People v. Frias ( 2023 )

Filed 12/15/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B322762
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA103080)
v.
ALEXANDER ALBERTO
FRIAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jared D. Moses and Dorothy L. Shubin, Judges.
Reversed.
Law Offices of Jason Szydlik and Jason Szydlik for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________
Alexander Alberto Frias appeals from a judgment of
conviction after the jury found him guilty of stalking. On appeal,
Frias contends 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.1 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. But 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 as a
six of 10 date, 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, subject to a
few witness scheduling issues (the same issues the deputy public
defender had). We recognize the trial court was concerned in
light of the history of the case 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. But 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. Accordingly, absent any
support in the record, the court’s concerns were not sufficient
grounds on which to deny Frias’s request to have retained
1 Because we reverse, we do not reach Frias’s contentions
that substantial evidence did not support his stalking conviction
and his trial attorney provided ineffective assistance of counsel.
2
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. And
regardless of whether the court believed the deputy public
defender or Castaneda firm attorneys would do a better job in
defending Frias, that was Frias’s choice to make.
Because the denial of Frias’s constitutional right to counsel
of his choice was structural error, we reverse the judgment and
remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
In 2017 Courtney C. received a friend request on her
Facebook account from Frias, which she denied because she did
not know him. Frias posted comments on Courtney’s Facebook
“time line” and photographs she had posted. Courtney deleted
Frias’s posts and blocked him approximately 10 times, thinking
the posts were from “a troll.” Despite her efforts to block Frias,
he continued to post on her account.
During February and March 2018, Frias posted messages
on Courtney’s Facebook account with personal information that
showed he had been watching her through her apartment
window. Frias told Courtney he “would love for [her] to be
around” in his life and he hoped she would contact him.
Courtney felt scared after reading Frias’s posts because she had
never met him, yet he ended his March 1 post with “Till we meet
again.”
At 3:00 a.m. on March 10, 2018, Frias knocked on
Courtney’s apartment door and announced himself by name.
3
Courtney threatened to call the police. By the time the police
officers arrived, Frias had left. Approximately an hour later,
Frias followed up with a post on Courtney’s Facebook account
referencing the police officers and making statements that again
showed he had been watching her. Courtney’s mother followed
up by contacting Frias, and Frias (apparently assuming it was
Courtney) responded with sexually explicit text messages. On
March 13 Frias came to Courtney’s apartment building, and
Courtney again contacted the police. The police arrived and
found Frias sitting in the building’s parking lot. The officers
detained him, and at some point Frias shouted, “‘Courtney, baby,
love me.’”
B. The Verdict and Sentencing
The jury found Frias guilty of felony stalking. (Pen. Code,
§ 646.9, subd. (a).) On August 1, 2022 the trial court imposed and
suspended Frias’s sentence, placed him on formal probation for
two years, and ordered him to serve 192 days in county jail with
192 days of credit for time served. The court also issued a 10-
year protective order requiring Frias not to contact Courtney and
to stay at least 100 yards away from her.
Frias timely appealed.
DISCUSSION
A. The Trial Court Abused Its Discretion in Denying Frias’s
Final Request for Substitution of Counsel
1. Trial court proceedings
On May 10, 2018 deputy public defender Jeffrey Graves
represented Frias at the preliminary hearing. On October 25,
4
2018 the trial court granted Frias’s request to substitute in Mark
Melnick as his attorney.
At the August 23, 2019 hearing, Melnick stated Frias was
requesting the court relieve him and appoint the public defender.
Melnick added, “I would say we have reached an impasse in our
relationship, and there is a conflict at this point.” The trial court2
granted Frias’s request and appointed the public defender’s office
(deputy public defender Noah Cox) 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.”
On November 4, 2019 Frias requested Amber Gordon be
substituted in as his attorney. The trial court granted Frias’s
request but again expressed concern about Frias’s “conduct going
back and forth with different attorneys when he’s already been
admonished about this.”
On October 1, 2020 the prosecutor and Gordon announced
they were ready for trial. The trial court set October 6 as the
trial date. However, on October 6 Gordon declared a doubt as to
Frias’s mental competence, and the court suspended the criminal
proceedings.
On December 3, 2020, while court proceedings were
suspended, Gordon informed the trial court that Frias was
2 Judge Dorothy L. Shubin presided over the pretrial
hearings, including Frias’s requests for substitution of attorney.
5
requesting new counsel, which Gordon supported because of a
breakdown in communication. The court expressed its belief that
Frias was “trying to manipulate the process in this case by just
refusing to communicate with his attorney.” But in light of the
conflict, the court granted Frias’s request to substitute Matthew
Cargal in as his attorney.
Frias failed to appear in court on the morning of January 4,
2021. When the trial court inquired about Frias’s whereabouts,
Cargal responded that he had “made numerous attempts to
contact [Frias] since the last court date” but had not spoken to
him since December 16, 2020. Frias appeared in court later that
morning. Cargal moved to withdraw as counsel on the basis
Frias made it difficult for Cargal to represent him, and further,
Frias said he could not pay Cargal’s fees. The court granted
Cargal’s motion and, at Frias’s request, reappointed the public
defender’s office (Cox).
On April 5, 2021 a psychiatrist submitted a written report
opining that Frias was competent to stand trial. On April 9 the
trial court found Frias was competent to stand trial and
reinstated the criminal proceedings.
On June 23, 2021 Frias requested that Sergio Castaneda
from the Castaneda firm be substituted in as Frias’s counsel.
The trial court asked Castaneda if he was “ready to go to trial
within the period.” Castaneda responded he was ready but was
hoping to have time to review some issues with the defense
expert. The court again asked, “Are you ready to go to trial
within the period? Zero of 20?” Castaneda answered, “Zero of 20,
6
I would say no.”3 The court then inquired whether Castaneda
had reviewed the discovery. Castaneda replied, “I have reviewed
some, but I do have the file now from [Cox] who sent this over to
me about an hour ago. So I will have more once I review that.”4
The trial court denied Frias’s request, stating, “[T]his case
has been pending for years with repeated change of counsel by
Mr. Frias. And I am hearing that Mr. Cox will be close to
announcing ready. He’s just finalizing an expert report. The
timing of new counsel’s readiness is highly unclear. And I find
that this request to substitute is a delay tactic.” Castaneda
3 Under Penal Code section 1382, subdivision (a)(2), a
criminal case must be dismissed absent good cause, with
specified exceptions, where a defendant is not brought to trial
within 60 days of arraignment on an indictment or information,
or reinstatement of criminal proceedings. Under Penal Code
section 1382, subdivision (a)(2)(B), which provides for a limited
time waiver, a case shall not be dismissed if “[t]he defendant
requests or consents to the setting of a trial date beyond the 60-
day period.” Further, “[w]henever a case is set for trial beyond
the 60-day period by request or consent, expressed or implied, of
the defendant without a general waiver [of the 60-day
requirement], the defendant shall be brought to trial on the date
set for trial or within 10 days thereafter.” (Ibid.) Where
defendants give only a limited time waiver of the 60-day limit,
trial courts typically set a trial date as a “zero of 10” date for
trial, meaning that the case must be dismissed if not brought to
trial within the 10-day period, absent the defendant’s consent or
a showing of good cause. (People v. Superior Court (Arnold)
(2021) 59 Cal.App.5th 923, 936.) We assume the court, in
referring to a “zero of 20,” was inquiring whether the attorney
would be ready for trial within 20 days.
4 Cox confirmed he had provided the entire record to the
Castaneda firm.
7
responded that he was asking for no more time than Cox would
need, and therefore, “there would be no further delays.” The
court replied, “I don’t really see how you are in a position to
represent that since you haven’t received all of the discovery.”
The court added, “Aside from that . . . my primary concern here is
. . . Mr. Frias with the pattern of constantly coming in with new
attorneys when this case is so old. And he keeps hiring new
counsel and going back to the public defender. And virtually
every time he’s been here, the court expresses a concern about
the age of the case and the need to move the matter forward. So
for all these reasons, the court denies the request.” The court
continued the case to July 19, 2021 as day zero of 10 for trial.
On July 19, 2021 Frias requested Edward Yim from the
Castaneda firm be substituted in as his attorney. Yim stated,
“[O]ur office would be prepared to address both the Pitchess[5]
motions and . . . continue the process of having the expert
evaluation completed. Our office has been in communication
with Mr. Frias’s current attorney, and it is our intent to not cause
any further delays if our motion to substitute is granted.” The
trial court noted “the information was filed on May 25, 2018” and
“[t]he case is over three years old.” The court denied the request,
explaining, “I do recognize that with the Pitchess [motions] being
filed that that will need to be determined, and the court will need
to grant a short continuance on that basis. But given the age of
the case, the procedural history, all of the findings the court has
5 Pitchess v. Superior Court (1974) 11 Cal.3d 531. Cox filed
both a Pitchess motion and a supplemental Pitchess motion to
obtain information on the District Attorney’s prosecution of one of
the police officers who responded to Courtney’s 911 call on March
13, 2018.
8
previously made, and the fact that a defendant’s right to counsel,
obviously is exceptionally important, counsel of his choice, but it’s
not absolute, and the court is within its discretion to deny a
continuance to secure new counsel. And for all the reasons stated
today, as well as the various dates when the court has previously
made findings, the court denies the request. It would cause delay
in the case and appears to the court to be for the purposes of
delay.” The court continued the case to August 4, 2021 as day
zero of 20 for trial.
At the August 25, 2021 hearing, Cox stated that Yim was
present and Frias was again requesting to substitute in the
Castaneda firm as counsel. The court denied the request, stating,
“[T]here’s a very long history of the court granting Mr. Frias the
opportunity of different counsel, but the court finds this is for the
purposes of delay. . . . [The case] has been set for trial until the
issue of the Pitchess came up. So although the court understands
and appreciates the right to counsel of choice, that right is not
absolute. It’s necessarily limited by countervailing state interests
and proceeding with prosecution on an orderly, expeditious
basis.” The court continued the case to September 22, 2021 as
day zero of 20 for trial.
On September 22, 2021 Frias informed the court that Yim
was present in court to substitute in as counsel for Frias. Yim
responded that his office was “not seeking to substitute in” that
day and “was not planning to address the court.” Yim added,
“However, at a future date, as Mr. Cox referenced, perhaps after
the Pitchess issues have been resolved . . . we plan to then seek to
appear and will seek to substitute in as counsel.” The court again
continued the case for trial.
9
At the November 30, 2021 hearing, which was day zero of
six for trial, Cox raised concerns whether the Burbank police
officers who responded to Courtney’s 911 calls would be available
for trial. The prosecutor and Cox subsequently informed the
court that they had spoken to the four police officers, and the
officers agreed to be on call for trial. Cox also informed the court
that the defense expert witnesses, Drs. Crandall and Walker, had
not responded regarding their availability for trial.6 Cox added
that the prosecutor had agreed to allow Dr. Crandall to “testify
via Webex” (videoconference) and “[w]hile waiting to hear back
from Dr. Crandall, I would, nonetheless, expect to be ready.” The
court stated, “It sounds like you’re announcing ready, just
provided that the expert confirms . . . that she will be available
during the applicable time period.” Cox answered, “Yes.” The
prosecutor confirmed she was ready for trial and had “agree[d] to
have Dr. Crandall appear via Webex.”
After the trial court ordered the parties to report to another
courtroom for trial, Cox told the court that Frias wanted Yim and
the Castaneda firm to represent him. Yim stated, “Mr. Frias has
retained our office and is desirous of having us represent him in
this matter. And it is not our intention to cause any additional
delays in this matter.” The trial court asked, “Are you saying
your office is ready for trial?” Yim answered, “We have been in
communication with Mr. Cox and his office and also close
communication with Mr. Frias as well.” The court stated, “That’s
not the same as saying you’re ready for trial.” Yim responded,
“At this time, your honor, we are ready for trial. Subject to the
6 Cox intended to call either Dr. Crandall or Dr. Walker at
trial depending on which defense expert was available.
10
scheduling that was discussed on the record earlier with the
experts and things like that. But I’m sure—it sounded like
everything got addressed.” The court queried Yim, “How is it
that you can represent you’re ready for trial if—have you
conferred with experts or any witnesses?” Yim responded, “We
have—I’ve been in consultation with Mr. Cox during the
preparation of this trial.” After further discussion, the court
repeated it had “grave concerns about readiness as well as the
age of the case.”
The prosecutor expressed her “concern . . . that if the
substitution is granted and Mr. Yim sees the full case, that all of
a sudden there will be a request for a continuance. . . . I don’t
want a last minute, well, I didn’t know about this or now that I’m
in charge, I want this expert or something to further delay this
case.” The court responded, “Well, that’s my concern as well, as
the court has stated on numerous occasions previously.” Frias
stated, as he had at prior hearings, “I would like the Castaneda
Law Firm and Edward Yim to represent me in this case.” The
court denied Frias’s request “on the grounds that this will result
in a delay, and, hence, is a delay tactic.”
The trial court recounted that it had granted numerous
requests by Frias to substitute in new counsel, including Melnick,
Cox, Gordon, and Cargal. The court continued, “Ultimately, the
public defender was reappointed at Mr. Frias’s request. Then
Mr. Frias had an attorney Sergio Castaneda appear, he thought,
to substitute in. That was over half a year ago, and the court at
that time found it was a request for purposes of delay. Since that
time, Mr. Cox has remained on the case. The court has observed
the massive amount of work he’s done in terms of Pitchess
motion, discovery on Pitchess, follow-up on Pitchess. So there’s a
11
large volume of material there, as well as obtaining a number of
different expert reports and opinions. So he’s fully prepared, and
it’s time for the case to proceed to trial without further delay.”
Jury selection commenced on December 6, 2021.
2. 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); accord, People v. Verdugo (2010) 50 Cal.4th 263, 310-311
(Verdugo) [“The right to retained counsel of choice is—subject to
certain limitations—guaranteed under the Sixth Amendment to
the federal Constitution.”].)
“‘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; accord, Verdugo,
supra, 50 Cal.4th at p. 311; see People v. Courts (1985) 37 Cal.3d
784, 789-790 (Courts) [criminal defendant has right to replace
appointed counsel with retained counsel of choice].) “‘The right to
discharge a retained attorney is, however, not absolute.
[Citation.] The trial court has discretion to “deny such a motion
if discharge will result in ‘significant prejudice’ to the defendant
[citation], or if it is not timely, i.e., if it will result in ‘disruption of
the orderly processes of justice’ [citations].”’” (O’Malley, at
p. 1004; accord, Verdugo, at p. 311; see Gonzalez-Lopez, supra,548 U.S. at p. 152 [recognizing “trial court’s wide latitude in
balancing the right to counsel of choice against the needs of
12
fairness” and “the demands of its calendar”].) “In this context,
while ‘a defendant seeking to discharge his retained attorney is
not required to demonstrate inadequate representation or an
irreconcilable conflict, this does not mean that the trial court
cannot properly consider the absence of such circumstances in
deciding whether discharging counsel would result in disruption
of the orderly processes of justice.’” (O’Malley, at p. 1004; accord,
People v. Maciel (2013) 57 Cal.4th 482, 513 (Maciel).)
“‘[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; accord,
People v. Williams (2021) 61 Cal.App.5th 627, 631 [“while a
criminal defendant’s right to counsel of choice is not absolute,
that right may be overridden only under narrow, compelling, and
specifically delineated circumstances”].) The erroneous
deprivation of a defendant’s right to counsel of choice is
structural error requiring automatic reversal. (Gonzalez-Lopez,
supra, 548 U.S. at p. 150; Woodruff, at p. 728.)
3. The trial court abused its discretion
Frias contends 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. We agree the trial court abused its
discretion in denying Frias’s November 30, 2021 request to
substitute in Yim and the Castaneda firm notwithstanding the
court’s concerns that the request was a delay tactic and Yim
would not be ready for trial.
13
In June 2021 when Frias first requested substitution of
Castaneda as his counsel, the case had been pending for more
than three years. Although some of the trial delay was
attributable 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. Frias was represented at
the preliminary hearing in May 2018 by deputy public defender
Graves. The trial court granted Frias’s first four requests to
substitute in new counsel: (1) on October 25, 2018 to substitute
retained attorney Melnick; (2) on August 23, 2019 to substitute
the public defender’s office (Cox); (3) on November 4, 2019 to
substitute retained attorney Gordon; and (4) on December 3, 2020
to substitute retained attorney Cargal. And, after Cargal
requested to be relieved as counsel (asserting Frias was making
it difficult to represent him), on January 4, 2021 the court
granted Frias’s request to reappoint Cox. Each time the court
granted Frias’s request, the court raised its concern that Frias’s
repeated requests for new counsel were made for the purposes of
delay.
The trial court did not abuse its discretion in denying
Frias’s three requests in June, July, and August 2021 to
substitute in the Castaneda firm. When Frias sought to have
Castaneda substitute in as counsel on June 23, 2021, Castaneda
stated “there would be no further delays” because he was “not
asking for any additional time.” But Castaneda acknowledged he
had reviewed only some of the discovery (having received the
record from Cox an hour before the hearing), and when asked
whether he would be ready within the time period for trial
(20 days), Castaneda admitted he would not. When Yim sought
14
to substitute in as counsel on July 19, 2021, he stated the law
firm had “been in communication with” Cox and did not intend to
cause further delay. However, Yim never stated whether he
could be ready by August 4, 2021, the date the court set as zero of
20 for trial. And on August 25, 2021 Cox informed the court that
Yim was present in court and Frias wanted to substitute in Yim
as counsel. But Yim did not address the court or explain whether
he would be ready for trial.
However, the trial court abused its discretion in denying
Frias’s request to substitute in Yim as counsel on November 30,
2021. The court was rightly 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 People contend Yim was equivocal about his readiness
for trial because Yim stated he was “ready for trial, subject to the
scheduling that was discussed with the experts and things like
that.” But Yim added that “it sounds like everything got
addressed,” acknowledging that the prosecutor and Cox had
resolved Cox’s concerns over the availability of the police officers
for trial. And by the time Frias requested Yim be substituted in
as counsel on November 30, Cox and the prosecutor had worked
out the issues relating to testimony by the defense experts.
Further, any trial delay that would have resulted from
unavailability of the officers or defense experts would have
15
affected the defense’s readiness for trial regardless of whether
Cox or Yim represented Frias.
The prosecutor and trial court had a legitimate concern
based on the history of the case that, notwithstanding Yim’s
representation he was not seeking a continuance, Yim might
request a continuance once he substituted in as counsel and
finished his preparation for trial. But nothing in the record as of
November 30 showed Yim’s statement that he was ready for trial
was not credible. Nor did the court make any inquiries of Yim to
discern whether he was in fact ready, for example, holding an in
camera hearing (as Cox had proposed) to inquire into whether
Yim was ready to call his witnesses on the trial date. Further,
the court retained discretion to deny a future continuance request
given Yim’s assurances that he was ready for trial. Likewise, the
court could deny a future request by Frias for yet another
substitution of counsel. The possibility of future delay did not
warrant denial of Frias’s right to counsel of his choice “based on
considerations of judicial efficiency.” (Courts, supra, 37 Cal.3d at
pp. 794-795 [trial courts must “exercise ‘resourceful diligence’ in
protecting the right to chosen counsel . . . even when a byproduct
of a concrete and timely assertion of that right is some disruption
in the process”].)
Courts is instructive. In Courts, two months before trial a
defendant charged with murder met with a private attorney in an
effort to replace his appointed counsel, but the defendant did not
yet have the funds to pay the attorney’s retainer fee. (Courts,
supra, 37 Cal.3d at pp. 787-788.) A week before the trial date,
the deputy public defender told the court that the defendant
wanted a continuance to hire private counsel; the court denied
the request, finding it was untimely. (Ibid.) On the day of trial,
16
the defendant renewed his request, explaining in a declaration
that he did not have confidence in his deputy public defender who
had not previously tried a case of that magnitude. (Id. at p. 789.)
The trial court (a second judge) denied the request. (Id. at
pp. 788-789.) The Supreme Court reversed the judgment,
explaining “‘a myopic insistence upon expeditiousness in the face
of a justifiable request for delay can render the right to defend
with counsel an empty formality.’” (Id. at p. 791.)
Here too, 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, as in Courts, 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.
The Supreme Court cases relied on by the People, finding
no abuse of discretion in denying the defendants’ untimely
motions to substitute new counsel, are distinguishable because in
each case substitution would have significantly delayed the trial.
In Maciel, supra, 57 Cal.4th at pages 510 to 511, the trial court
granted the defendant’s first two requests to substitute in
retained counsel but denied the defendant’s third request made
after the case was pending for two years, explaining it would take
at least six months for a new attorney to prepare for trial. The
Supreme Court reasoned in finding no abuse of discretion, “At the
time the motion was made, the case had been pending for two
17
years. Trial was imminent and, in fact, began about six weeks
later. Defendant had no substitute counsel in mind; rather, he
requested that the court appoint counsel. . . . In evaluating
timeliness, the trial court properly considered the long delay that
would have resulted from changing counsel in this case. The trial
court, which had been through at least one trial of the former
codefendants, expressed concern that further delay would
exacerbate the witnesses’ reluctance to testify. The trial court
also noted the absence of abandonment or inadequate
representation by counsel or an actual conflict of interest.” (Id. at
pp. 512-513.) The Supreme Court concluded the trial court
“reasonably denied defendant’s motion because relieving counsel
under these circumstances would have resulted in the
‘“disruption of the orderly processes of justice.”’” (Id. at p. 513;
see O’Malley, supra, 62 Cal.4th at pp. 1006-1007 [“The court
likely would have been well within its discretion to deny such a
request [to discharge counsel], given that it would have come in
the midst of defendant’s penalty phase case and without any
substitute counsel at hand.”]; Verdugo, supra, 50 Cal.4th at
p. 311 [no abuse of discretion in denying motion to discharge
counsel made in the middle of an evidentiary hearing on motion
for new trial where new counsel would need significant time to
study lengthy trial record and witnesses’ memories would likely
fade over time given that a year had already passed since trial].)7
7 People v. Keshishian (2008) 162 Cal.App.4th 425, relied on
by the trial court, is similarly distinguishable. There, the
defendant requested a continuance to hire new attorneys on the
day set for trial after the case had been pending for two-and-a-
half years. (Id. at p. 428.) As the Court of Appeal explained in
affirming the trial court’s denial of the request, “An indefinite
18
Unlike Maciel, O’Malley, and Verdugo, in which the
defendants sought to discharge their attorneys but had not
identified substitute counsel, and new counsel would need
significant time to prepare for trial, Frias retained the Castaneda
firm five months before trial, and Yim declared he was ready for
trial. Further, in Maciel and Verdugo, the trial courts were
concerned the delay would impact the willingness of the
witnesses to appear (Maciel) or their ability to recall the
underlying events (Verdugo). (See Maciel, supra, 57 Cal.4th at
pp. 511, 513; Verdugo, supra, 50 Cal.4th at p. 311.) Although
Frias contributed to the trial delay by discharging appointed
counsel (Graves) and three retained counsel (Melnick, Gordon,
and Cargal), there was no showing that substitution of the
Castaneda law firm on November 30, 2021 would cause any
further delay or impact witness testimony. On this record, 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.)
continuance would have been necessary, as appellant had neither
identified nor retained new counsel. Witnesses whose
appearances had already been scheduled would have been
further inconvenienced by an indefinite delay.” (Id. at p. 429.)
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DISPOSITION
The judgment is reversed.
FEUER, Acting P.J.
We concur:
MARTINEZ, J.
EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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