What is the test for a motion to discharge a court appointed attorney?

California, United States of America


The following excerpt is from People v. Cardenas, F070211 (Cal. App. 2017):

A defendant's complaint that he does not like his attorney is "not enough [to show a conflict of interest]. '[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.' [Citation.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1070 (Berryman), overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822-823.)

"A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 728-729.)

"In seeking discharge of a court appointed attorney the defendant must show more than the fact the attorney made a mistake, he must show lack of competence." (People v. Lee (2002) 95 Cal.App.4th 772, 779, fn. omitted.)

"Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel. [Citations.]' [Citation.]" (People v. Barnett, supra, 17 Cal.4th at pp. 1085-1086.)

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