City and County of Denver District Court No. 11CR1525 Honorable Brian R. Whitney, Judge
Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas Wilson, Colorado State Public Defender, Mark Evans, Deputy Public Defender, Denver, Colorado, for Defendant-Appellant
STERNBERG JUDGE [*]
¶ 1 Defendant, Israel P. Cardenas, appeals the judgment of conviction entered on jury verdicts finding him guilty of five counts of second degree burglary of a dwelling, one count of second degree burglary of a building, one count of attempted second degree burglary of a dwelling, five counts of theft ($1000-$20, 000), and one count of theft ($500-$1000). We reverse and remand for a new trial.
¶ 2 According to the People's evidence, a plumber saw defendant leaving the area of a home for sale, taking the lockbox for the home with him. The plumber gave the homeowner the license plate number of the truck that defendant was driving, and the homeowner contacted police. The next day, the police began surveillance of defendant and watched as he drove around the Highlands neighborhood of Denver looking through the windows of many houses. Several days later, police saw defendant drive the truck to a home and then to a storage unit, where he unloaded a stove from the truck.
¶ 3 Defendant was arrested and admitted stolen property was in his apartment and in the storage unit. He also admitted to having burglarized nine residences in the Highlands neighborhood by taking appliances and show furniture from homes for sale.
II. Right to Counsel of Choice
¶ 4 Defendant primarily contends, and we agree, that the court's failure to include him in a hearing on his attorney's motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions.
¶ 5 Defendant was originally represented a public defender, but Douglas L. Romero (defense counsel) replaced the public defender on May 9, 2011. On November 22, 2011, defense counsel filed a motion to withdraw, stating:
COMES NOW, Douglas L. Romero Esq., a Member of the Bar of the State of Colorado, moves this Court for an Order allowing Douglas L. Romero to withdraw as counsel of record for this Defendant and/or set a hearing on the matter. As grounds therefore, counsel states as follows:
AS GROUNDSTHEREFORE [sic], counsel states as follows:
1. Also, [sic] substantial and irreconcilable differences of opinion concerning the course of scope of representation have arisen between the Defendant and Counsel.
2. The differences are of a nature and at a level such that Counsel seeks to withdraw as Counsel in this matter. WHEREFORE, the undersigned requests that this Court grant his Motion to Withdraw from any further representation of the Defendant in this matter.
¶ 6 At a hearing on December 16, 2011, the trial court conducted a brief bench conference with defense counsel and the prosecutor on the motion to withdraw.
The Court: My -- I don't know if new counsel can be prepared by the trial (indistinguishable -- parties talking over each other).
The Court: I would hope so. The motion to withdraw is, I guess, characteristically vague. I -- I can tell you that if this is really a financial issue and he objects, I'm not sure I will grant the motion to withdraw.
Is there something else going on?
[Defense Counsel]: It isn't. This was initially filed by [defense counsel] so the issue he's having is not only a violation of the terms of the retainer agreement but also just the -- the absence of any communication anymore --maybe ...