1 Filed 1/22/14 P. v. Godfrey CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SCO TT GODFREY, Defendant and Appellant. C073233 (Super. Ct. No. CM036235)

Defendant Alexander Scott Godfrey was char ged with first degree burglary and an allegation that a person other than defendant or an accomplice was present. At a meeting before trial, defense counsel cursed at defenda nt and left the room. The trial court denied defendant’s motion to 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 tr ial court abused its di scretion in denying his motion to substitute counsel because his c ounsel’s actions created an irreconcilable conflict likely to result in ineffective re presentation. We disagree and affirm.2 FACTUAL AND PROCEDUR AL BACKGROUND Because the facts underlying the charges ar e not relevant to this appeal, we do not discuss them. After defendant was charged, Robert Ra dcliffe, a public defender, was appointed to represent him. Prior to trial, Radcliffe provided defenda nt with a copy of th e 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 o fficer’s description of interviews and evidence that’s attained [ sic ]” but did not include any of the pages with confidential information. 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 discovery” provided to hi m “because it seem[ed] like [his] discovery [was] missing a lot of the pages.” Radcliffe told defendant he co uld not give him the remaining discovery because it contained pe rsonal information such as witnesses’ addresses and phone numbers. Defendant told counsel “that [he knew Radcliffe] work[ed] 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 sa id, “Fuck you. Fuck you, yo u piece of shit.” Radcliffe then “walked out of the visiting room.” Defendant requested a new attorn ey the following day. At the Marsden 1 hearing, defendant provided the court with a letter sta ting he was “not getting adequate counsel.” The letter explained how Radcliffe had cursed at defendant and that defendant felt “the incident” “was not conducted in a professi onal manner” and “[wa]s a violation of the

1 People v. Marsden (1970) 2 Cal.3d 118.3 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 [c ounsel] wasn’t doing anything for [him]” because his case “ha[d]n’t gone anywhere,” a nd how counsel cursed at him and left the room. When asked if he had any other prob lems with counsel, defendant said no. Radcliffe addressed defenda nt’s points in turn. He admitted he cursed at defendant and apologized for his behavior, ex plaining that he wa s upset by defendant’s accusations that he “was in cahoots with the district attorney” and hoped that by “speaking [defendant’s] langua ge,” defendant would unders tand he was upset by the accusations. He explained he di d not give defe ndant copies of all of the discovery from the prosecution because there was confiden tial information on some pages but he did give defendant the narrative portion of the di scovery, which contained all the information defendant needed to know. Radcliffe described what he had done to prepare for tria l and stated his belief that defendant had “a plausible defense.” He stat ed 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” defe ndant 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 “alway s 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 defendan t or an accomplice was present was true. He was sentenced to four years and eight months in prison.4 DISCUSSION Defendant contends “the tr ial court abused its discreti on when it refused to appoint new counsel” because “[t]he attorney/client relationship was irretr ievably broken” when Radcliffe cursed at defendant, “made an ob scene gesture with his finger, [and] then walked out of their meeting. ” Because the relationship wa s “irretrievably broken” and defendant’s confidence in hi s 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 effectiv e assistance of counsel.” Pursuant to People v. Marsden , supra , 2 Cal.3d 118, “[a] defendant ‘may be entitled to an order substituting appointed counse l if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.’ ” ( People v. Memro (1995) 11 Cal.4th 786, 857.) “ Marsden motions are subject to the following well-established rules. ‘ “ ‘When a defendan t seeks to discharge his appointed counsel and substitute anot her attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate speci fic 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 provi ding 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.]” ’ [C itation.] Denials of Marsden motions are reviewed under an ab use of discretion standard.” ( People v.
Barnett (1998) 17 Cal.4th 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 repr esentation was likely to result. “Although clearly some heated words were spoken between client and a ttorney . . . that alone does5 not require a substitution of counsel ab sent an irreconcilable conflict.” ( People v. Smith (1993) 6 Cal.4th 684, 696 [finding no irre concilable conflict where defendant claimed (among other issues) counsel “ ‘cussed [him] out ’ ” because he “ ‘did not want to take [the plea]’ ”].) Although defendant empha sizes that counsel’s words “personally degraded him” and constituted “more than just an angry out burst,” defendant provides no authority for the proposition that use of personally degrading words is by itself necessarily sufficient to estab lish an irreconcilable conflict. Furthermore, “ ‘a trial c ourt is not required to conclu de that an irreconcilable conflict exists if the defendant has not made a sustained good faith e ffort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.’ ” ( People v. Barnett , supra , 17 Cal.4th at p. 1086.) Since defendant requested substitute counsel the day after th e incident, the trial court “could reasonably conclude that defendant had not made suffici ent efforts to resolve his differences with [Radcliffe] or given [Radcli ffe] sufficient time to demo nstrate he was worthy of defendant’s trust.” ( Ibid. ) Relying on People v. Ramirez (2006) 39 Cal.4t h 398, defendant contends he was denied effective assistance of counsel because “[e]ffective representation is dependant [ sic ] on the defendant’s confidence in his atto rney,” and his confid ence in his attorney “evaporated . . . when coun sel called [him] ‘a piece of shit’ and abandoned their meeting.” Ramirez is distinguishable, however, because it involved a motion to substitute retained counsel rath er than appointed counsel. ( Ibid .) Moreover, to the extent defendant argues his subjective lack of confiden ce in his attorney is sufficient to require substitute counsel, we disagree. “ ‘ “[I]f a de fendant’s claimed lack of trust in . . . an appointed attorney we re sufficient to comp el appointment or substitution of counsel, defendants effectively would have a veto po wer over any appointment and by process of elimination could obtain appointment of their preferred attorneys, wh ich is certainly not the law.” ’ ” ( People v. Memro , supra , 11 Cal.4th at p. 857.)6 In this case, the trial cour t “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 apolog ized for his behavior and assured the court it would not happen again. The tr ial court was entitled to credit Radcliffe’s testimony that he was prepared for trial and “w ant[ed] to fight for [defendant].” On these facts, the court could reasona bly conclude defendant was adequately represented. Accordingly, the trial court di d not abuse its discretion in d eclining to substitute counsel. DISPOSITION The judgment is affirmed.

ROBIE , Acting P. J.

We concur:

DUARTE , J.

HOCH , J.