Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F98623992-5, James Quaschnick, Judge. (Retired Judge of the Fresno County S.Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant Michael D. Johnwell was originally convicted of special-circumstance murder with various firearm enhancements. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1270-1271.) On appeal, this court reversed for instructional error at appellant’s competency trial (id. at pp. 1271-1281), and also held that the trial court lacked authority to strike the special circumstance (id. at pp. 1281-1285).
Upon remand and resolution of new competency proceedings, appellant waived his right to a jury trial. Following a court trial, he was convicted of murder involving the personal use of a firearm and the personal and intentional discharge of a firearm proximately causing death (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a)(1), 12022.53, subd. (d)), and a special circumstance of murder during the commission or attempted commission of robbery (§ 190.2, subd. (a)(17)) was found to be true. Following denial of his motion for a new trial, appellant was sentenced to prison for life without the possibility of parole plus 25 years to life, and was ordered to pay various fees and fines. He filed a timely notice of appeal. As we shall explain, we will reverse the judgment and remand the matter for the limited purpose of a hearing on appellant’s request for substitution of appointed counsel. Upon conclusion of that hearing, the trial court shall either appoint new counsel for the purpose of bringing a motion for new trial, or shall order the conviction reinstated, depending upon the trial court’s resolution of the motion for substitution of counsel.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
I
Prosecution Evidence
On October 11, 1998, a prostitute was working in the Chinatown area of Fresno. Early that morning, a man in a white vehicle approached her and said he wanted sex. They drove to the area of Frank H. Ball Playground, where they negotiated a price. As they were sitting there, three young African-American men walked in front of the car and kept going. Approximately five to 10 minutes later, a U-Haul approached from behind. It drove past, then looked like it was going to turn around. This made the prostitute nervous, and she told the man that they should move. He drove up the street and made a U-turn, then they parked and began having intercourse. The man was on top of the prostitute, who remained in the passenger seat.
The prostitute saw the lights of the returning U-Haul and told the man to get up. The U-Haul pulled alongside; the prostitute could see two men and what appeared to be a woman inside it. Appellant was in the passenger seat, which was closest to the prostitute’s customer. Appellant stuck a small handgun out of the window and said “‘break yourself.’” The prostitute started hollering to go, and her customer started the car. She heard a shot. The car started rolling down the hill, and a second shot shattered the back window. The prostitute did not know her customer was shot until his hands flew off the steering wheel after they hit a speed bump. She grabbed the wheel and turned the car, then jumped out and yelled for help. She then ran, but contacted the police several days later.
Just after 3:00 a.m., Fresno police officers found the victim inside his car, dead from a gunshot wound to the left chest that had perforated his aorta. The nature of the entrance wound and trajectory of the bullet were consistent with the victim being shot through the driver’s window. He had managed to drive a short distance before he succumbed.
Later that morning, a citizen reported finding a stolen U-Haul truck a few blocks away. After the prostitute came forward, police realized that the U-Haul was related to the homicide. The vehicle was searched, and a photograph was found on the passenger-side floorboard. The photograph was written to a person named “Reg Bone,” who was determined to be Reginald Duckett. Police investigation showed that he belonged to a certain gang and associated with Kaji Hall. Hall, who was in custody, was one of the persons who told detectives that appellant was responsible for the shooting.
Various spellings of the names of Duckett, Hall, and appellant’s girlfriend appear throughout the record.
Appellant was located and arrested on October 26, 1998. Later that day, he was interviewed by Detectives Gray and Byrd after being advised of, and waiving, his rights. Appellant denied involvement, but ultimately said he had seen what took place and that Duckett, Hall, and one or two others he did not know were in the U-Haul.
Following the interview, during which the detectives insisted appellant was involved and near the end of which Gray said he did not believe appellant was a cold-blooded killer, Detective Fraizer was instructed to stand by with appellant until he could be transported to the hospital to have blood drawn and then get booked into jail. At the hospital, appellant requested that he be returned to the police station and recontacted by Gray in order to provide a more detailed statement. After he was placed back in the interview room, appellant asked Fraizer something to the effect of, “‘what if I didn’t mean to kill him,’” and told Fraizer that he was not a cold-blooded killer. When Fraizer asked what had happened, appellant related that he, Duckett, and Hall were in the U-Haul when they saw the victim and another person in a car by the Frank H. Ball playground. As they approached, the vehicle drove away. A short while later, they found the vehicle again. Hall had the gun and was going to be the one to commit the robbery, but then appellant decided that he would be the one to do it, and he took the gun from Hall. He approached the vehicle and told the victim to break himself. The victim got off the other person and began to kind of reach underneath the seat, at which point Hall began to tell appellant to shoot him. Appellant said he instinctually fired at the victim, who drove away. Appellant did not believe he had shot the victim, but he found out later that the victim had died.
At the time, “break yourself” was a term that was frequently used by African-Americans in the area to tell victims to give up their money or property.
When Byrd and Gray interviewed appellant a second time that night, appellant related that he, Duckett, and Hall had been driving around in the U-Haul, getting drunk and high. Duckett was driving, Hall was in the middle, and appellant was on the passenger side. Appellant had had a lot to drink. Near the park, they saw a man with a white car. Hall suggested they “get” him, as they needed some money. Appellant and Duckett said they did not care. Hall said he was going to do it, but then appellant said he wanted to. They parked the U-Haul on the other side of the park and walked around the white vehicle, but then the man drove the car up the street. Appellant and his group decided to pull up to the window and demand the man’s money, but when they drove up, the man was naked in the vehicle. Appellant and the others started laughing, but then the man reached under the seat, and Hall started pushing appellant to shoot. Appellant just automatically shot. He did not think the man was dead, as he had started the car and driven off. Duckett tried to catch up, and Hall grabbed the weapon, leaned behind appellant, and fired two or three shots. Appellant explained that he did not mean for it to happen.
II
Defense Evidence
Appellant testified that on October 11, 1998, he was riding around in a U-Haul vehicle with Duckett, who was driving, and Hall, who was in the middle. Appellant was in the passenger seat. During this time, there was a conversation between the three about committing some kind of robbery. They were all under the influence of alcohol and drugs.
The three got out of the U-Haul and walked through the park. As they did, they saw a white car with a man standing outside of it. They got back into the U-Haul and drove around the park toward the car, which was now on the opposite side of the street. Appellant decided he would commit the robbery and said to give him the gun. They pulled up alongside the vehicle, looked inside, and saw what they thought were two men, having sex. They began laughing, and appellant said, “‘Hey.’” The man jumped off the passenger seat into the driver’s side, and reached under the seat. When appellant saw him reach down, he said, “‘break yourself.’” Appellant had the gun, which had been under the seat and which he had gotten from Hall when they got into the U-Haul, in his lap. When the man jumped from the other side of the seat and grabbed for something, appellant fired toward the car. He was scared, because he did not know what the man was reaching for, and Hall was telling him to shoot. The window shattered. The car took off, then Hall got the gun and fired perhaps two more shots. Appellant did not know whether the man was hit. He had never shot a gun before that day.
DISCUSSION
I
The Motion to Dismiss
A. Background
Prior to trial, appellant moved for dismissal based on governmental misconduct and intimidation of witnesses. Appellant alleged that from August 2005 through May 2006, Alejandro Vital, a Fresno County Sheriff’s Deputy working at the jail, impersonated jail inmates and sent threatening letters to citizens and their families. Appellant alleged that he was one of the inmates impersonated, and that citizens received letters they believed he wrote, but which were actually authored by Vital. Among the recipients of these letters were Durice Draper, Martinique Butler, and Kenneth Butler, who were material witnesses for the defense. Appellant asserted that he had planned to call them at trial, but that, after receiving the letters, the three were in fear for their safety and were no longer willing to testify. Appellant claimed that governmental intimidation of material defense witnesses had deprived him of his due process right to a fair trial.
Appellant did not present any sworn declaration(s) in support of the motion. Instead, he appended a newspaper article (Collins, Living Nightmare, Fresno Bee (Apr. 29, 2007) p. A1) in which it was reported that Vital had sent at least a dozen racially charged letters to gang members and their families in the name of a man who was suing him over a car accident. Appellant was alleged to have received at least two of the letters – one of which said the author was taking care of appellant’s girlfriend while appellant was locked up – and to have said he was related to members of the Muhammad Family street gang. During an interview, appellant stated that a lot of inmates did not know an officer wrote the letters, and that the life of the man who purportedly authored the letters could have been placed in danger. According to the article, Vital apparently hoped the inmates would issue threats in response, which some of them did. After a letter to the Muhammad family’s matriarch referencing a shooting involving her granddaughter, some members of the Muhammad gang threatened to do a drive-by shooting on the home listed on the return address on the letter, which was the residence of the putative author’s mother.
Appellant himself previously wrote an unsworn letter addressed to Fresno County Superior Court Judge Ellison, however, in which he made essentially the same allegations. Appellant wrote that he had learned of the misconduct from a reporter for the Fresno Bee.
The People opposed the motion to dismiss, claiming (1) Vital was acting of his own accord and not as an agent for the prosecution or some other government agency, and so there was no government misconduct; (2) the record contained no evidence of a causal link between Vital’s actions and the defense’s ability to present witnesses; and (3) the materiality of the proposed witnesses was not established.
At the commencement of trial, defense counsel, Mr. Green, asked the court to hear the motion at the conclusion of the evidence, since the totality of the circumstances, in conjunction with a witness he intended to call, would be relevant. The court agreed. Meanwhile, Duckett was transported from Folsom State Prison at the request of the defense, and the public defender’s office was appointed to represent him.
At the conclusion of the People’s case, defense counsel sought to call Duckett as a witness. Duckett refused to take the oath, explaining that he did not want to swear to anything and was not going to testify. Mr. Hinkly, his attorney, concurred in his decision, stating that Duckett had good cause and was not being disrespectful to the court. Hinkly asked whether Duckett could explain to the court in camera, and the court agreed. This ensued:
“[Mr.] Hinkly: Your Honor, to summarize for the Court, my conversations with Mr. Duckett – because I don’t think he’s prepared to testify to some of these things. But he and the Defendant belong to different gangs. He is currently serving time in Folsom State Prison on a 15-year sentence, doing 85 percent time. He still has a substantial period of time, I believe almost ten years left to go in that facility. It’s known for its violence. It’s known for its gang activity.
Duckett was imprisoned pursuant to a plea agreement arising out of the incident for which appellant was on trial.
“He does not believe that anything he can say, one way or the other, … would absolve him of potential risk to his life and well-being in the prison setting. He was housed this morning with the Defendant in a tank, so there was contact between them. And … after my discussions with him, I believe he has a valid and reasonable fear … for his own safety and does not believe the Department of Corrections can provide the necessary protection. The protection they would provide would single him out and make him a further target of retaliation.”
After confirming that his attorney had accurately described Duckett’s feelings, the court found good cause and excused Duckett from testifying. Appellant was the only witness to testify for the defense.
At the conclusion of the prosecutor’s summation, the trial court asked defense counsel to address the motion to dismiss. Mr. Green stated:
“The motion to dismiss … was based on actions of a correctional officer in writing certain letters to potential witnesses in this case. Those potential witnesses had information that Mr. Duckett provided to them after Mr. Johnwell was convicted that might have made a difference in the outcome of the case had they come to court to testify. But because of the letters, they were afraid.
“However, the problem with prosecuting the motion was the fact that Duckett refused to testify, which I have no control over. So I, basically, am going to have to submit it on the Points and Authorities provided to the Court.… [¶] … [¶] … All three of [the potential witnesses’] names were mentioned at various times during the course of the two interviews conducted by the police with Mr. Johnwell.… In fact, a number of times Kenneth Butler’s name was mentioned in connection with what possibly happened to the murder weapon.…
“However, as I indicated a moment ago, the information that we were trying to prosecute and the motion to dismiss came to light … after the first trial. And, of course, again, in order to meet the requirements of the Evidence Code, we had to have Mr. Duckett testify, and he refused to do that. So the only thing I can do is submit it based on the Points and Authorities and the responses thereto.”
After hearing the prosecutor’s response, the court asked whether the defense had taken any action to subpoena the witnesses. Defense counsel replied:
“We did take the action to subpoena the witnesses, but because we couldn’t get to that aspect of the case because Duckett refused to testify – the theory was that Duckett made statements about this crime …, made statements to these witnesses after the crime was over with and the trial of Mr. Johnwell was over with. There were some statements received by these witnesses that implied that Duckett and Hall set Mr. Johnwell up to take the fall in this case.
“In order to perfect the motion to dismiss, … the first prong would have to be to get Duckett on the stand and either have him explain the statements, if he made them, and/or deny the statements, which would put us in a position to bring in the other witnesses. Because after [sic] Duckett’s testimony, the statements of the other witnesses would be just hearsay, and it would be inadmissible anyway.”
The trial court denied the motion to dismiss. It also subsequently denied appellant’s motion for a new trial, which was based in part on the allegedly erroneous denial of the dismissal motion. Appellant now contends the trial court erred in finding good cause for Duckett’s refusal to testify, and he asks us to reverse the judgment and order a limited remand for a further hearing at which Duckett is required to testify, and the trial court to rule on the dismissal motion based on a complete record.
B. Analysis
“The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.]” (People v. Lucas (1995) 12 Cal.4th 415, 456.) Both afford a criminal defendant the right to have compulsory process for obtaining witnesses in his or her favor. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; In re Martin (1987) 44 Cal.3d 1, 29, 30.) Governmental interference with a defendant’s ability to present witnesses violates these rights, as well as the right to due process, and may require reversal of the defendant’s conviction. (People v. Lucas, supra, 12 Cal.4th at p. 456; In re Martin, supra, 44 Cal.3d at p. 30; Earp v. Ornoski (9th Cir. 2005) 431 F.3d 1158, 1170-1171.)
A defendant must establish three elements to prevail on a claim his or her constitutional compulsory-process rights were violated. “First, the misconduct must be so egregious and improper as to turn a willing defense witness into an unwilling one. Second, the misconduct must deprive the defendant of the witness’s testimony, or be a substantial cause of such deprivation. Third, the lost testimony must be material and favorable to the defense. [Citations.]” (People v. DePriest (2007) 42 Cal.4th 1, 55; In re Martin, supra, 44 Cal.3d at pp. 31-32.) In order to carry his or her burden under federal law, the defendant “‘must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense.’ [Citation.] Under California law [the defendant] must show at least a reasonable possibility that the witness could have given testimony that would have been both material and favorable. [Citations.]” (In re Martin, supra, at p. 32.)
We seriously doubt Vital’s alleged misconduct constituted “governmental” interference for purposes of compulsory- and due-process violations. Although the requisite interference has been found in a variety of situations and may arise from conduct not only of the prosecutor, but also of, for example, the trial judge, law enforcement officers, or even prison officials, we are unaware of any case in which the requisite governmental interference has been found where, as here, the misconduct was wholly unrelated to the case being tried and its purpose was unconnected thereto. (See, e.g., People v. Lucas, supra, 12 Cal.4th at pp. 457-458 & cases cited; In re Martin, supra, 44 Cal.3d at pp. 30-31 & fn. 5 & cases cited; People v. Schroeder (1991) 227 Cal.App.3d 784, 787-788; United States v. Goodwin (5th Cir. 1980) 625 F.2d 693, 702-703 & fn. 2.) In light of appellant’s statement to police and testimony at trial, in which he admitted committing first-degree felony murder (see People v. Cavitt (2004) 33 Cal.4th 187, 197), we further question how the potential witnesses’ testimony could have been both material and favorable.
In any event, even if we assume Duckett’s testimony might have established the requisite elements of appellant’s claim, the trial court did not err. Duckett could not lawfully refuse to be a witness (Evid. Code, § 911, subd. (a); People v. Cornejo (1979) 92 Cal.App.3d 637, 658), and the trial court could have held him in contempt as a result (§ 1331; Code Civ. Proc., §§ 1209, subd. (a)(9), 1991). Had the court done so, Duckett would have faced a misdemeanor conviction punishable by imprisonment in the county jail for up to six months, fine not exceeding $1,000, or both. (§§ 19, 166, subd. (a)(6).) Given the amount of time Duckett still had left to serve on his existing sentence and significant, apparently legitimate concerns for his personal safety, however, we do not find it speculative to conclude a threat of such punishment would have had no coercive effect on him. The option of incarcerating him until he agreed to testify (Code Civ. Proc., § 1219, subd. (a)) was similarly useless; appellant’s trial was almost over by the time Duckett was called as a witness.
In the face of Duckett’s adamant refusal even to be sworn, the trial court was not required to make what would have amounted to idle threats or attempts to convince him to testify. (See People v. Smith (2003) 30 Cal.4th 581, 624; People v. Hill (1992) 3 Cal.4th 959, 991, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Cornejo, supra, 92 Cal.App.3d at pp. 658-659.) It follows that appellant has not shown the trial court erred in excusing Duckett, or in denying appellant’s motion to dismiss based on the record before it.
II
The Posttrial Marsden Request
A. Background
The record shows that, following reversal of his first conviction, appellant had several disagreements with his various appointed attorneys. On October 27, 2005, appellant’s then-counsel, Mr. Kinney, informed the court that appellant had some concerns about representation. Appellant confirmed that he wished to exercise his Faretta rights. The matter was continued for a formal hearing on his motion for self-representation. On November 15, prior to resolution of the Faretta issue, appellant submitted a written motion for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Due to the court’s calendar and defense counsel’s schedule, the matter was set over for hearing on the motion. On November 18, the motion was granted, and, as the public defender had a conflict, counsel from the Alternate Defense Office was appointed. On December 22, Mr. Green informed the court that he was to be appointed on the case.
Faretta v. California (1975) 422 U.S. 806.
It is unclear whether Mr. Green was a member of the Alternate Defense Office or whether that office was relieved and Mr. Green appointed.
On July 13, 2006, appellant submitted a new Faretta motion. It was set for hearing on July 17. On that date, appellant withdrew the motion and instead requested a Marsden hearing. That matter was set for August 1, at which time appellant withdrew his request.
On May 10, 2007, trial confirmation was conducted in Department 11 before Judge Ellison, and the matter was confirmed for trial on May 14. Trial trailed to May 15 for assignment, at which time Mr. Green informed Judge Chittick that appellant had written a letter to Judge Ellison that was in the nature of a Marsden request. As that matter needed to be addressed before anything further was done, counsel requested that the case be sent back to Department 11. Trial was then set for June 4, with trial confirmation, including a Marsden hearing, set for May 17. On May 17, the matter was back in Department 11 before Judge Hamlin, who asked whether the Marsden motion had been withdrawn. Without contradiction from appellant, Mr. Green answered affirmatively.
Trial before Judge Quaschnick commenced on September 4, 2007. On September 10, appellant was convicted and sentencing was set for November 20. Prior to sentencing, appellant wrote a letter to Judge Quaschnick. The referenced subjects were “Court’s Failure To Afford Defendant A Marsden Hearing” and “Ineffective Assistance Of Counsel.” Appellant related that, prior to his initial appearance in Judge Quaschnick’s courtroom, appellant had submitted a letter of complaint, regarding the ineffectiveness of counsel Eric Green, to the attention of the judge in Department 11. According to appellant, some of the issues mentioned in the latter were Mr. Green’s failure to conduct an investigation, address a detective’s statement that Miranda rights were never provided to appellant, subpoena a Fresno County Sheriff’s Deputy who (as reported in the Fresno Bee) tampered with defense witnesses, and disqualification of “Judge Sar-Kay-Si-An.” Appellant stated that these were just a few of the issues raised in his letter, and that he was not given a Marsden hearing. Appellant further stated that Mr. Green also failed to advise him of the advantages and disadvantages of having his case tried before a judge rather than 12 members of a jury. Appellant concluded that, as a result of Eric Green’s ineffective assistance of counsel, along with the court’s failure to provide appellant with a Marsden hearing, a retrial was appropriate and requested that the court grant his request for a Marsden hearing and a retrial.
The letter was dated September 23, 2007, and file-stamped October 2, 2007.
Miranda v. Arizona (1966) 384 U.S. 436.
Presumably, Judge Sarkisian.
On November 20, sentencing was continued to January 11, 2008, because Mr. Green had just received the probation officer’s report. Prior to the continued sentencing hearing, Mr. Green filed a motion for new trial on the grounds that the trial court erred in denying the motion to dismiss and the evidence was insufficient to support the court’s finding of attempted robbery. On January 11, 2008, sentencing was continued to January 30 so that it could be heard before Judge Quaschnick. On January 30, Judge Quaschnick still was not present, and so the matter was continued to February 14. On that date, Judge Quaschnick denied the motion for new trial and imposed sentence. At no time was appellant’s September 23 letter mentioned.
Appellant now contends reversal is required because the trial court failed to hold a hearing on the posttrial Marsden request. Respondent concedes the letter was sufficient to put the trial court on notice of a possible Marsden issue, but claims no Marsden error occurred because appellant abandoned his claims against Mr. Green by failing to press for a Marsden hearing despite having four opportunities to do so.
B. Analysis
“When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 435; Marsden, supra, 2 Cal.3d at pp. 123-124.) These principles apply equally preconviction and postconviction. (People v. Smith (1993) 6 Cal.4th 684, 694.)
In the present case, appellant’s letter was sufficient to put the court on notice of the need to conduct a Marsden hearing to “permit [appellant] to articulate his causes of dissatisfaction and, if any of them suggest[ed] ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel [was] in fact rendering effective assistance. [Citations.]” (People v. Eastman (2007) 146 Cal.App.4th 688, 695; accord, People v. Mendez (2008) 161 Cal.App.4th 1362, 1366-1367; People v. Mejia (2008) 159 Cal.App.4th 1081, 1086; see People v. Lucky (1988) 45 Cal.3d 259, 281 & fn. 8.) Respondent concedes as much. Thus, unless appellant abandoned his claims by failing to press the issue, error occurred under Marsden. (See People v. Lucky, supra, 45 Cal.3d at p. 281; People v. Lloyd (1992) 4 Cal.App.4th 724, 731.)
Abandonment of a Marsden request has been found where the defendant affirmatively withdrew it. (People v. Padilla (1995) 11 Cal.4th 891, 927, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) It has also been found where a hearing was held at which the defendant was permitted to state some of his reasons for wanting new counsel, but then, after being offered the opportunity for a further hearing on his remaining reasons, failed to take advantage of the offer. (People v. Vera (2004) 122 Cal.App.4th 970, 976-977, 981-982.) In the arguably analogous Faretta context, abandonment has been found where the defendant made a single ambiguous comment about his desire to represent himself in the course of a Marsden motion, never requested a ruling or raised the issue again, and silently accepted defense counsel’s assistance for the remainder of the proceedings. (People v. Skaggs (1996) 44 Cal.App.4th 1, 7-8.) It has also been found where a Faretta hearing was calendared, but then continued several times because the defendant was in custody on another matter in a different county. When the defendant did appear, defense counsel stated that the motion could be reserved until there was a further pretrial hearing. When the court reset the matter for trial and also confirmed the appointment of defense counsel, the defendant did not mention his Faretta motion, nor did he mention it on other occasions when he was in court, despite speaking to the judge in response to questions on various matters. (People v. Kenner (1990) 223 Cal.App.3d 56, 59-60, 62.)
In each of the foregoing cases, the matter was either partially heard or at least set for hearing. Here, by contrast, appellant’s letter was ignored for whatever reason. Although appellant was in court on several occasions after he wrote the letter, he was not questioned by, nor did he address, the judge. Moreover, no subject was discussed in his presence that might have suggested to him that he had the opportunity orally to raise the issue. Under the circumstances, we decline to find appellant abandoned his claims. He made his request; under Marsden, the trial court was required to address it. (See People v. Eastman, supra, 146 Cal.App.4th at p. 696.)
We recognize that appellant had a history of making Marsden or Faretta requests and then withdrawing them. On a silent record, however, it cannot be presumed that this was another such occasion.
Although the record on its face does not show either inadequacy of trial counsel or the existence of any irreconcilable conflict between appellant and Mr. Green, we nevertheless cannot declare the error harmless beyond a reasonable doubt. (See People v. Mendez, supra, 161 Cal.App.4th at p. 1368.) “The record does not exclude the possibility that there existed some legitimate complaint which, if Marsden standards had been met, would have been disclosed with the result that new counsel would have been appointed. There is no basis for estimating what effects such a change might have had on the further handling of the case.” (People v. Minor (1980) 104 Cal.App.3d 194, 198.)
This does not mean appellant is automatically entitled to retrial, however. As the only infirmity apparent in the judgment, beyond a minor sentencing issue (discussed post), is the Marsden error, “[t]he question whether good cause existed for appointing new counsel can now be resolved at a hearing in which appellant can be given an opportunity to state his reasons for wanting new counsel appointed.” (People v. Minor, supra, 104 Cal.App.3d at p. 200; accord, People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400-1401; cf. People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1107-1109 [remand hearing for purpose of assessing prosecutor’s exercise of peremptory challenges against prospective jurors held before judge who did not preside over trial].) If, at that hearing, appellant makes a prima facie showing of ineffective assistance of counsel, the trial court shall appoint new counsel for the purpose of bringing a motion for new trial. If appellant does not make such a showing, the court shall reinstate the judgment. (See People v. Mejia, supra, 159 Cal.App.4th at p. 1088; People v. Ivans (1992) 2 Cal.App.4th 1654, 1667-1668.)
At the hearing, appellant is not entitled to reiterate the claims he made in his previous letter to Judge Ellison, the judge in Department 11, or that he would have made in a hearing held in response to that letter. Contrary to his assertion in his letter to Judge Quaschnick (which he does not appear to repeat on appeal), he was not deprived of a Marsden hearing in response to his earlier letter, but instead withdrew his complaints about counsel. Although the court did not inquire directly of appellant in that regard, appellant’s silence when Mr. Green represented that the motion had been withdrawn constituted an abandonment of his request. Accordingly, appellant may only address complaints that arose after that time, including, as stated in his letter to Judge Quaschnick, that Mr. Green failed to advise him of the advantages and disadvantages of having a court trial.
We emphasize that nothing about our conclusion should be read as indicating appellant’s motion has merit. We hold only that the trial court must consider his claims and exercise its discretion. (See People v. Kelley (1997) 52 Cal.App.4th 568, 580.)
III
The Parole Revocation Restitution Fine
Appellant contends the $10,000 parole revocation restitution fine (§ 1202.45), which was imposed but suspended, should be stricken as unauthorized because his sentence does not include parole (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183). We interpret respondent’s silence on the issue as tacit agreement.
DISPOSITION
The judgment is reversed and the matter is remanded for the limited purpose of holding a hearing on appellant’s Marsden motion. If appellant makes a prima facie showing of ineffective assistance of counsel, the court is directed to appoint new counsel for the purpose of bringing a motion for new trial. If appellant fails to make a prima facie showing of ineffective assistance of counsel, the court is directed to reinstate the judgment in its entirety, with the exception that the court shall not impose a parole revocation restitution fine pursuant to section 1202.45.
WE CONCUR: Dawson, J., Hill, J.