Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM027210 & CM027718
NICHOLSON, J.
The information in case No. CM027210 charged defendant Raymond Leonard Luper with possession for sale of cocaine base and methamphetamine, and also alleged recidivist enhancements. He entered a plea of no contest to possessing methamphetamine for sale in exchange for a sentence of no more three years in prison, and dismissal of the other count and the enhancements. He failed to appear for sentencing.
The amended complaint in case No. CM027718 charged defendant with the felony of failure to appear while on bail and an enhancement for his failure to appear, and also alleged recidivist enhancements. The trial court accepted his plea of no contest to failing to appear while on bail in exchange for a sentence of no more than three years in prison and dismissal of the enhancements.
The court allowed defendant personally to request that he wished to withdraw his plea in the earlier case. It denied the request, imposing the upper term for the drug offense and a consecutive term for the failure to appear. Defendant did not request a certificate of probable cause for his appeal.
Defendant contends the trial court should have interpreted his request to withdraw his plea as a request to appoint new counsel, and thus erred in failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden). We dismiss the appeal.
FACTS
The circumstances underlying defendant’s offenses are not material to this appeal, so we omit them. We instead set out the exchange between defendant and the court on which he now premises his Marsden argument.
“[DEFENSE COUNSEL]:... I am prepared this morning to proceed. It’s my understanding, however, that [defendant] -- and I will allow him to speak for himself. The focus of his request is that he be allowed to withdraw his earlier entered plea.
“THE COURT: [Defendant.]
“THE DEFENDANT: Yeah.
“THE COURT: Do you have anything that you would like to say?
“THE DEFENDANT: About pulling my plea?
“THE COURT: Do you wish to withdraw your plea?
“THE DEFENDANT: Yeah. That’s just what I asked [defense counsel]. I would like to.
“THE COURT: Speak up.
“THE DEFENDANT: Yes, that’s what I want to do.
“THE COURT: What would the ground be?
“THE DEFENDANT: Ground? I haven’t been able to hear half of what’s going on in this courtroom, and [defense counsel] is not the best at explaining things to me.
“THE COURT: But the question is what legal grounds do you have to withdraw your plea?
“THE DEFENDANT: Legal grounds? I guess I haven’t been able to hear exactly what’s been going on in the courtroom.
“THE COURT: Did you understand that you pl[ed] guilty or no contest to possession of methamphetamine for sale?
“THE DEFENDANT: Yeah, I understand guilty now, but I asked [defense counsel] to do a motion to suppress early in the hearing, and he never did do it for me. I kept thinking that he was going to make the motion... and it never happened. Then it got right up to the point of pushing me into signing for the deal.”
At this point, the court questioned whether defense counsel had considered a motion to suppress. Defense counsel asserted that he had considered one, without offering any opinion on its merits. He then explained that the negotiated plea he was able to obtain notably reduced prison time through the dismissal of the more serious drug charge and all the enhancements. The court then returned its focus to defendant:
“THE COURT: Do you have anything further you would like to add?
“THE DEFENDANT: About this here? I don’t understand what you are saying, sir.
“THE COURT: Do you have anything further you would like to add?
“THE DEFENDANT: No.
“THE COURT: Court is going to deny your request to set aside the plea, finding that no grounds have been articulated by [defendant]. And I will note for the record that... 9 years have been taken off your potential sentence.”
DISCUSSION
Defendant argues we should characterize the above exchange as a complaint about the adequacy of his representation that was sufficient to trigger the court’s obligation under Marsden to hold a hearing in camera and explore the basis of his discontent with trial counsel. He asserts we must therefore grant him an unconditional reversal of the judgment because the court failed to hold a Marsden hearing. He relies on People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez) and People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman).
Although neither party has raised the issue, we find that defendant’s claim is not cognizable on appeal because he did not obtain a certificate of probable cause. The explicit subject of defendant’s colloquy with the court was his desire to withdraw his plea to the drug offense, because he thought trial counsel should have filed a motion to suppress and he did not feel counsel had adequately explained the proceedings to him. As we stated in People v. Emery (2006) 140 Cal.App.4th 560: “If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause.” (Id. at p. 565, italics added; cited with approval in People v. Johnson (Nov. 23, 2009, S166894) ___ Cal.4th ___, ___ [2009 Cal. Lexis 12136, at p. *22].) Remanding for the Marsden hearing that defendant now demands on appeal could have only the purpose of possibly obtaining the appointment of substitute counsel. The only purpose of appointing substitute counsel would be to set aside the plea either because counsel was ineffective in failing to move to suppress, or in giving defendant inadequate explanations of the proceedings (resulting in a plea that was not knowing and intelligent). Defendant’s invocation of the right to a Marsden hearing would otherwise be an abstract sterile exercise in the absence of considering the validity of his plea. We thus must dismiss the appeal for want of a certificate of probable cause. We will nonetheless address his claim on the merits to forestall a petition for rehearing.
While a defendant is not required to make a formal motion to substitute appointed counsel, there must be some indication that this is the desired remedy. (People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey).) For example, a request for separate counsel to explore possible ineffective assistance of counsel during the guilt phase (for purposes of a motion for new trial) does not trigger the obligation to hold a Marsden hearing absent any indication that defendant wanted new representation for the penalty phase. (Dickey, supra, at pp. 918-920 & fn. 12.) People v. Richardson (2009) 171 Cal.App.4th 479, 485 (Richardson) agreed that a defendant expressing dissatisfaction with trial counsel’s performance, without including any indication of a desire for new counsel, did not trigger the obligation to hold a Marsden hearing; we found Mendez and Eastman, which came to the opposite conclusion, unpersuasive because neither case took Dickey into account. Defendant’s attempts to distinguish Dickey and Richardson on the basis that in each case the court had appointed separate counsel to investigate the claims of inadequate representation. This is inapt; his own authority rejects the idea that appointing separate counsel can satisfy a court’s duties under Marsden (Eastman, supra, 146 Cal.App.4th at pp. 696-697), and nothing in Dickey or Richardson indicates this is a component of their holdings.
In the present case, defendant not only failed to assert that he wanted a substituted attorney appointed to represent him from that point on, he did not even seek separate counsel to investigate the adequacy of his representation up to that point. Therefore, the trial court did not commit Marsden error.
DISPOSITION
The appeal is dismissed.
We concur SCOTLAND, P. J., ROBIE, J.