P. v. Godfrey
Filed 1/22/14 P. v. Godfrey CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Butte)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
ALEXANDER
SCOTT GODFREY,
Defendant and
Appellant.
C073233
(Super. Ct. No.
CM036235)
Defendant
Alexander Scott Godfrey was charged with first degree burglary and an allegation
that a person other than defendant or an accomplice was present. At a meeting before trial, defense
room. The
substitute counsel, and a jury found him guilty of the charge and found the
allegation that a person other than defendant or an accomplice was present was
true. On appeal, defendant contends the
trial court abused its discretion in denying his motion to substitute counsel
because his counsel’s actions created an irreconcilable conflict likely to
result in ineffective representation. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because
the facts underlying the charges are not relevant to this appeal, we do not
discuss them.
After
defendant was charged, Robert Radcliffe, a public defender, was appointed to
represent him.
Prior
to trial, Radcliffe provided defendant with a copy of the discovery received
from the district attorney, “but there were some pages missing.†The discovery provided to defendant included a
copy of the “narrative, which is the police officer’s description of interviews
and evidence that’s attained [sic]†but
did not include any of the pages with
A
week and one-half before the trial date, defendant met with Radcliffe at the
jail “to discuss [his] case.†During the
visit, defendant “questioned†Radcliffe about “some omissions in the discoveryâ€
provided to him “because it seem[ed] like [his] discovery [was] missing a lot
of the pages.†Radcliffe told defendant
he could not give him the remaining discovery because it contained personal
information such as witnesses’ addresses and phone numbers. Defendant told
for the Court and the [district attorney] and the judge†and was “not fighting
for him because [Radcliffe] was in cahoots with the district attorney.†In response, Radcliffe “flipped [defendant]
off†and said, “Fuck you. Fuck you, you
piece of shit.†Radcliffe then “walked
out of the visiting room.â€
Defendant
requested a new attorney the following day.
At the
“not getting adequate counsel.†The
letter explained how Radcliffe had cursed at defendant and that defendant felt “the
incident†“was not conducted in a professional manner†and “[wa]s a violation
of the California Rules of Professional Conduct.†When asked to explain what happened at their
meeting, defendant described how he “confronted†his attorney about the pages
missing from his discovery, how he “felt [counsel] wasn’t doing anything for
[him]†because his case “ha[d]n’t gone anywhere,†and how counsel cursed at him
and left the room. When asked if he had
any other problems with counsel, defendant said no.
Radcliffe
addressed defendant’s points in turn. He
admitted he cursed at defendant and apologized for his behavior, explaining
that he was upset by defendant’s accusations that he “was in cahoots with the
district attorney†and hoped that by “speaking [defendant’s] language,â€
defendant would understand he was upset by the accusations. He explained he did not give defendant copies
of all of the discovery from the
prosecution because there was confidential information on some pages but
he did give defendant the narrative portion of the discovery, which contained
all the information defendant needed to know.
Radcliffe
described what he had done to prepare for trial and stated his belief that
defendant had “a plausible defense.†He stated
that he remained “prepared to take [defendant’s case] to trial†and “want[ed]
to fight for him.†Radcliffe did not
believe that “the emotional response†defendant elicited from him would affect
his ability to advocate for defendant at trial.
The
court denied defendant’s Marsden
motion, believing Radcliffe’s apology was sincere and that he was prepared for
trial. The judge observed he had “known
[Radcliffe] for the 22 years [he had] been a public defender†and “always
considered [him] to be a gentleman.†The
court found “defendant [wa]s adequately represented†and would continue to be
adequately represented at trial.
At
trial, the jury found defendant guilty of residential burglary and found the allegation that a person other than defendant
or an accomplice was present was true. He
was sentenced to four years and eight months in prison.
DISCUSSION
Defendant
contends “the trial court abused its discretion when it refused to appoint new
counsel†because “[t]he attorney/client relationship was irretrievably brokenâ€
when Radcliffe cursed at defendant, “made an obscene gesture with his finger,
[and] then walked out of their meeting.†Because the relationship was “irretrievably
broken†and defendant’s confidence in his attorney “evaporated,†defendant
contends the court’s refusal to substitute new counsel “necessarily resulted in
a denial of [his] federal and state constitutional rights to effective
assistance of counsel.â€
Pursuant
to People v. Marsden,
be entitled to an order substituting appointed counsel if he shows that, in its
absence, his Sixth Amendment right to the assistance of counsel would be denied
or substantially impaired.’ †(
857.) “Marsden motions are subject to the following
well-established rules. ‘ “ ‘When a defendant
seeks to discharge his appointed counsel and substitute another attorney, and
asserts inadequate representation, 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. [Citation.] A defendant is entitled to relief if the
record clearly shows that the first appointed attorney 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]’ [Citations.]â€
’ [Citation.] Denials of Marsden motions are reviewed
under an abuse of discretion standard.†(
1044, 1085.)
Defendant’s
argument is premised on his contention that an irreconcilable conflict arose
when Radcliffe cursed at him, flipped him off, and left the room. This interaction between defendant and counsel,
however, does not in itself amount to such an irreconcilable conflict that
ineffective representation was likely to result. “Although clearly some heated words were
spoken between client and attorney . . . that alone does not require a
substitution of counsel absent an irreconcilable conflict.†(People
v. Smith (1993) 6 Cal.4th 684, 696 [finding no irreconcilable conflict
where defendant claimed (among other issues) counsel “ ‘cussed [him] out’ â€
because he “ ‘did not want to take [the plea]’ â€].) Although defendant emphasizes that counsel’s
words “personally degraded him†and constituted “more than just an angry
outburst,†defendant provides no authority for the proposition that use of
personally degrading words is by itself necessarily sufficient to establish an
irreconcilable conflict.
Furthermore,
“ ‘a trial court is not required to conclude that an irreconcilable conflict
exists if the defendant has not made a sustained good faith effort to work out
any disagreements with counsel and has not given counsel a fair opportunity to
demonstrate trustworthiness.’ †(
Since defendant requested substitute counsel the day after the incident,
the trial court “could reasonably conclude that defendant had not made
sufficient efforts to resolve his differences with [Radcliffe] or given
[Radcliffe] sufficient time to demonstrate he was worthy of defendant’s
trust.†(Ibid.)
Relying
on People v. Ramirez (2006) 39
Cal.4th 398, defendant contends he was denied effective assistance of counsel
because “[e]ffective representation is dependant [sic] on the defendant’s confidence in his attorney,†and his
confidence in his attorney “evaporated . . . when counsel called [him] ‘a piece
of shit’ and abandoned their meeting.â€
because it involved a motion to substitute retained counsel rather than
appointed counsel. (Ibid.) Moreover, to the
extent defendant argues his subjective lack of confidence in his attorney is
sufficient to require substitute counsel, we disagree. “ ‘ “[I]f a defendant’s claimed lack of trust
in . . . an appointed attorney were sufficient to compel appointment or
substitution of counsel, defendants effectively would have a veto power over
any appointment and by process of elimination could obtain appointment of their
preferred attorneys, which is certainly not the law.†’ †(People
v. Memro, supra, 11 Cal.4th at p.
857.)
In
this case, the trial court “fully allowed defendant to state his complaints,
then carefully inquired into them.
Defense counsel responded point by point.†(People
v. Smith, supra, 6 Cal.4th at p.
696.) Counsel apologized for his
behavior and assured the court it would not happen again. The trial court was entitled to credit
Radcliffe’s testimony that he was prepared for trial and “want[ed] to fight for
[defendant].†On these facts, the court
could reasonably conclude defendant was adequately represented. Accordingly, the trial court did not abuse
its discretion in declining to substitute counsel.
DISPOSITION
The
judgment is affirmed.
ROBIE ,
Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
name="_ftn1" title="">[1] People v. Marsden (1970) 2 Cal.3d 118.
