In Pro Per,
xxxxx Xxxxx AV
xxxxx
SUPERIOR COURT FOR
THE STATE OF
XXXXX DIVISION
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,xxxxxxxxxxxxxxxxxx Defendant, and Real Party at Intrest, Santa Clara District Attorney’s Office Defendant’s Counsel |
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MOTION FOR MARSDEN HEARING In Pro Per UNTIL APPOINTMENT OF NEW COUNSEL |
I
INTRODUCTION
At the beginning of the trial process during the detention, the counsel from DA (Dependency Legal Services, Santa Clara Xxxxx Defenders) stated that he could not do what the defendant wanted because he had to follow the policies of DA. The defendant petitioned the court for a Marsden hearing but was denied on. Counsel from DA has denied the defendant due process rights under the law by making this statement that he could only represent the defendant based upon the policies of DA, his employer. The court in xxxxxxxxxxx 2000 assigned the same attorney from DSL to the defendant for counsel.
PUT YOUR STORY IN THIS SECTION DISCRIBING WHAT HAPPENED. The defendants attorney from xxx has signed stipulations to allow a commissioner to act as a judge in the defendants case. The attorney never explained this process to the defendant. The attorney for DA representing the defendant waived the defendants rights to a contested detention hearing and never explained to the defendant that she had the right to a contested detention hearing. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX These actions again clearly show that the defendant has had ineffective assistance of counsel.
DA is owned by Santa Clara Xxxxx Defenders (SCJD). SCJD also owns through xxxxxxxxxxx, Associate Dependence Attorneys and has on retainer several conflict attorneys such as XXXXXXX. It is a conflict to have these attorneys representing clients and the defendant in the same matter.
II
DISSUSION OF ADDITIONAL INFORMATION IN
SUPPORT OF APPOINTMENT OF NEW COUNSEL
After the detention hearing in April of xxxxxxxxxxxx the defendants counsel with DA (Dependency Legal Services) stated “he could only provide representation with in the guidelines of his employer”. As an employee of DA and an officer of the court, his statement is clearly representing the beliefs of DA, which are very harmful to the defendant. xxxxxxxxxxxxxx DA has admitted to extrinsic fraud by misrepresenting the defendant. DA asked the defendant to stipulate to jurisdiction and disposition. Then at mediation the only deal that was offered to the defendant was to xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
Further, the defendant told xxxxxxxxxxxxxxxxxx was filing an appeal due to ineffective counsel and counsel’s comment was “OK, I understand”. The statement of xxxxxxxxxxxx clearly indicates that the defendant has been misrepresented by counsel. USE CASE LAW FROM PEOPLE V MARSDEN IN A CRIMINAL CASE. The defendant’s own counsel stated he could represent her within the guidelines of DA. The policies of DA prevented the defendants counsel from properly representing the defendant.
Submission to the system and specifically to the detention of Xxxxx would get her child back early. How could the defendants counsel make this promise? This action is clearly extrinsic fraud. "Extrinsic fraud as a ground for vacating a judgment is a broad concept that tends to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It usually arises when a party has been deliberately kept in ignorance of the action or proceeding or in some other way fraudulently prevented from presenting his claim or defense." In re Marriage of Modnick (1983) 33 Cal.3d 897, citing In re Marriage of Park (1980) 27 Cal.3d 337
More specifically, if there is
"a misunderstanding between appellant and his attorney, or if he was
deprived of a hearing by means of his fraudulent inducements, he could have
obtained relief by moving to vacate the adverse orders on the ground of mistake
(Code Civ. Proc., § 473; Robinson v. Hiles (1953) 119 Cal.App.2d 666 [260 P.2d
194]; Bice v. Stevens (1958) 160 Cal.App.2d 222 [325 P.2d 244], or by bringing
an independent action to vacate the orders on the ground of extrinsic
fraud. (Flood v.
Templeton (1907) 152 Cal. 148, 156 [92 P. 78, 13 L.R.A. N.S. 579].)"
Adoption of
The aforementioned error did deny the defendant of rights to due process and competent counsel by the admission of counsel for DA. “Statute which provides that all parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel includes right to seek judicial review of claims of incompetence of counsel; statute was intended to protect parent's fundamental liberty interest in maintaining parent-child relationship and child's fundamental independent right to be part of family unit, and such rights are not protected if competent counsel is not ensured through judicial review”. In re Kristin H.(App. 6 Dist. 1996) 54 Cal.Rptr.2d 722, 46 Cal.App.4th 1635. The defendant’s rights and the rights of her family must be protected by the granting of competent counsel.
LOOK UP RULES OF COURT FOR CRIMINAL STUFF. 2000 California Rules of Court, Rule 1438, Attorneys for parties (§§ 317, 317.6) states: (1) (Definition) "Competent counsel" means an attorney who is a member in good standing of the State Bar of California, who has participated in training in the law of xxxxx dependency, and who demonstrates adequate forensic skills, knowledge and comprehension of the statutory scheme, the purposes and goals of dependency proceedings, the specific statutes, rules of court, and cases relevant to such proceedings, and procedures for filing petitions for extraordinary writs.
(2) (Evidence of competence) The court may require evidence of the competency of any attorney appointed to represent a party in a dependency proceeding.
(3) (Experience and education) Only those attorneys who have completed a minimum of eight hours of training or education in the area of xxxxx dependency, or who have sufficient recent experience in dependency proceedings in which the attorney has demonstrated competency, shall be appointed to represent parties. In addition to a summary of dependency law and related statutes, training and education for attorneys shall include information on child development, child abuse and neglect, family reunification and preservation, and reasonable efforts. Within every three years attorneys are expected to complete at least 8 hours of continuing education related to dependency proceedings.
“Under the Sixth Amendment right to assistance of counsel " 'a defendant is entitled [to substitute another appointed attorney] if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result”. (People v. Memro (1995) 11 Cal.4th 786, 857.) Furthermore, "When a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. (People v. Memro (1995) 11 Cal.4th 786, 857.)
Further, the
attorney with Da has never spent more than ten minutes prior to any
hearing in which he has represented the defendant. The time spent with the defendant was
inadequate and ineffective. CRC 1438 (b)(4) states: (Standards of representation) Attorneys are
expected to meet regularly with clients,….
It is clear that spending 10 minutes or less prior to a hearing with a
client is not meeting the intent of CRC 1438 (b)(4).
The
defendants own evidence and witnesses were not considered showing ineffective
counsel and supporting evidence can be provided. For instance, The is
clearly ineffective assistance of counsel and extrinsic fraud.
Additionally,
DA has never informed the defendant of her rights in these proceedings. The defendant had to study cases and codes to
clearly understand what her rights were.
DA never informed the defendant that she had the right to appeal any of
the decisions of the court, which is again clearly ineffective assistance of
counsel. “The attorney, moreover, concentrating on other matters, may fail to tell
the defendant of the right to appeal, though months later the attorney may
think that he in fact gave the advice because it was standard practice to do
so”. PEGUERO V. U.S. (1999), 119 S.Ct. 96. DA has apparently not provided sufficient
training to its attorney’s to advise the defendant of her rights or purposely
neglected to do so.
The admissions of DA or Santa Clara Xxxxx Defenders outside of court have shown ineffective representation of counsel by their own admission and by their actions. “A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, "[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation {Page 2 Cal.3d 124} rather than from unwise choice of trial tactics and strategy." (Brubaker v. Dickson (9th Cir. 1962) 310 F.2d 30, 32.). DA failed to properly investigate as seen by the amount of time spent with the defendant. DA has made false promises that it could have reasonably known would not come to pass. DA admitted to the defendant that they misrepresented her. DA and the defendant have irreconcilable differences which DA has made clear to the defendant which show they and their parent the Santa Clara Xxxxx Defenders can not provide effective counsel to the defendant.
“To show Sixth Amendment violation based on conflict of interest, petitioner must establish both actual conflict of interest and adverse effect on lawyer’s performance; “actual conflict” squarely places interests of client in opposition to those of attorney and is likely to compromise reasonable attorney’s ability to comply with his legal and ethical obligation to represent his client with undivided loyalty”. U.S.C.A. Const.Amend. 6, Odle v. Calderon, (N.D.Cal. 1996), 919 F.Supp. 1367
III
CONCLUSION
It is clear that the defendant has ineffective assistance of counsel by counsel’s own admission. The defendant has been denied due process due to ineffective counsel. The defendant requests new counsel to be appointed. DA has made promises and committed extrinsic fraud in counseling the defendant to stipulate a contested hearing under the false understanding of the xxxxxxxxxxxxxxxxxxxxxxxx. Further,xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxThe DA counsel stated clearly to the defendant that the hearing would not start with out her yet when she showed up to the court she was told she missed the hearing.
There is clearly a conflict in the appointment of counsel from xxx, DA or xxx. These firms are all under the direction of one person. The defendant requests that the counsel be appointed from outside the influence of DA.
IV
DECLARATION
I, am over the age of 18 years old and am
a resident in
Dated this 23rd day of December, 2003
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