Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR242697
Lambden, J.
A jury convicted defendant of assault in violation of Penal Code section 245, subdivision (a)(1). Defendant appeals and argues that the lower court committed prejudicial error by failing to instruct the jury on self-defense and by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We conclude that the trial court did not commit instructional error. However, as to defendant’s latter argument, we reverse the judgment and remand the matter with directions to the trial court to hold a Marsden hearing and to conduct further proceedings as authorized by law.
All further unspecified code sections refer to the Penal Code.
BACKGROUND
On August 22, 2007, defendant was charged with attempted murder (§§ 664; 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). The information also alleged that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subdivision (a)). On November 29, 2007, the first day of trial, the trial court dismissed the attempted murder charge.
Evidence at the trial established that Chadwick Barnes shared a house in Fairfield with his brother Bob Jackson, and another person named Nigel Williams. At trial, Barnes testified that defendant moved into the home on May 1, 2007, and stayed in Williams’s room.
On May 21, 2007, Barnes, Jackson, and defendant had been drinking alcohol. About 5:00 p.m., Barnes began arguing with his brother Jackson. Barnes denied there was any physical contact between his brother and him but admitted that arguments had sometimes become physical in the past. At some point, according to Barnes, defendant became involved in the quarrel and began to argue with Barnes. Defendant, according to Barnes, went into Williams’s room, reached for something under a pillow, returned to the living room, and bickered more with Barnes. Barnes testified that defendant cut his neck with a knife and that he did not realize that he had been cut until he saw a drop of blood on his arm.
After Barnes’s neck had been cut, Williams came out of the bathroom; he told defendant to leave the house. Defendant started heading for the door, and Barnes admitted that he shoved defendant into the door.
Williams called the police. Officer Cade Beckwith responded to Williams’s call. Beckwith spotted Barnes sitting on the couch and noticed that he had a laceration on his neck. The laceration was on the right side of Barnes’s neck; it was about one inch wide, at the widest point, and several inches long. Beckwith stated that Williams told him that he had taken a knife away from defendant before telling him to leave the house. Williams told the officer that he had placed the knife on the kitchen counter. The officer went to the kitchen and found a knife on the counter. He took the knife back to Williams and showed it to him. Williams confirmed that this knife was the one he had taken away from defendant. Beckwith testified that Williams told him that he warned defendant to leave before the police arrived.
At trial, Williams denied taking any knife away from defendant.
At trial, Williams denied telling defendant to leave before the police arrived.
Dr. Jerry Kim treated Barnes for his laceration at the hospital. Dr. Kim described Barnes’s injury as follows: “It was a fairly––it was a diagonal laceration that was very sharp in nature, to the left side of his neck. It measured approximately about eight centimeters, give or take, and it was––it wasn’t quite deep enough that we would consider it to be sort of an injury that required a trauma center, but it was significant enough to require medical attention.” Barnes’s cut required 15 sutures to close the wound. Barnes also needed a CAT (Computerized Axial Tomography) scan to ensure that there was no vascular injury. The scan revealed no damage to the major arteries in Barnes’s neck, but the laceration was within a couple of centimeters of a major artery.
John Raymond Luna, Jr., who lived in the apartment below Barnes and the others, testified that he heard an argument in the kitchen upstairs. He heard Barnes accusing someone of stealing his food out of the refrigerator. Luna disclosed that he had called police on about six occasions because of fighting upstairs. He complained that Barnes and his brother would sit in the driveway drinking alcohol. On May 21, 2007, Luna heard a scuffle and he saw Barnes and his brother drinking in the driveway. Luna admitted that he never saw Barnes strike anyone.
Defendant testified at his trial. He said that around 1:00 or 2:00 a.m., on May 21, 2007, he was in the kitchen with Barnes and Jackson when Barnes grabbed Jackson and threw him down and yelled at him to get out of the house. He reported that Barnes opened the door to a stairway. Defendant believed Barnes was about to throw Jackson down the stairs; defendant maintained that he interceded because he believed Barnes was going to hurt Jackson.
Later that day on May 21, 2007, defendant claimed that he was in Williams’s room when he heard Barnes and Jackson arguing in the kitchen. He maintained that at some point Barnes came into his room and “rushed” him. Barnes, according to defendant, threw him around. He believed that Barnes was capable of hurting him. Defendant stated that he did not have a knife and that he did not cut Barnes. He denied knowing how Barnes received his cut.
Defendant reported that Williams told him to leave because Williams was on parole and Williams stated that he did not need “this shit.” Defendant claimed that the first time he learned that Barnes’s neck was slit was two months later when he was brought into custody. He repeated that he did not know how Barnes received the cut on his neck. Defendant never returned to the residence; he left all of his “stuff” at the house.
Defendant admitted that he had been convicted of negligently discharging a firearm (§ 246.3) and using his brother’s name to the police in violation of section 529, but he denied that they constituted felony convictions.
On redirect, defendant again insisted that he had no memory of cutting Barnes’s neck.
At the close of evidence, defense counsel requested self-defense instructions. The prosecutor objected, stating that there was no basis for the instructions because defendant denied cutting Barnes. The court stated: “Well, I know he––at one point he said, I don’t remember, but he was very expressive and very detailed in that he did not cut him, that he had never seen the knife before, that he knew nothing about the neck wound. So to establish some type of evidence that he engaged in self-defense, we have to have testimony that he engaged in self-defense, and he was very clear in his testimony that he had nothing to do with the cutting of this gentleman’s neck.”
The court concluded that there was “no factual predicate to give the self-defense instruction,” and refused to give the self-defense instructions. The court elaborated: “I have never given self-defense instructions in a situation where the defense denied having engaged in the behavior which would rise to any giving of a self-defense instruction. He did not indicate at all that he acted in any way to defend himself, and he didn’t act in any way that he used a deadly weapon to defend himself. He never said that he needed to use this weapon to protect himself, so there’s no factual predicate . . . .”
The jury returned a guilty verdict as to the assault charge, but found the special allegation of great bodily injury not true. On March 5, 2008, the trial court denied probation and sentenced defendant to the upper term of four years in state prison. The court explained: “The facts of the case speak for themselves. Just by the grace of God, this is not a [section] 187, as opposed to a [section] 245. [¶] The court is going to impose the aggravated term of four years. The court chooses the aggravated term, given the defendant’s prior history of violent criminal conduct, which now continues to increase, becomes more serious, and he was on probation when this occurred. For those reasons, the court imposes a four-year state prison sentence.”
Defendant filed a timely notice of appeal.
DISCUSSION
I. Denial of Defendant’s Request for Self-Defense Instructions
Defendant contends that the lower court committed prejudicial error when it refused to give his requested self-defense instructions (CALJIC Nos. 5.30, 5.50, and 5.51). The court denied the request for these instructions because it found there was no factual predicate to give them.
A trial court must instruct the jury on all material issues presented by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The trial court must give a requested self-defense instruction only when substantial evidence supports the defense (People v. Marshall (1997) 15 Cal.4th 1, 39) and the defense is consistent with the defendant’s theory of the case (People v. Barnett (1998) 17 Cal.4th 1044, 1145). “ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” [Citation.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) “The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative.” (People v. Lewis (2001) 25 Cal.4th 610, 646.) “ ‘ “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” [Citations.]’ [Citation.] Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that ‘deserve[s] consideration by the jury, i.e., “evidence from which a jury composed of reasonable [people] could have concluded” ’ that the specific facts supporting the instruction existed. [Citations.]” (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) “We review this issue as one of law.” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1017.)
To support a self-defense instruction for an assault charged under section 245, there must be substantial evidence that the defendant had an honest and reasonable belief that bodily injury was about to be inflicted on him (People v. Goins (1991) 228 Cal.App.3d 511, 516); the threat of bodily injury was imminent (see In re Christian S. (1994) 7 Cal.4th 768, 783); and the defendant used force against his aggressor that was reasonable under the circumstances (People v. Pinholster (1992) 1 Cal.4th 865, 966). The trier of fact must consider what would appear to be necessary to a reasonable person in the position of defendant, with the defendant’s knowledge and awareness. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.)
Here, the record did not support self-defense instructions. Barnes testified that defendant cut him with a knife without any provocation. He admitted that defendant and he argued, but claimed that he never physically touched him until after defendant cut him with the knife; after suffering the knife injury, Barnes said that he shoved defendant into the door.
Most significantly, defendant’s testimony did not support self-defense instructions. Defendant repeatedly stated that he never cut Barnes’s neck. He claimed that Barnes had no injury when Williams told him to leave the house on May 21, 2007, and that he did not learn that Barnes’s neck had been cut until after defendant was arrested months later. Thus, his defense was that he did not assault Barnes.
Further, defendant did not declare that he was under any imminent threat. Defendant did not claim that Barnes did anything to him that warranted self-defense. There was no evidence that defendant was injured and defendant never asserted that he had been injured. There was also no evidence that Barnes threatened defendant with any instrument or weapon. Defendant said Barnes threw him around, but he never stated that Barnes hurt him or that he felt his welfare was so threatened that he believed he needed to defend himself with a knife. A defendant may use only that amount of force, which is reasonably necessary to defend against the danger. (People v. Clark (1982) 130 Cal.App.3d 371, 380, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92.)
Defendant did testify that he believed Barnes was capable of hurting him and that he had observed previous altercations between Barnes and his brother, but this evidence did not constitute any form of imminent danger. “A ‘phantasmagoria of future harm’ . . . will not diminish criminal culpability.” (People v. Petznick, supra, 114 Cal.App.4th 663, 676-677.) “Fear of future harm––no matter how great the fear and no matter how great the likelihood of the harm––will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. “ ‘ “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” ’ ” (In re Christian S., supra, 7 Cal.4th at p. 783.)
Defendant does not point to any evidence supporting self-defense instructions. Instead, he cites his counsel’s closing argument that stressed that Barnes had been drinking and that he “attacked my client.” It is elementary that counsel’s argument is not evidence.
Our review of the record indicates that the only evidence even minimally supporting a self-defense theory was the testimony by Luna and defendant that Barnes was an aggressive person who frequently drank and started fights with his brother. As already noted, defendant’s testimony did not show that he felt an imminent danger. Luna admitted that, although he frequently heard Barnes yelling, he never saw him strike anyone. This evidence is “minimal and insubstantial.” (People v. Flannel (1979) 25 Cal.3d 668, 684, superseded by statute on other grounds as explained in In re Christian S., supra, 7 Cal.4th at p. 777.) A jury composed of reasonable persons could not conclude from this evidence that a self-defense scenario existed. (People v. Blair (2005) 36 Cal.4th 686, 744-745.)
It is true that the jury in this case did ask the court during its deliberations whether using a weapon in self-defense meets the definition of general intent for assault with a deadly weapon and whether it had the option of self-defense. However, that does not indicate that the record would have supported a theory of self-defense. Here, there was simply no evidence that defendant was in imminent peril. Further, as already stressed, defendant did not claim that he was in imminent fear of actual bodily harm. Rather, defendant testified that he never cut Barnes with a knife.
We conclude that the trial court properly refused to give the self-defense instructions.
II. Denial of Defendant’s Request for a Marsden Hearing
A. Background
Defendant contends that the trial court erred by not conducting a Marsden hearing (Marsden, supra, 2 Cal.3d 118). Defendant first requested a Marsden hearing by a written motion that he signed on November 18, 2007, and filed in propia persona. The court received defendant’s Marsden motion on November 29, 2007. Defendant had checked boxes in his supporting declaration that indicated his counsel had failed and/or refused to confer with him concerning the preparation of the defense; had failed and/or refused to communicate with him; had failed and/or refused to subpoena witnesses favorable to him and deprived him of the testimony critical to the defense; had failed an/or refused to perform and/or to have performed investigations critical and necessary to the defense; had failed and/or refused to present/prepare an affirmative defense at his preliminary hearing; had failed and/or refused to secure and present expert witnesses critical to the defense; had failed and/or refused to prepare and file motions critical to the defense; had failed and/or refused to impeach prosecution witnesses; had failed and/or refused to present evidence at motion/writ hearings critical to his defense; had failed and/or refused to declare prejudice and/or conflict against him and due to this failure had taken on the role of a surrogate prosecutor against his interest. Additionally, defendant claimed that his counsel had pressured him to take the stand and “incriminate” himself and bribed him to waive time.
Although the Marsden motion was marked “received” on November 29, 2007, the first day of trial, there was no mention of this motion the first day of trial. The following day, November 30, prior to the prosecution’s rebuttal case, defense counsel orally requested a Marsden hearing. The court denied the oral request for a Marsden hearing without any discussion of the motion.
B. The Law
Criminal defendants “are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney.” (Marsden, supra, 2 Cal.3d at p. 123.) “ ‘ “ ‘A defendant is entitled to . . . [substitute appointed counsel] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ ” ’ ” (People v. Barnett, supra, 17 Cal.4th at p. 1085.)
If a defendant requests a new attorney, the trial court must give the defendant an opportunity to explain the reasons for the request and to provide example of the counsel’s inadequate performance on the record. (People v. Barnett, supra, 17 Cal.4th at p. 1085.) If the defendant articulates facts that suggest the attorney is rendering constitutionally ineffective assistance, the trial court is obligated to make whatever inquiry is necessary to develop a sufficient record so that it may assess the defendant’s claim. (People v. Munoz (1974) 41 Cal.App.3d 62, 66.)
The purpose of a Marsden hearing is for the trial court to determine whether appointed counsel should be replaced: “A trial judge is unable to intelligently deal with a defendant’s request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, ‘[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.’ [Citation.]” (Marsden, supra, 2 Cal.3d at pp. 123-124.)
In determining whether a trial court properly exercised its discretion in denying a Marsden motion, the reviewing court should consider all of the circumstances of the particular case (People v. Panah (2005) 35 Cal.4th 395, 426), including (1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the defendant’s complaint, and (3) whether the conflict between the defendant and counsel was so great that it resulted in a total lack of communication preventing an adequate defense (People v. Smith (2003) 30 Cal.4th 581, 606-607).
C. Applying the Law to the Facts of this Case
Here, the trial court did not conduct a Marsden hearing after defendant submitted a request that listed numerous bases for appointment of new counsel, including ineffective assistance of counsel and a breakdown in the attorney-client relationship. The court was obliged to make a record that it adequately aired and considered defendant’s complaint. (People v. Eastman (2007) 146 Cal.App.4th 688, 696.) Its failure to do so was error.
The People contend that defendant abandoned his first request for a Marsden hearing when he did not orally raise the issue on the first day of trial. The People state that his intent to abandon it was clear when defense counsel responded, “Yes,” to the court’s following question: “Is this going to proceed?” Further, defendant never mentioned his Marsden claim when the court proceeded with jury voir dire, opening statements, and all of the witnesses’ testimony, with the exception of the final rebuttal witness. The oral request for a Marsden hearing on the second day of trial before the rebuttal witness was untimely, according to the People.
We need not address whether defendant had to raise his Marsden claim orally after submitting a written request to the court, because we reject the People’s claim that the second request was untimely. “It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind.” (People v. Smith (1993) 6 Cal.4th 684, 694-695.)
As our Supreme Court further explained, “the trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea.” (People v. Smith, supra, 6 Cal.4th at p. 695.) Whether a request for substitute counsel is made before or after conviction, “[t]he court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly.” (Id. at p. 694.) The trial court in the present case provided defendant with no opportunity to voice his specific complaints.
The People point to cases that have held that the court did not need to consider the defendant’s Marsden motion because the motion was made late in the trial. (People v. Williamson (1985) 172 Cal.App.3d 737, 745; People v. Maese (1980) 105 Cal.App.3d 710, 723; People v. Carr (1972) 8 Cal.3d 287, 299.) None of these cases, however, is similar to the present case. In each of the cases cited by the People the court had listened to the defendant’s reasons for requesting new counsel prior to determining that a Marsden hearing was not necessary. In Williamson, “defendant was twice given and twice utilized his opportunity to explain the reasons for his request for substitution of counsel. The transcript clearly indicate[d] that the trial judge made inquiry of defendant and listened to his complaints.” (Williamson, supra, at p. 745.) The court in Maese asked the defendant his reasons for being dissatisfied and denied the request for a Marsden hearing after the defendant stated that he was dissatisfied because “he was (1) misled and therefore pled guilty to the charge of being under the influence, and (2) wanted other witnesses, specifically his mother, called to testify.” (Maese, supra, 105 Cal.App.3d at p. 723.) Similarly, the court denied the defendant’s motion to remove his counsel in Carr after listening to the defendant’s reasons for making the motion. (Carr, supra, 8 Cal.3d at p. 299.)
The People have not cited any case where the trial court denied a Marsden motion without any inquiry as to the defendant’s reasons for making the request. Indeed, the rule is clear that the court must permit the defendant to articulate the basis for his concerns. (Marsden, supra, 2 Cal.3d at p. 124.)
The People also maintain that the court did not err because defendant did not clearly indicate that he wanted to substitute counsel. A trial court’s duty to conduct the inquiry arises “only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.” (People v. Molina (1977) 74 Cal.App.3d 544, 549.) We conclude, however, that the record does not support the People’s argument. Defendant submitted written papers providing his reasons for wanting new counsel, which included a claim of ineffective counsel. Moreover, his attorney clearly told the court that he wanted to make a Marsden motion.
The People cite People v. Leonard (2000) 78 Cal.App.4th 776, 784-787, but this case does not support the People’s position. In Leonard, the court did not hold a formal hearing and the defendant acknowledged that he did not technically request a Marsden hearing, but still the court gave defendant an opportunity to state his concerns about his counsel. (Id. at pp. 784, 787.) Further, the court did hold a Marsden hearing later in the trial, after asking defendant to put his concerns in writing. (Id. at p. 787.) In contrast, here, defendant did directly request a Marsden hearing, and the court gave him no opportunity to articulate his concerns.
Once defendant requested a Marsden hearing, the trial court had an obligation to provide defendant with an opportunity to explain the reasons for the request. (See, e.g., People v. Barnett, supra, 17 Cal.4th at p. 1085.) The court made no inquiry and provided defendant with no opportunity to explain the reasons for his written and oral request for a Marsden hearing. The court’s violation of the Marsden rule results in reversal unless the record shows beyond a reasonable doubt that the error did not prejudice defendant. (Marsden, supra, 2 Cal.3d at p. 126; Chapman v. California (1967) 386 U.S. 18, 24.)
D. Prejudice
Defendant maintains that the trial court’s violation of the Marsden rule was prejudicial under Chapman v. California, supra, 386 U.S. at page 24. “Failure to inquire adequately into a defendant’s complaints results ‘in a silent record making intelligent appellate review of defendant’s charges impossible.’ [Citation.]” (People v. Hill (1983) 148 Cal.App.3d 744, 755.) Here, we do not know what defendant would have shown and therefore we cannot deem the error harmless. (See People v. Eastman, supra, 146 Cal.App.4th at p. 697.)
The People contend that there was no prejudice and claim that the record shows that defendant had adequate representation. The People also emphasize that the evidence against defendant was overwhelming. We agree that the evidence against defendant was strong, but the record shows that defendant denied ever having a knife or assaulting Barnes; yet, his attorney argued self-defense during closing argument. This discrepancy between defendant’s testimony and counsel’s closing argument may reflect a communication breakdown between defendant and his attorney.
Defense counsel stated the following during closing argument, “This was an unprovoked attack on my client. He responded. The cut was significant, you know, not great bodily injury. Things happen.”
Additionally, the People cite People v. Washington (1994) 27 Cal.App.4th 940 (Washington). In Washington, Division One of our court held that the trial court’s failure to hold a post-trial Marsden hearing was harmless error. Following his conviction, the defendant in Washington brought a Marsden motion in conjunction with a motion for a new trial. (Washington, supra, at p. 942.) The trial court heard the new trial motion, but failed to hold a Marsden hearing. (Washington, supra, at p. 943.) In deciding that the Marsden error was harmless, the appellate court explained that, because the defendant brought the Marsden motion after trial when the sole remaining proceeding was sentencing, the only basis for the motion could be that counsel performed ineffectively during trial or could not adequately represent the defendant at sentencing. (Washington, supra, at p. 944.) Division One decided that no grounds for ineffective assistance of counsel existed and that appointment of new counsel would not have affected the sentence. (Ibid.) Because the failure to hold a Marsden hearing did not deprive the defendant of any arguments on appeal or affect his verdict or sentence, the reviewing court concluded that he was not prejudiced. (Washington, supra, at p. 944.)
Unlike the situation in Washington, here, we cannot determine from this record that the Marsden error did not result in prejudice. Defendant requested a Marsden hearing before the trial began and, again, prior to the prosecution’s rebuttal case. At no point did the trial court ever inquire about defendant’s concerns. We therefore cannot determine the grounds for his request and the merits of his motion. Further, if defendant had been successful in substituting counsel, we cannot discern from this record whether new counsel would have had any effect on the rebuttal case, closing argument, and sentencing. We cannot establish from the record before us whether substitute counsel would have pursued additional arguments or raised different issues at the sentencing hearing that would have resulted in a more favorable sentence for defendant. Given that the trial court denied defendant’s request for probation and sentenced him to the upper term, a more favorable sentence was at least possible. Under these circumstances, we cannot conclude that the error in failing to hold a Marsden hearing was harmless beyond a reasonable doubt.
Defendant is not entitled to an unqualified reversal, but we will reverse the judgment and remand the matter to the trial court for a hearing on defendant’s Marsden motion. Since the effectiveness of trial counsel at the sentencing hearing is an issue to be considered at the Marsden hearing and the trial court sentenced defendant to the upper term, a different judge should hold the Marsden hearing. The first Marsden motion was raised by defendant prior to trial and therefore it is not necessary for the Marsden motion to be heard by the judge who conducted the trial; and the original trial judge should be relieved of the responsibility of revisiting the motion nunc pro tunc.
We express no opinion as to whether defendant’s Marsden motion should be granted. That decision rests in the sound discretion of the trial court and will obviously depend upon what information the trial court elicits from defendant and his trial counsel during the hearing. (See People v. Smith, supra, 6 Cal.4th at p. 696.)
If the new judge conducting the Marsden hearing finds that defendant has shown that new counsel should be substituted, the trial court shall appoint new counsel to assist defendant in filing a motion for new trial or any other such motions that newly appointed counsel may deem appropriate. (People v. Eastman, supra, 146 Cal.App.4th at p. 699.)
DISPOSITION
The judgment is reversed and the matter remanded with the following directions. A new judge shall hold a hearing on defendant’s Marsden motion. If the motion is denied, the court shall reinstate the judgment. If the court finds that defendant should have new counsel, the court shall appoint new counsel to assist him and shall entertain such applications as the newly appointed counsel may make.
We concur: Kline, P.J., Richman, J.