Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS060407
Premo, J.
Defendant Jessie Louis Herrera pleaded no contest to one count of robbery (Pen. Code, § 211). In exchange for that plea, Herrera was promised that an enhancement alleging that he personally used a firearm in the course of the robbery would be dismissed and that he would be sentenced to an upper term of five years on the robbery charge. Herrera was sentenced to five years pursuant to the plea bargain. He filed a timely notice of appeal.
On appeal, Herrera contends that, prior to sentencing, the trial court improperly failed to hold a hearing when, in open court, he expressed his desire to file a Marsden motion. We agree, and will reverse and remand the matter to the trial court for the limited purpose of allowing the trial court to conduct a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. Factual and Procedural Background
At approximately 5:00 p.m. on December 18, 2006, “John Doe” was on his way to a liquor store, when he saw a group of four or five men and two women standing on the street corner near the store. Herrera was among the people in that group. Herrera approached Doe and pulled out a revolver, telling him to buy some beer at the liquor store. Doe was afraid and agreed to do so. Herrera walked behind Doe as Doe walked to the store. As they walked, Doe felt the muzzle of Herrera’s gun in his back, and he also felt Herrera remove Doe’s wallet from his rear pocket.
Accompanied by Herrera the entire time, Doe entered the store, took some beer to the front counter and paid for it with money in his front pocket. He and Herrera left the store, and Doe handed the beer to him. Herrera walked off with the beer. Doe returned to the store, informed the clerk what had happened, and the clerk called police.
Herrera was arrested on December 19, 2006. At a pretrial hearing on March 29, 2007, Herrera withdrew his earlier plea of not guilty and entered a conditional plea of no contest in exchange for a promise that he would receive a sentence of five years and that an enhancement alleging personal use of a firearm would be dismissed. Herrera was referred to the probation department for a presentence report and a sentencing hearing was set for April 26, 2007.
On April 26, 2007, Herrera appeared at his sentencing hearing, and requested appointment of counsel for purposes of reviewing the entry of his no contest plea. The trial court indicated that it would appoint an attorney from the alternate defender’s office (ADO) to review Herrera’s entry of plea and the matter was continued to May 3, 2007, for appointment of counsel. At the May 3, 2007 hearing, counsel from the ADO was appointed and a hearing was set for May 17, 2007, for further proceedings regarding Herrera’s plea.
The minute orders from the April 26, 2007 and May 3, 2007 hearings indicate that counsel was appointed “for the purposes of reviewing [Herrera’s] entry of plea.” There is no indication that a Marsden hearing was requested, let alone conducted.
According to the minute order from the May 17, 2007 hearing, the ADO informed the trial court that there were no grounds for setting aside Herrera’s plea, at which point the court relieved the alternate defender and set Herrera’s sentencing hearing for May 24, 2007. At the May 24, 2007 hearing, however, criminal proceedings were suspended pursuant to Penal Code section 1203.03 and Herrera was referred for a diagnostic study and evaluation at North Kern State Prison.
The diagnostic report was received and filed with the trial court on July 16, 2007. In the “Psychiatric & Medical History” portion of that report, Herrera told the interviewer that, while at “boot camp and CYA, he experienced a lot of stress and ‘heard voices.’ ” He also “claimed to be on Remeron in CYA for the voices.” The report noted that Herrera “never reported any history of psychiatric medications when going through diagnostics and was subsequently cleared from further psychiatric evaluation.” Herrera’s sentencing hearing was set for July 26, 2007, but was then continued at Herrera’s request to August 14, 2007.
On August 13, 2007, defense counsel filed a motion to withdraw Herrera’s guilty plea, supported by a declaration from Herrera in which he claimed that he did not enter his no contest plea “freely and voluntary.” Herrera stated that he has a “history of hearing voices and responding to that form of internal stimuli[, and] [o]n the day of the plea I heard vocies [sic] that caused me to plea [sic] no contest despite my previous unwillingness to do so.” These voices, according to Herrera, told him the following: “Take the deal”; “Your gonna get life”; and “If you hit the streets your gonna get wacked.” Herrera claimed that he was “under duress and feared for [his] life,” as a consequence of hearing these voices, but did not tell his attorney about them.
Italicized portions denote spelling and grammatical errors in the original.
At the August 14, 2007 sentencing hearing, the trial court indicated that Herrera had previously been appointed counsel to examine his entry of plea and had been given a psychological evaluation, during which he stated that he “did hear voices.” The trial court noted that it did not “see any new information or anything that has not previously been addressed,” and invited counsel to indicate if there was anything else it should consider in connection with Herrera’s motion to withdraw his plea. Defense counsel indicated that “there may be some records at the Youth Center.” The trial court denied Herrera’s motion to withdraw his plea, concluding that “this was a difficult situation where there were a number of very serious charges and there was a plea bargain in which some of the serious charges were dismissed.” Prior to imposing sentence, the trial court asked Herrera if he wished to make a statement, at which point the following colloquy took place:
Defense counsel had previously advised the court that there may be records at the youth center which “may have actually reflected either a previous diagnosis or complaint of auditory hallucinations.”
“THE DEFENDANT: Yeah. I wouldn’t take a deal for something I didn’t do. The voices were telling me to take that deal. I wouldn’t take a deal for something I didn’t do. I have documents from the Youth Authority and the Youth Center that I do hear voices.
“THE COURT: Anything else?
“THE DEFENDANT: Yeah. I want to file a Marsden motion.
“THE COURT: I think we’re a little far along for that. Anything else you’d like to say in regards to your sentencing, sir? You’re shrugging your shoulders indicating no.”
The trial court proceeded to sentence Herrera to the stipulated term of five years and dismissed all remaining charges, enhancements and/or special allegations in the interests of justice.
II. Discussion
In order to safeguard a criminal defendant’s constitutional right to the effective assistance of counsel, trial courts must be sensitive to circumstances indicating that this right is in jeopardy due to the performance of appointed counsel or a deterioration of the attorney-client relationship. The trial court is obliged to listen to a defendant’s complaints about the quality of counsel’s representation when it appears that a defendant desires appointment of a substitute counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124.)
The defendant is not required to make a formal motion requesting substitute counsel. (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 (Lucky).) “The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right.” (Marsden, supra, 2 Cal.3d at p. 124.) A trial court’s duty of inquiry is triggered when a defendant provides some clear indication that he or she wants a substitute appointed attorney. (Lucky, supra, 45 Cal.3d at p. 281, fn. 8; People v. Mendoza (2000) 24 Cal.4th 130, 157; People v. Dickey (2005) 35 Cal.4th 884, 920; contra, People v. Leonard (2000) 78 Cal.App.4th 776, 787 [“A trial court’s duty to conduct theinquiry arises ‘only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel’ ”].)
While no reason was given for the denial, the timing of the request, i.e., just before sentencing, would not be a good reason for denying it. “A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (People v. Roldan (2005) 35 Cal.4th 646, 681.)
As this court has previously concluded, the proper remedy when a trial court has ignored a defendant’s request for a substitute attorney is a remand limited to conducting a Marsden hearing. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1401.) What occurs next depends upon whether the trial court deems the defendant to be entitled to appointment of a new attorney. If so, “[s]ubstitute counsel could then investigate a possible motion to withdraw the plea.” (People v. Smith (1993) 6 Cal.4th 684, 695.)
The People contend that the trial court disregarded Herrera’s stated intent to bring a Marsden motion because it implicitly found that, if asked, Herrera would simply have reiterated his previous complaints, all of which had been “thoroughly explored by appointment of a conflicts attorney, by the diagnostic report, and by the court.” That may be. If he had been allowed to explain the basis for his Marsden motion, Herrera may very well have set forth the same reasons that had been previously raised and “thoroughly explored.” As we have recognized, “a defendant is not entitled to keep repeating and renewing complaints that the court has already heard.” (People v. Vera (2004) 122 Cal.App.4th 970, 980.)
In this case, however, we do not know what complaints Herrera would have raised. It seems equally possible that Herrera might have raised some new ground, which had never before been brought to the attention of, let alone been considered by, the trial court. “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.” (Marsden, supra, 2 Cal.3d at p. 123.)
The trial court erred in disregarding Herrera’s request to file a Marsden motion without asking at least why Herrera believed another attorney should be appointed. Herrera was entitled under Marsden to air his complaints and have the court evaluate them. The record in this case fails to disclose exactly what reasons Herrera would have given as to why he should have new counsel, because he was given no opportunity to elucidate his complaints. Although the People would have this court give deference to the prescience of the trial court, we find it impossible to say that Herrera’s complaints were meritless, or did not entitle him to relief, because we do not know what those complaints might have been.
We therefore cannot conclude beyond a reasonable doubt that Herrera’s Marsden challenge would have been denied or that, had it been granted, a substitute attorney would not have vindicated his claimed right to withdraw his plea. Accordingly, we will reverse for the purpose of hearing Herrera’s complaints and, if they have merit, acting accordingly.
III. Disposition
The judgment is reversed. The matter is remanded with directions for the trial court to conduct an inquiry into Herrera’s reasons for requesting substitute counsel. If Herrera establishes that he is entitled to substitute counsel, the trial court should appoint such counsel. If he fails to make the requisite showing, the court shall reinstate the judgment.
WE CONCUR: Rushing, P.J., Elia, J.