Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR093745.
McGuiness, P.J.
Following a jury trial, appellant Richard Sovereign was convicted of possession of methamphetamine for sale. On appeal, he contends the trial court committed reversible error by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) prior to sentencing. 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.
FACTUAL AND PROCEDURAL BACKGROUND
The Humboldt County District Attorney filed an information on September 29, 2009, charging appellant with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and disorderly conduct (Pen. Code, § 647, subd. (f)). The district attorney further alleged that appellant had suffered two prior drug-related convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c), and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
A jury found appellant guilty of possession of methamphetamine for sale but acquitted him of the disorderly conduct charge. The court found true the two allegations under Health and Safety Code section 11370.2, subdivision (c). It also ordered the allegation under Penal Code section 667.5, subdivision (b), stricken as inapplicable.
Appellant moved to strike one of the two Health and Safety Code section 11370.2, subdivision (c) sentencing enhancements. The trial court denied the motion and proceeded to sentence appellant to an aggregate state prison term of eight years, composed of the two-year mid-term for possession of methamphetamine for sale, plus three years on each of the two sentence enhancements under Health and Safety Code section 11370.2, subdivision (c). Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court committed reversible error by failing to conduct a Marsden hearing after he was convicted but before the time of sentencing. As explained below, we agree.
A. Facts
After appellant was convicted but before sentencing, his trial counsel informed the court that he intended to file a written motion to strike one of the sentencing enhancements. Appellant indicated he wanted to say something. The following discussion took place:
“THE DEFENDANT: Your Honor, can I say something?
“THE COURT: You want to address your remarks to [defense counsel].
“THE DEFENDANT: I would like to fire you, and I want to fire him.
“[DEFENSE COUNSEL]: You can’t fire him.
“(Discussion between client and counsel not reported.)
“[DEFENSE COUNSEL]: Um, that is fine, your Honor. There is an issue I believe. I will speak to Mr. Sovereign about it, but I believe that that is no longer an issue right now.”
(Emphasis added.)
The court did not respond to appellant’s request to fire his attorney or otherwise inquire of appellant why he was dissatisfied with his appointed counsel. Trial counsel represented that there was “no longer an issue” involving him and his client and that was the last word on the subject.
B. Analysis
When a defendant complains about the adequacy of appointed counsel, the trial court must permit the defendant to articulate the basis for his or her concerns so that the court can determine if they have merit and, if necessary, appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124; accord People v. Smith (1993) 6 Cal.4th 684, 691.) “[T]he trial court cannot thoughtfully exercise its discretion... without listening to [the defendant’s] reasons for requesting a change of attorneys. 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.” (Marsden, supra, 2 Cal.3d at p. 123.) The denial of a Marsden motion without careful inquiry into the defendant’s reasons for requesting the substitution of counsel does not qualify as an informed judicial determination. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.)
The rule requiring a Marsden hearing applies equally post-trial. “[T]he trial court should appoint substitute counsel when a proper showing [pursuant to Marsden] has been made at any stage [of the proceedings]. A defendant is entitled to competent representation at all times....” (People v. Smith, supra, 6 Cal.4th at p. 695.)
The People contend the court had no obligation to conduct a Marsden hearing, arguing that appellant did not “clearly and unequivocally” make a request for substitution of counsel. The People assert that appellant merely “expressed dissatisfaction” with both the court and counsel. The People also argue that appellant made no further mention of his dissatisfaction after his counsel represented to the court that the matter was resolved. According to the People, “[a]ppellant cannot permit counsel to make this representation to the court, fail to raise a claim for substitution of counsel at later proceedings and then resurrect his one-time complaint on appeal.”
As an initial matter, we disagree with the People’s contention that appellant’s request to replace his appointed counsel was not sufficiently clear and unequivocal. In order to raise a Marsden claim and trigger the trial court’s obligation to conduct a hearing on the matter, a defendant must only take such steps as are sufficient to “put the [trial] court on notice” that he or she seeks to replace appointed counsel. (People v. Reed (2010) 183 Cal.App.4th 1137, 1146.) “[N]o formal motion is necessary” as long as there is a “ ‘clear indication by defendant that he wants a substitute attorney.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
Here, appellant clearly expressed a desire to “fire” his attorney. In People v. Taylor (2010) 48 Cal.4th 574, our Supreme Court addressed a somewhat similar situation. There, the defendant had expressed dissatisfaction with his counsel and, after the trial court declared a doubt as to his mental competency, stated, “ ‘Excuse me, Judge. I have fired this attorney.” (Id. at p. 596.) The trial court ignored the statement, saying, “ ‘I know you have, ’ and proceeded to schedule the mental competency evaluation.” (Ibid.) The Supreme Court held the court “erred when it brushed aside [defendant’s] initial requests for substitution of counsel....” (Id. at p. 600.) Likewise, in this case it was error to ignore appellant’s request to fire his attorney.
In People v. Taylor, the court held the error did not compel reversal because the court held a Marsden hearing before the competency hearing, after the defendant raised another complaint about his counsel and the prosecutor brought to the court’s attention authority requiring the court to conduct a Marsden hearing even while proceedings were suspended to consider a defendant’s competence to stand trial. (People v. Taylor, supra, 48 Cal.4th at p. 601.) Thus, the defendant suffered no prejudice as a result of the initial failure to hold a Marsden hearing. (Ibid.) Here, by contrast, the court never conducted any type of Marsden inquiry.
Any suggestion that appellant’s complaint amounted to nothing more than a generalized dissatisfaction with the outcome of trial is belied by defense counsel’s own acknowledgement that there had been an “issue” between him and his client. Further, contrary to the People’s contention, a statement by defense counsel discounting or dismissing the defendant’s concerns does not satisfy the court’s obligation under Marsden to conduct an inquiry of the defendant. It is error to elicit comment only from defense counsel and not from the defendant who seeks to have new counsel appointed. (See People v. Mejía (2008) 159 Cal.App.4th 1081, 1086-1087.)
Moreover, appellant was not required to repeat his demand for substitute representation after his trial counsel expressed his “belief” that there was no longer an issue between him and his client. A defendant cannot be expected to reiterate his request for new counsel in such a circumstance or face abandonment of the request. Otherwise, a defendant’s right to a Marsden hearing could be defeated by the unchallenged representations of the defendant’s counsel to the effect that no grounds exist for substitution of counsel. (People v. Mejía, supra, 159 Cal.App.4th at pp. 1086-1087 [court errs in eliciting comment from counsel but not defendant].
We conclude the court’s failure to conduct a Marsden hearing was error. Ordinarily, we review an order denying a Marsden motion under the deferential abuse of discretion standard. (People v. Smith (2005) 135 Cal.App.4th 914, 926.) However, when there is failure to comply with the requirements of Marsden, the error compels reversal unless the record shows beyond a reasonable doubt that the error was harmless. (Marsden, supra, 2 Cal.3d at p. 126; People v. Eastman (2007) 146 Cal.App.4th 688, 697.) Where, as here, we do not know what appellant could have shown had he received a full hearing on his Marsden motion, we cannot say the error is harmless. (See People v. Eastman, supra, 146 Cal.App.4th at p. 697.) The lack of an adequate inquiry creates a silent record, making appellate review impossible. (People v. Leonard (2000) 78 Cal.App.4th 776, 787.)
Nevertheless, appellant is not entitled to an unqualified reversal. Instead, the appropriate disposition is to conditionally reverse the judgment and remand the matter to the trial court for a hearing on appellant’s Marsden motion. (People v. Ivans, supra, 2 Cal.App.4th at p. 1667.) If the court finds that appellant establishes a colorable claim of ineffective assistance of counsel or that appellant and his attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result, the trial court shall appoint new counsel to assist appellant with sentencing or with any appropriate post-trial motions. (See People v. Eastman, supra, 146 Cal.App.4th at p. 699; see also People v. Smith, supra, 6 Cal.4th at p. 696.) However, the trial court shall reinstate the sentence and judgment if the Marsden motion is denied or if substitute counsel declines to seek resentencing or pursue any other appropriate post-trial motions. (Cf. People v. Eastman, supra, 146 Cal.App.4th at p. 699 .)
Our opinion should not be read to suggest that appellant’s Marsden motion should be granted or that we think appellant has made, or will make, a colorable claim for ineffective assistance of counsel justifying appointment of substitute counsel. That decision rests in the sound discretion of the trial court and will obviously depend upon what information the trial court elicits from appellant and his trial counsel during the hearing. (See People v. Smith, supra, 6 Cal.4th at p. 696.)
DISPOSITION
The judgment is reversed and the matter remanded with the following directions: The court shall hold a hearing on appellant’s Marsden motion. If the court finds that appellant establishes a colorable claim of ineffective assistance of counsel or that appellant and his attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result, the court shall appoint new counsel to assist him and shall entertain such appropriate post-trial motions as newly appointed counsel may make, including a request for resentencing. The court shall reinstate the judgment if (1) the Marsden motion is denied, or (2) the Marsden motion is granted but substitute counsel declines to seek resentencing or file any other appropriate post-trial motions.
We concur: Pollak, J., Siggins, J.