Odle v. Super.
Filed 12/5/13 Odle v. Super. Ct. CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
JAMES
RICHARD ODLE,
Petitioner,
v.
THE SUPERIOR
COURT OF CONTRA
COSTA COUNTY,
Respondent;
THE PEOPLE
OF THE STATE OF CALIFORNIA,
Real Party in Interest.
A139719
(Contra
Costa County
Superior Court No. 24580)
BY THE COURT:
name="_ftnref1" title="">[1]
Petitioner
is a condemned prisoner at San Quentin awaiting a retrospective
the Ninth Circuit Court of Appeals and then, subsequently, this court. Here,
petitioner argues that his counsel’s motion to withdraw should have been
granted and that his motion for a new appointed counsel under
informal opposition and reply.
name="_ftnref3" title="">[3]
For
several years, petitioner has been making Marsden
motions and refusing to cooperate with his counsel, John Grele, or with the
court as long as Grele remains on the case.
He has submitted well over 100 Marsden
filings, usually addressed to the District Attorney’s office because he will
not communicate directly with Grele and the court refuses to accept his letters
believing it would be an ex parte communication. The situation has deteriorated to the point
that petitioner has asked to not be brought to court (and instead left in San
Quentin), has not cooperated with the appointed mental health expert who is to
opine on the feasibility of the retroactive competency hearing, and has
threatened to hurt himself or counsel when they are together.
Although
counsel has renewed the motions since, the original motion was made on April 11, 2013. There, counsel attempted to present both his
motion to withdraw and his client’s Marsden
motion, but the judge stated that “I’m hearing the
stated that “the arguments I’m raising are applying to both motions. I felt it incumbent to raise the motion [petitioner]
has made as well as raise my own motion with the Court.†In doing so, counsel supplied the court with
many if not all of petitioner’s numerous Marsden
motions and made an oral presentation.
During his presentation, counsel explained that petitioner had lost part
of his brain,
title="">[4] gets extremely agitated with counsel around,
and (in counsel’s opinion) is “under some sort of delusion about his
representation.†Specifically, counsel
said petitioner does not understand “why issues about his mental capabilities
were being discussed and which—which agitate him measurably.â€
combative and hurting himself (by pounding his head against the wall), behavior
that the Ninth Circuit noted petitioner exhibited during an involuntary
hospitalization prior to the capital crime.
(See Odle v. Woodard, supra,
238 F.3d at p. 1088.)
Petitioner
also addressed the court, at times in a rambling fashion and at others clearly
hostile and upset. He explained that
Judge Cram ordered that he receive transcripts [“[a]nd that’s when the court
order I won which I was supposed to get the transcripts and everythingâ€], but
it took a year to get them [“a whole year later I was still waiting on that
transcripts—Still waitingâ€]. The
transcripts finally arrived in an unmarked box, which terribly upset him: “And I get the transcript, it don’t even have
a return address on it. Judge Cram I’m
sure is the one that caused this . . . . [¶] . . . The
box it came in got poured into this other box.
And then I get this box sitting here and it’s a different officer
bringing it. And he just he wants to put
it in my cell and don’t have nothing for me to sign or whatever. And I already stated anything that’s coming
from that one party I’m sending back. [¶]
Somebody did a trick of some type to try to get me to get [the box of
transcripts]. I really didn’t even know
it was [the] court transcript. But
because it was legal [mail], there was nothing for me to sign, [so] I refused
it. [¶] . . . [¶] I’m
legally being fucked with. And you don’t
understand me.†In response, the court
told petitioner that it “was not going to tolerate that language.†Petitioner responded: “Yeah, well , you can send me back†to San
Quentin and “[t]he hunger strike is continued.â€
The
court stated that the “[m]otion to withdraw is denied†without further
explanation. The trial court later The trial court explained the basis for the
ruling at the subsequent hearing on the motion to reconsider: “[T]his case is now almost 6 years down the
road and the fact that we are so close to argument on the issues, the fact that
Mr. Olde has been—obstreperous is probably not the correct word, obstructionist
is more the word in his activities in this matter, the court is not going to reward
him with a new attorney. Therefore, this
motion for consideration is denied.â€
“The
determination of whether to grant or deny an attorney’s motion to withdraw as
counsel of record lies within the sound discretion of the trial court, having
in mind whether such withdrawal might work an injustice in the handling of the
case.†(Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.) Appointed counsel should be relieved where “
‘ “the record clearly shows that†’ †appointed counsel “is not providing
adequate representation [citation] or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result [citations].â€
[Citations.]’ [Citation.]†(People
v. Memro (1995) 11 Cal.4th 786, 857, overruled on other grounds in
181, fn. 2..) But, to show an
irreconcilable conflict a “[d]efendant cannot simply refuse to cooperate with
his appointed attorney and thereby compel the court to remove the attorney.†(People
v. Michaels (2002) 28 Cal.4th 486, 523.)
“A defendant may not effectively veto an appointment of counsel by
claiming a lack of trust in, or inability to get along with, the appointed
attorney. [Citation.] Moreover, the
trial court need not conclude that an irreconcilable
conflict exists if the defendant has not tried to work out any
disagreements with counsel and has not given counsel a fair opportunity to
demonstrate trustworthiness.†(
606.)
The
cases disallowing substitution of counsel because the defendant refused to
cooperate with counsel are all premised on the refusal to cooperate being
volitional. For instance, in
the defendant told the court that “his relationship with Grossberg [appointed
counsel] had deteriorated to the point that defendant had ordered Grossberg not
to contact him or anyone else concerning the case.†(Id.
at p. 522.) The trial court refused to
remove counsel. (Ibid.) The Court of Appeal
affirmed, finding that “[n]othing in the record here shows that Grossberg was
incompetent or would not provide adequate representation if he received
defendant’s cooperation. But it is clear
that he and defendant were in conflict that could imperil Grossberg’s ability
to provide effective representation. One
consequence of the conflict is that defendant refused to review his confession
with Grossberg, depriving Grossberg of the opportunity to determine whether any
part of it was untrue. [¶] But that does not demonstrate an
‘irreconcilable conflict’ that would require the trial court to replace
appointed counsel. Defendant cannot
simply refuse to cooperate with his appointed attorney and thereby compel the
court to remove that attorney. ‘ “ [I]f
a defendant’s claimed lack of trust in, or inability to get along with, an
appointed attorney were sufficient to compel appointment of a substitute
counsel, defendants effectively would have a veto power over any appointment
and by a process of elimination could obtain appointment of their preferred
attorneys, which is certainly not the law.†’ [Citations.] [¶] Here the record suggests that
defendant would not cooperate with any attorney not ‘pre-cleared’ by him and
second counsel Mark Chambers.†(
indicating that the defendant was incompetent or refusing to cooperate because
of mental illness.
Both
Michaels and other published
decisions on the issue focus on whether the defendant volitionally refuses to cooperate. Indeed, in People v. Smith, supra, 30 Cal.4th 581, the Supreme Court observed
that “the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to
work out any disagreements with counsel and has not given counsel a fair
opportunity to demonstrate trustworthiness.â€
(Id. at p. 606.)
Here,
there is no evidence in the record indicating that petitioner’s obstruction is
volitional. Indeed, the weight of the
evidence makes clear that petitioner’s bizarre, confrontational, and
obstructionist behavior is not volitional; rather, the evidence points only in
one direction—that his bizarre, confrontational, and obstructionist behavior is
caused by the removal of a grapefruit-sized portion of his brain following a
traumatic brain injury. And that
irrational and bizarre behavior does not appear universal. Petitioner has meet with and approves of the
public defender.
title="">[6] Indeed, petitioner told the court he would be
happy to proceed with the public defender with whom he met: “I’ve never had no problems with [the Public
Defender’s Office]. The only problems
I’ve [ever] had with attorneys is since I’ve been condemned inmate with the
people that are representing me now.â€
The
facts here are surprisingly similar to People
v. Stankewitz (1982) 32 Cal.3d 80 (Stankewitz
I) and People v. Stankewitz
(1990) 51 Cal.3d 72 (Stankewitz II). There, in Stankewitz
I , the Supreme Court “reversed the judgment from defendant’s first trial
on the ground that the trial court erroneously failed to hold a competency
hearing pursuant to [Penal Code] section 1368.â€
(Stankewitz II, 51 Cal.3d at
p. 85.) Upon remand, the defendant was
examined by a doctor who observed that the “defendant appeared to harbor
paranoid delusions that his public defender was in collusion with the
prosecutor.†(Ibid.) Much like in this
case, the evidence showed, in spite of his irrational belief about the public
defender, “that defendant appeared to be capable of cooperating in his own
defense with an attorney who was not a public defender.†(Ibid.) The court heard and granted defense counsel’s
motion to withdraw prior to conducting the Penal Code section 1368 competency
hearing; that hearing was then submitted by new counsel on the doctor reports
and the trial court denied the motion as moot because all the evidence was that
the defendant’s incompetency was based on his paranoid delusions about the
public defender, who was no longer counsel.
(Stankewitz II, at pp. 86-87.) On appeal, defendant argued the court did not
have jurisdiction to rule on the motion to withdraw and should not have
conducted the competency hearing solely on the reports. Both claims were denied. (Id.
at pp. 87-89.) While the
party’s position in this case, it does show that while the cause of
petitioner’s irrationality may be unique, the result is not. Here, as in Stankewitz, the mental condition of the defendant causes him to
irrationally distrust one counsel to the point that the attorney-client
relationship does not exist, but there is no reason to believe that the
situation would repeat itself with another counsel—indeed, there is strong
evidence that it will not repeat. Thus,
the trial court erred in denying counsel’s motion to withdraw.
The
trial court also erred in failing to hear the Marsden motion. The motion
was presented to the court and it, without stating a reason, said it would only
consider the motion to withdraw. This
issue, however, is moot given our conclusion on the motion to withdraw.
Let
a peremptory writ of
mandate issue commanding respondent to withdraw its order denying the motion to
withdraw by petitioner’s counsel and enter a new and different order granting
the motion to withdraw. The stay previously imposed is dissolved upon
filing of the remittitur. (See Cal.
Rules of Court, rule 8.490.)
J.
v. Marsden (1970) 2 Cal.3d 118.
