California Court of Appeal Apr 11, 2014 No. D063596Unpublished
Filed 4/11/14 P. v. Hutchinson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, D063596
Plaintiff and Respondent,
v. (Super. Ct. No. RIF132260)
OMAR TYREE HUTCHINSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Helios J.
Hernandez, Judge. Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2010, a jury convicted Omar Hutchinson of murder. Before sentencing,
Hutchinson submitted a letter to the trial court delineating his complaints about his trial
counsel's representation. The trial court did not hold a Marsden1 hearing, and on appeal
we reversed and remanded with directions to hold a Marsden hearing. In the current
appeal, Hutchinson asserts the trial court erred at the Marsden hearing because it failed to
retrieve from its files the letter he originally wrote to the court setting forth his
complaints about his counsel. We find no reversible error and affirm.
BACKGROUND
In July 2010, Hutchinson submitted his postverdict letter to the trial court stating
his trial counsel (Ryan Markson) had provided ineffective representation, and listing
various complaints about his counsel's representation. At Markson's request, the trial
court appointed a new attorney to examine whether there were grounds for a new trial
motion based on ineffective representation. After the new attorney told the court she had
found no grounds for a new trial motion, the trial court reappointed Markson to represent
Hutchinson, and thereafter sentenced Hutchinson. On appeal from these proceedings, we
held, pursuant to People v. Sanchez (2011) 53 Cal.4th 80, that the procedure of
appointing conflict counsel to evaluate claims of ineffective representation was improper;
the trial court could not rely on counsel to decide ineffective representation claims; and
the court was instead required to hold a Marsden hearing to itself determine whether
Hutchinson was entitled to new counsel for all purposes. We remanded the matter to the
trial court to conduct a Marsden hearing to evaluate Hutchinson's request for new
1 People v. Marsden (1970) 2 Cal.3d 118. 2
counsel, and to decide any new trial motion. (People v. Hutchinson (Sept. 7, 2012,
D059349) [nonpub. opn.].)
At the Marsden hearing held on January 31, 2013, the court asked Hutchinson
why he wanted a new attorney. Hutchinson set forth various complaints concerning his
lack of opportunity to speak with a particular defense investigator and request to have
another investigator dismissed; his counsel's absence during pretrial motions due to
surgery and failure to sever the case; and his counsel's failure to look at correspondence
from Hutchinson in a timely fashion, call certain witnesses, recall a detective to the stand
due to inaccuracies in his testimony, and request a pinpoint instruction. In response,
Markson stated the witnesses mentioned by Hutchinson were either unavailable because
they were transient or they did not help the defense; a defense investigator had a number
of contacts with Hutchinson and the investigators tried to locate the witnesses identified
by Hutchinson; Markson reviewed Hutchinson's letters to him providing information
about the case although some were not reviewed immediately upon receipt; and he would
not have proceeded with the case if he had not felt prepared and capable after his surgery.
Markson also discussed various matters that affected the case, including Hutchinson's
incriminating statements to a detective with no Miranda2 violations, and the fact that the
information provided by witnesses identified by Hutchinson failed to provide a defense.
Markson also mentioned the letter that Hutchinson had originally filed with the
court after the jury's verdict, stating that he recalled Hutchinson's main contention was
2 Miranda v. Arizona (1966) 384 U.S. 436. 3
the failure to call particular witnesses. When Markson inquired whether the court
currently had a copy of the letter, the court stated it did not have the letter "right now" but
it was in the file.
After listening to Hutchinson and Markson, the trial court ruled Hutchinson was
not entitled to new counsel. The court stated it did not observe any problems during the
trial and his attorney did a "fine job"; Markson was an experienced criminal law attorney
with a good reputation; and complaints about matters such as which witnesses to call
concerned trial tactics that are "strictly within the province of the attorney." Further, the
court concluded there was no indication that anything had occurred that had undermined
the attorney-client relationship between Hutchinson and Markson. Regarding the letter
filed by Hutchinson after the jury's verdict, the court stated it had read the letter and did
not "see anything wrong."
After denying the request for new counsel, the court inquired whether Markson
thought a new trial motion was appropriate, and Markson responded that he did not.
Accordingly, the court reinstated the judgment.
DISCUSSION
Hutchinson argues that at the January 2013 Marsden hearing, the trial court should
have retrieved his July 2010 letter from its file and addressed the specific issues raised in
the letter. He asserts it was unreasonable to expect him to remember all his complaints
about his attorney two and one-half years after he wrote the letter, and the court's failure
to retrieve the letter effectively denied him the right to present all of his reasons for
requesting new counsel.
4
A defendant is entitled to new appointed counsel if the record shows the first
appointed attorney is not providing adequate representation or that there is such an
irreconcilable conflict that ineffective representation is likely to result. (People v. Valdez
(2004) 32 Cal.4th 73, 95.) When a defendant requests substitute appointed counsel, the
trial court must permit the defendant to explain the reasons for his dissatisfaction with his
current counsel. (People v. Sanchez, supra, 53 Cal.4th at pp. 87, 90.) We review the trial
court's resolution of Marsden issues for abuse of discretion. (People v. Memro (1995) 11
Cal.4th 786, 857.) If the trial court failed to conduct an adequate inquiry into the reasons
for the substitution request, the case should be remanded for a reopened Marsden hearing
unless the record shows the error was harmless beyond a reasonable doubt. (See People
v. Hill (2013) 219 Cal.App.4th 646, 653-654; People v. Leonard (2000) 78 Cal.App.4th
776, 787.)
On appeal, Hutchinson identifies only one issue that the court failed to consider
due to its failure to retrieve the letter—i.e., his complaint about lack of communication
with his attorney. In support, Hutchinson cites a portion of the letter where he states that
he had not received any legal counseling from his attorney; he had tried calling Markson
and leaving messages; his family also tried contacting Markson; and they "received three
verbal responses between 6-26-08 to 4-15-10." Hutchinson contends the trial court
should have explored this complaint about lack of communication to determine if there
had been a breakdown in the attorney-client relationship.
We need not decide whether the trial court abused its discretion by failing to
obtain the letter from its files during the Marsden hearing because any error was harmless
5
beyond a reasonable doubt. Although a total lack of communication between a defendant
and counsel may show inadequate representation or an irreconcilable conflict, complaints
about the number of times counsel has communicated with the defendant do not alone
show impairment of the right to assistance of counsel. (See People v. Valdez, supra, 32
Cal.4th at p. 96 [substitution not warranted based on complaint that defendant "had not
been able to speak with counsel as often as he would have liked"]; People v. Smith (2003)
30 Cal.4th 581, 606 [substitution warranted if there is conflict creating " ' "total lack of
communication preventing an adequate defense" ' "].) Hutchinson's complaints in the
letter about difficulties in reaching his counsel do not suggest that counsel had ceased
communicating with him or that counsel's preparation of a defense was impeded. To the
contrary, the letter (which we have reviewed on appeal) indicates that there were
communications with his counsel, stating there were about six visits with Markson before
the preliminary hearing, a visit in June 2008, three verbal communications from June
2008 to April 2010, and contacts at scheduled court appearances. Further, the discussions
at the Marsden hearing show that the court explored Hutchinson's opportunity to convey
information to the defense team, including discussions about Hutchinson's
communication with defense investigators, the defense attempts to find witnesses
identified by Hutchinson, and counsel's review of Hutchinson's letters providing
information about the case.
There is no reasonable possibility that Hutchinson might have prevailed at the
Marsden hearing based on the lack of communication claim set forth in his letter; hence,
the court's failure to retrieve the letter caused no prejudice.
6
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
7
AI Brief
AI-generated · verify before citing
Holding. The trial court's failure to retrieve and review a defendant's prior letter detailing complaints about trial counsel during a Marsden hearing was harmless error, as the record demonstrated no prejudice to the defendant.
Issues
Did the trial court abuse its discretion by failing to retrieve the defendant's prior letter during the Marsden hearing?
Was the trial court's failure to retrieve the letter harmless beyond a reasonable doubt?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“There is no reasonable possibility that Hutchinson might have prevailed at the Marsden hearing based on the lack of communication claim set forth in his letter; hence, the court's failure to retrieve the letter caused no prejudice.”