Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 29888. Ronald W. Hansen, Judge.
William Davies, 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, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., Gomes, J.
Appellant, Justin Everett Little, pled no contest to evading a police officer (count 1-Veh. Code, § 2800.2, subd. (a)), driving with a blood alcohol content greater than .08 percent with prior convictions (count 3-Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (b)), and driving without a valid driving license (count 4-Veh. Code, § 12500, subd. (a)). On appeal, Little contends the court erred when it reappointed the Attorney Vincent Andrade to represent him after it had appointed substitute counsel to represent him in a motion to withdraw plea. We will affirm.
FACTS
On December 24, 2005, a Merced County sheriff deputy attempted to stop a car driven by Little near the intersection of State Route 165 and Bloss Avenue in Merced County. After the car stopped in Stevinson, the deputy approached Little and detected a strong odor of alcohol on Little’s breath. A preliminary screening disclosed that Little had a blood alcohol content of approximately .22 percent.
Little was originally represented by Public Defender Andrade. On March 21, 2006, Andrade filed a request to calendar the matter for appointment of substitute counsel to review whether Little had grounds to withdraw his plea.
At a hearing on March 24, 2006, with Little present, the following colloquy occurred:
“MR. ANDRADE: Your Honor, yes. I’m requesting [the] appointment [of] an attorney to review whether Mr. Little has grounds to withdraw his plea to count 1. This was a plea to the sheet that occurred -- plea to all the charges that occurred on March 7th of ’06. This [was not] a negotiated plea. This was – [it is] currently set for sentencing and probation report on May 2nd. However, in reviewing the file, I determined that a [Penal Code section 995] motion that should have been filed wasn’t filed. My understanding about [995] is if [they are] not filed, [it is] reversible error. And so [I am] asking for permanent counsel to review whether Mr. Little has grounds to withdraw his plea . . . based upon the existence of [a] meritorious [995] [motion], that has not been heard.
“THE COURT: Mr. Cooke [prosecutor]?
“MR. COOKE: [It is] all news to me.
“THE COURT: All right. Public defender for this – this particular matter is relieved. Matter is referred to Morse and Pfeiff for the appointment of counsel for the sole purpose of reviewing whether or not the defendant has any basis for a withdrawal of plea and motion.
“[We will] set this for confirmation of counsel sometime early next week.”
On April 3, 2006, Attorney William Davis appeared on Little’s behalf.
On June 15, 2006, Attorney Davis filed a motion to withdraw plea on Little’s behalf alleging Andrade provided ineffective representation because he failed to file a motion pursuant to Penal Code section 995 to dismiss count 1.
On July 28, 2006, the court denied the motion finding that counsel had not provided ineffective representation because a motion to dismiss would not have been meritorious. The court also relieved Attorney Davis and reappointed Attorney Andrade to represent Little.
At Little’s sentencing hearing on September 19, 2006, Andrade presented several witnesses and argued for a grant of probation with a requirement that Little enter an alcohol rehabilitation program. The court sentenced Little to an aggregate term of two years eight months, the midterm of two years on his driving under the influence with priors conviction and a consecutive eight-month term (one-third the midterm of two years) on his evading a police officer conviction.
DISCUSSION
Little contends the court applied the Marsden standard and in its discretion found a basis to appoint substitute counsel. He further contends the court prejudicially erred when it reappointed Attorney Andrade to represent him. We will reject these contentions.
People v. Marsden (1970) 2 Cal.3d 118.
“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. [Citation.] 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.)
The record refutes Little’s contention the court found, pursuant to People v. Marsden (1970) 2 Cal.3d 118, that defense counsel provided ineffective representation. Little never complained about his representation by Attorney Andrade or requested substitution of counsel. (People v. Mendoza (2000) 24 Cal.4th 130, 157 [“Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ”].) Nor did the court make any findings regarding Attorney Andrade’s representation of Little.
In People v. Smith (1993) 6 Cal.4th 684 the Supreme Court held, “[w]hen a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation.” (Id. at p. 695.) Little cites Smith to argue that the court erred in reappointing Attorney Andrade to represent him after it denied his motion to withdraw plea. However, Little has not shown how he was prejudiced by the court’s reappointment of Attorney Andrade. Thus, we need not determine whether the court erred in reappointing Andrade because any error in doing so was harmless.
DISPOSITION
The judgment is affirmed.