Denial of right to counsel of choice is a structural error requiring reversal of conviction

THE PEOPLE, Plaintiff and Respondent, v.ALEXANDER ALBERTO FRIAS, Defendant and Appellant. 2023 WL 8658552 (Cal.App. 2 Dist.)

Summary: Frias appealed his conviction after the jury found him guilty of stalking. Frias claimed that the trial court, in denying his four requests to substitute the Castaneda Law firm as his counsel, violated his Sixth Amendment right to counsel of his choice. Here, the trial court did not abuse its discretion in denying Frias’s first three requests to substitute in the Castaneda firm because the firm’s attorneys were not ready for trial and the case had been pending for three years, during which time four different attorneys had handled Frias’s defense at his request. The denial of Frias’s fourth request was an abuse of discretion.

At the time of the fourth request, the case had been pending for three-and-a-half years, the case was set for trial and the prosecutor and deputy public defender had announced ready for trial. This time, however, an attorney from the Castaneda firm announced he was ready for trial. Although the trial court was concerned that the Castaneda firm’s attorneys would seek a further continuance to prepare for trial once the firm was appointed, or that Frias on the day of trial would yet again seek to substitute in new counsel. Nothing in the record shows that the Castaneda firm was not prepared for trial, and the court did not make a further inquiry to confirm its suspicion the firm was not ready. The court’s concerns were not sufficient grounds on which to deny Frias’s request to have retained counsel of his choice. If the Castaneda firm’s attorneys later requested a continuance or Frias requested new counsel, the court retained the discretion to deny the requests.

The denial of Frias’s constitutional right to counsel of his choice was structural error, the Court of Appeal reverse the judgment and remanded for further proceedings.

Trial court proceedings

On May 10, 2018 deputy public defender Graves represented Frias at the preliminary hearing. On October 25, 2018 the trial court granted Frias’s request to substitute in Melnick as his attorney.

At the August 23, 2019 hearing, Melnick stated Frias was requesting the court relieve him and appoint the public defender. The trial court granted Frias’s request and appointed the public defender’s office as counsel. The court informed Frias, “You have the right to have counsel of your choice, and if you want to have the public defender, I will reappoint them. However, I express my concern that this case has been pending for a year with your private counsel. You had the public defender for three months, [then] pending for a year with Mr. Melnick. I express my concern that this may be for purposes of delay. But I am reappointing the public defender.”

A defendant’s right to choose counsel

“The Sixth Amendment right to counsel guarantees a criminal defendant the right to choose his or her own counsel when the defendant does not need appointed counsel.” (People v. Woodruff (2018) 5 Cal.5th 697, 728 (Woodruff), citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 (Gonzalez-Lopez)

“ ‘In California, this right “reflects not only a defendant’s choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.’ ”” (People v. O’Malley (2016) 62 Cal.4th 944, 1004. “ ‘The right to discharge a retained attorney is, however, not absolute.  The trial court has discretion to “deny such a motion if discharge will result in ‘significant prejudice’ to the defendant, or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice.’ ” (O’Malley, at p. 1004.)

“ ‘[T]hough it is clear that a defendant has no absolute right to be represented by a particular attorney, still the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.’ ” (Woodruff, supra, 5 Cal.5th at p. 728.

The trial court abused its discretion

Frias argued that the trial court abused its discretion in denying his June 23, July 19, August 25, and November 30, 2021 requests to substitute in Castaneda and Yim of the Castaneda firm as Frias’s counsel. The Court  of Appeal found that the trial court abused its discretion in denying Frias’s November 30, 2021 request to substitute in Yim and the Castaneda firm despite the court’s concerns that the request was a delay tactic and Yim would not be ready for trial.

In June 2021 when Frias first requested substitution of Castaneda as his counsel, the case had been pending for more than three years with some of the trial delay due to the COVID-19 pandemic and the six-month delay to assess Frias’s competence to stand trial, it was reasonable for the trial court to attribute a significant portion of the delay to Frias’s repeated substitution requests. The trial court abused its discretion in denying Frias’s request to substitute in Yim as counsel on November 30, 2021. The court was properly concerned that another attorney substitution—following four prior substitutions—could further delay the trial and was made by Frias for that purpose. But Yim represented for the first time that he was ready for trial and was not seeking a trial continuance. By this time, the Castaneda firm (1) had sought to substitute in for the prior five months; (2) had possession of the entire digital file from Cox during that five-month period; and (3) had been in communication with Cox, who “tried to ensure” retained counsel could “hit the ground running.”

The trial court abused its discretion by insisting that the case proceed to trial with Cox—based on the court’s perception that Cox was best prepared to handle the case, describing him as “fully prepared” given the “massive” amount of work he had done on the Pitchess motion, supplemental Pitchess discovery, and expert reports. By focusing on Cox’s preparation for trial instead of Yim’s representation that he was ready for trial, the trial court improperly focused on the efficiency of proceeding to trial at the expense of Frias’s constitutional right to be represented at trial by counsel of his choice.

Frias retained the Castaneda firm five months before trial, and Yim declared he was ready for trial. There was no showing that substitution of the Castaneda law firm on November 30, 2021 would cause any further delay or impact witness testimony. The trial court abused its discretion in denying Frias his right to counsel of his choice.

Because the erroneous deprivation of Frias’s right to counsel of choice is a structural error, we reverse. (Gonzalez-Lopez, supra, 548 U.S. at p. 150; Woodruff, supra, 5 Cal.5th at p. 728.)

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