Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR246986
Sepulveda, J.
A jury convicted defendant Jerry Wayne Baker of being a felon in possession of a firearm. (Penal Code, § 12021, subd. (a)(1) [all further section references are to this code].) After the verdict was returned and before sentencing, defendant apparently mailed to the court a motion to substitute appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden).) No hearing was held on the motion. On appeal, defendant asks that we reverse the judgment and remand the case to the trial court for a hearing on whether new counsel should have been appointed to represent defendant in posttrial proceedings.
We conclude that defendant did not clearly indicate that he wanted substitute counsel, and thus the court did not err in failing to hold a Marsden hearing. Defendant’s Marsden motion was effectively withdrawn or abandoned by his actions in continuing to appear with counsel at several court hearings without mentioning a Marsden motion, later demanding (and briefly obtaining) self-representation, and finally by requesting reappointment of trial counsel. We also conclude that if the court did err in failing to hold a Marsden hearing, the error was harmless. We affirm the judgment.
I. FACTS
A police officer was patrolling a residential neighborhood shortly after midnight on September 2, 2007, when he saw a suspicious vehicle. The officer saw a driver of a pickup truck turn off the vehicle’s headlights, then make a left-hand turn and park in front of an unlit house. The officer slowly drove past the vehicle in his patrol car and saw two occupants. Neither occupant looked at the officer, despite the fact that there were no other vehicles on the road. Defendant was later identified as the truck’s passenger.
The police officer investigated the truck. He parked his patrol car behind the truck and started walking toward it. The driver immediately exited the truck and walked briskly back toward the officer. The officer asked the driver why he was driving without headlights, and asked to see a driver’s license. While talking with the driver, the officer saw a man, later identified as Matthew Quinn, walk from the house and approach the passenger side of the truck.
Defendant was in the passenger seat with the window rolled down. The officer saw defendant reach his hand between the seat and car door. Defendant then raised his hand, and the officer saw a shiny metal object between defendant’s fingers. Defendant held the object up to Quinn, who reached in and took the object from defendant’s hand. Quinn then put his hands in his pants pockets and immediately walked away from the truck.
The officer stopped Quinn and asked him to remove his hands from his pockets. Quinn removed his left hand but not his right hand, which was the one that had taken the metal object. The officer asked Quinn if he had any weapons on him, and Quinn said yes. The officer asked what type, and Quinn said a gun. The officer then grabbed Quinn’s right arm, held his right hand in place in his pocket, and told him to release the gun. The officer pulled Quinn’s empty hand from his pocket, then reached into the pocket and removed the gun. The gun was loaded. The officer arrested defendant and Quinn.
II. TRIAL COURT PROCEEDINGS
Defendant and Quinn were tried together. The jury convicted defendant of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and convicted Quinn of being a misdemeanant in possession of a firearm (§ 12021, subd. (c)(1)). The verdict was returned on December 14, 2007, and, on the same day, a bifurcated bench trial was held on allegations that defendant had served two prior prison terms for earlier convictions. (§ 667.5, subd. (b).) The court found the allegations true, and set sentencing for January 16, 2008.
After the verdict and before sentencing, defendant prepared a motion for substitution of appointed counsel. (Marsden, supra, 2 Cal.3d at p. 123.) Defendant signed the motion, and dated it December 27, 2007. The motion appears in the clerk’s transcript without proof of service or a court file stamp. On December 28, 2007, defendant wrote a letter to the trial judge informing the court that defendant filed a Marsden motion and expressing concern that legal mail was being discarded by jail personnel. The clerk’s transcript contains a copy of the letter and an envelope file-stamped January 3, 2008.
Defendant and his trial counsel appeared in court on January 16, 2008, for the scheduled sentencing but the matter was continued to a later date. The minutes from the hearing do not mention a pending Marsden motion and there is no reporter’s transcript of the hearing in the appellate record. On January 24, 2008, defendant’s counsel filed a sentencing memorandum asking the court to impose no more than a midterm sentence and to strike the prison priors.
When the case was again called for sentencing on January 30, 2008, defendant’s counsel was granted a continuance to allow time for filing a new trial motion. On February 19, 2008, defendant wrote a letter to the court asking it to “look into” the previously filed Marsden motion. The letter appears in the clerk’s transcript but is not file-stamped.
On March 4, 2008, defendant’s counsel filed a motion to dismiss the case, and a motion for a new trial. Counsel also requested a further continuance of the proceedings to allow time to obtain a trial transcript. The court granted the request. The minutes of the March 6, 2008 hearing, attended by defendant, do not mention a Marsden motion.
The posttrial motions to dismiss and for a new trial were heard and denied on June 3, 2008. After the court had denied the defense motions to dismiss and for a new trial, the court indicated that it was ready to proceed with sentencing. Defendant’s counsel informed the court that defendant wanted to address the court. Defendant told the court: “I would like to go pro per and file [a] writ with the Appeals Court on an issue about the New Trial Motion and the Motion to Dismiss.” Defendant’s counsel confirmed that defendant was making a Faretta motion for self-representation. The court queried defendant on his education and understanding of the law, and granted the request. The court then considered defendant’s request for a stay of sentencing so defendant could file a writ to challenge its denial of the posttrial motions, and denied the requested stay. Defendant said: “I was under the impression if I filed this [Faretta] motion that I could prepare my writ.” The court maintained its denial of the stay request, and asked defendant if he wanted to rescind his Faretta request and have the public defender resume representation. Defendant said he would like the public defender to represent him. The court reappointed the public defender and proceeded to sentencing.
Faretta v. California (1975) 422 U.S. 806.
Defendant’s counsel asked the court to impose no more than two years. The court sentenced defendant to a total term of three years: the two-year midterm for firearm possession by a felon, and a one-year enhancement for having served a prior prison term. (§§ 18, 667.5, subd. (b), 12021, subd. (a)(1).) The court struck the other prior prison term enhancement.
III. DISCUSSION
On appeal, defendant maintains that he made a Marsden motion to substitute counsel after the verdict and before sentencing. He argues that the motion was never addressed in the trial court, and that we should now remand this case to the trial court to conduct a hearing on his motion. We conclude that defendant did not clearly indicate that he wanted substitute counsel, and thus the court did not err in failing to hold a Marsden hearing. Defendant’s Marsden motion was effectively withdrawn or abandoned by his actions in continuing to appear with counsel at several court hearings without mentioning a Marsden motion, later demanding (and briefly obtaining) self-representation, and finally by requesting reappointment of trial counsel.
The clerk’s transcript contains a Marsden motion dated December 27, 2007. While the motion is not file-stamped, we will assume that it was received by the trial court given the motion’s inclusion in the record (along with two letters referencing the motion). However, the record also shows that defendant effectively withdrew or abandoned the motion by conduct inconsistent with seeking substitution of counsel.
Defendant appeared in court four times after preparing a written Marsden motion, in January, March, April, and June 2008. The minutes of those hearings show that defendant never mentioned a Marsden motion nor any complaints about appointed counsel. In the months following defendant’s December 2007 preparation of a Marsden motion, defendant’s counsel continued his vigorous representation of defendant by presenting postconviction motions and a sentencing memorandum. Defendant was served with these motions and memorandum, and apparently approved counsel’s actions in filing them. When the postconviction motions were denied in June 2008, defendant asked to represent himself—not because he was dissatisfied with counsel but because he hoped the tactic would get him a stay of sentencing. Defendant’s request for self-representation was granted but, when his requested stay was denied, defendant withdrew his previous insistence on self-representation— and asked for reappointment of trial counsel. Clearly, defendant had abandoned any claim that counsel’s representation was inadequate and warranted substitution of counsel under Marsden.
“When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. [Citations.] Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 156-157.) Defendant did not clearly indicate he wanted substitute counsel for postconviction proceedings. It is true that defendant apparently mailed a written motion for substitution in December 2007, shortly after the verdict was rendered, and wrote letters asking the trial court to look into the matter, but his actions after submitting the motion were overall inconsistent with a desire to discharge his attorney. Defendant appeared at four separate court hearings with his attorney from January to June 2008 without raising the issue, all the time accepting the benefits of representation on postconviction motions and sentencing issues.
In any event, any error of the trial court in failing to address defendant’s December 2007 Marsden motion was harmless. (Chapman v. California (1967) 386 U.S. 18, 22-24; see Marsden, supra, 2 Cal.3d at p. 126 [applying Chapman harmless error standard]; see also People v. Washington (1994) 27 Cal.App.4th 940, 944 [affirming judgment under Chapman standard]). This District Court of Appeal has held that a trial court’s failure to conduct a Marsden hearing is harmless where, as here, defendant “has made no showing... either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted.” (People v. Washington, supra, at p. 944.) There were no grounds for substituting counsel, who had provided and continued to provide adequate representation. Even if the motion had been granted, and another attorney appointed, defendant would not have achieved a more favorable result in postconviction proceedings. A different attorney would not have gained defendant dismissal or a new trial, or more lenient sentencing. The evidence of defendant’s guilt is overwhelming, and defendant received a more favorable sentence than could reasonably be expected. Any error in failing to hold a Marsden hearing was harmless.
IV. DISPOSITION
The judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.