Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FRE007321. Arthur Harrison, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant and two accomplices conspired to lure a drug dealer into a motel room and rob him. During a struggle to subdue the victim, defendant shot him in the head. The victim survived, although he was left a near-quadriplegic; at trial, he identified defendant as the shooter. One of defendant’s accomplices — his girlfriend, Kimberly Sue Bergeon — also identified defendant as the shooter. Defendant, testifying at trial, denied intending to rob or to shoot the victim; he claimed that he was just trying to collect a debt, when the gun went off by accident.
A jury found defendant guilty of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) and second degree robbery (Pen. Code, § 211), with enhancements on both counts for personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (b)), personally using a firearm (Pen. Code, § 12022.53, subd. (b)), personally discharging a firearm (Pen. Code, § 12022.53, subd. (c)), and personally discharging a firearm, causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)). One 1-year prior prison term enhancement was also found true. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to a total of 33 years to life in prison.
Defendant contends:
1. The trial court erred by failing to hold a hearing on defendant’s posttrial Marsden motion.
A Marsden motion is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118.)
2. The trial court erred by staying, rather than striking, the lesser firearm enhancements.
We find no prejudicial error. Hence, we will affirm.
I
POSTTRIAL MARSDEN MOTION
A. Additional Factual and Procedural Background.
At the sentencing hearing, after the trial court had fully pronounced sentence, defendant said, “Your Honor, I would like to address the Court.” The trial court told him, “Go ahead, sir.” Defendant then stated:
“Your Honor, I am asking you to overturn your guilty verdict and order a new trial based on I was not ready for trial. I only spent a total of 45 minutes with my attorney in a two-year period.
“Never once seen discovery or seen it after asking [defense counsel] at least 20 times. His response was, ‘My investigator will bring you a little at a time.’ Still no discovery.
“Also, [defense counsel] did not do anything in trial that I asked him to do. He kept telling me that stuff don’t matter. Well, it matters to me. That is my life.
“During the trial one of the jury members was sleeping. Your Honor, your secretary notified the bailiff and the bailiff did nothing about it. That alone is ground for a new trial, but because your bailiff did nothing about it it’s not on the record. So, for the record, could you please ask for your secretary.
“Also, Miss Bergeon has a history of mental illness as a child and as an adult. Also has been on psychiatric medication as a child and adult. That alone should be enough not to allow her testimony. Again, [defense counsel] did not look into any matter like I asked him to do.
“Also, I was found guilty of something I’m not guilty of.
“I was not represented correctly with my counsel.
“I am asking, your Honor, would you please overturn the decision and grant me a new trial?
“Also, I am requesting all my discovery, all my court minutes, all my interviews, all CDs. Also, your Honor, I am asking for the Sixth Amendment, also known as a matter of right.”
The prosecutor responded that defendant’s comments were “irrelevant” and showed a lack of remorse.
Defense counsel stated: “I think the defendant has a right at any time to complain about the nature of his trial lawyer or the caliber of their representation[]. I think those issues are more properly addressed on appeal. [¶] I’ll be happy to file a Notice of Appeal for him within the 60-day period. And if his new counsel feels that his complaints are justified, then those will no doubt form the basis for an appeal. But I don’t think it’s out of line for him to say that at this time, if that’s the way he feels.”
The trial court then stated:
“The defendant has made comments that I want to respond to. There was an issue that someone may have thought that a juror was sleeping. That was brought to my attention. I immediately turned my attention to that juror. Upon observation, I was of the impression that he was not. His eyes were closed, but he was not asleep and I . . . did not bring that to anyone else’s attention based upon my observations.
“The defendant has complained about the witness Ms. Bergeon testifying in this matter. This Court also had the opportunity to observe her testify and the Court has previously made the conclusions and findings that she substantially testified truthfully.
“There was [sic] some issues at some points in time that the Court had questions and reservations about, but the vast majority of her testimony, including what happened in that room, the Court believes she testified truthfully in this matter. And that’s based upon my observations of her and the comparison of her testimony with the entirety of the testimony of the case.”
B. Analysis.
“‘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.’ [Citation.] When the defendant seeks to remove appointed counsel ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy.’ [Citation.] The trial court’s ruling is reviewed for abuse of discretion. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 431, quoting People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 and People v. Cole (2004) 33 Cal.4th 1158, 1190.)
“[A] defendant is entitled to appointment of substitute counsel upon a proper showing posttrial or postconviction as well as pretrial.” (People v. Smith (1993) 6 Cal.4th 684, 692.) “[T]he 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. . . . [J]ustice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early. Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.” (Id. at pp. 695-696.)
“[S]ubstitute 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.” (People v. Smith, supra, 6 Cal.4th at p. 696.)
“‘“Although no formal [Marsden] motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citation.]’ [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 920, quoting People v. Valdez (2004) 32 Cal.4th 73, 97, quoting People v. Mendoza (2000) 24 Cal.4th 130, 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) Here, the People neither admit nor deny that defendant actually made a Marsden motion; they merely “[a]ssum[e], arguendo, [defendant] was making a Marsden motion” and then argue that the motion was untimely.
We agree with defendant that he did, in effect, make a Marsden motion. Particularly in the posttrial context, a defendant does not necessarily have to request new counsel in so many words; it is enough that he or she is complaining about the ineffective assistance of existing appointed counsel. (People v. Mendez (Apr. 11, 2008, F052340) 2008 Cal.App. Lexis 538, p. 2; People v. Mejia (2008) 159 Cal.App.4th 1081, 1086; People v. Eastman (2007) 146 Cal.App.4th 688, 695-696; People v. Kelley (1997) 52 Cal.App.4th 568, 579.)
For example, in Eastman, the defendant entered a no-contest plea. (People v. Eastman, supra, 146 Cal.App.4th at p. 690.) At sentencing, however, through his appointed counsel, he indicated that he wanted to make a motion to withdraw the plea. (Id. at p. 691.) He submitted a letter from his mother, accusing defense counsel (and the prosecutor) of committing misconduct by telling the defendant falsely that she had agreed to testify against him. (Id. at pp. 691-692.) It said, “‘[W]hat [defense counsel] has offered in the way of defense . . . was a waste of time as well as taxpayer’s money.’” (Id. at p. 691.) It concluded, “‘We are hoping to obtain a response to this letter so that [the defendant] will receive adequate defense and fair treatment in this matter.’” (Ibid.) The trial court denied the motion to withdraw the plea. (Id. at pp. 694-695.)
The appellate court, however, held that the trial court erred by failing to hold a Marsden hearing. (People v. Eastman, supra, 146 Cal.App.4th at p. 695.) It explained: “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. [Citations.]” (Id. at p. 695, italics added.) It noted: “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.” (Id. at pp. 695-696.)
Here, as in Eastman, defendant did not expressly ask to have his attorney replaced. Nevertheless, he did invoke the Sixth Amendment, he did state, “I was not represented correctly with my counsel,” and he did complain about the way his attorney had conducted the defense. This was a Marsden motion.
We agree with the People, however, that the motion was untimely. Preliminarily, the People seem to have conflated the question of whether the motion was timely with the question of whether the trial court still had jurisdiction to entertain it. For example, they state, “[The] motion was untimely because it was not raised until judgment was pronounced and sentence imposed.” They also state, “A trial court in a criminal case is not authorized to hear or grant a motion for a new trial made after judgment. [Citations.] Accordingly, replacement counsel would have served no purpose.” Finally, they cite People v. Whitt (1990) 51 Cal.3d 620 as standing for the proposition that a “trial court may deny [a] Marsden motion as untimely . . . .” We believe jurisdiction and timeliness are two separate issues that are best analyzed separately.
Concerning the jurisdictional issue, it is true that “[a]n application for a new trial must be made and determined before judgment; after judgment has been entered the court has no jurisdiction to hear the motion. [Citations.] However, a judgment is not effective until entered by the clerk of the court. [Citations.]” (People v. Sainz (1967) 253 Cal.App.2d 496, 500.) If the “defendant sp[eaks] up promptly after pronouncement of judgment and sentence, the judge could . . . vacate[] the judgment prior to its entry.” (Ibid.) That is precisely what defendant did here. Hence, the trial court still had jurisdiction to grant a well-taken Marsden motion.
At oral argument, defendant argued that the trial court did not properly pronounce judgment, and hence did not lose jurisdiction, because it asked his counsel — rather than asking him — whether there was any legal cause not to pronounce judgment. (See Pen. Code, § 1200.) Because we agree that the trial court had not lost jurisdiction, we need not address this argument. We do not understand defendant to contend that the failure to ask him this question was, in itself, reversible error. In any event, any such error was harmless, as defendant was ultimately allowed to address the court.
Turning to timeliness, People v. Whitt, supra, 51 Cal.3d 620, which the People have cited, is the leading case. There, the defendant’s counsel had already filed a new trial motion. At a hearing on various other posttrial motions, the defendant also brought a Marsden motion, asking that new counsel be appointed to “expand upon” the pending new trial motion. The trial court, after noting that the appointment of new counsel for that purpose would delay the pronouncement of judgment for over two months, denied the Marsden motion. (Whitt, at p. 658.) The Supreme Court held that this was not error: “The only reasons given in support of the Marsden motion related to counsel’s performance before or during the . . . special circumstance retrial. Because defendant never indicated dissatisfaction with counsel in the ensuing three- to four-month period, the court had reasonable grounds to question the sincerity of his current criticisms. In any event, the motion could properly be denied as untimely. The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case. Denial of the Marsden motion was within the court’s discretion. [Citation.]” (Id. at pp. 658-659.)
For the sake of completeness, we note that in People v. Roldan (2005) 35 Cal.4th 646, the Supreme Court stated that the trial court had erred by denying the defendant’s Marsden motions as untimely; it explained: “A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (Roldan, at p. 681.) This statement, however, was dictum, as the court held that the motions were properly denied on other grounds. (Ibid.) In any event, because the Marsden motions in Roldan had all been made in the guilt phase of trial (Roldan, at pp. 677-680), that case does not stand for the proposition that a Marsden motion can never be untimely.
Here, defendant’s complaints related to matters that had occurred before or during trial. Nevertheless, he did not express any dissatisfaction with his counsel until after he had gambled on a favorable jury verdict, then gambled further on favorable sentencing consideration, and lost both times. Raising a Marsden motion at that point was rank sandbagging.
“[I]n any event” (People v. Whitt, supra, 51 Cal.3d at p. 659), the proceeding was nearly completed; indeed, as the trial court had already pronounced sentence, the proceeding was even closer to completion than in Whitt. “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[ although] the decision must always be based on what has happened in the past.” (People v. Smith, supra, 6 Cal.4th at pp. 694-695.) Here, there was literally nothing left for defense counsel to do but file a notice of appeal. Even assuming he had been rendering ineffective assistance, he had done all the harm he could do. Thus, the failure to replace him could no longer “substantially impair the right to assistance of counsel,” nor was it “likely to result” in “ineffective representation.” (See id. at pp. 692, 696.)
At that point, granting a Marsden motion could not secure defendant any relief, on any grounds, that he could not obtain by way of an appeal and/or a habeas corpus petition. (See People v. Mack (1995) 38 Cal.App.4th 1484, 1486-1489 [failure to hold hearing on posttrial Marsden motion does not require reversal where defendant had since filed both appeal and habeas petition based on ineffective assistance of counsel]; see also People v. Cornwell (2005) 37 Cal.4th 50, 100-101 [trial court can deny Marsden motion, and can relegate defendant to remedy of habeas corpus, where “justice would not be expedited”].) Appointing another attorney would only have resulted in delay.
Admittedly, the trial court did not deny defendant’s motion as untimely. Indeed, it could even be argued that, by addressing the merits of some (though not all) of his claims, it implicitly found that the motion was, in fact, timely Nevertheless, the motion was so blatantly untimely that, if the trial court had granted it, it would have abused its discretion. Accordingly, the denial of the motion was in no way prejudicial.
II
STAYING, RATHER THAN STRIKING, LESSER FIREARM ENHANCEMENTS
Defendant also contends that the trial court erred by staying, rather than striking, the firearm enhancements under Penal Code section 12022.53, subdivisions (b) and (c).
This issue is currently before the California Supreme Court, in People v. Gonzalez, review granted March 14, 2007, S149898. Unless and until that court tells us otherwise, however, the rule is that when a firearm enhancement under Penal Code section 12022.53, subdivision (d) is imposed, any lesser firearm enhancements under Penal Code section 12022.53, subdivision (b) or (c) should be stayed, not stricken. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 713-714; Pen. Code, § 12022.53, subd. (h); Cal. Rules of Court, rule 4.447.) Thus, the trial court did not err.
Moreover, defendant has not shown that the claimed error is prejudicial. He has a right not to be subjected to any punishment on the lesser enhancements, but the stay accomplishes that. Arguably, he also has a right not to be subject to any collateral estoppel effect of the lesser enhancements. However, the greater finding that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)) subsumes all of the lesser findings, i.e., that he personally used (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)) or personally discharged a firearm (Pen. Code, § 12022.53, subd. (c)). Defendant does not claim that the stayed enhancements could have any other adverse collateral consequences. Even an unauthorized sentence is subject to the overriding constitutional mandate that no judgment may be set aside absent a showing of prejudice. (Cal. Const., art. VI, § 13.) We conclude that defendant has failed to demonstrate that the error, if any, is reversible.
III
DISPOSITION
The judgment is affirmed.
I concur: KING, J.,
McKINSTER, Acting P.J.
I respectfully dissent.
The majority sanctions the trial court’s failure or refusal to hold a Marsden hearing (People v. Marsden, supra, 2 Cal.3d 118) below, on the sole ground that the motion would have been properly denied as untimely. I do not believe that this justification can be sustained. First, the majority focuses on a ground never raised below. Second, defendant’s motion was timely. In a related point, the majority relies on inapposite authority to support a finding of untimeliness.
A. Untimeliness Was Not the Ground for Denial.
The majority concedes that the trial court did not actually deny the motion on the ground of untimeliness. Indeed, the court undertook to address some, but not all, of the points defendant had mentioned. This implies, as the majority also recognizes, that the court in fact may not have viewed a Marsden motion as necessarily untimely.
To the extent that the trial court did not even consider defendant’s stated grounds, it did not deny a Marsden motion; rather, it refused even to hear or consider such a motion. “‘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.]’” (People v. Fierro (1991) 1 Cal.4th 173, 204, italics added.) The trial court failed to comply with its duty in this case, and the majority sanctions this refusal, on the spurious ground of “untimeliness.” Defendant’s motion was timely, however.
B. Defendant’s Motion Was Timely.
In People v. Roldan, supra, 35 Cal.4th 646 (Roldan), the California Supreme Court considered the propriety of denying a defendant’s three Marsden motions during the course of a death penalty trial. The court stated: “At the outset, we agree with defendant that, to the extent any part of the trial court’s decision to deny the three Marsden motions was based on untimeliness, it erred. A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (Id. at p. 681, italics added.)
The majority disparages this statement as dictum, because the court held that the motions were properly denied on other grounds. (Maj. Opn., p. 10.) Nonetheless, the court was directly presented with the substantive question; had the claim of untimeliness—the ground actually applied by the trial court below—been legally correct, that ground would dispose of the matter as the narrowest ground upon which to uphold the ruling. The California Supreme Court was called upon to consider other grounds solely because it had to reject the untimeliness claim as a substantive matter, at the threshold.
The majority relies on People v. Whitt, supra, 51 Cal.3d 620 (Whitt) for the proposition that a “trial court may deny [a] Marsden motion as untimely . . . .” The general proposition—Marsden motions may be denied on grounds of untimeliness—may be true, but whether a court may properly do so will depend heavily on the factual circumstances. The circumstances in Whitt were entirely different from the circumstances here.
Whitt was a death penalty case. After a first appeal, the California Supreme Court affirmed the underlying convictions, but reversed the special circumstance finding and consequently the penalty finding as well. The matter was retried as to any special circumstances and the penalty.
The special circumstance retrial took place in February 1985. (Whitt, supra, 51 Cal.3d 620, 659.) Evidence was presented at the special circumstance retrial, and presumably the jury was required to render a verdict finding the special circumstance true before the penalty phase retrial could commence. Thereafter, extensive evidence was presented by numerous witnesses at the penalty retrial. (Id. at pp. 633-636.) The defendant was presumably present in court at the penalty phase proceedings; indeed, he was called to testify in one portion of those proceedings. (Id. at p. 646.) Then the jury was instructed on penalty phase determination, counsel made closing arguments, the jurors retired for deliberations, and the court was required to respond to a juror question during deliberations. (Id. at pp. 650, 653, 655, 656.) The deliberations proceeded over more than one day; on the day after the jury had asked its question, defense counsel moved for a mistrial. (Id. at p. 656.) Thereafter, the jury rendered its verdict, at which the defendant was presumably present.
After the conclusion of the trial, Whitt’s counsel filed a motion for new trial. In May 1985, at a hearing to consider all posttrial motions, the defendant first made a request for substitute counsel (Marsden motion). He presented the court with a two-page handwritten document, specifying the grounds of his complaints about counsel. (Whitt, supra, 51 Cal.3d 620, 658.) “The court asked defendant whether new counsel was also being sought to review the transcripts and determine whether to expand upon a motion for new trial already pending before the court. Defendant said ‘yes.’ The court estimated that appointment of new counsel for this purpose would delay pronouncement of judgment for over two months. The court then continued the hearing to give both sides additional time to prepare argument.” (Ibid.)
At the continued hearing, three days later, the court provided the parties with the opportunity to say anything further on the proposed substitution of counsel. The defendant made an offer of proof concerning one of his grounds. (Whitt, supra, 51 Cal.3d 620, 658.) As to that ground, the defendant reported that, “‘three and a half months’” earlier, a professional jury consultant had told the defendant that she regarded his trial attorneys as incompetent. (Id. at p. 658, fn. 30.) All three of the grounds the defendant had articulated for dissatisfaction with his counsel related to performance at the special circumstances retrial. Therefore, all the matters of concern to him were known at that time, or certainly by the time the jury consultant gave the defendant her opinion of his counsel’s performance. Since then, the defendant had appeared in court on several occasions, for different aspects of the penalty phase retrial, and had never even hinted at any dissatisfaction with counsel’s performance, despite having purportedly obtained an expert’s opinion.
In Whitt, moreover, the defendant presented his detailed complaints about counsel in a written two-page document, and was provided a continuance and an opportunity to expand on his grounds before the trial court heard and denied his Marsden motion. As the California Supreme Court noted, “Defendant concedes he was given an adequate opportunity to present the factual basis for his request.” (Whitt, supra, 51 Cal.3d 620, 658.)
In Whitt, the trial court did not refuse to hold a Marsden hearing. Instead, it was apprised of the specific grounds, and continued the proceedings to permit the defendant to elaborate on the stated grounds for the motion. It could evaluate and base its ruling upon the substance of the defendant’s motion.
Here, unlike Whitt, trial court essentially refused to conduct a Marsden hearing to examine the factual basis for defendant’s request. Thus, defendant was not given a similar “adequate opportunity to present the factual basis for his request.” (Whitt, supra, 51 Cal.3d 620, 658.)
Even if “untimeliness” were an appropriate ground to consider, the facts or circumstances supporting a claim that Whitt’s motion was untimely were wholly different from the circumstances prevailing in the present case. Whitt had, by his own statement, been aware not only of what took place at the special circumstance retrial but also of an expert’s opinion that his counsel’s performance had been incompetent for several months before he moved to replace his attorneys. Whitt had appeared in court numerous times after he supposedly became aware of the grounds for discharging his counsel, but had never said anything to indicate his dissatisfaction with counsel’s performance. As the California Supreme Court noted, “[b]ecause defendant never indicated dissatisfaction with counsel in the ensuing three- to four-month period, the court had reasonable grounds to question the sincerity of his current criticisms.” (Whitt, supra, 51 Cal.3d 620, 659.)
The California Supreme Court’s pronouncements in Whitt are consistent with Roldan. “A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (Roldan, supra, 35 Cal.4th 646, 681.) Whitt did not raise his dissatisfaction with counsel when it became clear to him that his right to legal representation had been compromised. He remained silent, even through many court appearances, long after he supposedly became abundantly aware of the grounds for raising such a claim.
Here, defendant raised his complaints at his first substantive court appearance after the proceedings at which the allegedly incompetent conduct took place. Defendant was convicted on June 15, 2006, and made his motion on July 27, 2006, just over one month later.
In Whitt, defense counsel had already filed a motion for new trial. Counsel who files such a motion is obligated to raise any meritorious grounds, including issues of effective assistance of counsel, of which he or she is aware. Whitt’s proposal to substitute counsel to review the entire record to add grounds not already raised in the motion would have delayed the proceedings at least two months, in view of the nature of the case (death penalty retrial). There was good reason to suspect that the defendant’s motion was a sham, intended solely for the purpose of delay, to forestall imposition of the death sentence.
Here, by contrast, no one had filed a motion for new trial; indeed, that was the initial impetus for defendant’s request. This was not a death penalty case, or a case of any particular complexity or difficulty. The record was not particularly lengthy, and no delay of over two months would be required to hold a Marsden hearing or even, should the Marsden motion be granted, to file, consider and rule on a motion for new trial.
Although the majority complains that defendant “did not express any dissatisfaction with his counsel until after he had gambled on a favorable jury verdict, then gambled further on favorable sentencing consideration, losing both times” (maj. opn., p. 11), this is merely a projection not based on any fact. Every defendant is entitled to “gamble” on a favorable jury verdict, without prejudice to raising claims of incompetent counsel on appeal. In addition, there could hardly be any “gambling” on the outcome of defendant’s sentence: he stood convicted of attempted murder and robbery. It was a miracle the victim survived, so that defendant was not convicted of murder. Defendant knew from the outset of the sentencing proceedings that he was going away for a very long time. The only “gamble” defendant took, for which the majority now seeks to punish him, was trying to gauge an appropriate moment to speak to the court. Had defendant, who was represented by counsel, forcefully interrupted the sentencing proceeding earlier, he would likely have incurred the ire of both court and counsel, yet the majority chides him for this lack of temerity by characterizing it as “gambling” on the outcome of the court’s pronouncement of judgment. This characterization is unwarranted.
This is not a case, as in Whitt, where the defendant was manifestly (by his own statements) aware of a ground of dissatisfaction for many months before the matter was raised. This is not a case, as in Whitt, where the hearing of a Marsden motion would cause a substantial delay. This is not a case, as in Whitt, where a motion for new trial had already been brought. This is not a case, as in Whitt, where the defendant was granted a Marsden hearing, with a full opportunity to present the detailed factual basis for the motion.
The majority states, “Here, there was literally nothing left for defense counsel to do but file a notice of appeal.” (Maj opn., p. 11.) This is simply untrue. There was a motion for new trial to file, which had not been done, and which was precisely what defendant was requesting.
In my view, the majority’s holding elevates form over substance, to the detriment of fundamental constitutional rights.
If counsel’s representation was constitutionally inadequate, defendant should have a full and fair opportunity to show it. Now, however, defendant has been foreclosed of all opportunity to demonstrate error, if any there be, simply because he did not have the audacity to interrupt the court before the pronouncement of judgment was completed.
The trial court failed in its duty to permit defendant to “‘explain the basis of his contention and to relate specific instances of the attorney's inadequate performance.’” (People v. Fierro, supra, 1 Cal.4th 173, 204.) Either defendant would be able to make such a showing, or he would not. In either case, the proceedings would not be long delayed to make that determination.
If defendant succeeded in showing a case for substitution of counsel, for purposes of bringing a new trial motion, either the motion would be meritorious, or it would not. Again, in either case, the proceedings would not be long delayed to make that determination.
This is not a case in which defendant manifestly had known of the grounds for alleging counsel’s incompetence for some time before raising them. So far as the record shows, defendant did raise his grounds at the first opportunity for doing so. In Whitt, the defendant knew of the grounds for many months, and failed to raise them despite several court appearances. Here, there was only one month between the time of conviction and the time defendant raised his grounds, and there is no showing when, during that period, defendant became aware of the possible grounds for the motion. Defendant raised the point at his next court appearance (aside from a brief appearance to continue the pronouncement of judgment hearing, one day before the hearing actually took place). There is nothing in the circumstances of this case to show that the motion was untimely, either in terms of passage of time or in terms of defendant’s knowledge that he might have had grounds to present a motion for a new trial.