Does a defendant have to prove that defense counsel misadvised him concerning the timing of an appeal and the impact of the plea bargain?

California, United States of America

The following excerpt is from People v. Jackson, E066364, E066677 (Cal. App. 2018):

Likewise, defendant did not show that defense counsel misadvised him concerning the timing of an appeal or the impact of an appeal on the plea bargain. Defense counsel flatly denied defendant's account. "'[T]o the extent there was a credibility question between defendant and counsel at the hearing, the court was "entitled to accept counsel's explanation."' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 69.) Even assuming that defendant was not lying but genuinely misunderstood his attorney's advice, "this misunderstanding, although unfortunate, did not justify defense counsel's discharge." (People v. Alfaro (2007) 41 Cal.4th 1277, 1321.)

Defendant emphasizes the "irreconcilable conflict" element of the Marsden test. He argues that he did not trust his attorney and suspected him of "working hand in hand with the district attorney." However, he must show more than an irreconcilable conflict; he must show "'such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Dickey, supra, 35 Cal.4th at p. 917, italics added.) "'Nothing in the record here shows that [defense counsel] was incompetent or would not provide adequate

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representation if he received defendant's cooperation.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1192.)

"Defendant cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney. '"[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law."' [Citation.]" (People v. Michaels (2002) 28 Cal.4th 486, 523.)

In short, "[d]efendant did not show that defense counsel did anything to cause any breakdown in their relationship." (People v. Smith (2003) 30 Cal.4th 581, 606.)

Defendant suggests that the very fact that his attorney accused him of lying created an irreconcilable conflict. However, "the trial court did not err in soliciting a response from defense counsel to defendant's complaints, nor was counsel 'arguing' against him when he did so. Inquiring of counsel is necessary for the trial court to evaluate the defendant's request and for appellate review. [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 432.) If defendant's position were accepted, a defendant could obtain substitute counsel simply by lying, forcing his counsel to correct him, and thus creating a "irreconcilable conflict."

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