People v. Williams

Filed 3/4/21
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077174
Plaintiff and Respondent,
v. (Super. Ct. No. SCN376818)
ANTHONY BYRON WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Brad A. Weinreb, Judge. Reversed.
David M. McKinney, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of part III.B.
I.
INTRODUCTION
The right to counsel, enshrined in both the federal and state
constitutions, guarantees a defendant the right to retain counsel of the
defendant’s own choosing. (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 144
(Gonzalez-Lopez); People v. Crovedi (1966) 65 Cal.2d 199 (Crovedi).) The
California Supreme Court has repeatedly applied this principle in reversing
judgments in cases in which a defendant’s right to counsel of choice was
unconstitutionally abridged. (People v. Courts (1985) 37 Cal.3d 784, 789
(Courts); People v. Gzikowski (1982) 32 Cal.3d 580, 587 (Gzikowski); Crovedi,
supra, at p. 209; People v. Byoune (1966) 65 Cal.2d 345, 346 (Byoune).) These
cases make clear that 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. Further, a trial court must make
all reasonable efforts to vindicate a defendant’s constitutional right to
counsel of choice and has “limit[ed] . . . discretion” to intrude upon that right.
(Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613 (Maxwell).) It is also
clearly established that a violation of a defendant’s right to counsel of choice
is per se reversible. (People v. Woodruff (2018) 5 Cal.5th 697, 728 (Woodruff);
Gonzalez-Lopez, supra, at p. 150.) The case law reflects a shared
commitment to ensuring the protection of the right to counsel, one of “the
most sacred and sensitive of our constitutional rights.” (People v. Ortiz (1990)
51 Cal.3d 975, 982.)
In this case, the trial court denied Anthony Byron Williams’s motion to
substitute retained counsel for his appointed counsel. After the jury found
Williams guilty of first degree murder, and found true a special circumstance
2
allegation, the trial court sentenced him to life without the possibility of
parole.
On appeal, Williams claims that the trial court violated his
constitutional right to counsel by denying his request to be represented by
counsel of his choice and that this error requires reversal without regard to
prejudice. We agree. Accordingly, we reverse the judgment and remand for
further proceedings.1
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background2
At approximately 6:15 a.m. on June 5, 2017, 19-year-old Bernaldo
Ramires and his father were outside of their house in Oceanside attempting
to fix Ramires’s car before he went to work. A man, later determined to be
Williams, drove up in a white car and asked Ramires if he was “from Mesa.”3
Ramires responded, “We live in Mesa.” Williams then shot Ramires in the
1 In the unpublished portion of the opinion (see pt. III.B, post), we reject
Williams’s claim that the trial court’s admission of his surreptitiously
recorded jailhouse statements violated Miranda v. Arizona (1966) 384 U.S.
436 (Miranda) and his right to due process, since this issue is likely to recur
on remand.
We do not consider Williams’s contention that the trial court failed to
provide the jury with full and complete instructions and verdict forms
pertaining to the lesser included offense of second degree murder, since that
issue is not likely to recur on remand.
2 We provide an abbreviated factual summary in light of the issues on
appeal.
3 According to a detective, the murder occurred in “territory” claimed by
the “Mesa Gang.”
3
chest, killing him. Shortly after the shooting, Williams admitted to his
friend, and sometimes girlfriend, J.R., that he had shot someone.
That same morning, police reviewed surveillance video taken from a
camera mounted on a telephone pole that showed a white car approach the
scene of the shooting and leave immediately thereafter. Police enlarged an
image from the video to determine the car’s license plate number. The car
belonged to J.R.’s mother. Approximately two months after the shooting,
police arrested Williams. While in jail awaiting arraignment, Williams told
two undercover officers posing as jail inmates that he had committed the
shooting, and that he had been highly intoxicated at the time.4
B. Procedural background
As described in greater in detail in part III.B, post, approximately two
weeks prior to the jury trial, the trial court denied Williams’s motion to
exclude his surreptitiously recorded jailhouse statements. In addition, as
discussed further in part III.A, post, on the morning that the jury trial was
scheduled to commence, the trial court denied Williams’s request to
substitute retained counsel for his appointed counsel.
At the conclusion of the trial, the jury found Williams guilty of murder
(Pen. Code,5 § 187, subd. (a)) (count 1), and maliciously discharging a firearm
from a motor vehicle (§ 26100, subd. (c)) (count 2)). The jury also found true
the special circumstance allegation that Williams perpetrated the murder by
means of discharging a firearm from a motor vehicle with the intent to inflict
4 J.R. testified that around fifteen minutes after the shooting, Williams
appeared at her residence and proceeded to drive her from Oceanside to
San Diego. According to J.R., Williams did not appear to be intoxicated.
5 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
4
death. (§ 190.2, subd. (a)(21).) In addition, with respect to both counts, the
jury found that Williams personally discharged a firearm causing great
bodily injury or death to a person (§ 12022.53, subd. (d)).
In a bifurcated proceeding, the trial court found that Williams had
previously suffered a strike conviction.
The trial court sentenced Williams to life without the possibility of
parole, plus 25 years to life on count 1. The court stayed the sentence on
count 2 pursuant to section 654.
III.
DISCUSSION
A. The trial court’s error in denying Williams’s request to be represented by
retained counsel of his choice violated Williams’s constitutional rights and
requires automatic reversal
Williams claims that the trial court erred in denying his request to be
represented by retained counsel of his choice. He contends that this error
violated his right to counsel guaranteed by the federal and state constitutions
as well as his right to due process, and is reversible per se.
1. Governing law
a. The relevant constitutional principles
The Sixth Amendment to the United States Constitution provides, in
relevant part: “In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.”
Article I, section 15, of the California Constitution also mandates the
right to counsel, stating, in relevant part: “The defendant in a criminal cause
has the right . . . to have the assistance of counsel for the defendant’s
defense . . . .”
Both the United States Supreme Court and the California Supreme
Court have held that the constitutional right to counsel includes the right of a
5
criminal defendant who can afford to retain counsel to select a lawyer of his
own choosing. (Gonzalez-Lopez, supra, 548 U.S. at p. 144 [stating that an
element of the Sixth Amendment right to counsel “is the right of a defendant
who does not require appointed counsel to choose who will represent him”];
Courts, supra, 37 Cal.3d at p. 789 [“The right to the effective assistance of
counsel ‘encompasses the right to retain counsel of one’s own choosing’ ”]; see
generally Maxwell, supra, 30 Cal.3d at p. 613 [“many precedents recognize
that the constitutional right to counsel includes a reasonable opportunity for
those defendants who have the necessary resources to control the designation
of their legal representatives”].)
Underlying the right to select one’s own counsel “is the premise that
‘chosen representation is the preferred representation. Defendant’s
confidence in his lawyer is vital to his defense. His right to decide for himself
who best can conduct the case must be respected wherever feasible.’ ”
(Courts, supra, 37 Cal.3d at p. 789; Maxwell, supra, 30 Cal.3d at p. 613
[stating that “effective assistance is linked closely to representation by
counsel of choice,” and that “[w]hen clients and lawyers lack rapport and
mutual confidence the quality of representation may be so undermined as to
render it an empty formality”].)
Moreover, protecting the right to employ counsel of one’s own choosing
is not premised solely on “[e]nsuring reliability of the guilt-determining
process.” (Courts, supra, 37 Cal.3d at p. 789.) In addition to helping fulfill
“the state’s duty to [e]nsure ‘fairness’ in the trial,” guaranteeing a defendant’s
right to counsel of choice is consistent with “the state’s duty to refrain from
unreasonable interference with the individual’s desire to defend himself in
whatever manner he deems best, using every legitimate resource at his
command.’ ” (Ibid.)
6
The denial of a defendant’s right to retained counsel of choice also
amounts to a deprivation of due process of law. (See, e.g., Byoune, supra,
65 Cal.2d at p. 346 [“due process of law, as it is expressed through the right-
to-counsel provisions of the state and federal Constitutions, comprehends a
right to appear and defend with retained counsel of one’s own choice”].)
It is also well established that “the erroneous deprivation of a
defendant’s right to counsel of his choice results in automatic reversal.”
(Woodruff, supra, 5 Cal.5th at p. 728; Gonzalez-Lopez, supra, 548 U.S. at
pp. 150, 152 [“We have little trouble concluding that erroneous deprivation of
the right to counsel of choice, ‘with consequences that are necessarily
unquantifiable and indeterminate, unquestionably qualifies as “structural
error” ’ ” that is “not subject to harmless-error analysis”].)
b. Crovedi and its progeny
In Crovedi, supra, 65 Cal.2d 199, the seminal California case
addressing the right to counsel of one’s choice, defense counsel, who had
represented Crovedi “in all pretrial proceedings and during the first four days
of the trial,” suffered a heart attack and was hospitalized. (Id. at p. 201.)
After a two-week recess, defendant sought a continuance of approximately
two months to permit defense counsel to recover and resume the defense. (Id.
at p. 202.)6 The trial court denied the request. (Id. at p. 203.) Instead, the
court ordered defense counsel’s law partner to assume the defense and
further ordered that the jury trial would resume in a week’s time. (Ibid.)
Both the defendant and defense counsel’s partner objected to the court’s
orders. (Ibid.) Nevertheless, defense counsel’s partner complied with the
6 Defendant provided the court with a medical report stating that
defense counsel would likely be able to resume the trial approximately seven
weeks after the hearing on the request for a continuance. (Crovedi, supra,
65 Cal.2d at p. 202.)
7
court’s orders and represented defendant upon the resumption of the trial.
(Ibid.) After the jury found the defendant guilty (id. at p. 204), the defendant
appealed and claimed that the trial court’s denial of his request for a
continuance violated his right to present a defense “with counsel of one’s own
choice.” (Id. at p. 205.)
The Crovedi court reversed the judgment, concluding that “the
circumstances of this case did not justify the trial court’s refusal to permit
defendant to be represented by counsel of his own choice, and that therefore
that refusal constituted a denial of due process of law.” (Crovedi, supra,
65 Cal.2d at p. 208.) In reaching this conclusion, the Crovedi court
emphasized that a defendant’s right to select his own counsel may be
overridden only when the following compelling reasons mandate the
abrogation of that defendant’s right:
“[T]he state should keep to a necessary minimum its
interference with the individual’s desire to defend himself
in whatever manner he deems best, using any legitimate
means within his resources—and . . . that desire can
constitutionally be forced to yield only when it will result in
significant prejudice to the defendant himself or in a
disruption of the orderly processes of justice unreasonable
under the circumstances of the particular case.” (Ibid.)
The Crovedi court emphasized its holding by directing the trial courts
of this state to display “a resourceful diligence directed toward the protection
of [the] right [to select counsel of one’s choosing] to the fullest extent
consistent with effective judicial administration.” (Crovedi, supra, 65 Cal.2d
at p. 209.)
In Byoune, supra, 65 Cal.2d 345, a defendant moved for a continuance
on the day that his jury trial was scheduled to begin so that he could attempt
to retain private counsel. (Id. at p. 346.) The defendant “admitted he was
8
indigent but said that his brother, who lived in Chicago, would pay for an
attorney if defendant were given the opportunity to contact him.” (Ibid.) The
trial court denied the request, reasoning that if defendant was dissatisfied
with his appointed counsel, he should have attempted to retain private
counsel during the two months between his arraignment and trial. (Ibid.)
The trial court also determined that the addition of a new count on the day
before the commencement of the jury trial could not have surprised the
defendant since the new count arose out of the same facts as the charge on
which the defendant had originally been arraigned. (Ibid.) After the jury
found the defendant guilty, the defendant appealed. (Id. at p. 345.)
Applying Crovedi, the California Supreme Court reversed the
judgment. (Byoune, supra, 65 Cal.2d at p. 348.) The Byoune court
acknowledged that “[a] defendant may not . . . demand a continuance if he is
unjustifiably dilatory in obtaining counsel [citation], or if he arbitrarily
chooses to substitute counsel at the time of trial [citation].” (Id. at pp. 346–
347.) However, the Byoune court concluded that the record demonstrated
that neither circumstance existed. As to unwarranted delay, the Byoune
court found reasonable defendant’s explanation that he had not sought
retained counsel earlier because he had been “satisfied with assigned
representation” as to the initial charge. (Id. at p. 347.) The Byoune court
also concluded that the defendant had not arbitrarily requested a change of
counsel at the time of trial, reasoning that the additional charge “justified
defendant’s action in asserting his right to retain chosen counsel within a
reasonable time after the information was amended” and “no circumstances
appear[ed] warranting the limitation of this right in the interests of efficient
judicial administration.” (Id. at p. 348.)
9
In Courts, the California Supreme Court again applied these principles
to reverse a defendant’s conviction. (Courts, supra, 37 Cal.3d at p. 796.) In
Courts, the People charged the defendant with murder and the use of a
firearm. (Id. at p. 787.) The trial court appointed a public defender to
represent the defendant and set a jury trial for October 26, 1982. (Ibid.) In
early September 1982, defendant attempted to retain private counsel,
Attorney Swartz, but was unable to secure Swartz’s services due to a lack of
funds. (Ibid.) At an October 18 trial setting conference, the public defender
requested a continuance to permit defendant to continue his efforts to hire
Swartz. (Ibid.) The court denied the request, explaining that it had come
“ ‘too late.’ ” (Id. at p. 788.)
On October 21, five days prior to the scheduled start of the jury trial,
the defendant paid a retainer to Attorney Swartz, who agreed to take the
case if the trial court would continue the trial. (Courts, supra, 37 Cal.3d at
p. 788.) Attorney Swartz’s office and the public defender promptly contacted
the court to place a motion to substitute counsel and a motion for a
continuance on calendar before the trial date, but their efforts were
“unsuccessful.” (Ibid.) The Courts court described those efforts as follows:
“Swartz’s partner telephoned the court and asked that the
matter be placed on calendar on October 22nd for
substitution of attorneys and a continuance. However, the
judge’s secretary brought word back from the judge that
since neither Swartz nor his partner was attorney of record,
the motion could not be calendared. Next, Swartz’s partner
approached the public defender, who attempted to place the
matter on calendar for October 22nd or October 25th, the
following Monday. That effort was unsuccessful.” (Ibid.)
In a footnote immediately following this text, the Courts court noted
that while “[n]either Swartz nor the public defender filed or attempted to file
a written motion for a continuance,” Swartz explained that the trial court
10
ordinarily calendared matters such as the motion for a continuance through
an oral request. (Courts, supra, 37 Cal.3d at p. 788, fn. 2.)
On the day of trial, October 26, the public defender renewed the motion
for a continuance and Attorney Swartz appeared and testified to his
willingness to represent defendant. (Courts, supra, 37 Cal.3d at pp. 788,
791.) The trial court denied the motion. (Id. at p. 788.) The jury found the
defendant guilty of involuntary manslaughter and found the gun use
allegation true. (Id. at p. 789.)
On appeal, the Courts court stated that the issue before it was,
"whether the trial court abused its discretion when it refused to grant the
accused a continuance to permit him to be represented by an attorney he
retained approximately one week before trial.” (Courts, supra, 37 Cal.3d at
p. 787.) In answering this question in the affirmative, the Courts court
“emphasized that trial courts have the responsibility to protect a financially
able individual’s right to appear and defend with counsel of his own
choosing.” (Id. at p. 790.) In addition, the court noted that, “ ‘once retained,
[counsel must be] given a reasonable time in which to prepare the defense.’ ”
(Ibid.)
The Courts court also expressly held that any limitations on a
defendant’s right to select counsel of one’s choosing are to be “carefully
circumscribed.” (Courts, supra, 37 Cal.3d at p. 790.) The court reasoned:
“In view of the importance of these rights [i.e., the right to
select counsel and for counsel to have a reasonable time to
prepare] and the severe consequences which flow from their
violation, the trial courts are required to ‘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.’ [Citation.] . . . .
11
“Any limitations on the right to counsel of one's choosing
are carefully circumscribed. Thus, the right ‘can
constitutionally be forced to yield only when it will result in
significant prejudice to the defendant himself or in a
disruption of the orderly processes of justice unreasonable
under the circumstances of the particular case.’ [Citations.]
The right to such counsel ‘must be carefully weighed
against other values of substantial importance, such as
that seeking to ensure orderly and expeditious judicial
administration, with a view toward an accommodation
reasonable under the facts of the particular case.’
[Citation.]” (Ibid.)
The Courts court also specifically held that a trial court’s discretion to
deny a request for a continuance that is related to the assertion of the
defendant’s right to retain counsel of his choice is similarly curtailed:
“Limitations on the right to continuances in this context
are similarly circumscribed. Generally, the granting of a
continuance is within the discretion of the trial court.
[Citations.] A continuance may be denied if the accused is
‘unjustifiably dilatory’ in obtaining counsel, or ‘if he
arbitrarily chooses to substitute counsel at the time of
trial.’ [Citation.]
“However, ‘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.’ [Citation.] For
this reason, trial courts should accommodate such
requests—when they are linked to an assertion of the right
to retained counsel—‘to the fullest extent consistent with
effective judicial administration.’ [Citation.]
“In deciding whether the denial of a continuance was so
arbitrary as to violate due process, the reviewing court
looks to the circumstances of each case, ‘ “particularly in
the reasons presented to the trial judge at the time the
request [was] denied.” ’ ” (Courts, supra, 37 Cal.3d at
pp. 790–791.)
12
In applying these principles to reverse defendant’s conviction, the
Courts court concluded that the October 18 request for a continuance
represented a “timely assertion of [defendant’s] intentions.” (Courts, supra,
37 Cal.3d at p. 792.)7 The court also noted that the defense had contacted
the trial court prior to the date set for trial to request a continuance and to
substitute Attorney Swartz for appointed counsel after finalizing Attorney
Swartz’s retention. (Id. at p. 793.) Under these circumstances, and in light
of the law discussed above, the court concluded, “ ‘[There] was neither lack of
diligence in seeking a replacement [for appointed counsel] nor undue delay in
apprising the court of the situation and seeking [a] continuance.’ ” (Id. at
p. 794.) The court reasoned:
“[Defendant] took reasonable and timely steps to create a
relationship with private counsel. His representatives
attempted to protect that relationship by moving for a
continuance. Thus, the state’s interest in ensuring an
expeditious resolution of the case became far less
compelling.” (Ibid.)
Further, the Courts court noted that “there were no circumstances
which warranted the limitation of [defendant’s] right to counsel based on
considerations of judicial efficiency.” (Courts, supra, 37 Cal.3d at p. 794.) In
support of this conclusion, the Supreme Court noted that the record did not
demonstrate that a “continuance would have significantly inconvenienced the
court or the parties.” (Ibid., italics added.) Accordingly, since a defendant’s
“right to chosen counsel [citation] must be respected, even when a byproduct
of a concrete and timely assertion of that right is some disruption in the
process,” the Courts court concluded that the trial court had erred in denying
7 As noted in the text, the trial was scheduled to begin approximately one
week later, on October 26. (Courts, supra, 37 Cal.3d at pp. 787.)
13
the defendant’s request for a continuance to obtain counsel of his choice. (Id.
at p. 795.)
In sum, the California Supreme Court has “repeatedly” reversed
judgments in cases in which a defendant’s right to be represented by counsel
of his choice was infringed. (Gzikowski, supra, 32 Cal.3d at pp. 587, 589
[reversing judgment where “[n]o prospect of possibly impairing efficient
judicial administration appeared that was sufficient to overcome defendant’s
interest in obtaining counsel of his choice”]; Courts, supra, 37 Cal.3d at p.
796; Byoune, supra, 65 Cal.2d at p. 348; Crovedi, supra, 65 Cal.2d at p. 205.)
2. Standard of review
As in Courts, supra, 37 Cal.3d at page 789, “[t]his court must decide
whether the trial court’s failure to grant a continuance[8] constituted an
abuse of discretion in the face of [defendant’s] well-documented desire to be
represented by private counsel and counsel’s willingness to undertake that
task.”
“ ‘ “[T]he scope of [a court’s] discretion always resides in the particular
law being applied, i.e., in the ‘legal principles governing the subject of [the]
action . . . .’ Action that transgresses the confines of the applicable principles
of law is outside the scope of discretion and we call such action an ‘abuse’ of
discretion.” ’ [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531,
540.)
8 As will be made clear in part III.A.3, post, although the trial court
formally denied Williams’s motion to substitute Attorney Collins as his
counsel in place of Attorney Lopez, Attorney Collins was willing to substitute
in the case only if the trial court would agree to continue the trial. Thus, as
the People characterize the question on appeal in their respondent’s brief, we
must determine whether the trial court properly denied Williams’s “request
for a continuance to substitute in private counsel.” (Capitalization omitted.)
14
As described in part III.A.1, ante, the principles of law governing a
defendant’s request for a continuance, when “linked to an assertion of the
right to retained counsel” (Courts, supra, 37 Cal.3d at p. 791), have been
carefully delineated in Crovedi and its progeny. As the California Supreme
Court has explained, California decisions “limit severely the [trial] judge’s
discretion to intrude on [a] defendant’s choice of counsel” even where the
court is attempting to “eliminate potential conflicts, ensure adequate
representation or serve judicial convenience.” (Maxwell, supra, 30 Cal.3d at
p. 613, italics added.)
Accordingly, in this appeal, we determine whether the trial court
transgressed the stringent limitations on the denial of a defendant’s right to
counsel of choice in denying Williams’s request for a continuance to permit
Attorney Collins to represent him in this matter.
3. Factual and procedural background
a. Attorney Collins’s motion to substitute in as Williams’s
retained counsel
On September 3, 2019, the morning set for the commencement of trial,
Attorney Collins made an oral motion to substitute in as Williams’s counsel
in place of appointed counsel, Attorney Lopez.
The court indicated that it was aware that Attorney Collins was going
to request to substitute in as counsel for Williams and noted that the People
had filed a written opposition to the motion to substitute, which the court had
reviewed.
b. The People’s written opposition
In their opposition, also filed on September 3, the People outlined the
procedural history of the case, noting that the case was 2 years and 11 days
old and that the trial date had been continued on four prior occasions. The
15
People also noted that the trial court denied Williams’s Marsden9 motion on
August 22, 2019, and that Attorney Collins informed the prosecutor that she
had been retained to represent Williams on August 28, six days earlier.
The People’s opposition focused primarily on their efforts to secure
J.R.’s presence at the trial and the inconvenience that a continuance would
cause J.R. and the People. The People stated:
“The People have spent considerable resources to bring
material witness [J.R.] to court. She lives far out of state
and has stated that she cannot come to San Diego without
caring for a small step-child she must bring with her. The
District Attorney’s Office has arranged for the child to be
cared for while she testifies.
“Moreover, [J.R.] expressed that being out of work for an
entire week was a financial hardship to her. Nevertheless,
she has agreed to fly here, be put up in a hotel, and testify.
[The prosecutor] went so far as to write a letter to her
employer so that no adverse action would be taken against
her.
“The People have arranged roundtrip flights for her and
her step-child, a hotel room for an entire week, and will be
paying per diem costs associated with her stay. The total
amount that has and will be spent by the County of San
Diego on [J.R.] alone is more than $3,602. This amount
does not include the overtime costs associated with a
District Attorney Process server, who, on September 1,
2019, picked up [J.R.] and the small child from San Diego
airport. He then transported them to their hotel. While
the People have [J.R.] under subpoena for this trial, serving
out of state witnesses and securing their actual attendance
in court is an uncertain and complicated task. Importantly,
the numerous continuances have taken an emotional toll on
9 (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) On August 6, 2019,
Williams’s counsel requested a Marsden hearing, seeking to replace his
appointed counsel. The court held the Marsden hearing on August 22, and
denied the motion that same day.
16
[J.R.]. She has reported bouts with anxiety because of this
case.”
The People also discussed the stress and frustration that the victim’s
family had experienced due to the ongoing proceedings.
In addition, the People stated that one police officer involved in the
case, who was currently available to testify at trial, had retired and that the
officer had “extensive surgery and long-term travel plans,” after the trial.
After discussing the relevant case law, the People contended that
Williams had “over two years to retain an attorney but did not do so until the
trial had effectively beg[u]n and motions had been ruled upon by the court.”
The People further noted that Attorney Lopez was ready to try the case and
that she had skillfully defended Williams in pretrial proceedings. The People
maintained that Williams had been “demonstrably dilatory,” in his efforts to
retain counsel and that his mother’s retention of Attorney Collins “was likely
a surprise to [Williams].”
The People concluded by arguing:
“The delay that would be caused by allowing this last-
minute substitution of counsel would cause hardship to the
People as it took considerable time and taxpayer resources
to secure [J.R.’s] attendance for this trial. A lot of time,
effort, and resources have gone into making sure this trial
is completed by September 13, 2019. Importantly, the
victim’s family demands that this case go to trial. To quote
Gladstone, ‘justice delayed is justice denied.’ ”
c. The hearing on the motion to substitute counsel
The trial court began the hearing on the motion to substitute counsel
by asking Attorney Lopez whether she was ready to proceed to trial.
Attorney Lopez responded:
“Your honor, I think given your honor heard the Marsden,
heard Mr. Williams’ grievances, one of those having to do
17
with the breakdown in communication, although at that
point I didn’t think there was a breakdown in
communication — I think given that he has now retained
counsel, I think proceeding with the trial at this point — I
don’t know that Mr. Williams will be mentally prepared
throughout the trial because basically it’s his desire to have
me replaced; the fact that his mother has now secured the
funds and has retained counsel on his behalf.”
The trial court confirmed that the People were ready to proceed to trial,
and then asked Attorney Collins whether she had been retained to represent
Williams. After Attorney Collins responded in the affirmative, the court
asked Collins when she would be ready to go forward with the trial. Attorney
Collins responded that she would not be ready to proceed until January.
Collins explained that she had several trials scheduled through November,
and that she would use the month of December to “ensure that [she was]
ready and that we could proceed to trial in this very serious case, where this
young[10] man’s life is at stake.”
The court replied by noting that this matter was “significantly more
serious” than the charges at issue in Attorney Collins’s other cases that were
set for trial. The court continued, “I understand, given the nature of the
charges, it would not be unreasonable to give some additional time to you in
order to get up to speed,” and asked Attorney Collins when she had been
retained.
Attorney Collins responded:
“The day that I notified counsel.[11]
10 Williams was 23 years old at the time of trial.
11 As noted in part III.A.3.b, ante, in their opposition, the People stated
that Attorney Collins notified them on August 28 that she had been retained,
six days before the trial.
18
“And if I may, one of the problems with a case of this
nature is trying to retain counsel. I mean, [Williams’s
mother], who retained me, certainly does not have the
means. And it was only when she spoke to me about a
month ago or six weeks ago, when she realized that
communication was breaking down between her son and
his attorney, that she asked me for my fee, which basically
is ridiculously low. I don’t charge what other attorneys
charge. But then, again, I don’t take payments. That gave
her some hope.
“She began working to see what she could do to retain me.
And it still did not look good, until about a week before I
notified counsel that I would request authority and
permission to come on board, that she met with me with a
host of friends and somehow convinced me to take
payments, which I don’t normally do in this kind of case.
“The night before I was retained and notified counsel, I sat
and watched [Williams’s mother] with a cell phone and a
stack of credit cards — I’m unfamiliar with red dot cards,
things like that, as she attempted to max cards out on a
Paypal account in order to pay for me to come in.
“I think, based upon talking to her, that she has exercised a
great deal of diligence in trying to secure counsel for her
son, that he would be happy with, that would give him the
attorney he wanted as he fights for his life in this case.
“I understand that cause for concern is my trial schedule.
But then, again, as I read over the statement prepared by
the prosecutor, I note that it is a matter of cost which, in
the large scheme of things, is not significant and
convenient [sic]. I see nothing in here that indicates that
witnesses will be unable to appear and testify in January.
As a matter of fact, there are a few witnesses that are
unable to testify now that may be available in January.
“I see most of this —”
19
After the trial court briefly interrupted Attorney Collins to state that
the People were ready to proceed to trial notwithstanding the unavailability
of one of their witnesses, Attorney Collins continued:
“I understand. What I’m saying is, so far it doesn’t appear
to be hardship or impossibility of witnesses coming in. So
far everything appears to be convenien[ce]. And I believe
that in a case of this magnitude, where this young man is
essentially fighting for his life, he has the right to have an
attorney of his choice, as long as his family — that he has
exercised diligence, not done everything possible but
exercised reasonable diligence in order to secure new
counsel.
“It appears from everything I’ve seen in this case, in the
papers filed by the prosecutor and in a letter submitted to
me by the defense attorney, that this case has proceeded
basically to accommodate the convenience of other parties’
schedules. It accommodated the convenience of counsel
when she was moving. It accommodated convenience of
this court’s schedule by having in limine motions early.
Everything so far has been in terms in the context of
convenience and accommodation.”
Attorney Collins continued by explaining that she understood that the
court’s “processes are important,” but that, “I think in terms of a case where a
young man is fighting for his life, four months is not unreasonable.”
After the trial court reiterated that it might not “give [Attorney Collins]
four months because you have other matters that you have to address and
you’re unwilling to put this one — make this one to have the priority that it
demands,” the court asked Attorney Collins, “How much time do you need to
prepare for this case?”
Attorney Collins responded by inquiring as to the amount of discovery
in the case. The court asked the prosecutor for a response.
20
The prosecutor responded that the discovery was “voluminous,” and
that the case was complex. After further discussions between the court and
the prosecutor concerning the numerous tape recordings contained in the
discovery, the court stated that, if it were to grant the motion to substitute, it
would not be inclined to permit Williams to relitigate the admissibility of
Williams’s jailhouse statements. The court added, “I’m trying to figure out
exactly how much time counsel realistically needs if this case is put on the
front burn[er] and becomes the priority that counsel’s suggesting it needs to
be.”
The prosecutor responded that Attorney Collins could not “truly know”
how long it would take her to be ready to try the case until she had reviewed
the discovery.
At this point in the hearing, Attorney Lopez discussed the reasons why
the case had been pending for approximately two years. Attorney Lopez
emphasized that it was not until almost a year after the arraignment that the
district attorney’s office made the determination that it would not seek the
death penalty in the case. Attorney Lopez also explained that the People had
not timely provided the defense with transcripts of statements from various
witnesses.
The court stated that the transcripts were now available, and returned
to the question of how long Attorney Collins would realistically need to be
ready for trial.
Attorney Collins responded by emphasizing her strong work ethic,
including providing specific examples of her industriousness.12 Attorney
12 For example, Attorney Collins stated:
“I can give the court an example of my work ethic, because
I’m not familiar with this court. I know this court is not
21
Collins also emphasized her extensive trial experience, noting that she had
worked as a prosecutor for 25 years and had tried five death penalty cases.
Attorney Collins stated:
“I would be ready to go as soon as — I think that,
realistically speaking, January is what I need. This young
man deserves to have somebody by his side who believes in
him, that he believes in, and that person — I’m not
suggesting the public defender doesn’t believe in him. But
whatever the cause, things have broken down between
them, and he is in the fight of his life. He should have the
attorney that he feels comfortable with in this case.
“I will be ready in January. I can inform the court that I
will. I also understand the in-limine motions have been
heard. I understand the principles of law of the case. I
understand that those rulings will hold, absent new and
different evidence or a change in circumstances.”
The court responded by asking Attorney Collins whether she would “be
prepared to go to trial in 60 days[.]”
Collins replied by stating that she could not “ignore the reality of [her]
trial schedule,” and that a personal issue was also contributing to her
familiar with me. I was appointed on a very large case . . .
about seven years ago and that case involved, for example,
an opening statement by the prosecutor that lasted a week,
to present all the facts and hundreds of thousands of pages
of documents.
“I did not waive time in that case, and I proceeded to trial
two months after the preliminary hearing. . . . And my
client did not suffer. He was the only defendant that was
acquitted in that case.”
22
inability to try the case in that time frame.13 After a brief recess, Attorney
Collins added that the reason that her upcoming trial schedule was so full
was that there has been an absence of judges able to try matters in August
due to system-wide judicial training and certain judges having had personal
emergencies.
The trial court then asked Attorney Lopez whether there was anything
in the factual or procedural background of the case described in the People’s
opposition to the motion to substitute14 that she wanted to address.
Attorney Lopez stated that Williams had indicated to her on August 6
that he wanted to request a Marsden hearing. Attorney Lopez contacted the
court clerk that same day requesting a date for the Marsden hearing.
However, due to the prosecutor’s unavailability, the earliest date on which
the Marsden hearing could be set was August 19, and it was subsequently
delayed until August 22 because of courtroom unavailability. Attorney Lopez
explained that after the court denied the Marsden motion and ruled that
Williams’s jailhouse statements would be admissible, she attempted to meet
with Williams later that day. According to Attorney Lopez, Williams declined
that meeting. Lopez stated that she intended to meet with Williams on
August 28, but on that day, she received a call from the prosecutor informing
her that Attorney Collins had been retained to represent Williams.
Attorney Lopez explained that the delay in getting the Marsden
hearing adjudicated and Williams’s feeling that he was being denied the
13 Attorney Collins explained that she owned a horse sanctuary and that
the manager of the sanctuary had recently had a heart attack and was
unable to take care of the horses.
14 We described the People’s opposition in part III.A.3.b, ante.
23
attorney of his choice had detrimentally impacted her ability to prepare the
case since August 6. Attorney Lopez explained:
“I don’t know where Mr. Williams’[s] head is at. I don’t
think that in one day I can get him back to where we were
prior to the Marsden being denied. So[,] I have grave
concerns with going forward with this trial when there is
an attorney who can step in as his trial counsel.”
Attorney Lopez added, “I don’t understand the rush to press forward
when there would be no prejudice to the prosecution.”
At this point, the prosecutor reiterated his argument that there was an
insufficient basis to continue the trial to permit Attorney Collins to substitute
in as counsel. The prosecutor emphasized that the case had been continued
in the past at the defense’s request and due to settlement negotiations. The
prosecutor also stated that there was no indication at the time of the August
6 Marsden request that Attorney Collins was “waiting in the wings” in the
event that the motion were denied. The prosecutor added that efforts to
retain Attorney Collins had stemmed from Williams’s mother, rather than
Williams. The prosecutor summarized his opposition to the motion by stating
that case law supported the conclusion that a defendant having “lost
confidence” in his attorney was an “insufficient reason[ ] to grant a day-of-
trial continuance for the retention of a new attorney.”
d. The trial court’s ruling
At the conclusion of the hearing on the motion to substitute counsel,
the trial court denied the motion, ruling:
“All right. I appreciate the arguments of counsel. I
understand this is a relatively serious case, and I
appreciate the procedural history that has been provided to
the court. After hearing from all counsel, reviewing the
pleadings, and reviewing the appropriate case law, I think
that counsel coming in on the day of trial is untimely.
24
“There was even some discussion with Ms. Collins about if
she was — the court had asked a couple of times, because
the court felt, even if it was timely, a four-month delay on a
case already two years old is [a] little unreasonable. It
seemed to be that much of the delay was occasioned by
other matters that were already scheduled. I understand
the reasons for that. But even [on] a couple of occasions the
court tried to find out from Ms. Collins, putting aside all
those other matters, giving this case the priority it needs,
how much time and focus on this case exclusively, how
much time would be needed to prepare, and I couldn’t get a
definitive answer from that. I know there was an allusion
to a case that needed 60 days to prepare.
“But, you know, this is a situation where Ms. Collins hasn’t
been exposed to any of the discovery in the case. She hasn’t
seen anything of the case. She is going to be spending the
next three months devoted to the other cases. Using the
month of December, getting ready for a case of this
magnitude with this exposure is I think an insufficient
amount of time. I think it would be reasonable to infer
that, once she was able to devote time to the case, that
coming in . . . [in] January would necessitate additional
delays.
“Those are just kind of observations being made, but the
point the court wants to make is that, had the position been
that: I’m ready to go or I’m going to set everything else
aside and give this case the priority it needs, I need a little
bit of time to prepare —we are not even at that point
because there was — you know, this is a case in which it
was scheduled — it’s a two-year-old case, scheduled to go
forward today. Counsel coming in on the day of trial after
in limines have been done, saying: I’m coming on board, but
I don’t know anything about the discovery. At this point in
time, the court’s not going to — the court’s going to find
that's simply untimely at this point in time.
“I recognize and I understand that perhaps after the court
ruled on the Marsden motion the defendant — at which
time there’s nothing in the record to suggest that the
25
defendant was seeking representation from another
attorney, the — following the ruling of the Marsden,
following the ruling of the in limines, the defense did not
indicate to the court that it was not ready to go forward. At
that point in time, everybody anticipated that we would be
going forward when the court got back from vacation on
today’s date, and it’s only after that Marsden ruling was
made that the court became aware of the fact that now
there’s an attorney that apparently was — services were
retained by the defendant’s mother.
“I think it’s dilatory; I think it’s untimely. Even if it wasn’t
untimely, the additional time being requested by counsel I
think is unreasonable. So[,] the court’s going to deny the
request to substitute in Ms. Collins at this point in time.”
e. The postruling hearing concerning the motion to substitute
counsel
On September 4, Attorney Lopez supplemented the record with
additional information pertaining to the motion to substitute counsel. She
began by stating that the People’s opposition suggested that the defense had
moved to continue four different trial dates. According to Lopez, this was
incorrect. Attorney Lopez explained that the trial dates had been continued
at various readiness conferences for several different reasons, including
exploring potential settlement of the case, “either [the prosecutor’s] wife’s
birthday or his anniversary,” and the need for the defense to explore
retaining an expert.
Attorney Lopez also stated the following with respect to the defense’s
efforts to alert the court of the fact that Attorney Collins had been retained to
represent Williams:
“Then the last monkey wrench, if you will, would be
Wednesday, August 28th, when I’m informed that
Attorney . . . Collins has been retained at great cost to the
family. I understand the retainer amount was $20,000. At
26
that point, immediately upon learning that, I e-mailed the
court clerk, requesting an ex parte to get an indicated,
because it was — because Ms. Collins was requesting to
come in so late in the game — an ex parte so I could get an
indicated from the court whether they were likely to grant
or deny that motion, making all the difference in the world
in terms of pushing forward with meetings with
Mr. Williams during the Labor Day weekend and even on
Labor Day itself.
“I also sought counsel within my office in terms of other
attorneys who have been in this position, how likely is the
court, you know, to grant a subbing in this late in the
game.”
The court interjected:
“And again, for purposes of the record, at that date, we
were dark because this — because I was on vacation during
that period of time. I know that you contacted our clerk
who contacted me. I know Department 5 was aware of it,
but no — at that point in time, no motion —there was no —
you made a comment about ex parte — getting an ex parte
order so we could get this resolved in advance as possible.
There was no effort to seek relief in Department 5 at that
time or contact supervising to see if another judge might be
able to resolve the issue while I was on vacation, or there
was no formal motion or request filed by Ms. Collins nor
was ever one filed in person.
“The first time that Ms. Collins sought to appear in the
court was when she appeared and orally made the request
yesterday. I wanted to make sure that the record reflected
that procedural information. Go ahead.”
Attorney Lopez continued:
“Yes. That is correct. I can only reference informal
conversations that I had with my supervisor Matt Roberts,
who said he had a meeting. I don’t think it was specifically
for this or if they just happened to be in the same
chambers, but that Judge Kirkman indicated to him that
27
he thought that the request to have the substitution should
be granted; that ultimately the decision was going to be
Judge Weinreb’s decision because the trial was assigned to
Judge Weinreb for all purposes. I relied on that
representation that this request to sub in, even this late in
the game, because of the exposure, because the exposure in
this case is life without the possibility of parole. This is
coming from my supervisor, who is talking to the judge in
Department 5 who sends out the cases.”
4. In denying Williams’s motion to substitute counsel, the trial court
abused its limited discretion to deny a defendant’s request for a
continuance so that the defendant can be represented by counsel of
his choice
The trial court stated that it denied the motion to substitute counsel
because the request was “dilatory” and “untimely,” and because the “time
being requested by [Attorney Collins] . . . [was] unreasonable.” For the
reasons stated below, we conclude that, given the “severely” limited
discretion of a trial court in this context (Maxwell, supra, 30 Cal.3d at p. 613),
the court exceeded the carefully delineated “circumscribed” limitations on its
authority to deny Williams’s request to be represented by counsel of his
choice and failed to “accommodate [Williams’s] request[ ] . . . ‘to the fullest
extent consistent with effective judicial administration.’ ” (Courts, supra,
37 Cal.3d at pp. 790–791.)
a. Williams was not dilatory in bringing his motion to substitute
counsel
First, while the court stated that Williams’s request was “dilatory,” the
court pointed to no circumstances to support such a finding, the People have
identified no such circumstances, and our own searching review of the record
has produced no evidentiary support for the finding. Not only is there no
28
evidence that Williams’s motion represented an effort to cause delay,15 there
is undisputed evidence, recounted below, that Williams’s motion to substitute
counsel was made soon after the denial of the Marsden motion, as soon as his
mother was able to obtain the funds necessary to retain Collins, and reflected
a genuine desire on Williams’s part to replace his appointed counsel.
To begin with, Attorney Lopez indicated at the hearing on the motion to
substitute counsel that her relationship with Williams had broken down,16
explaining that “Mr. Williams[’s] feeling that he doesn’t have the attorney of
his choice has been detrimental to this case in terms of my ability to
prepare.” Attorney Lopez emphasized her point by stating that she had
“grave concerns with going forward with this trial when there is an attorney
who can step in as his trial counsel.” (Italics added.)
Williams’s request for a Marsden hearing on August 6, approximately a
month before the trial, further supports the conclusion that he was genuinely
dissatisfied with Attorney Lopez’s representation. At the Marsden hearing,
Williams testified that there had been “a total breakdown in communication
between me and my attorney that resulted in a complete loss of trust.”
Finally, Attorney Collins’s unrebutted statements that Williams’s
mother had contacted her at least a month prior to the trial date and had
undertaken significant efforts to secure Attorney Collins’s representation also
strongly supports the conclusion that Williams brought the motion to
15 Nor is there any other evidence in the record that Williams’s actions
during any of the prior proceedings in the case reflected an intent to delay
the proceedings.
16 Attorney Lopez also explained that prior to the Marsden proceedings,
she and Williams had had “a very good relationship.”
29
substitute because he genuinely desired new counsel, not because he wanted
to delay the trial.17
In Byoune, the California Supreme Court concluded that a defendant
had not been “unjustifiably dilatory,” in requesting a continuance on the day
of trial in order to attempt to retain counsel, given the changed circumstances
in the case. (Byoune, supra, 65 Cal.2d at p. 346.) Similarly, in this case, the
record reflects that Williams’s request to substitute counsel arose from his
growing dissatisfaction with appointed counsel and his desire to be
represented by a different attorney, and demonstrates that the request was
not “dilatory.”18 (See Maxwell, supra, 30 Cal.3d at p. 613 [“[w]hen clients
17 The record demonstrates that Williams’s family did not have the funds
to retain Attorney Collins earlier. As noted in part III.A.3.c, ante, Attorney
Collins stated that Williams’s mother had first contacted her a month or six
weeks prior to the date set for trial and inquired about Collins’s fee, and that
it had taken Williams’s mother several weeks after that to come up with
sufficient funds to retain Collins. Attorney Collins added:
“[Williams’s mother] met with me with a host of friends and
somehow convinced me to take payments, which I don’t
normally do in this kind of case.
“The night before I was retained and notified counsel, I sat
and watched [Williams’s mother] with a cell phone and a
stack of credit cards — I’m unfamiliar with red dot cards,
things like that, as she attempted to max cards out on a
Paypal account in order to pay for me to come in.”
18 Thus, this case is distinguishable from People v. Turner (1992)
7 Cal.App.4th 913 (Turner) on which the People rely in their brief. (See id. at
p. 919 [denying defendant’s request to remove counsel, made for the first time
at his probation revocation hearing, and stating “the vagueness of his
complaints supported the court’s apparent finding that the motion was
motivated not by any genuine dissatisfaction with counsel but by a desire to
delay the trial”].) Unlike in Turner, for the reasons stated in the text, the
30
and lawyers lack rapport and mutual confidence the quality of representation
may be so undermined as to render it an empty formality”])
b. Williams’s motion to substitute counsel was timely given all of
the circumstances of the case
The trial court also found that Williams’s request was “untimely.”
While the “lateness of [a] continuance request,” may be a “significant factor
which justifie[s] a denial where there were no compelling circumstances to
the contrary,” (Courts, supra, 37 Cal.3d at pp. 792, fn. 4, 801), in this case, as
in Courts, the defense took reasonable steps to retain substitute counsel in
advance of the trial, accomplished that retention prior to the trial, and took
steps to promptly inform the court and the People of the requested
substitution six days before the trial was scheduled to begin.
The record contains “compelling circumstances” (Courts, supra,
37 Cal.3d at p. 792, fn. 4.) that mitigate any tardiness of Williams’s motion.
As described in part III.A.3.c, ante, approximately a month before the trial,
Williams sought to obtain a different appointed attorney via his request for a
Marsden hearing. However, the trial court was not able to conduct the
Marsden hearing until August 22, just two weeks prior to the trial. The delay
in hearing the Marsden was attributable to the prosecutor’s vacation
schedule and the fact that a courtroom was not available to hear the motion
earlier. At approximately the same time Williams requested a Marsden
hearing, Williams’s mother began to attempt to obtain new counsel for
Williams by contacting Attorney Collins and inquiring about her fee. In
addition, as described in footnote 17, ante, the record indicates that
Williams’s mother engaged in considerable efforts over the next several
record unequivocally demonstrates the genuineness of Williams’s desire to
obtain substitute counsel.
31
weeks to obtain the funds necessary to secure Attorney Collins’s
representation once the Marsden motion was denied and it became apparent
that Williams’s desire for different counsel would not be achieved via new
appointed counsel. In sum, the delay in resolving the Marsden motion—a
delay not attributable to Williams, constituted a significant factor that the
court was obligated to consider in evaluating the timeliness of Williams’s
request to substitute counsel.
Further, although the case had been pending for approximately two
years, given the seriousness of the charge and the potential sentence of life in
prison without parole for Williams,19 we see nothing that suggests that the
case was proceeding at an unduly slow pace, and certainly nothing indicating
that any delay in the resolution of the case was attributable to any
gamesmanship on Williams’s part or to any improper tactics on the part of
his counsel.
In addition, as in Courts, Williams retained new counsel nearly a week
prior to the trial. Attorney Collins testified that she was retained on August
28, six days prior to the trial date. (Compare with Courts, supra, 37 Cal.3d at
p. 793 [stating that new counsel was retained on October 21, five days prior
to the trial].) Thus, as in Courts, by the time of the motion to substitute, the
trial court “was not confronted with the ‘uncertainties and contingencies’ of
an accused who simply wanted a continuance to obtain private counsel.” (Id.
at p. 791.)
Further, while the defense did not “file[ ] or attempt[ ] to file a written
motion for a continuance,” (Courts, supra, 37 Cal.3d at p. 788, fn. 2), Attorney
19 In denying the motion to substitute counsel, the trial court stated, “I
understand this is a relatively serious case.” (Italics added) In fact, Williams
received a sentence of life without the possibility of parole, the harshest
penalty in our criminal justice system, short of death.
32
Lopez and Attorney Collins both acted promptly to alert the court and the
prosecutor to the fact that Attorney Collins had been retained prior to the
trial. (See id. at pp.792–793, and fn. 4. [distinguishing the defense’s
“unsuccessful” but “diligent” efforts to “attempt[ ] to calendar a continuance
request in advance of trial,” with the “eve-of-trial, day-of-trial, and second-
day-of-trial requests” in other cases].)
Attorney Collins informed the prosecutor on August 28 that she had
been retained that day. In addition, Attorney Lopez contacted the trial
court’s clerk on August 28 to apprise the court of the requested substitution
of counsel and to obtain an indicated ruling. While the trial court
(Judge Weinreb) was on vacation during the period from August 28 through
September 3, Judge Weinreb indicated that his clerk informed him of
Attorney Lopez’s request while he was on vacation. Obviously, the fact that
Judge Weinreb was on vacation in the days immediately preceding the trial is
a circumstance that is not attributable to Williams. Moreover, although
Judge Weinreb suggested at the September 4 hearing that Attorney Lopez
should have requested that another judge handle the matter while he was on
vacation,20 there is nothing in the record that indicates that Judge Weinreb’s
clerk or anyone else conveyed this message to Attorney Lopez at any time
prior to the motion to substitute. In any event, Attorney Lopez expressly
stated that her supervisor had contacted the judge presiding in Department
5, who indicated to Lopez’s supervisor both that in his view, the motion to
substitute “should be granted” and that Judge Weinreb would have to make
the final decision. Thus, the record indicates that the defense undertook the
20 During the postruling hearing, Judge Weinreb stated, “There was no
effort to seek relief in Department 5 at that time or contact supervising to see
if another judge might be able to resolve the issue . . . .”
33
action that Judge Weinreb suggested at the September 4 hearing would have
been the appropriate course of action, but was unable to get a definitive
ruling prior to the day set for trial. In short, as in Courts, defense counsel’s
informal efforts to alert the trial court to Williams’s request to substitute
retained counsel for his appointed counsel nearly a week prior to the start of
trial were reasonable.
This case is thus distinguishable from People v. Jeffers (1987)
188 Cal.App.3d 840, 850 (Jeffers), on which the People rely, in which this
court affirmed a denial of a continuance in order to obtain retained counsel
where “[n]othing in the record suggest[ed] [defendant] made a good faith,
diligent effort to obtain retained counsel before the scheduled trial date.” (Id.
at p. 850.) Unlike in Jeffers, as described above, in this case, the defendant,
through his mother, did make good faith, diligent efforts to obtain retained
counsel more than a month prior to trial, and in fact retained new counsel six
days prior to the trial.
Further, Williams’s motion to substitute retained counsel for his
appointed counsel is not similar to the defendant’s motion for a continuance
in People v. Keshishian (2008) 162 Cal.App.4th 425 (Keshishian), on which
the People also rely, in terms of the timeliness of the motion. In Keshishian,
the defendant “ ‘surprised’ ” the trial court on the day set for trial by stating,
“ ‘I’ve lost confidence pretty much in my attorneys. I’m really looking for
another trial attorney—to hire an attorney for trial. I would ask the court . . .
if I can please get a continuance to hire some other lawyers, please.’ ” (Id. at
p. 428.) The defendant had “neither identified nor retained new counsel,” (id.
at p. 429) “numerous defense requests for continuances had been granted,”
34
(id. at p. 428) and the crime had occurred six years prior to the trial.21 (Ibid.
at fn. 10.) The Court of Appeal concluded that the trial court had properly
“reject[ed] appellant’s last-minute attempt to discharge counsel and delay the
start of trial.” (Id. at p. 429.) Unlike in Keshishian, in this case, the trial
court and the prosecutor were both on notice of Williams’s desire for a new
attorney prior to trial, Williams had identified and retained an experienced
attorney who was willing to represent him, the case not been pending for an
unusually long period of time, and Williams had not engaged in any dilatory
conduct.
Thus, the circumstances of this case share many similarities with those
in Courts, in which the California Supreme Court concluded that the
defendant had diligently obtained retained counsel and timely informed the
court of such retention, and are clearly distinguishable from the Court of
Appeal cases such as Turner, Jeffers, and Keshishian, on which the People
rely. (See Courts, supra, 37 Cal.3d at p. 794.) In sum, there is no evidence
that Williams “arbitrarily” (Byoune, 65 Cal.2d at p. 346) chose to seek
substitute counsel at the time of trial.
c. The length of the requested continuance did not constitute a
sufficient basis on which to deny the motion to substitute
We are left to consider whether “the state’s interest in ensuring an
expeditious resolution of the case” was sufficiently compelling under the
circumstances of this case to override Williams’s right to be represented by
counsel of his own choice. (Courts, supra, 37 Cal.3d at p. 794 [stating that
because defendant diligently retained counsel to replace appointed counsel
and informed the court of such retention, “the state’s interest in ensuring an
21 The delay was due in part to the defendant having fled the country.
(Keshishian, supra, 162 Cal.App.4th at p. 428, fn. 10.)
35
expeditious resolution of the case became far less compelling”].) In
conducting this inquiry, we are guided by the principle that a defendant’s
“ ‘right to decide for himself who best can conduct the case must be respected
wherever feasible,’ ” (id. at p. 789, italics added) and to “the fullest extent
consistent with effective judicial administration.” (Crovedi, supra, 65 Cal.2d
at p. 209, italics added.) When considered in light of this standard, we
conclude that the length of the continuance that Attorney Collins requested
did not constitute a sufficient basis on which the trial court could properly
deny the motion to substitute.
To begin with, Attorney Collins provided a simple and reasoned
explanation for the length of the proposed continuance. She stated that she
had recently been retained to represent Williams and that she had an
“extensive trial schedule” that would keep her “in trial,” until “the end of
November.” She explained that she would use December “to ensure that I’m
ready and that we could proceed to trial in this very serious case, where this
young man’s life is at stake” in January. Attorney Collins was a seasoned
trial attorney who expressly assured the trial court, “I will be ready in
January. I can inform the court that I will.” Attorney Collins cannot be
faulted for representing defendants in jury trials that were set prior to her
being retained in this case, and her request to have the month of December to
prepare for a trial of this complexity and seriousness after she completed
those other trials was not unreasonable.
On the other hand, while the People demonstrated that it would be
inconvenient for J.R. if the trial were continued, they did not demonstrate
that she, or any other witness would be unavailable if the court granted
Williams’s motion. In any event, the trial court did not deny the motion out
of a concern for J.R.’s convenience, or because of any other inconvenience to
36
the People; instead, the court expressly contemplated granting a shorter
continuance, and there is nothing in the record that suggests that either J.R.
or the People would have been any more inconvenienced by a longer
continuance than by a shorter one.
Moreover, while the trial court’s comments at the hearing on the
motion to substitute counsel concerning the length of the requested
continuance appear to reflect irritation with Attorney Collins for having a full
trial schedule and purportedly failing to prioritize this case over her other
cases, in ruling on the motion, the court did not refer to any harm to the
People’s case that the proposed delay might cause and did not point to any
specific harm to the administration of justice that would result from such a
delay. During the hearing, the court made the following statements
concerning Attorney Collins’s inability to try the case prior to January:
• “One would assume that part of the responsibility of
coming on board as retained counsel is being ready to
proceed. You knew that the trial was set for today. I
understand, given the nature of the charges, it would
not be unreasonable to give some additional time to
you in order to get up to speed . . . .”
• “I don’t necessarily know how reasonable it is to ask
for that much time essentially due to the convenience
of counsel’s schedule, because counsel has other
matters that counsel has to address.”
• “So[,] if I’m not going to give you four months because
you have other matters that you have to address and
you’re unwilling to put this one — make this one to
have the priority that it demands, given the serious
nature of the charges, how much time do you need to
prepare for this case?”
• “I think four months may be an unreasonable amount
of time to continue this matter, in light of the
37
discussion that we previously had. I was trying to
gauge how much time she needed to come on board.”
• “The court may not be inclined to give a four-month
continuance, if the court’s inclined to allow that to
occur. I’m trying to figure out exactly how much time
counsel realistically needs if this case is put on the
front burn[er] and becomes the priority that counsel’s
suggesting it needs to be.”
• “I guess the question from the court is: if you were to
give this case priority over your other matters, give it
the priority it deserves, given the significant amount
of exposure the defendant is facing, how much time
do you realistically need to be prepared to go to
trial?”
• “So if you were to give this case the same amount of
due effort and attention you gave to the case that you
referred to, why would you not be prepared to go to
trial in 60 days?”
However, while the court clearly expressed its frustration with the
proposed delay, there is nothing in the record that reveals any reason why a
continuance until January would cause “a disruption of the orderly processes
of justice unreasonable under the circumstances” of this case. (Crovedi,
supra, 65 Cal.2d at p. 208.) The trial was not expected to be particularly
long,22 no codefendants were involved, and neither the court nor the People
identified any calendaring issues that would arise if the trial were to be
rescheduled for January. In sum, while a continuance until January would
cause some amount of inconvenience for witnesses, the court, and the victim’s
22 During the hearing on September 4 (see pt. III.A.3.e, ante), the trial
court stated, “This is scheduled to be a two-week trial.”
38
family,23 a defendant’s constitutional “right to chosen counsel [citation] must
be respected, even when a byproduct of a concrete and timely assertion of
that right is some disruption in the process.” (Courts, supra, 37 Cal.3d at
p. 795.)
Accordingly, we conclude that the trial court erred in permitting
expedience to take precedence over Williams’s right to be represented by
counsel of his choice under the circumstances of this case.
5. The error requires reversal
The erroneous deprivation of Williams’s right to counsel of his choice is
structural error that is per se harmful and requires an automatic reversal.
(Woodruff, supra, 5 Cal.5th at p 728; Gonzalez-Lopez, supra, 548 U.S. at
p. 150.)
B. The trial court properly admitted Williams’s jailhouse statements
Williams claims that the trial court erred in admitting recorded
jailhouse statements that he made to two undercover officers who were
posing as fellow inmates.24 The statements included an admission that he
committed the shooting. Williams maintains that his statements should have
been suppressed because “Miranda was violated,” and that his “admissions
were coerced and involuntary . . . .”
23 In particular, we understand the People’s argument that the victim’s
family desired to see the matter concluded. However, when one considers
that the 23-year-old defendant was facing life in prison without parole, we
cannot say that a delay of a few months “would have significantly
inconvenienced the court or the parties.” (Courts, supra, 37 Cal.3d at p. 794,
italics added.)
24 As noted in part I, ante, while we reverse the judgment for the reasons
stated in part III.A, ante, we address this issue in order to provide guidance
to the trial court since the issue is likely to recur on remand.
39
1. Standard of review
“ ‘In reviewing the trial court’s denial of a suppression motion on
Miranda . . . grounds, “ ‘ “we accept the trial court’s resolution of disputed
facts and inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the undisputed facts
and the facts properly found by the trial court whether the challenged
statement was illegally obtained.” ’ ” [Citations.]’ ” (People v. Jackson (2016)
1 Cal.5th 269, 339.) Similarly, “[v]oluntariness is a legal question subject to
independent review; a trial court’s related factual findings are upheld if
supported by substantial evidence.” (People v. Winbush (2017) 2 Cal.5th 402,
452 (Winbush).)
2. Governing law
a. Miranda and its progeny
The Fifth Amendment of the United States Constitution provides a
criminal defendant with a privilege against self-incrimination. (U.S. Const.,
5th Amend. [“nor shall [any person] be compelled in any criminal case to be a
witness against himself”].)
“Miranda . . . and its progeny protect the privilege against self-
incrimination by precluding suspects from being subjected to custodial
interrogation unless and until they have knowingly and voluntarily waived
their rights to remain silent, to have an attorney present, and, if indigent, to
have counsel appointed. [Citations].” (People v. Gamache (2010) 48 Cal.4th
347, 384.) In Rhode Island v. Innis (1980) 446 U.S. 291, 301 (Innis), the
United States Supreme Court defined interrogation for purposes of Miranda
as “not only . . . express questioning, but also . . . any words or actions on the
part of the police (other than those normally attendant to arrest and custody)
40
that the police should know are reasonably likely to elicit an incriminating
response from the suspect.” (Fn. omitted.)
In People v. Fayed (2020) 9 Cal.5th 147 (Fayed), the California Supreme
Court noted that under United States Supreme Court precedent, Miranda
warnings are not required before a suspect engages in a what he believes to
be a private conversation with someone he does not suspect is a law
enforcement officer:
“[T]he [United States Supreme Court] has held that at least
where no prior invocation is in effect, ‘[c]onversations
between suspects and undercover agents do not implicate
the concerns underlying Miranda. The essential
ingredients of a “police-dominated atmosphere” and
compulsion are not present when an incarcerated person
speaks freely to someone whom he believes is a fellow
inmate. Coercion is determined from the perspective of the
suspect.’ (Illinois v. Perkins (1990) 496 U.S. 292, 296
[(Perkins)].) In other words, ‘Miranda forbids coercion, not
mere strategic deception by taking advantage of a suspect’s
misplaced trust in one he supposes to be a fellow
prisoner. . . . [¶] Miranda was not meant to protect suspects
from boasting about their criminal activities in front of
people whom they believe to be their cellmates.’ (Id. at
pp. 297–298 [defendant showed ‘no hint of being
intimidated by the atmosphere of the jail’ and ‘was
motivated solely by the desire to impress his fellow
inmates’]; see People v. Tate (2010) 49 Cal.4th 635, 685–686
[(Tate)].)” (Id. at p. 165.)
The California Supreme Court has repeatedly applied this principle in
discussing the admissibility of statements made by a defendant to a person
whom the defendant does not suspect to be a government agent. (See, e.g.,
Fayed, supra, 9 Cal.5th at p. 165; People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 284 [stating that although defendant “misplaced his trust in
confiding in [an inmate acting as government agent], [defendant’s] tape-
41
recorded statements were voluntary and free of compulsion” and noting that
“the United States Supreme Court has rejected ‘ “the argument that Miranda
warnings are required whenever a suspect is in custody in a technical sense
and converses with someone who happens to be a government agent” ’ ”; Tate,
supra, 49 Cal.4th at p. 686 [“Both ‘custody’ and ‘police questioning’ are
necessary to invoke Miranda, and both concepts are viewed from the
suspect’s perspective. (Perkins, supra, 496 U.S. 292, 296.) Even when the
suspect is in the process of a custodial interrogation, voluntary statements to
someone the suspect does not believe is a police officer or agent, in a
conversation the suspect assumes is private, simply does not involve one of
these two critical concerns”]; People v. Davis (2005) 36 Cal.4th 510, 555
(Davis) [defendant’s surreptitiously recorded statements to cellmates made
immediately after detective interrogated defendant in cell were admissible
because “when he made these statements to his cellmates there was no
longer a coercive, police-dominated atmosphere, and no official compulsion for
him to speak”].)
b. Voluntariness
“State and federal constitutional principles prohibit a conviction based
on an involuntary confession. [Citations.] ‘The prosecution has the burden of
establishing by a preponderance of the evidence that a defendant’s confession
was voluntarily made. [Citations.] In determining whether a confession was
voluntary, “ ‘[t]he question is whether defendant’s choice to confess was not
“essentially free” because his [or her] will was overborne.’ ” [Citation.]’
[Citation.] . . . [¶] A confession’s voluntariness depends upon the totality of
the circumstances in which it was made.” (Winbush, supra, 2 Cal.5th at
p. 452.)
42
While a person surreptitiously working as an agent of the government
may engage in coercive threats that vitiate the voluntariness of a confession
(see Arizona v. Fulminante (1991) 499 U.S. 279, 287 (Fulminante) [coercion
due to “credible threat of physical violence” if defendant did not confess]), a
person secretly acting as a government agent does not engage in coercive or
improper tactics merely by “coax[ing] and prodd[ing],” a defendant to speak.
(Fayed, supra, 9 Cal.5th at p. 166.) It is only when the agent uses improper
tactics that overcome a defendant’s will that it may be said that a defendant’s
confession is involuntary. (Id. at pp. 165–166 [stating that although
informant was “much more than a passive listener,” confession was voluntary
since “defendant was neither compelled into revealing his role in [victim’s]
murder, nor was he coerced into hiring a hitman to kill [second victim]”].)
3. Factual and procedural background
a. The Perkins operation
On August 21, 2017, shortly after Williams’s arrest and prior to his
arraignment or invocation of any Miranda rights, police engaged in an
operation premised on the tactics approved in Perkins, supra, 496 U.S. 292.
During the operation, Williams made a series of incriminating statements
pertaining to the shooting to undercover officers posing as fellow inmates.
The operation began with police conducting a fake lineup during which
Williams heard a person, whom Williams was led to believe was the father of
the victim,25 positively identify Williams as the shooter.
Police then took Williams to a holding cell, which was occupied by an
undercover agent posing as an inmate. After Williams and the undercover
agent spoke for a while, a second undercover agent posing as an inmate was
25 The person “identifying” Williams was actually a police officer.
43
placed in the cell. The undercover agents pretended to be experienced
criminals with knowledge of the criminal justice system. After Williams told
the undercover agents that he was expecting to be interviewed by police, one
of the undercover agents told Williams that, in his experience, there were
three highly incriminating types of evidence that could doom a case: DNA
evidence, video evidence, and eyewitness evidence.
Shortly thereafter, a detective entered the cell and informed Williams
that police had obtained strong evidence indicating that he was the shooter,
including finding his DNA on the shell casings discovered at the scene, video
showing him driving “[J.R.’s] car,” and a positive identification from the
lineup.26 The detective informed Williams that they would be interviewing
him shortly.
After the detective left the cell, one of the undercover agents said,
“They got him. They got him.” Williams continued to speak with the
undercover agents about the case, and admitted that the car in the video
belonged to his ex-girlfriend. When one of the undercover agents asked
Williams, “Did you wear gloves?” Williams responded, “Yeah.” Shortly
thereafter, Williams said, “We shouldn’t . . . be talking about this.”
After one of the undercover agents was taken out of the cell and later
returned to the cell, he told Williams that he had overheard the police officers
happily discussing how they had caught a friend of Williams’s with whom
Williams had stayed with after the shooting. Shortly thereafter, Williams
related several details about the shooting to the undercover agent, including
that Williams had not known the victim, that he had asked the victim “
26 The People do not dispute that the police did not in fact have the DNA
or lineup evidence. While the police did have video that showed J.R.’s car at
the scene of the shooting, the People do not contend that Williams could be
identified from the video.
44
‘where he was from,’ ” and that the victim had said he was from “Mesa.”
Williams also admitted to having disassembled the gun after the shooting.
Williams added, “I swear every time I close my eyes, like . . . I just hear the
gunshots.” Williams told the undercover agents that he was highly
intoxicated at the time of the shooting, having used cocaine and ecstasy and
consumed alcohol prior to the shooting.
b. Williams’s motion to exclude his statements obtained via the
Perkins operation
Prior to the trial, the defense filed a motion to exclude the
surreptitiously recorded statements that Williams made to the undercover
agents. Among other arguments, Williams claimed that the “jailhouse
interrogation by police,” (boldface & capitalization omitted) violated Miranda
and rendered his statements involuntary and inadmissible as violative of due
process. Williams claimed that the “law enforcement deception in this case
far exceeded that done in the Perkins case” and requested that the trial court
suppress his jailhouse statements for all purposes.
The People filed an opposition in which they argued that Williams’s
statements were obtained in compliance with Perkins. They argued in part:
“[Williams] confessed in a jail cell after speaking to
undercover [d]etectives who he had befriended. In this
case, [Williams’s] confessions were not relayed to openly
known [d]etectives who had violated [Williams’s] Miranda
rights. Rather, [Williams] confessed only to undercover
[d]etectives wearing jail blues whom he believed to be
friends going through similar legal troubles. Because there
was no police-dominated atmosphere during the course of
[Williams’s] confessions, Perkins (and its progeny cases)
controls the outcome in this case. Accordingly, [Williams’s]
in-jail confessions should be admitted at trial.”
45
The trial court held a hearing at which the parties reiterated the
arguments advanced in their briefs.
c. The trial court’s ruling denying Williams’s motion to exclude
his jailhouse statements
At the conclusion of the hearing, after discussing the relevant case law,
and the circumstances pertaining to the statements Williams made to the
undercover agents,27 the trial court denied Williams’s motion. The court
reasoned in part, “Given the fact that [Williams] didn’t know he was speaking
to government agents—there’s no reason to assume the possibility that there
might be—that he might have felt coerced. On this record, the court does not
find a coercive atmosphere.”
d. The admission of the statements
At trial, the People played Williams’s recorded jailhouse statements to
the jury.
4. Application
Williams makes several related arguments in support of his contention
that the trial court erred in denying his motion to suppress his statements.
None is persuasive.
First, Williams contends that police engaged in the “functional
equivalent” of an interrogation by placing him in a lineup and confronting
him with inculpatory evidence. (See Innis, supra, 446 U.S. at p. 299 [“one of
the practices discussed in Miranda was the use of lineups in which a coached
witness would pick the defendant as the perpetrator. This was designed to
establish that the defendant was in fact guilty as a predicate for further
27 The trial court indicated that it had read a transcript of the statements
and the parties agreed that the court could rule on the motion without taking
live testimony or listening to the recording of the statements.
46
interrogation”]; People v. Sims (1993) 5 Cal.4th 405, 443 [officer engaged in
functional equivalent of interrogation by “confronting defendant with the
evidence linking him to the crimes”].) Yet, even assuming that police tactics
in placing Williams in a fake lineup and reviewing the damning evidence
against him amounted to an interrogation under Innis and Miranda,
Williams points to no statements that he made in response to such
interrogation to persons whom he understood to be police officers.
In the absence of evidence that Williams made any statements to
persons whom he understood to be police officers, Williams’s primary
argument is that he continued to be subjected to the functional equivalent of
an interrogation when he made statements to the undercover agents. For
example, Williams argues that he was subjected to “an integrated scheme of
layered encounters” that “morph[ed] into one well-orchestrated
interrogation.” He maintains, “This tactic – merging the fake lineup into the
cell interrogation, and that, in turn, into the promptings by the undercover
agents – took the Perkins operation far beyond the passive police conduct
addressed by Perkins itself.”
We are not persuaded. In Davis, a police detective came to the
defendant’s cell and recounted inculpatory evidence against him, suggesting
that the defendant’s fingerprint had been found on a weapon (an Uzi).
(Davis, supra, 36 Cal.4th at p. 553.) After the detective left, the defendant
made incriminating statements to his cellmates, which were surreptitiously
recorded. (Id. at p. 554.) While concluding that the detective had engaged in
the functional equivalent of interrogation by recounting the evidence against
the defendant to him (id. at p. 555), our Supreme Court concluded that the
47
admission of the defendant’s statements made to his cellmates did not violate
Miranda.28 The court reasoned:
“After the comment about the Uzi, Detective DeAnda left
defendant’s jail cell. Thereafter, defendant, unaware that
police officers were listening to and recording his
statements, said to his cellmates: ‘The fingerprints on the
Uzi is mine. I know that mother fucker [the Uzi] has been
handled since I handled it.’ Under the circumstances,
defendant ‘consider[ed] himself in the company of cellmates
and not officers,’ and the coercive atmosphere of custodial
interrogation was lacking. (Illinois v. Perkins, supra,496 U.S. at p. 296.) Viewing the situation from defendant’s
perspective [citations], when he made these statements to
his cellmates there was no longer a coercive, police-
dominated atmosphere, and no official compulsion for him
to speak. Thus, the admission of defendant’s incriminating
statements made after Detective DeAnda left the cell did
not violate his rights under Miranda.” (Ibid.)
Similarly, in this case, at the time that Williams made the
incriminating statements to the undercover agents, Williams was no longer
in a “coercive, police-dominated atmosphere,” and was “[under] no official
compulsion . . . to speak.” (Davis, supra, 36 Cal.4th at p. 555; accord, Tate,
supra, 49 Cal.4th at pp. 685–686 [rejecting defendant’s attempt to distinguish
Perkins on the ground that “he was ‘in the throes’ ” of a custodial
interrogation when he made incriminating statements during a break in the
interrogation to his friend because “one who voluntarily speaks alone to a
friend, even during a break in a custodial interrogation, has no reason to
28 The Davis court did conclude that a comment that the defendant made
to the detective in response to the interrogation should have been suppressed.
(Davis, supra, 36 Cal.4th at p. 555.) However, as noted in the text, in this
case, Williams does not point to any statements that he made to a person
whom he understood to be a police officer.
48
assume, during the private conversation, that he or she is subject to the
coercive influences of police questioning”)].)29
Williams also argues that “each of the facets of the operation were
overtly coercive as well, all but certain to elicit incriminating responses from
appellant when set in the context of the larger operation, the coercion
expanding with each new component.” We disagree. While it is clear that
the police subjected Williams to numerous ruses and lies, “ ‘[t]he use of
deceptive statements during an investigation does not invalidate a confession
as involuntary unless the deception is the type likely to procure an untrue
statement.’ ” (Fayed, supra, 9 Cal.5th at p. 165.) Williams points to nothing
in the record that suggests that any of the tactics used in this case were of
the type likely to produce an untrue statement. Finally, unlike in
Fulminante, on which Williams relies, in which the court found that the “fear
of physical violence, absent protection from his friend (and Government
29 Williams also supports this argument by citing Justice Liu’s dissenting
statement from the California Supreme Court’s denial of review in People v.
Valencia (Dec. 11, 2019, No. S258038) (statement by Liu, J. dissenting from
denial of review) (Valencia). Justice Liu’s statement does not advance
Williams’s argument. In his statement, Justice Liu acknowledged that
“surreptitious questioning of a suspect before he has invoked any Miranda
rights does not negate the voluntariness of his choice to speak (Perkins,
supra, 496 U.S. at p. 298) . . . . ” (Ibid., first italics added.) That is the
circumstance present in this case since Williams does not claim that he
invoked his Miranda rights at any point prior to making the statements at
issue.
Justice Liu also noted that “our courts of appeal have extended Perkins
to hold that surreptitious questioning of a suspect is permissible even after
the suspect has invoked Miranda rights and remains in custody.” (Valencia,
supra, No. S258038 (statement by Liu, J. dissenting from denial of review),
second italics added.) While Justice Liu indicated in his statement that he
would grant review in order to consider the validity of such case law, our case
does not present that issue, because, as discussed above, Williams never
invoked his Miranda rights.
49
agent) . . . motivated [defendant] to confess,” (Fulminante, supra, 499 U.S. at
p. 288), Williams fails to demonstrate that his confession was the result of
any form of improper coercion.
Accordingly, we conclude that the trial court properly determined that
Williams’s jailhouse statements were admissible.
IV.
DISPOSITION
The judgment is reversed.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
50