Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR 199210.
SIMONS, Acting P.J.
Defendant William Fernandez Scott II (appellant) appeals his conviction by jury trial of unlawful driving of a vehicle and possession of methamphetamine. In a bifurcated court trial the court found true two prior prison term allegations. His sole contention on appeal is the trial court abused its discretion by denying his motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The jury acquitted appellant of receiving stolen property. Appellant does not appeal from a joined case in which he plead guilty to being an accessory to a felony.
Appellant was sentenced to five years in state prison.
BACKGROUND
On the morning of July 23, 2008, Josephine Sayers discovered that her white 1995 Honda Accord station wagon, which had been parked in front of her house, was missing. Sayers did not give appellant, or anyone, permission to use her car.
At 11:29 p.m. that day, Vallejo Police Officer Kent was on patrol when he saw appellant, the driver of a Honda, turn left and park in a red zone, which was prohibited. Appellant then exited the Honda and began walking away. Kent ran a check on the Honda’s license plate and discovered the Honda had been reported stolen. Kent parked behind the Honda and walked over to appellant who was on the sidewalk. Kent detained appellant, who was unable to produce any identification. When Kent told appellant the car was stolen, appellant said his friend “Abil” had loaned him the car. In pat searching appellant for weapons, Kent retrieved keys from appellant’s pants pocket and tried them in the Honda. The Honda-type key fit in the ignition, but did not turn the ignition switch. The key did not appear to have been shaved. Appellant told Kent that the Honda key was in the ignition and the car was running when he initially borrowed the car. Appellant was unable to provide an address or phone number for Abil. He did not respond when Kent asked appellant to show him where Abil lived.
Kent explained that sometimes car thieves shave or wear down a Honda key until it fits into the ignition of another Honda.
A search of the Honda turned up a plastic baggie containing suspected methamphetamine in plain view in the center console. The baggie was later found to contain.11 grams of methamphetamine, a usable quantity.
DISCUSSION
Appellant contends the court abused its discretion in denying his Marsden motion to substitute counsel.
On August 18, 2008, prior to appellant’s arraignment, Deputy Public Defender John Mendenhall was appointed to represent him. The trial management conference was set for November 26 and jury trial was set for December 2.
On November 26, 2008, at the commencement of the trial management conference, appellant stated he wanted to “fire” Mendenhall due to a “conflict of interest.” A Marsden hearing ensued outside the presence of the public and the District Attorney.
The court read a letter appellant filed that day asking to replace Mendenhall as his counsel on the ground that Mendenhall had not “been effective in dealing with [his] case.” The letter stated that Mendenhall seemed to “rush and not have [appellant’s] best interest in mind.” When the court asked appellant if there was anything he wanted to add, the following colloquy occurred:
“THE DEFENDANT: We’re not agreeing. There’s some few things that he ain’t telling me about-we ain’t had no motion. He ain’t come talk to me about my case. I just do not feel comfortable going to trial with him and losing.
“THE COURT: Have you talked to him in the last half hour or so?
“THE DEFENDANT: Yes, sir. But he ain’t come to see me in jail and talk about a few things about going to the program or none of that.
“THE COURT: Taking everything you have had to say here, which I will put in the file, and considering the case as a whole and acquaintance with this and the conversations I have had with your attorney, I’m going to deny your motion. I’m going to keep him as your attorney because, in my opinion, he is doing a very lawyer-like job for you. [¶] We’ll get the District Attorney back here and go forward to the next stage.”
Appellant contends the court abused its discretion in denying his Marsden motion because it failed to obtain an on the record response to his allegations from Mendenhall and relied on off the record discussions with Mendenhall.
“Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel’s effectiveness, the court must question counsel as necessary to ascertain their veracity. [Citations.]” (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).) In People v. Turner (1992) 7 Cal.App.4th 1214 (Turner), the court held “[d]epending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney.... [I]nquiry into the attorney’s state of mind is required only in those situations in which a satisfactory explanation for counsel’s conduct toward his client is necessary to determine whether counsel can provide adequate representation.” (Id, at p. 1219.) However, Turner acknowledged that a defendant’s disagreement with appointed counsel’s tactical decisions does not trigger any duty of inquiry by the trial court. (Ibid,)
Here, appellant’s letter and statement at the commencement of the November 26, 2008 hearing unequivocally requested a substitution of appellant’s appointed counsel. The letter stated that Mendenhall had not been effective, “seem[ed] to rush” and did not have appellant’s “best interest in mind.” Appellant’s oral Marsden request stated that he and Mendenhall had a “conflict of interest.” Most significantly, the appellant commented at the Marsden hearing that Mendenhall had failed to meet with him in jail and had failed to investigate appellant’s eligibility for a drug treatment program. The court did not make any inquiry of Mendenhall.
Based on the record before us, we cannot conclude that appellant’s complaints about Mendenhall involved only Mendenhall’s tactical decisions. Although the court’s comments suggest that it may have learned information relevant to appellant’s complaints about Mendenhall in unreported discussions with Mendenhall, there is no record of these discussions and, consequently, no way for us to determine if they undermined appellant’s statements that Mendenhall had failed to meet with him in jail to discuss his case, and failed to investigate appellant’s eligibility for drug treatment as an alternative to incarceration. Moreover, Marsden and its progeny require that the inquiry be conducted in a reported court proceeding and in the presence of the defendant. (People v. Hill (1983) 148 Cal.App.3d 744, 755.) Here, the court’s failure to make an adequate record establishing that appellant’s complaints against Mendenhall had been adequately investigated and considered was error. (See Eastman, supra, 146 Cal.App.4th 688.)
Although ordinarily an order denying a Marsden motion is reviewed for abuse of discretion, when, as here, there is a failure to comply with the Marsden requirements, the error is reversible unless the record shows beyond a reasonable doubt that the error was harmless. (Marsden, supra, 2 Cal.3d at p. 126; Eastman, supra, 146 Cal.App.4th at p. 697.) In this case, we cannot determine from the record before us whether the Marsden error resulted in prejudice.
Appellant’s Marsden motion was made and denied prior to trial. We note that defense counsel’s representation was successful to the extent that the jury acquitted appellant of a charge of receiving stolen property (Pen. Code, § 496d, subd. (a)). However, if appellant had been successful in substituting counsel, we cannot determine, based on the record before us, whether appellant would have obtained a more favorable result.
At sentencing, Mendenhall unsuccessfully requested that appellant be referred to CRC with a six-year suspended prison sentence. The court imposed the three-year midterm on the count 2 vehicle taking, a concurrent two-year midterm on the count 3 possession of methamphetamine, a concurrent two-year midterm on the joined felony accessory case, and two one-year terms for the prior prison term allegations.
DISPOSITION
We reverse the judgment and remand the matter to the trial court for a hearing on appellant’s Marsden motion. If the court finds that appellant makes a prima facie showing of ineffective assistance of counsel or that appellant and Mendenhall were embroiled in such an irreconcilable conflict that ineffective assistance of counsel was likely to result, the trial court should appoint new counsel to assist appellant in filing a motion for new trial or any other motion that newly appointed counsel may deem appropriate. (See Eastman, supra, 146 Cal.App.4th at p. 699; see also People v. Reed (2010) 183 Cal.App.4th 1137.) However, the trial court shall reinstate the judgment if(a) the Marsden motion is denied, (b) the Marsden motion is granted but substitute counsel declines to file a new trial motion or other appropriate motion, or (c) the Marsden motion is granted but the trial court denies a new trial motion or other appropriate motion filed by substitute counsel.
We do not intend to suggest that appellant’s Marsden motion should be granted or that appellant has made, or will make, a colorable claim justifying appointment of substitute counsel for purposes of filing a new trial motion or any other motion. We recognize that such decisions rest in the discretion of the trial court.
We concur. NEEDHAM, J., BRUINIERS, J.