Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SM261060A.
NICHOLSON, Acting P. J.
Following his plea of guilty to one count of robbery and an admission to having suffered a prior strike conviction, defendant Phillip Renee Shields sought, unsuccessfully, through various means, to withdraw his plea. In accordance with the plea agreement, he was sentenced to the middle term of three years, doubled to six years because of the prior strike conviction. Defendant’s request for a certificate of probable cause was granted. He now contends on appeal that the trial court improperly delegated its duty to conduct a Marsden hearing when he sought to withdraw his plea on the grounds of ineffective assistance of counsel. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The substantive facts of defendant’s offenses are not at issue and need not be recounted. Accordingly, we summarize only the procedural background related to defendant’s contention on appeal.
About a month and a half after defendant entered his plea of guilty, he made a Marsden motion seeking to replace his counsel, Dorothy Mead. Defendant claimed she had not made particular pretrial motions, including discovery motions, had not sought bail for him after his plea stating he did not “‘need to get out because [he] might catch another case, ’” had conducted inadequate investigation and it appeared to him that “she didn’t really care about” the case. Mead responded that the issues defendant had raised regarding the pretrial motions were more appropriately issues for cross-examination at trial. She did not recall making the statement about him “‘catch[ing] another case, ’” rather, she had explained the risks of a two-year on-bail enhancement if he were charged with another crime while released on bail. As to not “caring” about the case, Mead explained she had worked extensively with defendant, thoroughly investigated the case and had made a number of in limine motions. Mead also indicated they had been ready to go to trial. Defendant disagreed with that assertion. He claimed, although he was not ready to go to trial, Mead had said they were going to trial because she was not going to delay her vacation. Mead explained they had discussed the possibility of a continuance, but there was no legal basis for one. Accordingly, she informed defendant their options were to resolve the matter or go to trial, and he insisted on going to trial. The court denied the Marsden motion, finding although it was clear defendant was having some doubts about the relationship with Mead, she had been effectively representing defendant and was able to continue to do so.
Later that day, defendant made a Faretta motion. In cautioning defendant about representing himself, the court advised defendant that Mead was a competent attorney who did a good job for her clients. Mead advised the court that defendant wanted to withdraw his plea. The court cautioned him that if he were successful in his motion, the previously dismissed charges would be reinstated and he would potentially be facing a 24- to 26-year prison sentence. The court adjourned the proceedings until the next morning, in part to allow defendant to review and complete a self-representation form.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
The following day, defendant reaffirmed his desire to represent himself. His Faretta motion was granted and Mead was discharged as counsel. On July 7, 2008, defendant filed a motion to withdraw his plea claiming ineffective assistance of counsel. The motion reiterated defendant’s complaints about Mead’s lack of investigation and failure to seek discovery. Defendant also claimed she had coerced him to accept the plea.
On July 21, 2008, the court found the motion inadequate on its face and found that defendant had simply changed his mind about the plea. The court specified that it did not find incompetence of counsel, but rather that defendant was having a difference of opinion with his attorney. Accordingly, the court denied the motion. Defendant was then referred to probation for a presentence report. At which point, he requested an attorney and the court reappointed Mead.
The next hearing was held on August 4, 2008. Mead informed the court she thought defendant wanted to make another Marsden motion. The court indicated its intention to appoint conflict counsel “solely for the purpose of investigating and bringing -- if he decides grounds exist -- a motion to withdraw plea for Pope error... [a]nd for no other reason.” However, no specific conflict lawyer was appointed at that time. The court also stated if there were additional grounds for a motion to withdraw the plea, Mead was responsible for addressing those issues, “unless and until I grant a Marsden motion.” The matter was reset and referred to probation. The court also indicated since defendant had asked for a Marsden hearing, they would have one at the next hearing.
People v. Pope (1979) 23 Cal.3d 412 (Pope).
At the next hearing on September 8, 2008, the court actually appointed conflict counsel Gus Barrera, to review defendant’s grounds for possible withdrawal of the plea based only on Pope error, that is, as the court had earlier declared, possible incompetence of Mead as counsel. Barrera filed a motion to withdraw defendant’s plea on October 24, 2008. The motion reiterated the allegations first made in defendant’s Marsden motion, that Mead had coerced him to accept the plea, that she told him he was going to lose the trial, that she refused to continue the trial because of her prepaid vacation and that she had not adequately investigated the case.
To respond to defendant’s motion, the district attorney requested a copy of Mead’s file. Mead refused to turn over the file, because she remained defendant’s attorney and it contained privileged information. The court found defendant had waived attorney-client privilege with Mead by filing the motion to withdraw his plea. After some discussion about the privileged nature of Mead’s files and potential conflict of interest, Mead suggested it was not appropriate for her to remain as defendant’s counsel. The court ordered Mead to remain as defendant’s trial counsel. The court also ordered Mead to appear as a witness at the next hearing. A week later, following an in camera proceeding, Mead’s request to be relieved as defendant’s attorney was granted and Barrera was appointed as counsel generally.
A hearing was held on the motion to withdraw the plea, at which both defendant and Mead testified. The court noted that defendant’s motion really raised two potential bases for withdrawing the plea, incompetence of counsel and a claim that the plea was involuntary. Following the hearing, the court found Mead was “in no way... less than competent.” In fact, the court found her communication with defendant and efforts on his behalf were exemplary.
As to whether the plea was voluntary, the court also accepted Mead’s version of the discussions surrounding the plea, and expressly rejected defendant’s. The court found that Mead had not threatened defendant with a loss at trial or sought to avoid trial because of her planned vacation. Rather, she had realistically assessed the case, particularly in view of the in limine rulings. The court found defendant had discussed entering a plea on multiple occasions, and had adequate time to weigh and consider his options and pursue available defenses. Moreover, at the time of the plea defendant had raised no hint of concern regarding his lawyer’s representation. Thus, the court found his plea was voluntary. The court further found defendant’s current complaints were the product of him having changed his mind after entering the plea, which is not good cause to grant the motion to withdraw. Accordingly, the court denied the motion.
Defendant was then sentenced in accordance with the plea to an aggregate term of six years in prison.
DISCUSSION
Defendant’s sole argument on appeal is that the court improperly delegated its duty to conduct a Marsden hearing when defendant sought to withdraw his plea on the grounds of ineffective assistance of counsel. Although, as we discuss, the procedure employed by the court was flawed, defendant was not prejudiced by those flaws and the court did not improperly delegate its duty under Marsden.
“A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) When a defendant seeks to discharge his court-appointed counsel on the basis of inadequate representation, the court must allow defendant to explain the basis of his claim and to relate specific instances of counsel's inadequate representation. (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith).) Under Marsden, the failure to provide the defendant the “opportunity to explain the reasons for his request” is an abuse of discretion. (People v. Burton (1989) 48 Cal.3d 843, 855.)
Defendant relies on People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman), to argue the court improperly delegated its duty of inquiry under Marsden to a second attorney and simply accepted that attorney’s findings. Eastman is inapposite. The error in Eastman was not in appointing a second attorney to investigate the defendant’s complaints about counsel. The error in Eastman was in adopting that second attorney's opinion that the first attorney had rendered effective assistance without putting the defendant's complaints, or the basis for their rejection, on the record. (Eastman, supra, 146 Cal.App.4th at pp. 696-698.) There is no such error here.
The first and most obvious distinction between this case and Eastman is in Eastman, conflict counsel refused to file a motion to withdraw the plea; whereas, in this case, conflict counsel did file a motion to withdraw the plea. Thus, in this case, the court was never placed in the position of having to accept counsel’s opinion without putting defendant’s complaints on the record.
Moreover, unlike Eastman, here, defendant had multiple opportunities to explain the basis of his claim of inadequate representation by Mead to the court. At the June 2, 2008, in camera hearing on his Marsden motion, he delineated his complaints against Mead and fully explained his reasons for wanting substitute counsel. Mead responded to those complaints. The next day, defendant’s Faretta motion was granted and he filed a motion to withdraw his plea. The motion reiterated in detail defendant’s complaints about Mead’s alleged inadequacy as counsel. That motion was denied and Mead was reappointed as counsel. At the next hearing, defendant again indicated his desire for appointment of substitute counsel. After new counsel was appointed for all purposes, Mead was removed as counsel and defendant’s complaints about her, and the basis for rejecting those complaints, was again placed on the record in the hearing on the second motion to withdraw the plea. Thus, defendant was given and utilized three opportunities to explain his dissatisfaction with his counsel’s representation and two opportunities to explain why he sought Mead’s removal from the case. “[T]he trial judge made inquiry of defendant and listened to his complaints. Nothing more was required under Marsden. [Citations.]” (People v. Williamson (1985) 172 Cal.App.3d 737, 745.) In this case, on this record, we are satisfied that the court fulfilled its duty of inquiry under Marsden.
Lastly, on the record before us, even if the court had erred in not conducting a second Marsden hearing, defendant can make no viable claim of prejudice. The failure to conduct an adequate Marsden hearing is not reversible per se, rather, the error is subject to review under the harmless error standard. (People v. Chavez (1980) 26 Cal.3d 334, 348-349; People v. Leonard (2000) 78 Cal.App.4th 776, 786-787; People v. Washington (1994) 27 Cal.App.4th 940, 944.)
Defendant has not challenged the propriety of the denial of his first Marsden motion or the denial of either motion to withdraw his plea. He has made no further claim of ineffective assistance of counsel or argued any way in which the result would have been different had the court conducted an in camera Marsden hearing before it relieved Mead as counsel. The ultimate goal of a Marsden motion is the removal of counsel and the appointment of substitute counsel. After defendant’s second Marsden request, conflict counsel, Barrera, was appointed to investigate defendant’s claims of ineffective assistance of counsel and a motion to withdraw his plea. Before any other critical proceedings were had, Mead was relieved as counsel and Barrera was appointed as counsel for all purposes. At that point, defendant’s objective of obtaining substitute counsel was achieved. Thus, the failure to hold a second Marsden hearing cannot have affected the outcome of the proceedings.
We note, however, that the procedure employed in this case was flawed. Where a defendant seeks to withdraw a guilty plea on the basis of ineffective assistance of counsel, the court is obligated to explore the reasons underlying the request and, if “the defendant makes a ‘colorable claim’ of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving [to withdraw his plea]. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 574.) However, the trial court should appoint substitute counsel only when a proper showing has been made. (Smith, supra, 6 Cal.4th at pp. 695-696.)
Defendant had not made such a showing here. He had twice put forth his claims of ineffective assistance of counsel and they had twice been rejected. No further proceedings had been conducted since his second claim of ineffective assistance of counsel had been rejected and he offered no additional grounds for his claim. Because the identical claims had twice been rejected by the court, defendant had not made a colorable claim of ineffective assistance of counsel and the court should not have appointed substitute counsel.
In addition, when substitute counsel is appointed, new counsel represents defendant for all purposes. The California Supreme Court has stated it is “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.)
The California Supreme Court has harshly criticized the procedure undertaken here. “Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences.” (Smith, supra, 6 Cal.4th at p. 695.) “The spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant's legitimate interests.” (Ibid.) This case points up additional undesirable consequences of the procedure of appointing dueling attorneys for defendant, when Mead was placed in a position where the court refused to relieve her as defendant’s attorney, her files were being subpoenaed by the district attorney and she was ordered to testify against defendant. That is an untenable position for an attorney to be placed in and is potentially damaging to the defendant’s legitimate interests. The trial court’s orders created a conflict of interest for Mead, which led to her in camera request to be relieved and the trial court’s order to relieve her as counsel. But Mead should never have been put in such a conflict in the first place.
Thus, we conclude that the trial court here improperly appointed attorney Barrera to represent defendant in any way, as defendant had not made a colorable claim of ineffective assistance of counsel. The trial court also improperly appointed simultaneous and independent attorneys for defendant in a manner disapproved by the California Supreme Court, since attorney Barrera was initially appointed only for purposes of making a motion to withdraw the plea, rather than for all further purposes. The trial court's errors, however, do not require remand. This defendant ultimately received what he wanted, substitute counsel. He has no grounds for complaint.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., MAURO, J.