Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1092502, Ricardo Cordova, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
Appellant, Jesus Mario Villarreal, Jr., stands convicted of two counts of aggravated sexual assault of a child under age 14 and 10 years younger than the perpetrator, in violation of Penal Code section 269, subdivision (a). The instant appeal is his second following those convictions. In his first appeal, case No. F055291, this court (1) held the trial court erred in failing to conduct an inquiry of appellant’s trial counsel after appellant voiced complaints about his trial counsel’s performance, and (2) remanded the matter with directions that the trial court, inter alia, conduct a Marsden hearing. On remand, the court conducted a Marsden hearing and denied appellant’s motion for the appointment of substitute counsel. The instant appeal followed.
Except as otherwise indicated, all statutory references are to the Penal Code.
On November 2, 2009, this court took judicial notice of its opinion in the first appeal. We now take judicial notice of the remainder of this court’s records in the first appeal, including the clerk’s and reporter’s transcripts. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the California Supreme Court held 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.) A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation, and the hearing on that motion, are commonly called, respectively, a Marsden motion and a Marsden hearing.
On appeal, appellant contends the court erred in (1) denying appellant’s Marsden motion, and (2) failing to award appellant actual time credit for the period he was incarcerated from the date of his original sentencing to the date he was remanded to prison following the denial of his Marsden motion on remand. We will vacate the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
By information filed February 3, 2006, appellant was charged with eight felony sex crimes. On March 4, 2008, at the time set for trial, appellant, represented by Stanislaus County Deputy Public Defender Saul Garcia, appeared in court and, through counsel, moved to have attorney Frank Carson substituted in as his attorney and for a continuance of the trial. Carson, who was also present, told the court he had been retained “through trial” and that he could “[p]robably” be prepared to begin trial within 30 days. The court denied appellant’s motion as untimely, at which point attorney Garcia told the court appellant wished to make a Marsden motion. Immediately thereafter, a closed Marsden hearing was held, and the court denied the motion.
We sometimes refer to this motion as the substitution motion.
Appellant appeared in open court again later that day and, at the outset of that proceeding, the prosecutor indicated the parties had reached a plea agreement, under which appellant would plead no contest to two counts of violating section 269, subdivision (a), and would receive a prison sentence of 30 years to life. Thereafter, appellant affirmed, among other things, the following: he was entering the agreed-upon plea “freely and voluntarily”; his agreement to plead no contest “[did not] have anything to do with” the court’s denial of appellant’s request that attorney Carson be allowed to substitute in as appellant’s counsel; and he was entering his plea because he could receive a more severe sentence―54 years to life―if he went to trial and was convicted. There also occurred the following colloquy:
“[Prosecutor]: Your Honor, I also want to be sure that [appellant] understands that he is waiving his appellate rights as to this plea. I am... very concerned that this is happening immediately following the denial of Mr. Carson’s motion to substitute in as well as Marsden motions by [appellant]. [¶]... [¶]... [Appellant] has a right to go to jury trial. We are all prepared to go forward this afternoon, and I want to be sure that he’s entering this plea knowing he’s waiving his appellate rights, that he understands that he won’t be able to simply turn around and withdraw this plea and... delay, again, the judicial process in this case.
“THE COURT: Mr. Villarreal, do you understand and agree to giving up your right to appeal the decision in this case?
“[Appellant]: Yes.”
Thereafter, appellant entered his pleas to two counts of violating section 269, subdivision (a), as agreed upon, and, through counsel, affirmed that “time [was] waived for sentencing.” The court then imposed a sentence of 30 years to life and set a hearing “for calculation of credits, victim-impact statement” for March 17, 2008.
On March 17, 2008, after the prosecutor read the victim’s impact statement to the court and the victim’s mother addressed the court, appellant told the court he wanted to withdraw his plea “due to lack of effective counsel....” He further told the court the following: his attorney gave him “wrong information” regarding his (appellant’s) “appellate rights such as they were”; he did not want Garcia to represent him; he pled no contest only because he was being forced to go forward represented by Garcia; and Garcia initially told appellant that appellant could inform the court this was the reason for his plea, but Garcia later told appellant he “had to say that it wasn’t because of that....”
The court, without asking Garcia to respond to appellant’s assertions, stated that it found no reason to change the sentence previously imposed; awarded appellant presentence custody credit of 762 days; and ordered appellant remanded to the custody of the sheriff for transportation to prison.
Appellant appealed. On appeal, this court held the trial court did not satisfy its duty under Marsden to question Garcia concerning appellant’s assertions, and remanded the matter to the trial court with directions that the court conduct a Marsden hearing. The court conducted that hearing on June 8, 2009 (June 8).
At the outset of that hearing, in response to a question from the court, appellant stated the following: Garcia “should not have allowed [appellant] to enter the plea.” Appellant’s “only reason” for entering his plea was that Carson was not allowed to substitute in as appellant’s attorney, and appellant planned to “come on the record and say that....” However, Garcia told appellant that he (appellant) “had to say that [he] wasn’t doing it for those reasons.” Garcia also told appellant that if appellant was convicted, he would “get 54 to life”; appellant “had to do it”; and appellant “still had [his] appellate rights.” However, Garcia “didn’t explain to [appellant] what those appellate rights were.”
Appellant further stated the following: One week prior to the date set for trial, Garcia “came to see” appellant and stated, “he wasn’t ready to go to trial, ” but on the day set for trial Garcia, in court, “basically stated the opposite.” Garcia “admitted he should have been more prepared.” Also, at some point appellant told Garcia he (appellant) wanted to withdraw his plea, but Garcia “didn’t help [appellant] with that.”
In response, Garcia told the court the following: Appellant was “correct in basically summarizing some of the conversations” appellant and Garcia had. On the day set for trial, appellant told Garcia he (appellant) was going to tell the court that the only reason he was pleading no contest was because the court had not allowed Carson to substitute in. Garcia told appellant that if appellant gave that as his reason for entering his plea, the court would conclude the plea was “not voluntar[]y” and would not accept it.
Garcia also told appellant: “[I]n my opinion the issue that will be preserved on appeal is whether or not the Court was wrong in denying the continuance and the motion to substitute counsel, and that I felt that that part of the appeal would still be preserved even with the plea entered.” Garcia advised appellant to take the offer of 30 years to life because Garcia’s opinion was that appellant “would be convicted” and would “be facing 54 to life.” Garcia “shared with [appellant] that [Garcia] felt [he] would have liked to have been more prepared, ” but “[t]hat’s true for every trial....”
There followed a discussion in which appellant stated although there were “things” that would be “hard to refute, ” the “two serious charges were refutable, and that’s what [he] wanted to do, ” but Garcia “was not ready to proceed with the defense” appellant wanted to present. Garcia then summarized the evidence against appellant and explained why he felt “a lot of bad evidence” would have been introduced at trial. At that point, the court took a recess and asked appellant to think about anything else he wanted to tell the court.
When court reconvened, appellant told the court the following: “I thought of another issue in terms of what Mr. Garcia stated about my appellate rights. That he did his best to make sure my issues that I was having were still able to be raised on appeal.... [M]y appellate attorney felt... I wasn’t able to appeal those issues because the record showed I waived my rights on appeal. So what Mr. Garcia told me was incorrect, because, I guess, on the record it says I waived my rights to appeal.”
The court responded that a waiver of appellate rights was “normally [a] part of” the court’s procedure in taking a plea. The court explained that it “normally” asked if the defendant “‘waived [the] right to appeal any part of this sentence.’” The court referred to a passage in the transcript of the March 17, 2008 hearing, set forth in the margin, which, the court stated, “includes that language and a waiver by [appellant].” The court further stated that it had issued a certificate of probable cause “so that... the Court of Appeal and your appellate attorney could review any errors that may have been raised in the plea, ” and opined that appellate courts “have been pretty, I should say, liberal in granting appeals on pleas even though there has been a waiver of appellate rights.”
The court referred to the following exchange at the March 17, 2008 proceeding: “THE COURT: I’ll be imposing various parts of your sentence. You must state your objection before leaving the courtroom or you will have given up your right to appeal any part of the sentence. [¶] Do you understand that, sir? [¶] [Appellant]: Yes, sir.”
Garcia, at the court’s invitation to respond to appellant’s claims regarding misadvisement of appellate rights, stated he “didn’t make any promises that any one or another was going to be granted, ” and that in the notice of appeal he prepared, he “was just basically raising everything I could think of....” Garcia stated he told appellant “that it was a long shot for a lot of these.”
Thereafter, there was further discussion in which Garcia stated he did not tell appellant that appellant “had to” plead no contest. Rather, Garcia explained, “I never used that kind of language. It was if you want this offer, if you want to avoid the trial, then you need to enter the plea voluntarily, and it won’t be voluntarily if you say I’m only taking this deal because my motion to substitute counsel was denied. At that time that’s what he told me he wanted to do, which was take the plea and avoid the trial.”
Appellant responded: “That’s not how it was presented to me. The way he presented it to me was... we can’t have you say that. Your appellate rights are still going to be in tact [sic], there’s multiple ways you can attack it.” Shortly thereafter, appellant stated that Garcia “just … kind of talked me into it.” A moment after that, he stated: “Maybe that’s a bit much, but... he made it sound like that was the way to go.”
In ruling that appellant was not entitled to the appointment of substitute counsel, the court stated: “... the Court has to [decide]... did Mr. Garcia provide adequate representation to you? And although you may have a disagreement as to how he wished to proceed or take the matter to trial, trial tactics is his call and not yours. And, you know, part of an attorney’s job is to tell their clients... it’s going to be worse for you if you don’t resolve the case, but the ultimate decision is yours. [¶] And I’m convinced I did take a voluntary plea, Mr. Villarreal. I know you have some frustration with Mr. Garcia, but I don’t think what he did is below the standard I would expect from a competent attorney. You may have a disagreement as to how it ended up resolving, but I think he did what he needed to do, advised you of the consequences, explained whatever offers you might have, and gave you advice as to that, and I think he did do that.”
The court did not award appellant additional presentence custody credit.
DISCUSSION
Denial of Marsden Relief
A Marsden motion should be granted, i.e., substitute counsel should be appointed, when, “in the exercise of its discretion, the [trial] 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].” (People v. Smith (1993) 6 Cal.4th 684, 696.) Whether a defendant has made the “required showing” for appointment of substitute counsel “lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.” (Ibid.)
Appellant contends the court erred at the June 8 hearing in refusing to appoint substitute counsel because appellant’s trial counsel provided inadequate representation. Specifically, appellant argues that his counsel incorrectly advised him that notwithstanding his (appellant’s) on-the-record waiver of his appeal rights, appellant could nonetheless challenge on appeal the denial of his motion to substitute Carson as his attorney and for a continuance to allow Carson to prepare for trial.
The People first counter as follows: there is no federal constitutional right to counsel in postjudgment proceedings; appellant did not express his dissatisfaction with counsel and announce he wanted to withdraw his plea until after judgment had been pronounced during the March 17, 2008 hearing; and, therefore, because appellant had no right to counsel after judgment, the court’s refusal to appoint substitute counsel to represent him in a postjudgment effort to withdraw his plea did not substantially impair that right. We disagree. The major factual premise of appellant’s argument―that it was not until after judgment that appellant sought the appointment of substitute counsel to assist him seeking an order allowing him to withdraw his plea―is false. As we explain below, appellant raised his claim of ineffective assistance of counsel before judgment was pronounced.
The sequence of relevant events is as follows: As indicated above, on March 4, 2008, the court imposed a prison term and set a hearing for March 17, 2008, for, inter alia, the purpose of awarding presentence custody credit; at the March 17, 2008 hearing, appellant expressed his dissatisfaction with his counsel and stated he wanted to withdraw his plea; and thereafter, in that hearing, the court awarded appellant presentence custody credit and ordered him remanded to the custody of the sheriff.
“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Ibanez (1999) 76 Cal.App.4th 537, 543.) We are not aware of any published case that addresses the issue of precisely when sentence is pronounced where, as here, the court imposes a prison term in one proceeding, but does not award presentence custody credit until a subsequent proceeding. However, the essence of sentencing, when a prison term is imposed, is the conveying to the defendant the length of time he or she can expect to be imprisoned. And, that information is not made known until the award of presentence custody credit. Therefore, the pronouncement of sentence―and therefore the rendering of judgment―is not complete until the court makes the award of presentence custody credit.
Our conclusion is reinforced by the language of the statute governing presentence custody credit. Section 2900.5, subdivision (d), provides, in relevant part: “It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to [section 2900.5]. The total number of days to be credited shall be contained in the abstract of judgment....” (Italics added.) The statute’s requirements that presentence custody credit be determined prior to sentencing and that such credit be reflected in the abstract of judgment provide further support for our conclusion that the rendering of judgment does not occur until the award of presentence custody credit.
Here, appellant told the court he wanted to withdraw his plea based on ineffective assistance of counsel before the court completed imposition of sentence by awarding presentence custody credit, i.e., before judgment was rendered. We assume without deciding that, as the People assert, there is no federal constitutional right to counsel in any postjudgment proceeding in which a criminal defendant seeks the appointment of substitute counsel and/or an order allowing him to withdraw his or her plea. But here, where appellant sought such relief prior to judgment, such a rule has no bearing.
Next, the People argue, in a similar vein, as follows: in a postjudgment setting, the appropriate procedural vehicle for seeking an order allowing a defendant to withdraw his or her plea is a petition for writ of error coram nobis; a writ or error coram nobis will not issue to vacate a plea of guilty or no contest based on misrepresentations of counsel; this factor renders appellant’s claim of inadequate representation frivolous; and for that reason as well, the court’s refusal to grant appellant’s substitution motion could not substantially impair his right to counsel. We assume, without deciding, that the People are correct as to the limits on the availability of coram nobis relief, but again, the People’s argument is premised on the claim that appellant is seeking postjudgment relief. As demonstrated above, that claim is without merit. Therefore, the fact, if it be a fact, that coram nobis relief is not available to appellant, is of no moment.
In our opinion in appellant’s first appeal, we indicated that if, on remand, appellant’s Marsden motion was granted, new counsel could seek an order that appellant be allowed to withdraw his plea. In addition, in dicta we suggested, as the People point out, that an application to withdraw appellant’s no contest plea following the granting of Marsden relief could not be made pursuant to section 1018, because that statute authorizes a plea withdrawal motion only if such motion is made prior to judgment, and that in order for appellant to seek an order allowing him to withdraw his plea, he would have to proceed by means of coram nobis petition. As demonstrated by our analysis above, this was incorrect.
We turn now to the merits of appellant’s claim that attorney Garcia provided inadequate representation by misadvising appellant that his waiver of appellate rights did not extend to his right to appeal the denial of his substitution motion. “‘Ordinarily, criminal defendants may waive rights that exist for their own benefit. “Permitting waiver... is consistent with the solicitude shown by modern jurisprudence to the defendant’s prerogative to waive the most crucial of rights.” [Citation.] “An accused may waive any rights in which the public does not have an interest and if waiver of the right is not against public policy.”’ [Citation.] [¶] ‘A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.’” (People v. Orozco (2010) 180 Cal.App.4th 1279, 1283-1284, italics added, omitted.) Thus, when appellant, prior to entering his no contest plea, expressly waived his “right to appeal the decision in this case, ” he waived the right to raise on appeal the prior denial of his substitution motion. However, Garcia, during the June 8 Marsden hearing, confirmed appellant’s allegation that before appellant entered his plea, Garcia advised him incorrectly that he (appellant), notwithstanding his general waiver of appellate rights, retained the right to appeal the denial of his substitution motion, stating that he told appellant the following: “[I]n my opinion the issue that will be preserved on appeal is whether or not the Court was wrong in denying the continuance and the motion to substitute counsel, and that I felt that that part of the appeal would still be preserved even with the plea entered.”
It appears the court discounted appellant’s claim that Garcia had misadvised him regarding his appellate rights because the court did not realize appellant had waived his right to raise an appellate challenge to error occurring prior to appellant’s plea. After appellant told the court he had learned from his appellate attorney in his first appeal that “the record showed [appellant] waived [his] rights to appeal, ” the court responded that a waiver of appellate rights was a normal part of the court’s procedure in taking a plea, but then confirmed that by referring to a part of the plea proceeding in which appellant waived his right to appeal his sentence. Moreover, immediately thereafter, the court told appellant it had issued a certificate of probable cause so that appellant could consider with his appellate attorney “any errors that may have been raised in the plea, ” thereby implying, as Garcia told appellant, that appellant could raise pre-plea errors on appeal. However, as demonstrated above, Garcia’s advice on this point was incorrect. Thus, Garcia provided inadequate representation.
The People do not argue to the contrary. Rather, the People assert appellant was not prejudiced by Garcia’s misadvisement because it occurred prior to the plea proceeding at which appellant waived his appellate rights. “Thus, ” the People argue, “even if appellant may have believed prior to the plea hearing that he was not waiving his appellate rights, it was made clear to him at the plea hearing that he was, and he indicated that he understood and agreed to the waiver.” However, a fair reading of the remarks of both Garcia and appellant at the June 8 Marsden hearing is that Garcia told appellant that appellant retained his right to appeal the denial of his substitution motion despite his subsequent on-the-record waiver of appellate rights.
And, in any event, the People’s argument fails because to prevail on a Marsden motion, a criminal defendant need show only inadequate representation; the defendant need not show that, in addition, he or she was prejudiced by counsel’s deficient performance. (People v. Dennis (1986) 177 Cal.App.3d 863, 870-872.) Here, the record establishes that counsel provided inadequate representation. Therefore, the court erred in refusing to appoint substitute counsel under Marsden.
Our inquiry, however, does not end here. The question remains as to whether the court’s erroneous denial of appellant’s Marsden motion was prejudicial. Such error compels reversal, unless the record shows beyond a reasonable doubt that the error did not prejudice the defendant. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18, 26.) In this context, where appellant sought substitute counsel to present a motion to withdraw his plea based on attorney Garcia’s ineffective assistance of counsel, the question of prejudice can be framed as follows: Does the record establish beyond a reasonable doubt that a motion to withdraw appellant’s plea on the basis of ineffective assistance of counsel would have been without merit?
It is well established that “where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.” (In re Alvernaz (1992) 2 Cal.4th 924, 934.) In order to successfully challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must make a two-part showing: he or she must establish both (1) “incompetent performance by counsel” and (2) resulting prejudice, i.e., “a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial.” (Ibid.)
Thus, in order to prevail on a motion to withdraw his plea, appellant would have to make a two-part showing, i.e., (1) that counsel provided inadequate representation and (2) it is reasonably probable that, but for counsel’s incompetence, he would not have pled no contest and would have insisted on going to trial. Therefore, in order to avoid reversal, the People would have to demonstrate beyond a reasonable doubt that appellant could not make this showing.
As to the first prong of the required showing, we have demonstrated that counsel’s representation to appellant that appellant could appeal the denial of the substitution motion was incorrect and constituted inadequate representation. It follows perforce that the People have not established the contrary beyond a reasonable doubt.
As to the prejudice prong of the showing required for ineffective assistance of counsel, it can reasonably be inferred from the record―specifically from appellant’s statements at the June 8 Marsden hearing and from attorney Carson’s statement that he had been retained to represent appellant through trial―that appellant believed he had a viable defense and that his objectives were to (1) go to trial and raise his defense, and (2) be represented by attorney Carson in that endeavor. Given these factors and counsel’s incorrect advice regarding the scope of appellant’s right to appeal, the record admits of the possibility that (1) appellant believed pleading no contest was the only way to achieve both these objectives because only if he pled no contest, appealed the denial of his substitution motion, and prevailed on appeal could he go to trial represented by Carson, and (2) that had appellant been advised correctly that the plea agreement offered precluded this possibility, he would not have entered his plea and instead would have insisted on achieving at least one of his objectives, viz., going to trial.
We recognize the record does not compel this conclusion. In order for appellant to prevail, the court would have to credit claims which turn in large part on appellant’s credibility. However, we cannot say beyond a reasonable doubt that the court would not resolve the credibility issue in appellant’s favor and accept his claim that, but for counsel’s incorrect advice, he (appellant) would not have pled no contest and would have insisted on going to trial. Therefore, on this record, we conclude that the People have not met their heavy burden of establishing appellant was not prejudiced by the denial of his Marsden motion. Accordingly, the judgment must be vacated. In addition, we will direct the trial court to grant appellant’s Marsden motion, appoint new counsel for appellant, and entertain any motion that appellant be allowed to withdraw his plea as newly appointed counsel may make. If newly appointed counsel makes no such motion, or any such motion is denied, the judgment shall be reinstated.
Presentence Custody Credit
Appellant contends the court erred in failing to award him actual time custody credit for the period from the date of his initial sentencing, March 17, 2008, through the date his Marsden motion was denied on remand and he was remanded to prison, June 8, 2009. We disagree.
Appellant bases this claim on People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), and, specifically, on the Buckhalter court’s application of section 2900.1. That statute provides that “[w]here a defendant has served any portion of his sentence” and is subsequently resentenced “for the same criminal act or acts” leading to his prison commitment, the portion of the sentence he has served “shall be credited upon [the] subsequent sentence” if the judgment upon which his initial commitment was based is (1) “declared invalid” or (2) “modified during the term of imprisonment....” In Buckhalter, the defendant was convicted of multiple felonies and sentenced to three consecutive life terms under the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12). He was subsequently delivered into the custody of the Director of the Department of Corrections and Rehabilitation to begin service of sentence. The defendant appealed, and the Court of Appeal remanded on resentencing issues only, directing the trial court to stay two of the three life sentences and determine whether to impose certain enhancements. On remand, the court imposed a single indeterminate life term and imposed the additional enhancements. However, the court refused to recalculate the credit total.
In the portion of the opinion relevant to appellant’s argument, the court held, and appellant relies upon, the following: “We... agree with defendant that the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.… [T]he court’s duty in this respect arose from section 2900.1, which specifies that when a sentence is modified while in progress, the ‘time’ already served ‘shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts.’” (Buckhalter, supra, 26 Cal.4th at p. 37.)
Buckhalter is distinguishable. There, as indicated above, the court modified the defendant’s sentence on remand, staying two life terms and adding enhancements. Here, the trial court did not modify the sentence on remand. Moreover, in appellant’s first appeal, this court did not “declare” the judgment upon which appellant’s prison commitment was based “invalid.” (§ 2900.1.) We simply set aside the judgment and remanded for a Marsden hearing, with the direction that the judgment be reinstated if relief was denied. Thus, because the judgment was neither modified nor declared invalid, the court was not required under section 2900.1 to recalculate appellant’s actual time custody credit. The Department of Corrections and Rehabilitation was responsible for calculating credit for the period in question. (§ 2930, et seq.)
DISPOSITION
The judgment is vacated and the matter is remanded to the trial court. On remand, the trial court is directed to grant appellant’s Marsden motion, appoint new counsel for appellant, and entertain any motion that appellant be allowed to withdraw his plea as newly appointed counsel may make. If newly appointed counsel makes no such motion, or any such motion is denied, the judgment shall be reinstated.