P. v. Potter

Filed 12/3/07 P. v. Potter CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed.

John Potter appeals from a judgment entered after a guilty plea. He argues the superior court abused its discretion in denying his two motions for new counsel and in denying his motion to withdraw his guilty plea. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 2005, San Diego police officers searched a home at 1333 Weaver Street in San Diego, where Potter lived. Inside Potter's room, officers found a baggie of methamphetamine weighing .07 grams, three large bags of marijuana, weighing a total of 80.51 grams, and several canisters of marijuana seeds. The officers also found Potter's notebook containing a handwritten list of equipment needed to grow marijuana. In the hallway, the officers noticed a hose leading to a trap door in the floor of the closet. Hearing someone in the basement below, the officers called, "Come up. Come up. Show us your hands." Eventually Potter emerged from the trap door.

The basement was completely lined in reflective foil and contained two grow lamps, two water pumps, fans, and extension cords. Also in the basement were 15 two-liter soda bottles containing stems from freshly cut marijuana plants. The plants were piled two feet high on a work table. Outside the house, officers noticed that the electric meter was spinning rapidly, as though an excessive amount of electricity was being used.

Based on these events, Potter was charged with cultivation of marijuana (Health & Saf. Code, 11358) and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). The information further alleged Potter had a prison prior (Pen. Code,  667.5, subd. (b), 668) and a strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

On June 7, 2005, Potter raised his first Marsden^[1]motion. Potter provided the court with a three-page handwritten letter, expressing his belief that his counsel, Deputy Alternate Public Defender Bruce Kotler, was ineffective because he failed to (1) file a motion to suppress, (2) conduct a reasonable investigation, (3) provide Potter a copy of the preliminary hearing transcript, and (4) discuss the issues in the case with Potter. Potter argued that there had been a total breakdown in the relationship. Mr. Kotler responded that after meeting with Potter and discussing a motion to suppress, Mr. Kotler researched the law, reread the preliminary hearing transcript and police reports, and consulted with attorneys inside and outside of his office. He then wrote Potter a letter explaining why he believed a motion to suppress had little chance of success, and included citations to case law as well as a copy of the preliminary hearing transcript. However, Potter had not yet received this letter at the time of the Marsden hearing. The court inquired of Mr. Kotler whether there was a lack of communication, or whether there was a disagreement about the merits and tactical decisions in the case. Mr. Kotler indicated it was the latter.

After considering the statements from Potter and Mr. Kotler, the court denied the Marsden motion, finding there was no evidence of any substandard representation, but merely a disagreement about the merits of the case.

On June 21, 2005, Potter brought his second Marsden motion to relieve his counsel. This time, Potter alleged his attorney "deliberately deceived" everyone in an attempt "to cover up his incompetence." Specifically, Potter claimed Kotler delayed sending his letter "in order to sabotage [Potter's] Marsden motion presentation and bamboozle the judge into overlooking his incompetence and dishonesty." At the same time, Potter stated the letter itself reflected Kotler's "inability to analyze the facts" as well as his "dishonesty" and "incompetence." Kotler reiterated that after listening to Potter's request to file a motion to suppress, Kotler conducted considerable research in order to provide the most comprehensive and honest assessment of Potter's chances on the motion. He also believed the fastest way for Potter to receive the letter was by sending a "runner" to the George Bailey prison facility. Further, Kotler sent a "runner" because he wanted Potter to receive the letter before the first Marsden motion in the hope of avoiding the motion altogether.

In ruling on the motion, the trial court indicated it saw no basis to find Kotler acted inadequately or in bad faith. As an aside, the court noted Kotler never displayed any indicia of bad faith during the entire 15 years that Kotler appeared in the trial judge's courtroom. While acknowledging Potter's frustration, the court explained it is "unreasonable to imagine that [the motion to suppress] would have succeeded." Thus, the court denied Potter's second Marsden motion.

On August 2, 2005, after two unsuccessful Marsden motions, Potter pleaded guilty to the cultivation of marijuana and admitted having one prior strike conviction. In exchange for his plea, the prosecutor dismissed the remaining possession charge and the prison prior. Both parties stipulated that Potter would be sentenced to four years in state prison.

Almost four months later on November 30, 2005, Potter moved to withdraw his guilty plea on the grounds that his plea was unintelligent and involuntary because his counsel failed to inform him that he was giving up his right to appeal. Potter was appointed new counsel for purposes of the motion to withdraw the plea. At the hearing, Potter testified he entered his guilty plea in order to challenge the denial of his Marsden motions on appeal. Potter also testified that although his counsel told him he would be "giving up everything," he still believed he could file a writ of habeas corpus. Kotler testified he discussed the guilty plea with Potter, and explained to Potter that he would be giving up virtually all of his appellate rights.

In denying the motion to withdraw the plea, the court found Potter failed to show good cause. However, the court did find that there was a breakdown in communication between Potter and his counsel. The court relieved Kotler, and appointed new counsel for sentencing. Potter appealed and the trial court granted a certificate of probable cause.

DISCUSSION

THE COURT PROPERLY DENIED POTTER'S MOTIONS TO RELIEVE COUNSEL

Potter contends the court erred in denying his Marsden motions to relieve his counsel. The Attorney General argues Potter's Marsden motion issues are waived by the guilty plea. We decline to resolve the waiver issue because, even if we consider the issue on the merits, it fails. On this record, the trial court properly denied Potter's Marsden motions.

A trial court has broad discretion to grant or deny a motion. When the court denies a Marsden motion, we review the denial under an abuse of discretion standard. A denial is not an abuse of discretion unless the defendant shows the failure to replace the appointed attorney would "substantially impair" the defendant's right to competent counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) A trial court's discretionary decision will not be disturbed on appeal if there exists a reasonable or even fairly debatable justification under the law for the action taken. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) Consequently, we will interfere with the trial court's exercise of discretion only when we conclude that under all the circumstances, viewed most favorably in support of the trial court's action, no judge could have reasonably reached the challenged result. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

Under article I, section 15 of the California Constitution, a defendant in a criminal case has a right to competent assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) The right to competent assistance of counsel extends beyond trial and into the plea bargaining process. (Hill v. Lockhart (1985) 474 U.S. 52, 59.)

Under the Marsden standard, a defendant must show that appointed counsel is not providing competent representation or that there is an irreconcilable conflict such that ineffective representation is likely to result. (People v. Dickey (2005) 35 Cal.4th 884, 917.) However, "a defendant does not have the right to appoint new counsel absent a clear showing of inadequate representation." (People v. Silva (1988) 45 Cal.3d 604, 622.) The trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. (Marsden, supra, 2 Cal.3d 118, 124.) A trial court may not deny a request for substitution of attorneys without giving the defendant the opportunity to explain his reasons through presentation of argument and evidence. (Ibid.) "All Marsden held was that a defendant is denied a fair trial when the trial court refuses to hear enumerated specific examples of inadequate representation." (People v. Huffman (1977) 71 Cal.App.3d 63, 77.) When the defendant is afforded an opportunity to state the reasons for discharging an appointed attorney, the trial court's decision to allow a substitution of attorney is discretionary unless the defendant has shown that failure to order substitution is likely to result in constitutionally inadequate representation.

Here, the trial court was within its discretion in concluding that Potter did not make a showing sufficient to justify the discharge of his appointed counsel. After hearing Potter's complaints and conducting a proper hearing, it was reasonable for the court to find the conflict between Potter and his counsel was about trial strategy. Kotler considered Potter's request to file a motion to suppress, but after researching the issues and speaking with other attorneys, Kotler wrote a letter to Potter explaining his reasons for not filing the motion. "[A]n attorney representing a criminal defendant has the power to control the court proceedings." (People v. Guillen (1974) 37 Cal.App.3d 976, 981.) During the Marsden hearing, the trial court even noted that a motion to suppress was "doomed." Thus, Potter's disagreements over strategy and the merits of a motion to suppress do not constitute grounds warranting discharge of counsel. (People v. Lucky (1988) 45 Cal.3d 259, 281-282 (Lucky).)

Further, Potter has not shown his disagreements with counsel signaled "a breakdown in the attorney-client relationship of such magnitude as to jeopardize [his] right to effective assistance of counsel." (People v. Robles (1970) 2 Cal.3d 205, 215.) Rather, it was reasonable for the court to conclude that Kotler maintained communication with Potter, even though Potter was adamant about controlling the process. "There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.] Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. [Citations.]" (Lucky, supra, 45 Cal.3d at pp. 281-282.) That Potter was later represented by new counsel during sentencing does not undercut the trial court's discretion to deny the Marsden motions. Potter was appointed new counsel for purposes of the motion to withdraw the plea, and the court was within its discretion to continue having Potter represented by that new attorney during sentencing.

Because the record does not show any significant impairment of Potter's right to competent counsel, we conclude the trial court properly denied Potter's Marsden motions.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).