P. v. Harris
Filed 12/26/12 P.
v. Harris CA2/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
SONNY ROCKY
HARRIS,
Defendant and Appellant.
B236855
(Los Angeles County
Super. Ct. No.
GA079019)
APPEAL
from a judgment of the Superior Court of
County. Suzette Clover,
Judge. Reversed and remanded.
______
David
L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
______
>
An information, dated June 8, 2010, charged Sonny
Rocky Harris with two counts of second
degree robbery (Pen. Code, § 211
degree commercial burglary (§ 459). As
relevant, the information specially alleged that Harris had two prior serious
or violent felony convictions for robbery that qualified as strikes under the
“Three Strikes†law and that one of them subjected him to a five-year
enhancement under section 667, subdivision (a)(1).
On
November 9, Harris’s privately retained
counsel filed a motion to withdraw
as attorney of record on the ground that Harris and his family had agreed to
pay attorney fees through trial but did not pay the agreed-upon fees and that
the “failure to pay the entire attorney[] fees has caused a conflict betweenâ€
counsel and Harris. According to
counsel, “On or about 02-22-2010 I was hired by
[Harris] and his family to represent [Harris] through trial for an
agreed[-]upon amount. On 10-15-2010, I was told by [Harris] and [his] family that they would not be
able to pay me my attorney[] fees. Hence
a conflict has arisen between me and [Harris].â€
A week later, on November 16, the trial court denied the motion, although
it appointed an investigator at the court’s expense.
Immediately
after denial of the motion, Harris asked the court to allow his retained
counsel to withdraw and appoint counsel for him. Harris stated, “There’s been a conflict with
me and my attorney. We [have] been
having issues[,] attitudes and certain things that haven’t followed up with
him. I really would be okay if I could
get a public defender. . . . [W]e are not getting along at all. He [has] not been helping me [with] anything. I haven’t been getting any . . . visits from
the jail, talk to him, or even speak to him at all.†The court denied Harris’s request. As to appointment of counsel, the court
concluded, “Doesn’t really work that way.
But you can always choose to hire other counsel if you are not getting
along with this counsel . . . .â€
Retained counsel thus continued to represent Harris through a jury
trial, which began on March 22, 2011.
The
jury convicted Harris on all three counts.
After Harris waived his right to a jury trial on the special
allegations, the trial court found that Harris had two prior serious or
violent felony convictions for robbery.
The court sentenced Harris as a third-striker to a state prison
term of 30 years to life, consisting of 25 years to life under the Three
Strikes law for the robbery in count 1, plus 5 years under section 667,
subdivision (a)(1). It imposed a
concurrent sentence for the robbery in count 2 and stayed imposition of
sentence, pursuant to section 654, for the burglary in count 3.
Harris
contends, and the People agree, that the judgment must be reversed because the
trial court violated Harris’s constitutional right to counsel by denying his
request to allow his privately retained counsel to withdraw as attorney of
record. Harris and the People are
correct. We therefore reverse the
judgment.
“[W]hen a criminal defendant makes a timely
attorney he should not be required to demonstrate the latter’s incompetence, as
long as the discharge will not result in prejudice to the defendant or in an
unreasonable disruption of the orderly processes of justice.†(People
v. Ortiz (1990) 51 Cal.3d 975, 979.)
Absent a showing of prejudice or unreasonable disruption, the trial
court should discharge privately retained counsel and, if the defendant is
indigent, appoint counsel for him. (
consider whether a defendant is indigent and will require appointment of
counsel in ruling on his timely motion to discharge retained counselâ€].) Failure to do so deprives the defendant of
the right to defend with counsel of his choice and thus constitutes grounds for
automatic reversal of the judgment. (
factors [of prejudice or unreasonable disruption] are not implicated in
defendant’s motion to discharge his retained counsel, the trial court’s denial
of defendant’s motion requires automatic reversal of the convictionâ€].)
In
this case, Harris unequivocally requested that his privately retained counsel
be permitted to withdraw from the case.
Nothing in the record suggests that allowing privately retained counsel
to withdraw would have prejudiced Harris.
Upon a showing of indigency, the trial court should have appointed counsel,
who could have prepared for trial. Nor
was Harris’s request untimely such that granting it would have caused
unreasonable disruption to the proceedings.
He made the request more than a month before the scheduled trial date,
which later was continued for several months.
And, at the time of Harris’s request, the court appointed an
investigator, to be paid at the court’s expense, demonstrating it recognized
investigation into the matter and trial preparation was ongoing. As a result, the court erred by denying
Harris’s request to allow his privately retained counsel to withdraw. After allowing privately retained counsel to
withdraw, the court should have afforded Harris the opportunity to demonstrate
indigency and, if he were indigent, appointed an attorney for him.
automatic. (People v. Ortiz, supra,
51 Cal.3d at pp. 988-989; People v. Lara,
supra, 86 Cal.App.4th at p. 155.)
DISPOSITION
The
judgment is reversed. The matter is
remanded to the trial court for further proceedings consistent with this
opinion. Upon a showing of indigency,
the trial court should appoint counsel for Harris.
NOT
TO BE PUBLISHED.
ROTHSCHILD,
J.
We concur:
MALLANO, P. J. CHANEY, J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code.
seeking to withdraw from the case, Harris’s privately retained counsel stated
that Harris could not pay his attorney fees as they had agreed for
representation through trial. The court
appointed an investigator at the court’s expense but did not inquire into
Harris’s financial status. Accordingly,
a determination of indigency by the court is appropriate on remand.
