Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Nos. F04905986-6 & F07907415. W. Kent Hamlin, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.
INTRODUCTION
Appellant Joe Clifford Warren, Jr., contends the trial court committed reversible error when it failed to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We agree and will remand with directions to conduct a Marsden hearing.
FACTUAL AND PROCEDURAL SUMMARY
On October 16, 2007, pursuant to a negotiated plea, Warren pled guilty to one count of possession of a controlled substance and admitted one prior strike conviction, in exchange for dismissal of two other counts and two prior prison term allegations. The plea agreement provided for a sentence of no more than 16 months, doubled to 32 months for the prior conviction. In addition, the plea agreement provided that the sentence would be served concurrently with the sentence imposed in another case for a probation violation.
On November 20, 2007, Warren’s public defender notified the trial court that Warren wanted a new attorney to be appointed and wanted to withdraw his plea. The trial court appointed new counsel to represent Warren regarding a possible motion to withdraw the plea. The trial court did not orally state that the public defender was relieved as counsel, even though the minute order so states.
On January 8, 2008, new counsel reported there was no basis for withdrawing the plea but did submit a declaration from Warren in which Warren stated he did not understand the consequences of the plea, believed the plea would get him admitted to a drug rehabilitation program, and he felt pressured to enter the plea. The trial court accepted the declaration, stating however that it found the declaration “disingenuous.”
At no time did the trial court conduct any Marsden hearing or question Warren regarding his reasons for seeking new counsel or wanting to withdraw his plea. After accepting new counsel’s report and representation that no basis to withdraw the plea existed, the trial court proceeded to sentence Warren.
Warren timely appealed and sought a certificate of probable cause. In his request for a certificate of probable cause, Warren declared (1) his attorney lied to him about custody credits; (2) he was on medication at the time he agreed to the plea; (3) his attorney did not do his best to represent him; and (4) he was tricked into entering the plea. The trial court issued a certificate of probable cause.
DISCUSSION
We review Marsden error under the standard set forth in Chapman v. California (1967) 386 U.S. 18. The Chapman test requires the beneficiary of the error to prove the error harmless beyond a reasonable doubt. That was the standard adopted in Marsden itself. (Marsden, supra, 2 Cal.3d at p. 126; accord, People v. Chavez (1980) 26 Cal.3d 334, 348-349 [likening automatic appointment of new counsel without asking for defendant’s preference to the failure to conduct a Marsden hearing, and applying Chapman test to any error]; People v. Leonard (2000) 78 Cal.App.4th 776, 787 [applying Chapman standard to failure to conduct adequate Marsden hearing].)
Here, Warren himself was not permitted to address the trial court on either November 20, 2007, or January 8, 2008, regarding his desire for new counsel. Without making any inquiry whatsoever on November 20, the trial court simply appointed new counsel to investigate filing a motion to withdraw the plea. On January 8, the trial court accepted a declaration from Warren that had been prepared by new counsel, but pronounced that declaration “disingenuous” without posing any questions to Warren or making any inquiries.
Although the trial court was informed on November 20 that Warren wanted new counsel, it conducted no hearing into Warren’s reasons for seeking new counsel on that date or at any later date. The trial court cannot delegate the duty to investigate the reasons a defendant seeks new counsel by simply appointing a second attorney and accepting the second attorney’s findings, as the trial court did here. (People v. Eastman (2007) 146 Cal.App.4th 688, 696-698 (Eastman).)
The People contend that any error was harmless beyond a reasonable doubt because we “know how the trial court would rule – it would deny [Warren’s] Marsden motion on the basis of disingenuousness.” This, however, ignores the fact that in both instances where Warren was present in court and seeking new counsel, the trial court did not permit Warren himself to address the trial court and the trial court made no inquiry of Warren regarding his reasons for wanting new counsel. Dismissing out of hand a generic statement from Warren that was drafted and submitted by new counsel does not amount to the trial court making an inquiry and conducting a Marsden hearing.
On the issue of prejudice, we find applicable the following statement from People v. Lewis (1978) 20 Cal.3d 496, 499: “Was the error prejudicial? ‘There can be no doubt it was. On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge’s denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant’s conviction.’ [Citation.]”
Even the People concede in their appellate brief that Warren, in his request for a certificate of probable cause, raised issues that warranted a Marsden hearing, but argue that the trial court should not have to read Warren’s mind to discern these reasons. We agree, however, the trial court would not have to have read Warren’s mind if it had made an inquiry and conducted a hearing, instead of inappropriately delegating its duty to new counsel and merely accepting new counsel’s report. (Eastman, supra, 146 Cal.App.4th at pp. 696-698.)
We turn now to the question of whether the prejudicial error in the instant case requires outright reversal. In People v. Minor (1980) 104 Cal.App.3d 194 (Minor), an alternative to outright reversal for Marsden error was adopted. In that case, the appellate court found error under Marsden in the trial court’s failure to inquire into a defendant’s reasons for requesting the appointment of different counsel. The appellate court stated it “‘may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.’ [Citation.]” (Minor, at p. 199.) The appellate court held, “The question whether good cause existed for appointing new counsel can now be resolved at a hearing in which appellant can be given an opportunity to state his reasons for wanting to have new counsel appointed.” (Id. at p. 200.)
The Minor court reversed for Marsden error, but directed the trial court to conduct a posttrial Marsden hearing. The appellate court directed the trial court to order a new trial if it determined that good cause for appointment of new counsel had been shown, or to reinstate the verdict if it found that good cause had not been established. (Minor, supra, 104 Cal.App.3d at p. 200.) The Minor remedy for Marsden error has been cited with approval by the California Supreme Court (People v. Hall (1983) 35 Cal.3d 161, 170) and has been followed by this court. (See People v. Maese (1985) 168 Cal.App.3d 803, 808-810.)
We believe the Minor remedy is appropriate in the instant case.
DISPOSITION
The judgment is reversed and the matter remanded with directions to the trial court to conduct a Marsden hearing with Warren’s original counsel. If, after the Marsden hearing, the trial court determines there was no good cause for the appointment of new counsel, the judgment shall be reinstated. If good cause is established, the trial court shall appoint new counsel and direct new counsel to file a motion to set aside the plea. If the motion is granted, the original charges shall be reinstated, Warren’s not guilty plea shall be entered, and the matter shall be set for trial. If the motion is denied, the judgment shall be reinstated.