07/02/2022
In People v. Ortiz (1990) 51 Cal.3d 975, the defendant was unable to pay his counsel in full for the first trial or for the experts retained to testify at that trial. Defense counsel made repeated efforts to withdraw from the case and the defendant made repeated motions to discharge them. (Id. at p. 985.)
The Ortiz court found that the trial court erred in requiring the defendant to demonstrate the incompetence of counsel, that the defendant's motion was made after the first mistrial and well before any second trial, and that the timing reflected the defendant's genuine concern about the adequacy of his offense rather than any intent to delay the trial. (Id. at p. 987.) The court held that discharge of defense counsel would not have interfered with the orderly processes of justice.
The California Supreme Court held that "when a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latter's incompetence, as long as the discharge will not result in prejudice to the defendant or in an unreasonable disruption of the orderly processes of justice." (Id. at p. 979.)
"The trial court, in its discretion, may 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]. As the court stated in Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613, the 'fair opportunity' to secure counsel of choice provided by the Sixth Amendment 'is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time."' The trial court, however, must exercise its discretion reasonably: '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.' " (Ortiz, supra, 51 Cal.3d at pp. 983-984.)
The California Supreme Court also rejected a remedy the Attorney General proposed, a remand for the trial court to reconsider and exercise its discretion based on the correct standards, holding that "Reversal is automatic . . . when a defendant has been deprived of his right to defend with counsel of his choice." (Ortiz, supra, 51 Cal.3d at pp. 987-988.)
As indicated, the California Supreme Court held a trial court could deny a motion to relieve retained counsel if the motion was "not timely, i.e., if it will result in 'disruption of the orderly processes of justice[.]'" (Ortiz, supra, 51 Cal.3d at p. 983.) Whether such a motion is untimely does not hinge on some fixed stage of the proceedings, but instead requires the trial court to exercise its discretion to balance a number of factors, and "'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. 984.) The Court made clear a defendant is not required to satisfy the Marsden requirements to discharge retained counsel. ( Ortiz, supra, 51 Cal.3d at p. 984.) However, Ortiz also made clear that a defendant's right to discharge retained counsel is not unfettered, and that a trial court retains discretion to deny the motion (1) if the discharge would cause significant prejudice to the defendant by, for example, forcing him to trial without adequate representation, or (2) was untimely and the discharge would result in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. ( Ortiz, supra, at p. 982.) Ortiz explained at pages 983-984 that:
"The 'fair opportunity' to secure counsel of choice provided by the Sixth Amendment 'is necessarily limited by the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time. " ' " (Internal )
Although Ortiz acknowledged a trial court may deny a motion when it is untimely and disruptive, it cautioned that "the trial court, however, must exercise its discretion reasonably: '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.' " ( Ortiz, supra, 51 Cal.3d at p. 984.) Ortiz explained at pages 982-983 that:
"While we have recognized competing values of substantial importance to trial courts, including the speedy determination of criminal charges, the 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' . A criminal defendant's right to decide how to defend himself should be respected unless it will result in 'significant prejudice' to the defendant or in a 'disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' In other words, we demand of trial courts a 'resourceful diligence directed toward the protection of the right to counsel to the fullest extent consistent with effective judicial administration.' "
Thus, under Ortiz, a defendant's right to discharge retained counsel need not always yield to judicial efficiency. A court faced with a request to substitute retained counsel must balance the defendant's interest in new counsel against the disruption, if any, caused by the substitution. The Ortiz standard is distinct from the Marsden standard because "while we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation , or that he and the attorney are embroiled in irreconcilable conflict , we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel." (Ortiz, supra, 51 Cal.3d at p. 984.)
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