Filed 5/9/14 P. v. Smith CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                         D064142

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD246263)

RICHARD F. SMITH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Eugenia

Eyherabide, Judge. Affirmed.


         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.

Chow, Deputy Attorneys General, for Plaintiff and Respondent.
       At the request of defendant Richard Smith, and following his guilty plea, the trial

court in this case conducted two Marsden1 hearings. At both Marsden hearings, Smith

claimed his counsel was ineffective and requested new counsel. At the first Marsden

hearing, the trial court found that Smith had adequate legal representation at the time of

his plea and there were no other grounds to withdraw his plea. The trial court gave Smith

leave to retain new counsel. When Smith appeared again, Smith made a second Marsden

motion which the trial court also denied. Our review of the record shows that Smith was

adequately represented at all material times.

                              FACTUAL BACKGROUND:

       On the evening of February 12, 2013, Jason Mikell reported a burglary at his

residence. Police responded and when they arrived, they found Smith leaving Mikell's

residence and arrested him. The police found a ladder on the side of the building and a

pick ax in a hot tub on the property.

       A window was smashed on the balcony of Mikell's residence. On the balcony

police found a backpack containing Smith's drivers' license, a laptop computer, a black

tablet case, a stethoscope, a blood pressure cuff and a second silver and black case.

Mikell reported that the laptop and tablet cases belonged to Allen Mercier, a deceased

former roommate. According to Mikell, Mikell was the executor of Mercier's estate.

Mikell further stated that the stethoscope and blood pressure cuff belonged to a friend of




1      People v. Marsden (1970) 2 Cal. 3d 118, 123.
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Mikell and Mercier. Mikell told officers Smith was a former resident of the building who

had moved out a year earlier.

       After waiving his Miranda rights, Smith told the officers: "I was living in the

house approximately three weeks ago. I got into an argument with Mikell and he

demanded that I move out. Today, I [was] waiting for Mikell to leave the property and I

took a ladder, placed it against the rear of the house and climbed onto the second story

balcony. I used a pick axe to break a glass panel on the door so I could gain entry to the

home. I placed the pick axe in the hot tube because I didn't want it to be used against me.

I removed the DVD recorder because I didn't want Mikell to know it was me that entered

the home. I put the items in my backpack and then got arrested."

                            PROCEDURAL BACKGROUND

       On February 15, 2013, a complaint was filed against Smith alleging first degree

burglary. (Pen. Code, §§ 459, 460.) Following a preliminary hearing, on

April 5, 2013, Smith entered a guilty plea to one count of a lesser charge of second

degree burglary. (Pen. Code, § 459.) At a sentencing hearing on May 7, 2013, Smith

indicated that he wanted to withdraw his guilty plea. The court conducted a Marsden

hearing in response to Smith's request.

        During the hearing, Smith alleged his trial counsel had not conducted a thorough

investigation and did not present evidence that would serve to exculpate Smith.

Specifically, Smith argued that he actually lived at the residence, and the items that were

apparently stolen actually belonged to him. Smith argued that if his counsel had



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reviewed surveillance recordings at the residence or interviewed his mother or brother,

counsel would have discovered that Smith was a resident of the building.

       Smith's counsel stated that he had investigated Smith's claims that he was a

resident of the building, and his investigator interviewed Smith's mother and brother.

Counsel determined that there was no evidence which would support Smith's contention

that he lived in the residence. Smith's counsel stated he advised Smith that if Mikell was

illegally retaining property that belonged to Smith that the proper course of action was to

file a report with the police, not break into the residence.

       The trial court found that Smith had been adequately represented and denied his

motion for new counsel. Smith requested a continuance to find another lawyer and to

withdraw his plea.

       At the June 12, 2013 continued hearing, Smith renewed his request for new

counsel and the trial court conducted a second Marsden hearing. At the second Marsden

hearing Smith stated he was actually innocent of the burglary. In particular, Smith stated

that his court appointed counsel, Douglas Miller, had refused to communicate with him

and did not investigate Smith's contention that the items the police recovered actually

belonged to Smith. Because Smith believed the property belonged to him, he argued that

he had no burglarious or felonious intent when he broke into Mikell's house. Smith also

complained that a second public defender, Mignon Hilts, had been assigned to take over

his case for purposes of trial. Smith stated that Hilts had ordered him to plead guilty.




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       In response, Miller stated that the issues Smith raised had been addressed at the

first Marsden hearing. Miller repeated that there was no evidence that Smith was a

resident of Mikell's house. With respect to Hilts's representation, Miller responded that

Hilts wanted more trial experience and that if Smith's case went to trial she would

represent him at trial. Miller reiterated that the decision to plead guilty to second degree

burglary was Smith's own decision.

       The trial court denied Smith's second Marsden motion.

                                        DISCUSSION

       The principles governing a Marsden motion made on the grounds counsel was

ineffective in providing assistance with respect to a plea were fully considered by the

court in People v. Smith (1993) 6 Cal.4th 684, 690-697 (Smith). In recapitulating a

defendant's rights to new counsel, the court stated:

       "The seminal case regarding the appointment of substitute counsel is Marsden,

supra, 2 Cal.3d 118, which gave birth to the term of art, a 'Marsden motion.' We there

held that 'the decision whether to permit a defendant to discharge his appointed counsel

and substitute another attorney during the trial is within the discretion of the trial court,

and a defendant has no absolute right to more than one appointed attorney.' " (Smith,

supra, 6 Cal.4th at p. 690.)

       "We also established in Marsden that the trial court must give the defendant the

opportunity to explain the reasons for desiring a new attorney. (Marsden, supra, 2 Cal.3d

at pp. 123-125.) '[T]he trial court cannot thoughtfully exercise its discretion in this matter

without listening to [the defendant's] reasons for requesting a change of attorneys.' (Id. at

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p. 123.) Accordingly, 'When a defendant moves for substitution of appointed counsel, the

court must consider any specific examples of counsel's inadequate representation that the

defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion.

Denial of the motion is not an abuse of discretion unless the defendant has shown that a

failure to replace the appointed attorney would "substantially impair" the defendant's

right to assistance of counsel.' " (Smith, supra, 6 Cal.4th at pp. 690-691.)

       The focus of a Marsden motion is on the representation the defendant has been

provided: "It is the very nature of a Marsden motion, at whatever stage it is made, that

the trial court must determine whether counsel has been providing competent

representation. Whenever the motion is made, the inquiry is forward-looking in the sense

that counsel would be substituted in order to provide effective assistance in the future.

But the decision must always be based on what has happened in the past." (Smith, supra,

6 Cal.4th at p. 695.)

       Like the defendant herein, the defendant in Smith entered a plea and then asked to

have new counsel appointed for the purpose of making a motion to withdraw his plea on

the grounds his trial counsel had not been effective in representing him prior to and at the

time of the plea. The trial court, after listening to the defendant's complaints about

counsel and counsel's explanation, denied the motion for new counsel. On appeal, the

Court of Appeal reversed, holding new counsel should be appointed if the trial court

determined on remand that the defendant had a "colorable" claim of ineffective assistance

of counsel. The Court of Appeal reasoned that a defendant's burden in making a posttrial

Marsden motion based on conduct that did not occur at trial is not as high as when a

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Marsden motion is based on conduct that did occur at trial or had an impact on the trial.

(Smith, supra, 6 Cal.4th at p. 691.) On review, the Supreme Court disagreed and

reversed the judgment of the Court of Appeal. (Id. at p. 697.) The Supreme Court found

that a defendant's burden under Marsden is the same at all stages of a criminal

proceeding: "[T]he trial court should appoint substitute counsel when a proper showing

has been made at any stage. A defendant is entitled to competent representation at all

times, including presentation of a new trial motion or motion to withdraw a plea. . . . In

those cases in which counsel was ineffective, this is best determined early. Thus, when a

defendant satisfies the trial court that adequate grounds exist, substitute counsel should be

appointed. Substitute counsel could then investigate a possible motion to withdraw the

plea or a motion for new trial based upon alleged ineffective assistance of counsel.

Whether, after such appointment, any particular motion should actually be made will, of

course, be determined by the new attorney.

       "We stress equally, however, that new counsel should not be appointed without a

proper showing. A series of attorneys presenting groundless claims of incompetence at

public expense, often causing delays to allow substitute counsel to become acquainted

with the case, benefits no one. The court should deny a request for new counsel at any

stage unless it is satisfied that the defendant has made the required showing. This lies

within the exercise of the trial court's discretion, which will not be overturned on appeal

absent a clear abuse of that discretion. [Italics added.]




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        "We thus hold that substitute counsel should be appointed when, and only when,

necessary under the Marsden standard, that is whenever, in the exercise of its discretion,

the court finds that the defendant has shown that a failure to replace the appointed

attorney would substantially impair the right to assistance of counsel. . . ." (Smith, supra,

Cal.4th at pp. 695-696.)

        In Smith, the court went on to determine that the trial court did not abuse its

discretion in denying the defendant's Marsden motion. (Smith, supra, 6 Cal.4th at p.

696.)

                                              II

        As Smith makes clear, where the reasons stated by a defendant at a Marsden

hearing do not, in light of any explanation offered by counsel, show any inadequacy of

counsel or irreconcilable differences, a Marsden motion should be denied. (Smith, supra,

6 Cal.4th at p. 696.) Here, the record the fully supports the trial court's determination that

counsel's representation was adequate.

        At the outset it bears noting that Smith was initially charged with burglary in the

first degree, a strike. (See Pen. Code, § 667.5 subd. (c)(21)). Smith's counsel advised

him to take the prosecution's offer of a plea to second degree burglary which is not a

strike. Thus, the plea provided Smith with a substantial benefit.

        Importantly, the record shows that Smith's original counsel, Miller, fully

investigated Smith's claim of being a resident of the home. After his investigator

interviewed the witnesses Smith suggested, Miller found that there was no evidence to

support Smith's claim that he was a resident of the home. Miller properly advised Smith

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that if the property in question was in fact his, Smith should have filed a police report.

The record with respect to the plea Smith entered establishes that both Miller and Hilts

informed Smith of his rights during all relevant stages of the proceedings. Given this

record, the trial court could reasonably conclude Miller and Hilts performed their duties

to Smith adequately, and that Smith had no claim for ineffective assistance of counsel.

       Smith nevertheless argues that trial counsel did not conduct a proper investigation

because counsel did not review the surveillance recordings of the residence. Appellant

argues that if Smith were given new counsel, new counsel would retrieve the recordings

and present evidence which would prove Smith lived at the residence. Smith additionally

argues that the communication breakdown between Smith and counsel was so severe that

ineffective assistance of counsel resulted.

       The surveillance recordings would not have provided Smith with any defense. By

his own admission, Smith took the recording device from Mikell's residence so that he

could not be identified as the intruder. Thus, even if the recordings showed that Smith

had previously been in the home, the circumstances under which the police recovered the

recordings show fairly conclusively that Smith understood he had no right to enter

Mikell's residence on the evening of February 12, 2013, by use, no less, of a pick axe.

       Counsel's full explanation of his conduct of the case shows that there was no

substantial breakdown in communication.

       Because the record shows that Smith received adequate representation, the trial

court properly denied his Marsden motions.



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                                   DISPOSITION

      The judgment of conviction is affirmed.


                                                 BENKE, Acting P. J.

WE CONCUR:


NARES, J.


IRION, J.




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