Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF169360, Ronn M. Couillard, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.
Pursuant to a plea agreement, on November 16, 2006, appellant Mario Craig Varela pled no contest to attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and admitted enhancement allegations that in committing that offense he personally used a deadly weapon, viz., a knife (Pen. Code, § 12022, subd. (b)(1)), and that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). On December 21, 2006, the court imposed the two-year midterm on the substantive offense, struck both enhancements and awarded appellant 143 days of presentence credit.
Initially, appellant’s appointed appellate counsel filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Thereafter, this court directed the parties to submit briefing on certain issues. In response, appellant, through counsel, filed a brief in which he argues that the court erred in failing to conduct a Marsden hearing. The People essentially concede the point. We will reverse and remand for further proceedings.
In People v. Marsden (1970) 2 Cal.3d 118, the California Supreme Court ruled that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.) The request for appointment of substitute counsel and the subsequent hearing are commonly called, respectively, a Marsden motion and a Marsden hearing.
BACKGROUND
At the sentencing hearing on December 21, 2006, the following exchange occurred after the court asked if “there [was] any legal cause why sentence should not be pronounced?
“MS. HANNA [defense counsel]: Yes, your Honor. My client brought to my attention this morning, when I gave him a copy of the probation report, that he is interested in withdrawing his plea. I would invite the court to possibly appoint conflict counsel. I think his basis was his unhappiness with my representation.
“THE COURT: Unhappiness is not a legal cause. I’ve never seen many defendants that pled to state prison sentence that are happy. Usually there is unhappiness attached to that. There has to be something beyond being happy or unhappy. If there is a legal issue, such as not being in a correct mental state of mind, something like that
“MS. HANNA: I think what he’s trying to say was my representation is ineffective. To be honest Judge, after talking to my client, I didn’t really see any legal basis other than that. If the court would like, I can fashion a motion.
“THE COURT: This is not an unusual thing, you come for sentencing, people want to withdraw the plea. If I let every plea be withdrawn, we’d be back and forth, back and forth like a yo-yo. Without something other than the fact he’s unhappy with it, I am not going to do anything other than sentence him…. [¶] … [¶] I’m going to deny that request to appoint counsel to discuss that with him.”
Thereafter, following a brief argument by defense counsel regarding the content of the probation officer’s report, the court imposed sentence.
DISCUSSION
As indicated above, defense counsel told the court appellant wished to withdraw his plea based on appellant’s claim that counsel’s “representation [was] ineffective.” Appellant argues that this statement gave rise to a duty on the part of the trial court to conduct a Marsden hearing or, “at the very least,” to make further inquiry about what appellant was requesting. The People agree that “the trial court erred because it conducted no inquiry of any kind.” We also agree.
Under 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 [citations].” [Citations.]’” (People v. Hart (1999) 20 Cal.4th 546, 603.) A defendant’s request that appointed counsel be relieved and new counsel appointed “trigger[s] [a] duty under [Marsden] to inquire further into the bases for [the defendant’s] dissatisfaction.” (People v. Hill (1983) 148 Cal.App.3d 744, 752-753.) “[T]he court must inquire on the record into the bases of defendant’s complaints and afford him the opportunity to relate specific instances of his attorney’s asserted inadequacy.” (Id. at p. 753.)
Although there must be “‘“‘‘at least some clear indication by defendant that he wants a substitute attorney’”’” (People v. Dickey (2005) 35 Cal.4th 884, 920) in order to trigger a trial court’s duty to conduct a Marsden hearing, “‘“no formal motion is necessary”’” (ibid.), and the “semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right” (People v. Marsden, supra, 2 Cal.3d at p. 124).
Thus, in People v. Mejia (2008) 159 Cal.App.4th 1081, this court held that “[defense] counsel’s representation to the trial court that [the defendant wanted] ‘to make a motion for new trial based in large part on [his counsel’s] conduct at trial’ was adequate to put the trial court on notice of [the defendant’s] request for a Marsden hearing.” (Id. at p. 1086.) This court analogized the defendant’s case to People v. Stewart (1985) 171 Cal.App.3d 388, disapproved on another ground in People v. Smith (1993) 6 Cal.4th 684, 696, as stated in People v. Bolin (1998) 18 Cal.4th 297, 346, fn. 16: “[In Stewart,] defendant ‘personally instructed his appointed trial counsel to file a motion for new trial on the basis of incompetence of counsel.’ [Citation.] That was adequate to put the trial court on notice of defendant’s request for a Marsden hearing.” (People v. Mejia, supra, 159 Cal.App.4th at p. 1086.)
Here too, as in Mejia and Stewart, appellant’s complaint that counsel was “ineffective,” communicated to the court by counsel, gave rise to a duty by the trial court to make further inquiry. At a minimum, the court was required to inquire of the defendant whether he was requesting a Marsden hearing. (See People v. Garcia (1991) 227 Cal.App.3d 1369, 1377 [where defendant seeks to withdraw plea based on inadequate representation, trial court “should first elicit and consider the defendant’s reasons for believing he has been ineffectively represented, making such inquiries of the defendant and trial counsel as appear necessary in open court or, if the trial court deems necessary, at an in camera hearing”].)
We turn now to the question of the proper disposition. In this connection, we note that a criminal defendant has a right to make a motion to withdraw his or her plea, and to be represented by counsel in the effort, with the proviso that counsel cannot be “compelled to make a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.” (People v. Brown (1986) 179 Cal.App.3d 207, 216; accord, People v. Osorio (1987) 194 Cal.App.3d 183, 189.) Accordingly, we will remand with directions to the trial court to hold a hearing of the nature suggested in Garcia. The trial court shall then either (1) exercise its discretion to appoint new counsel to represent appellant on a motion to withdraw his plea, (2) direct existing counsel to make such a motion, (3) reinstate the judgment, or (4) proceed otherwise as authorized by law. (Cf. People v. Mejia, supra, 159 Cal.App.4th at p. 1086.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.