upon appellant's right to consult privately with counsel.Jail officials denied appellant his right to consult privately with counsel by having him speak with his attorney while observed by jail guards.id: 12261
Trial court's erroneous refusal to rule on pro per defendant's post-trial motion for appointment of counsel required remand.At the conclusion of his trial, the pro per defendant asked the court to appoint a lawyer to file a retrial motion for him. The judge told defendant that he had had the help of a lawyer for ten months and deferred ruling, telling defendant to submit memoranda on the issue. Defendant filed no memoranda. The court erred in failing to rule on defendant's post-trial request for counsel. However, the error did not require automatic reversal and the matter was remanded for a ruling on the motion.id: 12277
Defendant is denied the right to counsel if his attorney has been suspended from the practice of law pending disciplinary charges.A criminal defendant's constitutional right to representation by counsel is denied as a matter of law if, prior to trial and without defendant's knowledge, his attorney has been suspended from the practice of law and has submitted his resignation to the State Bar while disciplinary charges are pending.id: 12247
Court committed Marsden error by not inquiring into all reasons for defendant's request for new counsel despite defendant's statement that he had listed only some of the reasons.Before sentencing, defendant asked the court to appoint new defense counsel. The court addressed the stated reasons for defendant's dissatisfaction. However, defendant stated that he had listed only some of the reasons for his request. The court committed Marsden error by not inquiring into all of the reasons for the request. The proper remedy is to remand the case to the trial court to allow it to make a full inquiry. If defendant presents a colorable claim of ineffective assistance, the court must appoint new counsel to fully investigate and present the motion for new trial.id: 12237
Appointed trial counsel should not be appointed to represent a defendant on appeal.Defendant argued that he was deprived of the effective assistance of counsel by his trial counsel's comments on his manner during testimony and by counsel's failure to object to inadmissible evidence. Defendant's appointed appellate counsel was also his counsel at trial. The court found an inherent conflict of interest in this procedure and disapproved of the practice while reversing the conviction on other grounds.id: 12233
Court's error in failing to consider defendant's first Marsden motion became harmless when he failed to reassert the reasons underlying the motion at a later hearing.Defendant notified the court by letter that he was not satisfied with his attorney and requested a new attorney or self-representation. No hearing was conducted on this matter. On the second day of trial, defense counsel informed the court that defendant was not satisfied with the representation and the court questioned defendant. The conversation centered around the presentation of certain items of evidence and did not address the specific problems listed in defendant's earlier letter to the court. The court erred in not conducting a hearing after receiving the letter which unequivocally stated defendant's dissatisfaction with counsel. However, the error was harmless where defendant failed to renew his earlier motion at the hearing conducted on the second day of trial.id: 12245
Standard for substitution of appointed counsel applies to postconviction Marsden motions just as it does to motions made at earlier stages of the proceedings.Defendant pled guilty to felony charges pursuant to a plea bargain. Prior to sentencing he filed a motion to remove counsel under People v. Marsden (1970) 2 Cal.3d 118. Substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is, if the record shows that the first appointed attorney is not providing adequate representation on that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. This test applies to past Marsden hearings just as it does to motions made at earlier stages of the proceedings.id: 12266
A public defender may be appointed advisory or standby counsel.In cases where a defendant is granted the right of self-representation, a public defender may be appointed advisory or standby counsel.id: 15869
The court erred in finding attorneys may never testify in criminal cases in which they act as counsel.The trial court did not err in refusing to exclude the testimony of a defense witness that defense counsel had offered him a $20 bribe. However, the court thereafter erred in refusing to allow defense counsel to refute the statement through his own testimony. The court was wrong in its assumption that attorneys categorically cannot testify in any criminal case in which they act as counsel. However, the error was harmless where the witness' testimony regarding the bribe was refuted by other evidence.id: 15876
The trial court prejudicially erred in treating defendant's motion to discharge privately retained counsel as a Marsden motion.Defendant hired private counsel to represent him at his criminal trial. On the day trial was to begin, defendant requested to discharge his lawyer. However, the trial court mistakenly treated defendant's request as a <i>Marsden</i> motion to discharge his court-appointed attorney. Defendant was entitled to discharge his privately retained counsel without complying with the <i>Marsden</i> factors, and the trial court's erroneous treatment of the motion resulted in a denial of defendant's Sixth Amendment right to counsel. That defendant raised the issue on the day trial was to begin did not make it untimely, since there was no evidence that he was attempting to delay the proceedings and the evidence did show defendant only became aware of counsel's lack of preparation at that time. The error required reversal of defendant's conviction.id: 14998
The trial court erred in denying retained counsel's request for funds for ancillary services on the ground that the funds from the fee agreement were adequate to pay for those services.Defendant's mother retained an attorney to represent him in a capital murder case. Counsel was paid $300,000 for legal services. Counsel then sought funds from the superior court for expert and investigative fees. The trial court denied the request and concluded sufficient funds were available under the retainer agreement to cover the cost of ancillary services. The trial court erred in denying the request based on the fact that counsel's fee greatly exceeded the "ordinary and customary charges in the community." The fee in the present case was not exceedingly high, and the trial court's order would have created a potential conflict of interest in that every dollar spent on experts would be a dollar subtracted from defense counsel's fee.id: 16517
The trial court abused its discretion by denying defense counsel's motion to withdraw where counsel had only been retained to represent the defendant through the preliminary examination.Defendant retained an attorney to represent him through the preliminary examination but not for trial. At the subsequent arraignment on the information, retained counsel made a "special appearance" and advised the court the matter should be referred to the public defender. The court refused to allow counsel to withdraw because he had previously made a "general appearance," and the court required counsel to file a formal motion to withdraw. The court erred by requiring a formal motion to withdraw at this stage of the proceedings, and abused its discretion by denying the motion to withdraw.id: 17605
Defendant who was challenging the denial of a post-plea Marsden motion was not required to obtain a certificate of probable cause.Defendant was not required to obtain a certificate of probable cause to challenge the trial court's denial of his post-plea Marsden motion, although some of defendant's complaints pertained to trial counsel's pre-plea conduct.id: 18119
Appellate counsel who filed a frivolous habeas corpus petition was ordered to refund the retainer fees and pay monetary sanctions to the court.Appellate counsel filed a frivolous petition for writ of habeas corpus on behalf of three inmates. Any reasonable attorney would agree the petition was absolutely without merit. Counsel admitted the petition was frivolous and contemptuous. He was ordered to repay the fees from the clients who retained him, and pay monetary sanctions to the appellate court to compensate it for the time spent processing, reviewing, and deciding the writ petitions.id: 18077
The trial court had no discretion to deny appellant's request under section 1405 for the appointment of counsel to prepare a motion for DNA testing.Defendant was convicted of attempted murder and his appeal concluded in 2000. In April of 2005, he filed a request for the appointment of counsel to prepare a motion for DNA testing pursuant to Penal Code section 1405. He argued the testing would prove his innocence and counsel had not previously been appointed for that purpose. However, section 1405 required the appointment of counsel and the trial court erred by denying the motion.id: 18793
The court prejudicially erred by applying the Marsden standard to defendant's request to discharge retained counsel.The denial of defendant's request to discharge retained counsel prior to trial resulted in a denial of his rights to counsel and due process. The trial court held what was in essence a Marsden hearing, requiring defendant to demonstrate his counsel was providing inadequate representation or that he and his attorney were embroiled in an irreconcilable conflict. However, since counsel was retained, not appointed, the Marsden hearing was inappropriate. The appropriate inquiry was whether the request would result in delay. While it may have in the present case, there was no inquiry on the point. Reversal was automatic
where defendant was deprived of counsel of his choice.id: 19043
The trial court erred in relieving counsel where there was no showing of impaired representation, in denying the subsequent motion to reinstate counsel, and in filing an opposition to the petition to reinstate counsel.The trial court abused its discretion in relieving appointed counsel pursuant to a Marsden motion where there was no factual showing defendant's right to counsel would be impaired by the continued representation. Therefore, the court erred in denying defendant's subsequent motion, made within one week after the erroneous grant of the Marsden motion, to reverse the earlier order. The trial court also lacked standing to oppose the petition for extraordinary relief on the matter since there was no issue affecting the court's operating procedures or budget. Given the trial judge's personal interest in keeping the originally appointed counsel off the case, he should be disqualified in the interest of justice.id: 12162
Supreme Court requires any fact that increases the sentence beyond the statutory maximum to be submitted to the jury.In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for the fact of a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The court said it did not matter whether the additional fact was labeled an element of the offense or a mere "sentencing factor." Applying this rule to the facts of the case, the court reversed the defendant's New Jersey sentence, which had been increased based on a judge's finding at sentencing by a preponderance of evidence that defendant's crime was racially motivated. Justice O'Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice.id: 15052
Updated 3/19/2024The trial court did not err in denying the Marsden motion despite defendant’s claims about the lack of communication or the disagreement over the defense.The trial court did not err in denying defendant’s Marsden motion to replace appointed counsel despite defendant’s claim that the attorney-client relationship had broken down. While defendant complained about the lack of jail visits and counsel’s failure to take his phone calls, the record showed counsel met many times with defendant, and counsel didn’t believe there was a breakdown in the relationship. While they disagreed over a defense, and defendant asserted his innocence, the record suggests defendant acknowledged that a plea bargain was his best option given the strength of the evidence. id: 28221
Updated 3/6/2024Failing to contest certain charges and referring to defendant as a “bad guy” during closing argument did not establish a McCoy violation absent evidence that defendant’s objective was to maintain his innocence as to all counts.Defendant argued that trial counsel committed error under McCoy v. Louisiana (2018) 138 S. Ct. 1500, by commenting during closing argument that defendant was a bad guy, and by failing to contest every charge when addressing the jury. However, there was no error as the record did not reflect a directive to counsel that defendant’s objective was to maintain his innocence on all charges.id: 26561
Updated 3/4/2024Defense counsel on appeal erred by failing to disclose known authority holding the court lacked jurisdiction to decide an appeal. Defendant sought to appeal the denial of a request for resentencing under Penal Code section 1170(d). Defense counsel filed a “Serrano” brief informing defendant that no issues were found but that defendant was free to file a brief on his own. However, the Court of Appeal lacked jurisdiction to hear the appeal because the trial court’s denial was a nonappealable order. Defense counsel violated his obligation to disclose contrary authority that addressed the appealability issue. id: 27839
Updated 2/26/2024The trial court did not err in acquiescing in defendants' refusal to allow their counsel to present a penalty phase defense. The two defendants knowingly and voluntarily informed the court that they did not wish to present any evidence at the penalty phase of the capital trial. The court thereafter engaged in extensive and careful conversations regarding the consequences of such a decision. The court’s acquiescence in defendants' refusal to allow their counsel to present a penalty phase defense was not improper.id: 26096
Updated 2/26/2024Counsel’s concession to the vandalism charge during argument did not reduce the prosecution’s burden of proof. Defendant was convicted of assault with a deadly weapon and vandalism. He argued the vandalism conviction should be reversed because of defense counsel’s concession that he was guilty of that offense, making it tantamount to a guilty plea. However, there was no stipulation admitting the elements, which still had to be proven. Counsel’s alleged concession did not change the prosecution’s burden of proof or otherwise limit the jury’s role.id: 26277
Updated 2/3/2024The trial court had discretion to deny a Marsden motion as an impermissible attempt to manufacture a conflict of interest.The trial court did not err in denying defendant’s Marsden motion at the Sexually Violent Predator trial. It was a motion to dismiss based on counsel’s failures, treated as a Marsden motion, but the court found defendant attempted to create a conflict of interest by disagreeing with a tactic the record shows he previously agreed to. id: 27655
Updated 2/2/2024There was no Marsden error where defendant objected to the appointment of his previous attorney at the penalty phase retrial, but did not request substitute counsel.Before defendant’s penalty phase retrial, he objected to the appointment of his original counsel against whom he had pending ineffective assistance of counsel claims. He argued the court committed Marsden error by failing to allow him to provide reasons for his objection. However, the claim fails where defendant never specifically requests that he wanted substitute counsel.id: 27887
Updated 1/29/2024The trial court did not err in denying untimely Marsden requests.The trial court did not err in denying defendant’s Marsden motion to replace counsel where the motions were untimely (raised on the eve of trial) and involved tactical disputes that do not constitute irreconcilable differences.id: 28088
County was not responsible for costs of supplemental discovery where private counsel had a provision in the retainer providing the defendant’s mother would pay for such ancillary costs.Defendant was convicted of unlawful weapon possession and resisting an officer. He retained an attorney for the trial. The trial court did not abuse its discretion by refusing to order the county to provide copies of supplemental discovery at county expense. Defendant may have been indigent but the retainer agreement between counsel and defendant’s mother suggested that she would be responsible for such costs. Even if the ruling was erroneous, no prejudice could be shown where defense counsel reviewed the discovery in question at the prosecutor’s office.id: 26153
There was no McCoy violation where the record does not show defendant insisted to counsel that he was innocent even though he told that to police. Defendant argued that reversal of his manslaughter conviction was required under McCoy v. Louisiana (2018) 584 U.S. ___, because of counsel’s implicit concession during closing argument that he killed the victim. Defendant argues that his statements to police, a competence evaluator and a probation officer show that he denied any participation in the offense. However, a Sixth Amendment violation under McCoy requires that defendant’s insistence of innocence be conveyed to counsel and there is no record of such a communication in this case.id: 26217
Counsel’s concession to the hit and run violation was not tantamount to a guilty plea, and there was no McCoy violation absent evidence that defendant disagreed with counsel’s strategy.Defendant was convicted of second degree murder and felony hit and run following an accident caused by his drunk driving. During his opening statement, defense counsel conceded defendant’s guilt as to the hit and run, and focused on the murder count. The concession was not the equivalent of a guilty plea, and there was no Sixth Amendment violation under McCoy v. Louisiana (2018) 138 S.C. 1500, where defendant did not disagree with defense counsel’s strategy.id: 26037
Discussions regarding defendant’s difficult relationship with counsel did not amount to a Mardsen motion, and the court had no independent duty to appoint new counsel.The capital defendant was exhibiting a great deal of frustration with trial counsel and eventually attacked him in open court. Prior to that, the court had several conversations with defendant and counsel about their relationship. During those conversations defendant never made a Marsden motion or alleged inadequate performance. Under the circumstances, the trial court had no duty to conduct a formal Marsden hearing and did not err by failing to appoint new counsel on its own.id: 25997
Advisory counsel appointed to assist defendant could consent to a guilty plea to the capital charge. Penal Code section 1018 prohibits a defendant from pleading guilty to a capital charge unless he appears with counsel and the plea is approved by counsel. The consent of “advisory counsel” satisfied the requirements of section 1018.id: 25971
Allowing defendant to testify in the narrative form after she changed her version before trial with no evidentiary support for the new theory did not deprive her of the right to counsel.Trial counsel did not know defendant was going to commit perjury, but suspected it and gave reasons for that suspicion. Those reasons, defendant’s sudden and dramatic change in her narrative of events and counsel’s difficultly in finding the supporting witnesses she claimed to have, supported that suspicion and the trial court’s deference to it. Allowing defendant to testify in narrative form and informing her of that decision did not deprive her of the right to counsel at a critical stage of the proceedings.id: 25864
The trial court did not err by failing to disallow inexperienced counsel of defendant’s choice to represent defendant in his capital case.Defendant “retained” pro bono counsel with little experience for his capital trial. The trial court did not err in allowing counsel to represent defendant. Counsel actively litigated the issues (with some help from the court) and defendant repeatedly indicated his preference for trial counsel. The trial court adequately warned defendant about the dangers of inexperienced counsel given the gravity of the case. Moreover, given defendant’s choice, counsel’s inexperience did not provide grounds for the appointment of a second counsel, and counsel did not render ineffective assistance by failing to request cocounsel. id: 25791
The trial court did not err by removing defense counsel after multiple continuances, counsel’s lack of preparedness and substantial impairment of the proceedings.On the second day of trial, the court found defense counsel was not prepared to proceed and continued the trial. The prosecution requested that counsel be replaced citing, among other reasons, both parties right to a speedy trial. While a court’s power to remove counsel should be used sparingly, the trial court here did not abuse its discretion in exercising that power. The court found counsel was not prepared and was not providing adequate representation. Moreover, the court was justified in removing counsel to prevent substantial impairment to the proceedings given multiple continuances and the lack of effort by counsel.id: 25627
Any error in denying a Marsden request for failing to allow an NGI plea was harmless given evidence of defendant’s sanity at the time of the crime.Defendant argued the trial court erred when it refused to grant two of his requested Marsden motions to appoint new counsel after counsel refused to allow an NGI plea. However, any error was harmless as defendant’s behavior and post-arrest statement showed that he knew what he was doing and understood right from wrong. id: 24834
Replacement of a juror outside of defendant’s presence while counsel was sick and another lawyer appeared to request a continuance violated defendant’s right to counsel.The trial court lacked good cause to excuse Juror No. 4 who was 15 minutes late for the start of the evidence portion of trial. Moreover, excusing the juror outside of defendant’s presence and while he was represented by an attorney who was standing in for defendant’s temporarily ill counsel who was told she was appearing to agree to a continuance, violated defendant’s constitutional right to be present and represented by counsel at critical stages of trial. The stand-in lawyers’s failure to object did not forfeit the issue on appeal. And the error required reversal of the conviction as there was no way of determining whether the replacement of the juror contributed to the verdict. id: 25430
The constitution does not require the superior court to appoint counsel for appeals in misdemeanor cases where there hasn’t been a conviction. Cal. Rules of Court, rule 8.851(a), which applies in the appellate division of the superior court only authorizes appointment of counsel on appeal for defendants who have been convicted of a misdemeanor. It does not require the appellate division to appoint counsel for a defendant acting as respondent on a prosecution appeal from an order suppressing evidence under Penal Code section 1538.5. The Sixth and Fourteenth Amendments don’t require the superior court to appoint counsel for all indigent defendants in the appellate division. Moreover, the record did not show the appellate division was requiring the public defender’s office to represent the defendant on the appeal.id: 25438
The trial court did not err by transferring the Marsden motion to another judge where defendant was facing a bench trial. Defendant argued the trial court erred by transferring his Marsden motion for a new attorney to another judge for adjudication. Although Marsden motions generally should be heard by the judge assigned to hear the case, the transfer here was proper because at the time of the motion, defendant was facing a bench trial in front of the judge who would have addressed his complaints.id: 25137
Ordering law enforcement officers to be present during attorney-client meetings did not violate the attorney-client privilege and did not deprive defendant of his right to counsel.Concerned for defense counsel’s safety, and with her express agreement, the trial court ordered two correctional officers to be present for all attorney-client consultations. The order did not violate the attorney-client privilege or defendant’s right to counsel given the defendant’s threatening statements and conduct.id: 25142
MDO was entitled to a jury trial regarding his outpatient status but he forfeited the claim by absconding.Defendant was certified as a mentally disordered offender and placed into an outpatient conditional release program. He was entitled to a jury trial on the issue of his outpatient status and the court erred by not setting the matter for such a trial without first obtaining a written waiver. However, defendant forfeited his right to challenge the error by absconding from the outpatient treatment before the court ruled on his outpatient status. The court did not err by revoking defendant’s outpatient status in his absence.id: 25114
The trial court did not violate defendant’s right to counsel or his civil rights by denying him telephone access from the jail after he used the jail phone to arrange a murder. The trial court did not err by ordering a complete restriction of the capital defendant’s telephone privileges after learning that he had used the jail telephone to arrange the murder of a prosecution witness.id: 24794
There was no venue or vicinage problem where defendant was tried in Orange County where the murder was planned evan though it took place in LA. Defendant argued his venue and vicinage rights were violated where he was tried in Orange County even though the murder occurred in Los Angeles. However, under Penal Code section 781 venue is also proper, where as here, defendant made preparations for the killing in Orange County. And, while it is true there are more potential black jurors in Los Angeles than in Orange County, there is no authority for the proposition that the trial should take place in the county that has a higher percentage of people of the defendant’s race. id: 24795
Defendant never expressly asked the court to discharge retained counsel so the court did not err in failing to do so.Defendant argued the trial court erred by denying his request to discharge retained counsel. However, while defendant complained about counsel, he never requested that counsel be discharged and also expressed concern about having a new lawyer appointed.id: 24539
Defendant, who knew of his right to counsel at the hearing on his request for a certificate of rehabilitation, waived the right by appearing but leaving without participating in the hearing. Defendant argued the trial court erred by denying his petition for a certificate of rehabilitation under Penal Code section 4852.01 in his absence, after the bailiff allegedly told him the petition had already been denied, handed him the tentative ruling and sent him home. However, there was no evidence showing defendant was sent home. Meanwhile, while there was no appearance by defendant’s counsel (public defender) on the record, the record showed he was aware of his right to counsel, he arrived at the courthouse on the date of the hearing and left without participating. By doing so, he waived both his right to a hearing, and to counsel at the hearing.id: 24249
The juvenile court did not err by allowing the prosecution’s expert to evaluate the minor during trial and without having counsel present.The juvenile court did not err by allowing the prosecution’s expert to evaluate the minor without have counsel present, or by appointing the expert mid-trial. The only reason the exert was appointed mid-trial was because the defense objected to the state’s other expert opining on both mental competency and sanity. And the presence of counsel at a psychiatric exam is not constitutionally required. id: 24127
Defendant was not entitled to the appointment of counsel as his Prop 36 petition for resentencing failed to state a prima facie case.Defendant argued the trial court erred by refusing to appoint counsel to assist him with his petition for resentencing under the Three Strikes Reform Act. However, defendant was not entitled to the appointment of counsel because his petition failed to state a prima facie case.id: 24093
Supreme Court declines to consider attorney's challenge to Michigan ban on appointed appellate counsel.In 2000, Michigan passed a statute barring the appointment of appellate counsel for most indigent defendants who pleaded guilty. Attorneys who represent indigent defendant challenged the ban on the ground that it denied indigent defendant's equal protection and due process. The Sixth Circuit fount the statute unconstitutional, but the Supreme Court held that the attorneys lacked standing to assert the indigent defendants's rights. The Court did not reach the merits of the attorney's constitutional challenge.id: 20109
Supreme Court rules that suspended sentence may not be imposed unless defendant has counsel.In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Supreme Court held that a defendant has a Sixth Amendment right to counsel in any prosecution that leads to actual imprisonment for any length of time. Dividing 5-4, the Court extended Argersinger and held that a suspended sentence that could lead to an actual deprivation of liberty may not be imposed unless the defendant was accorded the right to counsel during the prosecution.id: 20138
Forensic testing is not a critical stage of trial at which an accused has a right to counsel. Defendant did not have a right to be notified of the electrophoretic blood testing and to have counsel present during the testing in order to ensure the reliability.id: 23759
Restrictions placed on disruptive defendant while in jail did not result in inhumane conditions and did not unreasonably interfere with her access to counsel.While in jail awaiting trial, defendant used the phone to dissuade a witness from testifying. The trial court then terminated her phone privileges and ordered the sheriff to monitor her visits although she could have face-to-face visits with her attorneys. The court also later allowed defendant to use the phone as she was seeking a new attorney. She later complained that the conditions of her confinement were inhumane but the court, after hearings, did not always defer to the jail authorities and took active steps to protect defendant’s ability to defend herself. The restrictions did not interfere with her communications with counsel and the court always made sure defendant had reasonable access to counsel.id: 23514
The juvenile court erred by refusing to appoint the public defender to represent the minor just because of a conflict in an earlier case that required the appointment of a conflict attorney.When a minor, who in earlier juvenile proceedings was represented by a conflict attorney and declared a ward of the court, is charged in a subsequent petition, the public defender must re-evaluate the minor’s situation and offer representation if the conflict no longer exists and other statutory requirements are met. That representation must commence immediately, before arraignment, and the court may not appoint private counsel to replace the public defender absent a showing that the public defender is unavailable.id: 23612
The trial court did not err by denying defendant’s untimely motion to relieve retained counsel.Defendant argued the trial court erred by denying his motion to relieve counsel, treating the motion as a Marsden issue that applies to appointed counsel. However, the court did not abuse its discretion in denying the request that was untimely, and the conflicts were not so irreconcilable as to justify a lengthy and disruptive delay. id: 23672
Penal Code section 1026.5 does not require an NGI’s personal jury trial waiver.Penal Code section 1026.5 (extension of commitment of an NGI defendant) does not require an NGI’s personal jury trial waiver. Counsel may waive a jury at the NGI’s direction or with his or her knowledge and consent, and counsel may also do so over a defendant’s objection when the defendant is not sufficiently competent to determine what is in his or her best interests. When the court conducts a bench trial the record must affirmatively establish the circumstances and validity of the waiver.id: 23175
The prosecutor’s late request for aiding and abetting instructions did not deprive defendant of his right to counsel.Defendant argued the prosecution interfered with right to counsel by presenting an aiding and abetting theory so late in the trial because counsel had no ability to respond given the late notice. However, the defense presented several witnesses after learning about the prosecution’s intention to argue aiding and abetting, and there was sufficient time to prepare. And any error was harmless where the defense capitalized in closing argument on the prosecution’s midtrial shift in emphasis.id: 23143
Defendant abandoned his Marsden claim by failing to raise the issue again before trial.Defendant raised a Marsden issue complaining about trial counsel by filing a handwritten motion in April, 2010. He never again brought the matter to the court’s attention despite having been present in court several times before trial. The court’s failure to conduct a hearing on the motion appears to have been the inadvertent result of the repeated continuances. Defendant abandoned the claim by failing to raise the issue before the matter proceeded to trial.id: 22934
Absence of defendant’s attorney during hardship screening was not a denial of the right to counsel.Defendant argued the absence of his attorney and the presence of substitute counsel during the distribution of juror questionnaires and hardship screening deprived him of his right to counsel. However, defendant had an attorney at all times so there was not a complete denial of counsel. And hardship screening is not a critical stage of the trial. Finally, defendant could not show prejudice as hardship excusal is based on the problems faced by a juror and has nothing to do with case strategy.id: 22737
The trial court did not err in denying Keenan counsel in the capital case where the request did not include compelling reasons.The trial court did not err in denying defendant’s request for the appointment of a second attorney in his capital case where the request made by counsel failed to state any compelling reasons.id: 22324
The trial court did not err in appointing a third attorney to help appellant communicate with the two lawyers with whom he was having problems. Defendant was unhappy with his two female public defenders and Marsden motions had been denied. The trial court did not err by appointing a third attorney (a male) to facilitate communication between defendant and his other attorneys.id: 22423
Defendant's Faretta waiver was not invalid where the court misinformed him that he, and not counsel, would decide the defense theory and where counsel presented a defense defendant did not initially endorse.Defendant argued his waiver of the previously asserted right to self-representation was invalid because it was conditioned on counsel's presentation of a defense that he did not ultimately present. However, defendant later agreed that counsel could present another defense so he could not claim error. For the same reason, he could not complain that the waiver was ineffective due to the court's misadvisement that the defendant, not counsel, decides the defense theory of the case. id: 21905
The trial court erred by allowing defendant to testify, over trial counsel’s objection, at his Penal Code section 1368 competency trial. Trial counsel representing a defendant whose competency is in doubt should be in charge of the trial proceedings, including whether the defendant should testify as to his own competency.id: 21395
Criminal proceedings cannot be dismissed on the basis of a “cooperation” agreement between the defendant and police that was not authorized by the district attorney.The trial court erred by “enforcing” the cooperation agreement and dismissing a felony charge and related probation violations after defendant worked with and provided information to the police. The police had no authority to promise that charges would be dismissed, and defendant’s reliance on that unauthorized consequence did not require dismissal on due process grounds.id: 21379
The trial court did not abuse its discretion in denying defendant’s request to discharge retained counsel during the evidentiary hearing on the motion for new trial.Defendant argued the trial court erred when it denied his request to discharge retained counsel in the middle of the evidentiary hearing on the new trial motion. However, defendant did not identify a conflict of interest, and appointing new counsel would have resulted in significant delay to become familiar with the issues and study the entire lengthy trial record. id: 21721
Prosecution’s interception of a three-way conversation did not violate the attorney-client privilege or defendant’s right to counsel where the prosecution made no use of the recording. The prosecution intercepted a telephone conversation involving defendant, his mother and a defense investigator. Assuming the three way call was protected by the attorney-client privilege there was no violation of the privilege absent evidence that a witness disclosed any information from the call. Moreover, because there was no realistic possibility of injury to defendant there was no violation of defendant’s Sixth Amendment right to counsel or the similar right under the state constitution.id: 21693
The trial court did not err by denying the motion to reconsider its order removing counsel who was appointed as advisory counsel but acted and sought the appointment as lead counsel.Counsel was not on the official list of lawyers qualified to represent capital defendants, but represented defendant at the preliminary hearing and was thereafter appointed as advisory counsel after defendant moved to represent himself. She prepared for trial as though she would be lead counsel but had earlier been denied the appointment. The trial court did not abuse its discretion by denying the motion to reconsider its order removing counsel as the court believed that would reward counsel for acting as lead counsel when she was only advisory. While defendant liked and trusted her, this confidence was not unique as defendant later enjoyed a good relationship with the attorney that was appointed.id: 21691
The trial court’s initial error in delaying the Marsden ruling until after the competency hearing was harmless where the court eventually conducted the Marsden hearing before the competency hearing.The trial court erred when it brushed aside defendant’s initial request for the substitution of counsel in the belief that the question of defendant’s competence to stand trial first had to be resolved. However, the court ultimately conducted the Marsden hearing before the competency hearing, and did not err in denying the request for counsel at that time. That the court replaced counsel after the competency hearing did not render the earlier denials improper.id: 21525
The trial court did not err in denying defendant’s request for the appointment of a specific private attorney who had worked on the case before the indictment and developed a relationship with defendant.Defendant, a former senior deputy D.A. was charged with several forcible sex offenses. He was represented by a private attorney, Russo, before the preliminary hearing. But the preliminary hearing did not take place, and defendant was indicted by a grand jury. Defendant then moved to have attorney Russo appointed at public expense. The trial court did not abuse its discretion in finding defendant failed to establish good cause to depart from the statutory scheme for the appointment of assigned counsel specified in Penal Code section 987.2. While the court properly considered defendant’s preference for attorney Russo, his appointment was not required where appointed counsel was ready and Russo’s prior work on the case was not so extensive as to warrant the appointment.id: 21599
The trial court did not err in failing to hold a Marsden hearing at the arraignment where defendant used the term “Marsden hearing” but actually sought self-representation.Defendant argued the trial court erred by failing to hold a Marsden hearing at his arraignment. However, he did not make a Marsden motion at the time. While he used the term “Marsden hearing” he was actually seeking self-representation, not new counsel. id: 21448
The trial court erred by failing to inquire into the basis for a new trial motion asserting incompetence of counsel. The trial court erred by failing to make further inquiry when defendant moved (before sentencing) for a new trial based on the ineffective assistance of counsel. The matter was remanded for a full Marsden inquiry into the basis for defendant’s allegations of counsel’s incompetence.id: 21512
Supreme Court says that counsel’s participation in guilty plea by phone does not violate established rights. When defendant pleaded no contest to reckless
homicide in state court, his attorney was not physically present in the courtroom and instead
participated by speaker phone. During the hearing, the court gave defendant the opportunity to
speak privately with his attorney over the phone if he had questions about his plea, and defendant
said he was satisfied with his legal representation. In federal habeas proceedings, the Seventh
Circuit held that counsel’s absence from the courtroom deprived defendant of his right to
counsel. In a per curiam summary reversal, the Supreme Court held that none of its prior
decisions had held that counsel’s participation in a plea hearing by phone was equivalent to the
complete denial of counsel. Because a federal court may grant habeas relief only based on
“clearly established Federal law” as determined by the Supreme Court, the Court held that the
Seventh Circuit erred in finding that counsel’s absence constituted a complete denial of counsel.id: 21351
The trial court was not obligated to conduct a Marsden hearing after receiving letters from defendant’s sister criticizing defense counsel.Defendant argued the letters sent by his sister to the court imposed a duty upon the court to undertake a Marsden inquiry to determine the adequacy of defendant’s representation. However, the court has no duty to undertake a Marsden hearing based upon the criticism of counsel by a third party. Moreover, defendant had no right to be present at the trial setting hearing where the court discussed defendant’s sister’s letter with counsel.id: 21194
The trial court did not err by refusing to substitute in as counsel a lawyer who previously represented another person involved in the underlying crime who might be a witness in this case.Defendant argued the trial court erred by refusing to substitute in as counsel an attorney who had represented his codefendant in the underlying fraud an identity theft trial, thus denying his constitutional right to counsel of his choice. The former client refused to sign the waiver. Given the potential conflict of interest arising from counsel’s representation of defendant and his prior representation of the former client, a potential witness facing additional charges, the refusal to appoint counsel did not violate defendant’s rights.id: 21193
The monetary sanctions on defense counsel may have been appropriate where counsel who had been prohibited from using the term”prosecutorial misconduct” did so in closing argument but the matter was remanded so that the trial court could provided detailed justification. Defense counsel objected to questioning by the prosecutor as “prosecutorial misconduct.” The trial court prohibited defense from using that legal term again in front of the jury. Counsel again referred to “prosecutorial misconduct” during closing argument. The trial court later imposed $200 in sanctions against defense counsel pursuant to Code of Civil Procedure section 177.5. The sanctions may have been appropriate because, contrary to counsel’s claim, the necessary objection could have been made without reference to the term. Moreover, that the term was used in closing argument did not render it advocacy at a time for which he could not be sanctioned. However, the sanctions order was reversed and the trial court was directed to enter a new order reciting the details justifying sanctions.id: 20979
Defendant was not prejudiced by the court’s refusal to conduct an earlier Marsden hearing during the time proceedings were suspended to determine his mental competency. Defendant argued the trial court erred when it refused to hear his Marsden motions during the period when criminal proceedings were suspended. The court should have conducted a hearing even though defendant’s competence to stand trial was undetermined. However, the error was not prejudicial where the court eventually conducted a Marsden hearing before it adjudicated the competency issue. Moreover, defendant’s dissatisfaction stemmed from his belief that counsel had no basis for doubting his competency and the court ultimately declared him competent, relieved counsel and appointed new counsel so defendant effectively received what he wanted.id: 21041
Ex parte in camera meetings between each counsel and the court instigated by defendant did not violate his right to be present or to counsel.Defendant argued that the absence of himself and counsel from 10 ex parte in camera meetings between cocounsel and the trial court violated his right to counsel and right to be present. However, the court also met with defendant’s counsel outside the presence of codefendant’s counsel, and these ex parte meetings were instigated by defendant. Moreover, the matters discussed in the conferences did not bear on evidence, the conduct of the defense or the outcome of the case. id: 20584
Letters to the court criticizing defense counsel’s deficiencies did not trigger a duty to conduct a Marsden hearing. Defendant argued the trial court erred by failing to conduct a Marsden hearing in response to defendant’s post-trial letters to the court requesting a motion for new trial. However, while the letters (one to the court and one to counsel) referenced complaints regarding trial counsel, defendant never specifically requested substitute counsel either orally or in writing.id: 20856
The trial court did not abuse its discretion in denying defendant co-counsel status.Defendant was an attorney charged with multiple offenses relating to child molest. He argued the trial court erred in denying him co-counsel status because of his knowledge of the relevant internal affairs investigation. Defendant did not show the appointment was necessary to compensate for a deficiency of his own attorney. Moreover, defendant was able to assist his attorney from counsel table during trial. id: 20738
There was no violation of defendant’s right to counsel where the court required that if the defense tested a small blood sample it had to reveal the results to the prosecutor.Defendant argues that trial court erred when it denied his request to conduct a confidential DNA test on what remained of a bloodstain found at the murder scene. Because the sample was only large enough for one test, the court did not err by requiring that the test results be revealed to the prosecution if the test was not performed by a neutral expert.id: 20311
The trial court did not err in denying defendant’s request to discharge retained counsel which was made just before the start of trial.The trial court did not err in denying defendant’s request to discharge retained counsel. The request was made on the day trial was to start, his lawyers (in whom he said he had lost confidence) were experienced and prepared, and an indefinite continuance would have been necessary, as defendant had neither identified nor retained new counsel.id: 20310
The trial court did not err in removing the public defender as counsel based on its conclusion that the PD could not be ready for trial within a reasonable time.Defendant was represented by a deputy public defender who had a heart attack and whose status was uncertain. A second deputy appointed to handle the case could not be ready for many months. The trial court then appointed private counsel to give an estimate as to when they could be ready, and was prepared to reappoint the public defender if private counsel would take more time. Defendant objected to the appointment of private counsel who ultimately represented him at trial. Contrary to defendant’ claim, the court relieved the public defender because she was delaying the case without good cause not as punishment for refusing private counsel. Private counsel’s estimate of when he could be ready was less than the public defender’s most optimistic estimate. A trial court need not grant further continuances if it reasonably concludes it must remove appointed counsel to prevent the substantial impairment of the proceedings. The trial court did not abuse the discretion when it removed the public defender as defendant’s counsel based on its conclusion that the public defender would not bring defendant’s case to trial in a reasonable time.id: 20505
Once the trial court relieved the public defender and appointed new counsel, it could not hear the public defender's request to be reappointed without having newly appointed counsel present.Defendant sought to withdraw his guilty plea prior to sentencing. His deputy public defender declared a conflict and the court then appointed the alternate public defender. After the noon recess, the public defender returned and asked to be reappointed. The trial court erred by hearing the request of the public defender (relieved counsel) without the presence of defendant's newly appointed counsel. Defendant was not required to obtain a certificate of probable cause to address the issue which involved an error committed during post-plea events.id: 20209
The decision to enter a not guilty plea by reason of insanity plea is a fundamental decision which the defendant has a right to make regardless of defense counsel's opinion. The trial court committed reversible error when it failed to allow defendant to enter a plea of not guilty by reason of insanity when defendant unequivocally expressed a desire to do so, even though his counsel was opposed to the entry of the plea.id: 20207
The trial court erred in failing to hold a Marsden motion prior to the sentencing hearing where defense counsel informed the court defendant wanted to move for a new trial based on counsel's conduct.Defense counsel's representation to the trial court about defendant's desire to move for a new trial based upon counsel's conduct at trial was sufficient to put the court on notice of defendant's request for a Marsden hearing. The court's failure to hold a Marsden hearing required a remand to allow the court to conduct a hearing.id: 20077
Supreme Court holds that denial of right to counsel of choice is not subject to harmless-error review.After concluding that a defendant who was erroneously denied his counsel of choice need not show prejudice to establish a Sixth Amendment violation, the Supreme Court held that a violation of the Sixth Amendment right to counsel of choice is not subject to harmless-error analysis. The Court held that the erroneous denial of counsel of choice is a structural error and requires automatic reversal.id: 20175
Supreme Court reiterates that right to counsel of choice is limitedAfter holding that the erroneous denial of the right to counsel of choice violates the Sixth Amendment and is not subject to harmless-error analysis, the Court reiterated that the right to counsel of choice is limited. The Court noted that courts may establish criteria for allowing lawyers to practice in them, that the right to counsel of choice does not extend to indigent defendants, that a defendant may not demand that a court honor his waiver of the right to conflict-free representation, and that a court may enforce ethical standards in the attorneys who appear before it.id: 20176
Court says that erroneous deprivation of counsel of choice violates Sixth Amendment.Defendant hired an attorney, Low, to represent him on drug charges. The district court denied Low's request for admission pro hac vice because it found that in a prior case Low had violated the ethical rule against contacts with a represented party. In the Supreme Court, the government conceded that the district court had erred in finding that Low violated the ethical rule and in denying his request to represent defendant. The Supreme Court held that a defendant who has been erroneously deprived of counsel of choice need not show prejudice or that he received ineffective assistance of counsel and that the court's erroneous deprivation of defendant's counsel of choice violated the Sixth Amendment.id: 20174
The improper removal of appointed counsel based on the perceived conflict of interest violated defendant's right to counsel under the state constitution.Over defendant's objection, the trial court removed his court-appointed counsel, because another attorney in the same public defender's office had earlier represented one of the prosecutor's witnesses. However, the disqualification and removal of the public defender was an abuse of the trial court's discretion and violated defendant's right to counsel under the California Constitution. The error was reversible per se.id: 20051
A certificate of probable cause was required to address the failure to hold a Marsden hearing to determine the basis for a request to replace counsel and withdraw the plea.Defendant argued the trial court erred by failing to hold a Marsden hearing to determine the basis for his request for new counsel and for his motion to withdraw his plea. However, the contention was not cognizable on appeal because defendant failed to obtain a certificate of probable cause.id: 20011
The trial court did not err by replacing inexperienced pro bono counsel in the capital case rather than appointing cocounsel. Defendant argued the trial court erroneously denied his motion for the appointment of cocounsel in his capital case where he was
being represented by an inexperienced and busy lawyer who was not being paid. The lawyer had four cases pending trial and the court thought it best to replace him rather than appoint cocounsel. Counsel's pro bono status did not compensate for his lack of experience or his inability to prepare due to his other conflicts. The court was not required to ensure that defendant was represented by counsel he preferred. It was required to see that he had effective counsel, at public expense if necessary.id: 19636
Until formal charges were filed defendant had no federal constitutional right to counsel at the lineup.Defendant asked for counsel prior to the live lineup. By the
time of the lineup no complaint had been filed and the evidence was in conflict as to whether a decision to file had been made when the lineup was held. Defendant acknowledged that the right
to counsel attaches when judicial proceedings have commenced but argued it was improper to deny him counsel for the lineup once suspicion had focused on him as the killer and he requested
counsel. However, until formal charges were filed, defendant had no right to counsel at the lineup.id: 19613
Defense failed to show the order limiting investigative funds at the capital trial was inadequate where a portion of the authorized funds were not spent.Defendant argued the trial court erred by not authorizing adequate investigative funds in the capital case. Defense counsel wished to use a penalty phase specialist who billed $35 per hour, but the court only authorized the standard investigator rate of $20 per hour with a $7,000 cap on total
investigative funds. However, defendant used another investigator who worked for the $20 per hour rate and the defense left a balance of $1,600 of the authorized funds unspent. Defendant therefore failed to show the trial court's order was unreasonable.id: 19393
The trial court did not err in granting capital defendant's request to substitute retained counsel who did not meet the standards required of appointed counsel.Defendant retained two attorneys to replace the public defender in his capital case. The court informed defendant that neither retained attorney met the standards required of attorneys
appointed to represent capital defendants. Contrary to defendant's claim, the court did not find retained counsel was unqualified to represent defendant. The court did not err in granting defendant's request to substitute counsel.id: 19190
The trial court did not err in denying the motion to substitute retained counsel where counsel had represented defendant's brother in the same action and the waiver signed by the brother was inadequate.The trial court did not err in denying defendant's motion to substitute retained counsel, Hove, for his appointed counsel. The court denied the motion because attorney Hove had an actual conflict of interest in that he had previously represented defendant's brother Rodney in two other incidents as well as the very offenses involved in defendant's case. Defendant's anticipated trial strategy was to implicate his brother in the offenses. The written waiver provided by Rodney was inadequate where it did not acknowledge that defendant might attempt to shift the blame to him or that attorney Hove might be forced to disclose privileged attorney-client communications.id: 19085
Counsel did not abandon defendant or violate his duty of loyalty by informing the court during a bench conference that defendant was violent.Defendant argued his attorney violated his duty of loyalty to his client (and abandoned him) by informing the court at a
bench conference dealing with the potential exclusion of spectators that defendant was a violent person. However, counsel was trying to forestall a potential outburst by defendant that would have been harmful. He did not abandon defendant or violate his duty of loyalty, but instead acted
in defendant's best interest.id: 19019
Lack of communication with counsel did not require the court to grant the Marsden motion.The trial court did not err in denying defendant's Marsden motion to replace appointed counsel. That his communications with counsel were "down to zero" did to show inadequate representation or an irreconcilable conflict. Moreover, counsel's failure to interview a witness at defendant's request was a tactical decision that did not create an irreconcilable conflict.id: 18879
The readback to the jury over express defense objection and out of defendant's and counsel's presence did not violate defendant's right to counsel or due process.Defendant argued the readback to the jury over express defense objection out of his and his attorney's presence violated his constitutional rights to counsel and due process. However, on a record not only showing the court carefully admonished the jury before readback but also failing to show that defendant's or counsel's presence during readback could have assisted the defense in some way, the court committed no constitutional error in allowing the readback over express defense objection.id: 18812
Once the court granted defendant's motion to sever the murder charges, it was no longer a capital case and defendant was not entitled to second counsel.The prosecution originally charged defendant with two murders and alleged the multiple murder special circumstance. The court then appointed Skyers as second counsel under Penal Code section 987, subd. (d). After defendant successfully moved to sever the murder charges the court removed Skyers from the initial trial. Defendant argued error because Skyers, who later became lead counsel in the second case, was deprived of the opportunity to observe the witnesses and prepare for the penalty phase. However, the court's ruling was not erroneous because once it granted the severance motion, it was no longer a capital case, and defendant was no longer entitled to second counsel under section 987.id: 18633
The court did not err in relieving lead counsel in the capital case where counsel was appointed to the bench the day before trial began.Trial counsel who was representing a capital defendant was appointed to the superior court bench the day before trial was to begin. The trial court did not err in relieving counsel since, under the California Constitution, a judge of the court of record may not practice law.id: 18634
There was no Marsden error where defendant asked for the appointment of counsel to prepare a new trial motion alleging IAC at the guilt phase and the court granted the motion.Defendant argued the trial court erred in declining to rule on his Marsden motion (made after the guilt phase) until the conclusion of the penalty phase. However, defendant did not file a Marsden motion seeking new counsel for the penalty phase, even though the court referred to it as such. Rather, he asked for new counsel to prepare a motion for new trial based upon trial counsel's alleged incompetence at the guilt phase. His request in that regard was granted.id: 18558
The trial court properly denied three Marsden motions that were based on defendant's refusal to speak with counsel.The trial court did not err in denying defendant's three Marsden motions which stemmed from defendant's refusal to speak with counsel. A defendant cannot willfully refuse to cooperate with his appointed attorney, thereby possibly hampering his own defense, and then claim he is entitled to a new attorney because counsel was ineffective.id: 18502
The trial court did not err in denying Keenan counsel based on the need to interview potential witnesses and defendant's threats to counsel.Defendant argued the court erred in denying his request to appoint a second lawyer ("Keenan counsel") in his capital case. Defense counsel's explanation that he needed help interviewing witnesses to provide impeachment evidence was respectfully discounted by the court who was familiar with the case (from trying confederates' cases) and knew the evidence to be straightforward. Moreover, while defendant also threatened defense counsel causing anxiety, counsel could not articulate a specific need for a second lawyer.id: 18503
The trial court did not err in removing second counsel from the capital team after an accident since the lawyer was inexperienced and only appointed initially because of his relationship with defendant.The trial court appointed second counsel who was an inexperienced lawyer with no experience in capital cases, but who was helpful in that he spoke Farsi and had a relationship with defendant. While preparing for trial, that lawyer was in a car crash and hurt his back. The trial court did not err by denying the request for a continuance to permit that lawyer to recover, and instead appointing another second counsel. The removed lawyer was nonessential and his availability was uncertain. Moreover, defendant was ultimately represented by two competent defense lawyers.id: 18432
Defendant's failure to renew his Marsden motion after being cut off by the court at the first hearing barred any claim that he was denied a complete hearing.After pleading no contest to felony battery, defendant expressed dissatisfaction with his attorney's performance. In an initial hearing, the trial court listened to several of defendant's complaints, but ultimately ran out of time because a jury was arriving on another case. Based on defendant's stated complaints, the court denied the request for substitute counsel without prejudice, but the court invited defendant to renew his motion at a future hearing. Defendant never renewed the motion. Defendant's failure to renew the motion barred any claim that he was denied a complete hearing.id: 18120
The trial court did not err in denying defendant's request to appoint the lawyer who had prepared his case where the lawyer had left the Alternate Public Defender's office and set up a private practice.Wayne Brandow of the Alternate Defense Counsel was appointed to represent defendant in his capital case. He worked hard on the case for 10 months but then left the office. The trial court did not abuse its discretion in denying defendant's motion to relieve the ADC and appoint Brandow. While Brandow had interviewed numerous witnesses and had defendant's confidence, the ADC did not seek to withdraw or support Brandow's appointment, and there was no evidence defendant disagreed with ADC as to strategy or that he would have had trouble cooperating. The court also did not err in failing to appoint Brandow when it later relieved the ADC and appointed another lawyer who the court praised even though defendant had no faith in him.id: 18036
Removal of appointed counsel despite defendant's offer to waive the potential conflict of interest did not violate defendant's right to counsel.The trial court removed defendant's appointed counsel because the attorney's previous representation of a man whom the defense suspected of committing the murder created a potential conflict of interest. The removal occurred notwithstanding defendant's offer to waive the potential conflict. The removal did not violate defendant's right to counsel under either the federal or state constitutions.id: 17956
Any error in denying the two Marsden motions was waived by the guilty plea.Two Marden motions seeking to replace counsel were denied prior to trial. Shortly after the prosecutor began his opening statement defendant interjected that he wished to plead guilty to all charges. Defense counsel refused to concur on the plea. A week later defendant sought to withdraw his plea. The court ordered a competency hearing, and defendant was found competent by a jury. He argued on appeal that the trial court erred in denying the two Marsden motions. However, any error in denying the Marsden motions was waived by the plea.id: 17891
The trial court did not err in failing to inquire into the reasons for defendant's dissatisfaction with counsel, where defendant never asked for new counsel.During a pretrial hearing dealing with calendaring issues and a time waiver, defendant told the court he did not believe defense counsel was doing his best. He made similar statements at subsequent hearings. On appeal, he argued the court erred in failing to inquire into the reasons for his complaints. However, defendant never asked for a new lawyer even though he was invited to do so.id: 17791
Last minute continuance request was properly denied where counsel had investigated leads provided by defendant, and there was no basis for granting a Marsden motion or continuing the case to seek private counsel.The trial court did not abuse its discretion in denying defendant's motion to continue for the purpose of further investigation. The case had been continued several times over 15 months, and defendant had twice earlier asserted the same justification. Defendant failed to show good cause for the delay in reporting the important information to counsel. The court also did not err in denying defendant's Marsden motion where counsel acknowledged hostile conversations with defendant, but said he had investigated all leads given by defendant. Finally, the court did not err in denying defendant's last minute request for a continuance to seek private counsel where he had not attempted to retain counsel, and had not even taken steps to secure funds to hire counsel.id: 17611
Trial court did not err in removing P.D.'s office from capital case where the P.D. announced the assigned deputy was unprepared and acting strange, and defendant had no right to be represented by that lawyer if he left the P.D.'s office.The public defender declared a conflict of interest relating to his appointment in defendant's capital case. However, the deputy PD announced there was no problem and wanted to try the case. It was later learned the conflict involved the deputy PD's lack of preparation and bizarre behavior. The court found no conflict but removed the case from the PD due to the inability to receive competent counsel. Under the circumstances, the court did not abuse its discretion in so ruling. Further, defendant suffered no infringement of his right to counsel where the court refused to appoint the deputy PD as defendant's private counsel after indicating he was willing to leave the PD's office to represent defendant.id: 17486
The court did not err in failing to hold a more extensive Marsden hearing after the disagreement as to whether defendant should testify at the penalty phase.Defendant testified at the penalty phase, using the narrative form, against the advice of counsel. On appeal defendant argued the court erred in failing to hold an additional hearing to explore whether to order a substitution of counsel prior to the presentation of closing arguments. While there was evidence of a difference of opinion between defendant and counsel on this issue there was no request for new counsel based on specific facts showing a deterioration of the attorney-client relationship. The court did not err in failing to hold a more extensive Marsden hearing.id: 17351
An accused may forfeit his right to counsel by serious misconduct against a succession of appointed counsel, but defendant is entitled to a hearing with counsel present before such forfeiture.Balancing the importance of the right to counsel and the orderly administration of justice, the court found an accused may forfeit his right to counsel by a course of serious misconduct towards counsel that illustrates lesser measures will not protect counsel, and the appointment of successor counsel is futile. Forfeiture of counsel should be a last resort only after lesser measures, including but not limited to a warning and physical restraints or protections, have failed. Further, forfeiture of counsel can only occur after a hearing at which defendant is afforded full due process protections, including the assistance of counsel.id: 17273
Right to counsel does not attach during the gang registration process. Defendant argued he was entitled to the presence of counsel during the Prop 21 gang registration process. However, the Sixth Amendment right to counsel does not attach when a person attempts to register pursuant to Penal Code section 186.32 because it is not contemplated that the registrant will be the subject of criminal proceedings at the time.id: 17193
The trial court did not err in failing to discharge defense counsel for negligence in failing to challenge the court.Defendant argued the trial court erred in failing to discharge defense counsel for negligence in not filing a timely peremptory challenge to the trial judge. However, defense counsel was not incompetent, he simply made a good-faith mistake in interpreting the master calendar court's transfer order. Moreover, defendant did not make a Marsden motion to discharge counsel despite his complaints about the failure to challenge the judge. Finally, defendant was not prejudiced by the failure to challenge the judge since he did not show a single example of prejudicial mistreatment by the judge.id: 16656
Given defendant's insistence on self-representation the court did not err in not conducting a thorough Marsden inquiry.Before trial, defendant informed the court that he was "not getting a defense" from his attorneys and because of that he wanted to represent himself. On appeal, he argued the court erred in failing to afford him a meaningful opportunity to explain his dissatisfaction with counsel, as required by <i>People v. Marsden</i> (1970) 2 Cal.3d 118. However, given defendant's insistence on self-representation, the court had no obligation to inquire into defendant's dissatisfaction for <i>Marsden</i> purposes.id: 15873
Superior Court's granting of Marsden motion after finding a breakdown in the attorney-client relationship did not render the magistrate's earlier ruling erroneous where the two motions were based upon separate arguments.The superior court relieved trial counsel after finding the attorney-client relationship had "irretrievably broken down." Defendant argued that based upon this finding, the magistrate should have granted the Marsden motion prior to the preliminary hearing two weeks earlier. However, the superior court did not make its determination of an irreconcilable conflict based upon the same Marsden motion and arguments that were presented to the magistrate.id: 15874
The court did not err in denying defendant's Marsden motion which was made after counsel moved for a mental competency exam following defendant's outburst.Defendant argued the court erred in denying his mid-trial Marsden motion which was made after trial counsel moved for a competency hearing based upon defendant's uncontrollable anger. However, the record did not show the attorney-client relationship had deteriorated to the point that defendant's right to the effective assistance of counsel was jeopardized. The night before defendant's outburst over a tactical decision by counsel, the two had a functional relationship. The outburst did not signal a total breakdown in the relationship necessitating counsel's removal.id: 15875
Where defense strategy was altered midtrial by defendant's decision to testify, and this decision created a conflict with counsel, there was no error in denying the motion for mistrial.Near the end of the prosecution's case defense counsel sought to withdraw, claiming a breakdown in the attorney-client relationship. The breakdown was caused by defendant's decision to testify. The strategy change impacted on counsel's credibility, in that in opening statement counsel only highlighted the issue of identity. Moreover, the prosecutor commented on the change of strategy in closing argument and the jury even asked about the change in strategy. However, the defendant created the difficulty by his own conduct. Having knowingly created the risk of prejudice he should not be rewarded with a reversal of his conviction when his decision proves harmful. The trial court did not err in denying the motion for mistrial.id: 15877
Court did not abuse its discretion in refusing to appoint trial counsel's husband as cocounsel in the capital case.The trial court did not abuse its discretion in refusing to appoint trial counsel's husband as cocounsel. The Supreme Court did not comment on the trial court's first stated reason that a husband-wife team might create a perception among the public who might wonder if they were billing the public for conversations over meals. Instead, the Court accepted the second reason - the possibility of a conflict with a second special circumstances case with which the husband was affiliated.id: 15870
Defendant waived a hearing on the order to pay attorney fees.Defendant argued the order to pay attorney fees was unauthorized because there was no notice, hearing, or a determination of actual costs or of an ability to pay the fees. However, defendant waived a hearing following the trial court's offer to limit an attorney's fee order to $500.id: 15871
Difference of opinion as to the defense to be pursued did not require the substitution of trial counsel.Defendant argued the trial court erred in denying his <i>Marsden</i> motion where there was a conflict between defendant and counsel which resulted in a breakdown of the attorney-client relationship. Defendant wanted a defense of actual innocence and mistaken identity, whereas counsel pursued a defense based upon the lack of premeditation and deliberation. Defense counsel's tactical choice was reasonable and the court did not abuse its discretion in denying the <i>Marsden</i> motion.id: 15872
Court did not err in failing to initiate formal Marsden proceedings at the SVP trial where defendant's complaint about counsel was not related to counsel's performance.On the first day of defendant's Sexually Violent Predator trial, defendant "fired" defense counsel, after counsel informed the court defendant had been given steel tipped darts (possible weapons) by his wife. On appeal he argued the court erred in refusing to appoint a replacement without conducting a hearing outside the presence of the prosecutor. However, the formal <i>Marsden</i> inquiry was not required where the complaint was not based on counsel's performance, but rather, on his report regarding the darts. Moreover, that the denial resulted in self-representation during jury selection (dismissed counsel resumed representation after voir dire) did not change the result. The court warned defendant of the dangers of self-representation and gave defendant the right to review counsel's materials.id: 15719
Defendant had no right to counsel during the grand jury proceedings.Defendant argued that he was denied his right to counsel during the grand jury proceedings and at presentment of the indictment. However, the grand jury is part of the charging process, not the adjudicative process. The right to counsel attaches only with the initiation of adversary proceedings.id: 15726
Supreme Court says for Miranda purposes, right to counsel is "offense specific."Defendant confessed to a home burglary but denied knowledge of the disappearance of a woman and child from the home. Counsel was appointed to represent him on the burglary offense, and he was released on bail. He then confessed to his father that he killed the woman and child, and the father reported this to the police, who arrested defendant and obtained a <i>Miranda</i> waiver. Defendant then confessed to the murders. In a 5-4 opinion written by Chief Justice Rehnquist, the Supreme Court held that questioning the defendant did not violate his right to counsel because that right is "offense specific" and does not necessarily extend to "factually related" offenses. The majority adopted the test in <i>Blockburger v. U.S.</i>, 284 U.S. 299 (1932): offenses are not the same if either requires proof of a fact that the other does not. The majority thus overruled the Ninth Circuit's contrary opinion in <i>U.S. v. Covarrubias</i>, 179 F.3d 1219 (9th Cir. 1999). Justices Kennedy, Scalia, and Thomas concurred in the opinion but questioned the continued validity of <i>Michigan v. Jackson</i>, 475 U.S. 625 (1986) which held that a defendant's purported waiver of the right to counsel is invalid if the defendant has requested counsel and the police initiate interrogation in counsel's absence. Justice Breyer dissented, joined by Justices Stevens, Souter, and Ginsburg.id: 15130
Court did not err in denying the request for second counsel at the capital trial where the application presented no specific compelling reasons for such appointment.Prior to the capital trial, defendant filed a confidential application for appointment of second counsel. It was supported by a declaration of appointed counsel stating there were serious issues for the guilt and penalty phases. The court did not abuse its discretion in denying the motion. Defendant's application, consisting of little more than a bare assertion that second counsel was necessary, did not give rise to a presumption that a second attorney was required; he presented no specific, compelling reasons for such appointment.id: 14996
Court may not appoint the public defender as a "stand-by counsel" anticipating the withdrawal of defendant's self-representation.The trial court ordered that a deputy public defender act as "stand-by counsel" and attend defendant's trial so that he would be available to pick up the case immediately should the court withdraw defendant's self-representation. However, the court's order was unlawful in that it violates Government Code section 27706 concerning what services the county public defender can provide.id: 14997
Legal services clinic attorney was appointed counsel for purposes of ascertaining the scope of the defendant's right to substitute counsel.Defendant was represented by a staff attorney in a neighborhood legal services clinic. He argued that the attorney should have been viewed as retained counsel subject to discharge without cause under <i>People v. Ortiz</i>, (1990) 51 Cal.3d 975, and that the court erred by relying on <i>People v. Marsden</i>, (1970) 2 Cal.3d 118, to deny his request for new counsel. However, the instant attorney that was neither a public defender nor private counsel compensated from public funds, but nonetheless served at public expense, was the equivalent of appointed counsel for purposes of ascertaining the scope of the defendant's right to substitute counsel.id: 12258
Marsden motion was properly denied despite claims that counsel never visited defendant in jail and that she insisted he accept the plea offer.On the second day of trial, defendant moved to dismiss counsel on the grounds that counsel was not prepared<197>having not visited defendant in jail<197>and that counsel had earlier been persistent in recommending that defendant accept a plea. Urging acceptance of a settlement offer is an insufficient basis for substitution of counsel. The complaint that counsel did not consult with defendant often enough or that there were tactical differences would require substitution of counsel only if it caused a breakdown in the relationship that would jeopardize defendant's right to effective assistance of counsel. The mutual complaints in the instant case did not establish such a breakdown.id: 12259
No Marsden error where defendant never really requested substitute counsel.Defendant never really requested substituted counsel be appointed but stated he was unhappy with counsel's handling of the case. The court considered defendant's complaints and explained that public defenders were real attorneys and that counsel's recommendation that defendant plead guilty was not a face saving measure.id: 12260
Public defender need not file a declaration of no merit after denying representation on appeal.A county public defender is not mandated by Government Code section 27706, subdivision (a) to provide representation to all individual misdemeanants on appeal in the absence of a written declaration that the proposed appeal will not reasonably be expected to result in the reversal or modification of the defendant's sentence.id: 12262
Recusal of defense counsel was proper where a physical injury caused lengthy delays and counsel's future health was uncertain.Defendants were charged in 1984 with killings that occurred in 1980. Defense counsel's neck injury forced a three week recess in the first trial as well as many shortened days of trial. After a hung jury, defense counsel missed the motions deadline due to the neck injury and the trial was continued several times. Another attorney was appointed to prepare the motions. Counsel's doctor testified that her future health was impossible to predict and a December relapse probably resulted from her failure to follow the doctor's instructions. Under the extreme circumstances the court did not err in removing all three defense attorneys from the case.id: 12263
Sanctions against defense counsel were not warranted where the omission of facts from writ petition were unintended, a product of time pressures and short-sighted advocacy.Prior to jury selection in the capital case defense counsel became ill with the flu. The trial court denied the requested continuance and stated that jury selection would begin as scheduled. Defense counsel then filed a petition for writ of mandate and requested an emergency stay of the trial. In the moving papers counsel stated that jury selection was scheduled to begin today, January 21, 1994, and is now underway. However, counsel neglected to mention that only the hardship screening was to be conducted on January 21, and the remainder of the jury selection would resume when lead counsel returned. Sanctions are warranted where counsel omits critical facts intending to create a sense of emergency solely for delay. Because the omissions here were unintended, a product of time pressures combined with short-sighted advocacy, sanctions were not proper.id: 12264
Sanctions under Code of Civil Procedure section 177.5 apply to attorneys in criminal proceedings.Deputy public defender was sanctioned $75.00 by the Municipal Court pursuant to Code of Civil Procedure section 177.5 when he failed to timely appear at his client's preliminary hearing. Contrary to counsel's argument, section 177.5 is fully applicable to criminal proceedings. Moreover, the instant order did not constitute an abuse of discretion given the circumstances of the late appearance and counsel's admission at the hearing that he failed to properly calendar this matter.id: 12265
Supreme Court permits uncounseled misdemeanor to be used to enhance sentence.In a 5-1-3 opinion written by Chief Justice Rehnquist, the Supreme Court overruled <i>Baldasar v. Illinois</i>, 446 U.S. 222 (1980) and held that an uncounseled misdemeanor conviction for which no prison term was imposed, may be used to enhance punishment for a later conviction. In the present case, the petitioner was assessed one criminal history point for a state misdemeanor conviction for driving under the influence, for which he was not incarcerated. Even though he was not represented by counsel at the DUI proceeding, his conviction was valid under <i>Scott v. Illinois</i>, 440 U.S. 367 (1979) which held that there is no right to counsel in a misdemeanor proceeding where no imprisonment is imposed. Therefore his sentence was properly enhanced, Justice Souter concurred, and Justices Blackmun, Stevens, and Ginsberg dissented.id: 12267
Supreme Court says that since there is no right to counsel on habeas, counsel's error cannot constitute cause for procedural default.Petitioner's attorney filed a late appeal from the denial of his state habeas petition and the appeal was dismissed. Petitioner argued that this demonstrated cause for his procedural default. The Supreme Court rejected the argument in a 6-3 decision written by Justice O'Connor, noting that attorney error can be cause only if it constitutes ineffective assistance of counsel. Because there is no constitutional right to an attorney in state post-conviction proceedings . . . a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Justices Blackmun, Marshall and Stevens dissented.id: 12268
The trial court did not err in refusing to appoint defendant's preliminary hearing lawyer who had no experience in capital cases.Defendant argued the court violated his right to the effective assistance of counsel by denying his request for the reappointment of the attorney who represented him at the preliminary hearing, to represent him in the superior court. He claimed to have developed a relationship of confidence and trust in the attorney while preparing for the preliminary hearing. However, the attorney had never represented a defendant in a capital case. Moreover, newly appointed counsel had an excellent reputation as a trial attorney and was experienced in capital cases. The court did not abuse its discretion in denying defendant's motion.id: 12269
Threatened sanctions against defense counsel did not amount to initiation of sanctions proceedings requiring prompt resolution.During jury selection, the court criticized defense counsel for making repetitive motions and for including misleading and incomplete factual statements in their motion papers. The court said it would hold a hearing after trial to consider sanctions. Defense counsel moved to advance the date for the hearing regarding sanctions, and the court denied the motion. Defendant argued the court erred in not promptly resolving the issue because the threat of sanctions may have inhibited counsel's trial performance. While it would have been preferable to resolve the issue when it arose the instant warnings were not improper. The court indicated that it had not initiated sanctions proceedings and had mentioned sanctions only to impress upon counsel that certain practices, including repetitive motions, were unacceptable.id: 12270
Trial court did not err in denying capital defendant's motion for cocounsel status after his stated desire to participate in the legal research.Trial court did not err in denying capital defendant's motion for cocounsel status. He offered no explanation how a grant of such status would have enhanced his ability to assist in developing strategy. Nor did he explain how increasing his access to the law library would in any way benefit his defense. Finally, he was represented by two attorneys who both participated extensively at trial, and he made no attempt to explain why they could not do the necessary legal research.id: 12271
Trial court did not err in denying defendant's request for a new attorney to investigate a new trial motion based on incompetence of counsel.Defendant argued the trial court abused its discretion in failing to appoint substitute counsel for the purpose of investigating a claim of incompetence of trial counsel and his request for substitute counsel. However, the court's inquiry into defendant's Marsden motion was adequate. It considered the specific examples of counsel's inadequate representation that defendant enumerated, all of which were based upon acts or omissions which occurred at trial or the effect of which could be evaluated by what occurred at trial. Thus, the court was fully justified in ruling on the motion for new trial without substituting new counsel.id: 12272
Trial court did not abuse its discretion in refusing to appoint attorney requested by defendant for murder retrial.The trial court did not abuse its discretion in refusing to appoint the attorney requested by defendant at his retrial for murder and other crimes committed in 1980. The primary reason for denying the request was the attorney's lack of trial experience.id: 12273
Trial court lacked authority to sanction a co-counsel arrangement over professional counsel's opposition.The trial court did not err in denying defendant's request to participate as co-counsel. Defendant did not move to replace counsel and specifically stated he did not want to represent himself. The court lacked authority to sanction a co-counsel arrangement over professional counsel's opposition.id: 12274
Trial court may not rely on the public defender's caseload without more, in determining whether the public defender is available to try a case.A trial court is required to appoint the public defender to represent an indigent defendant when the public defender is available, meaning that the public defender can be ready for trial and in court on the designated trial date. In determining the public defender's availability, the court may either rely on the representation that he or she is available, or may elicit additional information from counsel which will aid the court in making that determination. A finding of unavailability may not be based solely on the public defender's caseload where counsel represents it will not affect his or her trial readiness.id: 12275
Trial court was not required to appoint private counsel who had represented defendant in an earlier criminal case.At defendant's capital trial, the trial court did not abuse its discretion in not appointing a private attorney who had handled an appeal for defendant in an earlier criminal case. There was no relationship between the earlier case and the murder case at issue. Moreover, there was no showing that defendant suffered from a disorder that would prevent him from assisting the public defender.id: 12276
Court had no duty to initiate a Marsden hearing following a disparaging remark about defense counsel.Appellant argued the trial court had a duty to initiate a <i>Marsden</i> hearing when the defendant stated: I don't think defense counsel did anything to understand this case or understand this gentleman, here which is myself, about this case. To trigger a <i>Marsden</i> hearing more than a disparaging word about counsel is required.id: 12232
Complaints regarding lead counsel did not constitute a Marsden motion.Capital defendant argued that his complaints regarding lead counsel constituted a <i>Marsden</i> motion. He acknowledged that second counsel was doing a fine job. He never asked for appointment of substitute counsel, but only to discharge lead counsel. Under the circumstances no additional inquiry by the court was needed.id: 12235
Counsel's proposal to withdraw from representation based on his professed inability to make the requested motion to withdraw the guilty plea did not constitute abandonmentDefense counsel never suggested a legal or tactical reason why appellant's motion to withdraw his guilty pleas should not be made. However, he professed his inability to make the requested motion. His proposal to withdraw from representation, without presenting or describing appellant's motion did not amount to an abandonment of appellant in violation of counsel's legal and ethical duties.id: 12236
Court did not abuse its discretion in appointing the public defender to represent defendant notwithstanding defendant's distrust of the public defender.Defendant argued the trial court abused its discretion in appointing the public defender to represent him because the deputy public defender who had represented him at an earlier bank robbery prosecution afforded him incompetent representation and, unknown to the defendant, had been negotiating for a position with the district attorney. Defendant's distrust of the public defender and consequent difficulty in communicating with the deputies, is a matter for the trial court to consider as part of its discretionary decision in appointing counsel. The court did not abuse its discretion in finding the difficulties between defendant and the public defender had reached the level of irreconcilable conflict precluding the effective assistance of counsel.id: 12238
Court did not err in considering spouse's income when determining ability to reimburse the county for appointed counsel.Defendant argued the trial court improperly considered the earnings of her husband in determining her ability to pay for the services of court-appointed counsel. However, the fact that she had an employed spouse to pay some of the family living expenses was a factor affecting her ability to reimburse the county.id: 12239
Court did not err in denying defendant's request for cocounsel status based upon his prior pro per experience.The trial court did not err in denying defendant's request for cocounsel status based upon his prior pro per status. Defendant failed to offer any legally cognizable justification for his request for cocounsel status and further failed to demonstrate the course of justice would be served.id: 12240
Court did not err in denying a second attorney to assist in preparing a Marsden motion.Defendant argued the court erred in denying a second attorney to assist in preparing his motion for substitute counsel (Marsden motion). The court noted defendant's in pro per Marsden motion adequately informed the court of his complaints regarding counsel, rendering unnecessary the appointment of a second attorney to assist in preparation of the motion.id: 12241
Court did not err in denying counsel's motion to withdraw from the case after defendant admitted guilt to the press.Defendant charged with capital murder told a reporter during an interview that he committed the charged crimes and deserved to die. Defendant's two appointed attorneys then moved to withdraw from the case. The court did not err in denying the motions given the court's finding that defendant's discussion of his case with the media was not an indication of his distrust or dissatisfaction with counsel. Rather the conduct was indicative of his desire to admit culpability and atone for his crimes. Any newly appointed counsel would have faced the same problem and the record did not show defendant's right to counsel was jeopardized by counsel's continued representation.id: 12242
Court has authority to confirm indigency before appointing appellate counsel.Rule 185.5 of the California Rules of Court does not require the appellate department of the superior court to conclusively presume a misdemeanor appellant is indigent for purposes of appointing appellate counsel if he was found indigent and represented by appointed counsel in the trial court. The court has specific authority to confirm the claimed indigency. The presumption of indigency was rebutted in the instant case by the financial statement indicating the family income and monthly expenses.id: 12243
Court was not required to inform defendant of his right to substitute counsel following defendant's Faretta motion.When presented with defendant's motion for self-representation based on dissatisfaction with counsel after his case had been called for trial, the court was not required to inform him of his right to substitute counsel.id: 12244
Defendant has no constitutional right to the assistance of a separate attorney to argue his Marsden motion.Defendant argued the trial court erred in not appointing independent counsel to assist him in arguing that he was entitled to replacement of his appointed counsel. However, a defendant has no constitutional right to the assistance of a separate attorney to argue that appointed counsel is ineffective and should be replaced.id: 12246
Defendant was not denied the right to counsel at sentencing simply because his attorney had been placed on inactive status for failing to comply with MCLE requirements.The representation of a criminal defendant by an attorney who has been involuntarily enrolled on inactive status for MCLE noncompliance does not, in itself, amount to the denial of the effective assistance of counsel.id: 12248
Defendant's written motion alleging dissatisfaction with counsel should have been treated as a Marsden motion.Defendant's motion to the trial court setting forth an arguable case of his attorney's incompetence was sufficient to trigger a <i>Marsden</i> inquiry as to the alleged incompetency, even though defendant did not expressly seek to have his attorney replaced. The error in failing to make the appropriate inquiry required a new hearing to comply with <i>Marsden</i>'s dictates.id: 12249
Defense counsel expressly waived his presence during testimony readback.Defendant argued the trial court erred by conferring with the jury in the absence of defense counsel. However, defense counsel expressly waived his presence during testimony readback and the one question answered by the court in counsel's absence was answered correctly.id: 12250
Defense counsel's exercise of his right to disqualify the judge is not good cause to refuse to appoint the public defender.The trial court's stated ground for refusing to appoint the public defender's office was that the public defender was filing blanket affidavits against him and it was necessary to remove the public defender from the action to preclude the later filing of a timely second Code of Civil Procedure section 170.6 disqualification that would congest other departments. The stated ground did not constitute good cause for deviating from the appointment required by Penal Code section 987.2, subdivision (d).id: 12251
Evidence did not support the claim that the prosecutor did not allege specials in the original complaint so as to deprive defendant of his unwaivable right to counsel at arraignment in a capital case.Defendant was arraigned on two counts of murder and no special circumstances were alleged. He waived his right to counsel at the arraignment. 12 days after the subsequent appointment of counsel, the complaint was amended to charge the multiple murder special circumstance. Defendant waived his right to formal arraignment. He argued his unwaivable right to counsel at arraignment in a capital case (Penal Code section 987, subd. (b)) was violated because the prosecution withheld the special circumstances allegation from the original complaint so as to avoid the mandatory provision of counsel at the original arraignment. If he had counsel he claimed he might have pled guilty to the two noncapital murder charges thereby avoiding the death penalty, and he could have investigated other defenses. However, section 987, subd. (b) did not apply since defendant was not capitally charged when first arraigned. Moreover, the suggestion that the prosecutor acted to leave him without the benefit of counsel - though clearly improper - was purely speculative.id: 12252
Failure to object to lack of notice regarding repayment of probation costs and court appointed counsel constituted a waiver.Defendant attacked the orders requiring her to repay the cost of the probation report and probation supervision as well as the order requiring reimbursement to the county for court-appointed counsel. She claimed lack of notice of the proceedings. However, the failure to object in the trial court on this ground was a waiver of the right to make the argument on appeal.id: 12253
Failure to relieve trial counsel after publication of a newspaper article concerning him did not require reversal.During defendant's capital trial a newspaper article concerning defense counsel appeared. Defendant argued the denial of his motion to relieve counsel required reversal since the article could have diminished counsel's credibility with the jury and his effectiveness as an advocate. However, the trial court opined that counsel had done an outstanding job in representing defendant, and the jurors all affirmed the newspaper article played no part in their deliberations.id: 12254
Given that any error was harmless the court did not decide the issue whether the trial court has a duty to decide a Marsden motion when that court is not aware such a motion is pending.Defendant was found guilty of battery by an inmate on a non-inmate (Penal Code section 4501.5.) Before sentencing he moved for a new trial. A different judge presided over this motion at which time defendant also claimed he was dismissing his attorney. The court put the matter over until the trial judge (Judge Nelson) returned. There was no mention of a <i>Marsden</i> motion in front of Judge Nelson. Defendant argued the court erred in denying him a <i>Marsden</i> hearing. However, the record demonstrated defendant's dissatisfaction was transitory and he was capable of manipulation in creating appellate issues. Given that any error was harmless the court did not consider whether the duty of a court to consider a <i>Marsden</i> motion exists even where the court is unaware that such a motion is pending.id: 12255
Government Code section 27706 does not authorize the court to appoint the public defender to act as standby counsel.The trial court is not empowered to appoint the public defender to serve as standby counsel. The court's authority in appointing the public defender is limited to appointments to defend a person charged with a crime, or at least to assist in the defense of such person. A standby counsel represents no one. His or her task is to wait in readiness to play a role should the occasion arise. Standing by is not defending.id: 12256
Appellant was not deprived of his speedy trial rights where the Court of Appeal only remanded the case to conduct a Marsden hearing.Pursuant to a plea bargain appellant was convicted of rape and sentenced to eight years in prison. In a previous appeal he argued the court erred in failing to provide a hearing when he requested new counsel. The Court of Appeal remanded the matter for the limited purpose of conducting a <i>Marsden</i> hearing to allow defendant to state reasons for desiring the appointment of new counsel. If the motion was granted the matter would have been set for retrial. The remittitur was filed in the trial court on June 23, 1992. Pursuant to a September 14, 1992 order the <i>Marsden</i> hearing was scheduled for September 24, 1992, but at the request of the defense the hearing took place on October 2, 1992. Appellant moved to dismiss pursuant to Penal Code section 1382, subdivision (a)(2), claiming the matter should have been heard within 60 days of the filing of the remittitur. However, pursuant to the earlier remand, the <i>Marsden</i> hearing was the only relief to which he was entitled. Whether he was deprived of his right to a timely <i>Marsden</i> hearing was dependent on his showing of prejudice, and there was no such showing in this appeal.id: 12021
Denial of continuance was not an abuse of discretion and removal of defense counsel in light of his representation of incompetence to proceed to trial did not violate due process.The trial court denied defendant's request for a two week continuance. Defense counsel stated at the hearing that he would be incompetent to proceed to trial even if the case trailed four more days and he could not assure the court that he would be ready to proceed at that time. Denial of the requested continuance was not an abuse of discretion as defense counsel made no offer of proof at the hearing concerning his efforts to locate missing witnesses nor any explanation why they had not been subpoenaed earlier. Moreover, removal of defense counsel in light of his representation of incompetence to proceed to trial was not violative of his due process rights.id: 11936
Conflict over filing of a suppression motion did not require the appointment of new counsel.Defendant requested the appointment of new counsel based on a conflict between he and his present counsel regarding whether a suppression motion should be filed. However, this conflict did not amount to a breakdown in the attorney-client relationship of such magnitude as to substantially impair defendant's right to the effective assistance of counsel and to warrant the appointment of new counsel. Moreover, the decision whether to file a suppression motion is not one of the personal rights which a defendant is entitled to exercise over the contrary evidence of counsel.id: 11793
Court may enjoin attorneys from spending money paid by clients which is traceable to exchanges of controlled substances.Respondent court improperly denied the People's application for a preliminary injunction enjoining the defense attorneys from transferring, encumbering, hypothecating or otherwise disposing of the subject money. Respondent court did not afford the People on opportunity to demonstrate that there was probable cause to believe the subject money was forfeitable. In the absence of any competent evidence establishing that there was no need for preliminary injunctive relief in order to preserve the status quo of the subject money, respondent should not have denied the application for a preliminary injunction on the ground that defense attorneys were officers of the court who would do what was proper with the funds.id: 11590
Statements obtained in violation of Michigan v. Jackson may be used for impeachment.In <i>Michigan v. Jackson</i>, 475 U.S. 625 (1986), the Supreme Court held that once a criminal defendant invokes his 6th Amendment right to counsel, a subsequent waiver of that right <197> even if voluntary, knowing, and intelligent under traditional standards <197> is presumed invalid if secured pursuant to police-initiated conversation. In a 5-4 opinion written by Chief Justice Rehnquist the Supreme Court held that statements taken in violation of the <i>Jackson</i> prophylactic rule may be used to impeach a defendant's false or inconsistent testimony. Justices Stevens, Brennan, Marshall and Blackmun dissented.id: 11390
Money sanction against counsel was proper where defendant was ordered to appear in court and counsel did not appear.The trial court imposed a money sanction of $150.00 upon a deputy public defender pursuant to Code of Civil Procedure section 177.5 after counsel failed to appear when the court was to assign a courtroom on the last day for trial. Counsel had appeared with the defendant earlier that morning, and the court ordered defendant to return at 1:30 p.m. A reasonable attorney would have interpreted the court's order for defendant to appear as an order that his attorney also appear. Under the circumstances, the money sanction was proper. Moreover, a sanction is appropriate under section 177.5 for violation of an order without good cause. This violation does not require a subjective intent.id: 10816
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245