Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Ct. No. LF008397A, Gary R. Witt, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, P.J., Cornell, J. and Franson, J.
STATEMENT OF THE CASE
Allegations
On June 18, 2010, appellant, Martin Quinonez, Jr., was charged in a complaint with kidnapping for ransom (Pen. Code, § 209, subd. (a); count 1), second degree robbery (§ 212.5, subd. (c); count 2), dissuading a witness (§ 136.1, subd. (a)(1); count 3); making criminal threats (§ 422; count 4), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 5). The complaint alleged that the crimes in counts 1 through 4 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The complaint further alleged that appellant had one prior strike conviction for second degree robbery (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
Further statutory references are to the Penal Code unless otherwise specified.
Plea Bargain
On July 2, 2010, appellant pled no contest to count 2 and admitted the strike prior in exchange for a stipulated prison term of six years (double the midterm). The court granted the People’s motion to dismiss the remaining counts and allegations.
Appellant was initially scheduled to be sentenced on July 30, 2010. At that hearing, however, appellant’s counsel, Brian McNamara, informed the court that appellant had “asked to have an attorney review his case in terms of a motion to withdraw his plea.…” Mr. McNamara also asked the court to relieve him as appellant’s counsel. After appellant confirmed that he wanted to withdraw his plea, the court declined to relieve Mr. McNamara but appointed attorney Stephanie Childers “for the limited purpose of a motion to withdraw the plea to talk with [appellant] to see if there’s any valid, legal reasons to withdraw the plea as opposed to buyer’s remorse.”
On August 18, 2010, Ms. Childers reported that she had spoken with appellant and that there was “no motion to be filed.” Mr. McNamara then stepped back in to represent appellant during sentencing. The court proceeded to sentence appellant to prison for six years according to the terms of the plea agreement.
Appellant obtained a certificate of probable cause and filed a timely notice of appeal.
Because the only issues on appeal concern appellant’s counsel, we do not recount the facts of his offense.
DISCUSSION
Appellant cites this court’s decision in People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman) to contend that the court erred in appointing substitute counsel to represent him, and by failing to conduct a Marsden hearing, and that these errors require reversal of the judgment. Respondent cites People v. Dickey (2005) 35 Cal.4th 884 (Dickey) to contend that the court did not commit Marsden error because appellant never personally requested the appointment of substitute counsel based on the ineffectiveness of his original counsel. We agree with respondent.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
“‘“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief 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.”’ [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant’s right to effective assistance of counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681.)
In People v. Smith (1993) 6 Cal.4th 684 (Smith), the Supreme Court held that substitute counsel “should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation] or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. This is true whenever the motion for substitute counsel is made.” (Id. at p. 696.)
In Smith, the Supreme Court also criticized the practice of appointing substitute counsel to represent the defendant in one matter while retaining original counsel to represent the defendant for all other purposes. In so holding, the court stated, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When 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. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.” (Smith, supra, 6 Cal.4th at p. 695.)
In Dickey, supra, 35 Cal.4th 884, after the defendant was convicted of first degree murder, the defendant’s counsel requested the appointment of substitute counsel to represent the defendant in a motion for a new trial based on several grounds including the incompetence of counsel during the guilt phase portion of the trial. In responding to the motion, the court incorrectly stated that Marsden hearings are not to be conducted in the middle of a trial. Thereafter, when the court questioned the defendant, he indicated that in addition to the competency of his counsel, there were other issues he wished addressed in the motion for a new trial. (Id. at pp. 918-920.) Nevertheless, even though the court did not conduct a Marsden hearing, it appointed substitute counsel to assist the defendant in preparing a motion for a new trial which the court ultimately denied. (Id. at p. 920.) In addressing the potential Marsden issue the trial court stated,
“‘I think at the time you were arguing this, that in my view there was a poor choice of words on the Court’s part. I know Mr. Schultz [defense counsel] let me know that it was not strictly a Marsden motion, and then I started to talking about a Marsden motion. And I do, of course, know the law, that you can have a Marsden motion at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court have that Marsden hearing. He, of course, was dissatisfied with the results after the jury returned the verdict of guilty and found the special circumstances to be true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor choice of words on the Court’s part, and there was no reason to have a Marsden hearing at the time. It was not asked for.’” (Dickey, supra, 35 Cal.4th at p. 920, italics added.)
On appeal, the defendant, in pertinent part, claimed that the trial court committed Marsden error. In rejecting this contention, the Supreme Court stated,
“We conclude the court did not commit Marsden error. ‘“Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citations.] Defendant did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel’s assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.’” (Dickey, supra, 35 Cal.4th at pp. 920-921, fn. omitted.)
Here, as in Dickey, original defense counsel requested the appointment of substitute counsel only for a specific reason, i.e., to assist appellant in determining whether to file a motion to withdraw his plea. Additionally, like the defendant in Dickey, appellant never communicated to the court a desire to have substitute counsel appointed to represent him in all matters. Accordingly, we conclude that the representations made by appellant’s original counsel to the trial court did not trigger the trial court’s obligations under Marsden.
Nor does Eastman, supra, 146 Cal.App.4th 688 help appellant. In Eastman, the defendant pled guilty to two counts of child molestation in exchange for a stipulated term of 10 years. At the sentencing hearing, defense counsel, Marc Garcia, advised the court that the defendant wanted to withdraw his plea and that he believed the matter should be referred to conflict counsel. (Id. at p. 690.) Additionally, the defendant presented the court with a letter written by his mother alleging that defense counsel had not offered any defense, the district attorney threatened to jail his mother if she refused to testify against the defendant, and the defense counsel and the district attorney conspired to pressure the defendant to accept the plea bargain by telling him that his mother was going to testify against him. The letter concluded by stating that “we” hoped that there would be a response to it so that the defendant would receive an “adequate defense.” (Id. at p. 691.) Thereafter, the court appointed substitute counsel to investigate whether there was a factual or legal basis for the defendant to withdraw his plea. (Id. at p. 692.)
At the defendant’s continued sentencing hearing, substitute counsel informed the court that he would not be filing a motion to withdraw and explained his reasons. (Eastman, supra, 146 Cal.App.4th at p. 692.) Prior to being sentenced, the defendant gave the court a letter asking to be allowed to withdraw his plea alleging, in pertinent part, that the district attorney and defense counsel Garcia had falsely told the defendant that his mother agreed to testify against him and that during the two years the case was pending, Mr. Garcia did not make any attempt to pursue evidence, or investigate witnesses or information the defendant had provided to him. (Id. at p. 693.) After further discussion the court sentenced the defendant to the stipulated 10-year term. (Id. at p. 695.)
On appeal, the defendant contended the court erred in failing to conduct a Marsden hearing. In finding the court committed Marsden error, this court stated:
“Here Eastman submitted a letter to the court which asserted Mr. Garcia had failed to adequately represent his interests. That letter required the court to give Eastman an opportunity to articulate his complaints. The letter on its face stated at least one specific factual complaint about Eastman’s appointed attorney: that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him. Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an ‘adequate defense’ and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error.” (Eastman, supra, 146 Cal.App.4th at pp. 695-696.)
Eastman is inapposite because unlike the defendant there, who provided the court with two letters complaining about his representation by defense counsel, appellant never asserted to the court that his defense counsel had provided ineffective representation. Thus, Eastman is not controlling.
Nevertheless, although there was an insufficient showing here by appellant or his counsel to require the trial court to conduct a Marsden hearing, the court followed the wrong procedure. In a similar situation as occurred here, the trial court should take a proactive role in inquiring of counsel whether he is stating the need for a Marsden hearing or declaring a conflict. If the court determines there is a conflict with or without conducting a Marsden hearing, it should then relieve the first attorney and appoint new counsel to represent the defendant for all purposes. If it determines the defendant is seeking substitution of counsel based on ineffective representation of counsel, it should conduct a Marsden hearing. If the court determines the defendant was denied adequate representation, it should relieve the first attorney and appoint substitute counsel. It should not, however, appoint substitute counsel if it finds the defendant was provided adequate representation. (Smith, supra, 6 Cal.4th at p. 695.)
DISPOSITION
The judgment is affirmed.