Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge and Cheryl Leininger, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. 02CF2890.
William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Dale Franklin Wensinger of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and four counts of making a criminal threat (§ 422). Defendant admitted he suffered three prior convictions for purposes of sections 667, subdivisions (d) and (e)(2), and 1170.12, subdivisions (b) and (c)(2) (strike convictions) and section 667, subdivision (a)(1) (serious felony convictions). The court sentenced defendant to 22 years in state prison. “[T]his case presents the question of what record is an adequate record on which to affirm the denial of a criminal defendant’s motion for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 [(Marsden)].” Defendant contends the “record either is not adequate to review the ruling below on his Marsden motion, or . . . reveals error in that hearing, requiring a reversal of the judgment with a remand for a new trial.” We agree the record is inadequate to enable us to conduct a meaningful review of the court’s ruling. We therefore reverse the judgment and remand the case for a new trial.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
In November 2002, a felony complaint was filed, defendant was arraigned but entered no plea, and the public defender was appointed as his counsel. Eleven days later, the public defender was relieved and a private attorney appeared for defendant. Toward the end of the month the private attorney was relieved and the public defender appointed. The preliminary hearing date was rescheduled several times, the People amended the complaint, and defendant pleaded not guilty. In April 2003, “the public defender declared a conflict, and the alternate defender’s office was appointed.” On May 9, 2003, defendant appeared with his counsel, Alternate Defender Michael Camber, for a pretrial hearing.
On June 6, 2003, defendant filed a letter with the court requesting that Camber be replaced with “a state-appointed attorney.” The letter stated: “After my initial meeting and subsequent telephone conversation with Mr. Camber, I have serious reservations concerning his representation of my pending criminal case and [am] therefore declaring a conflict of interest. The following are some, but not all, of the reasons I believe Mr. Camber cannot adequately represent my interests in this matter: [¶] I. After reviewing the police reports Mr. Camber had no idea how to present this case successfully and [] said in so many words, ‘You are a dead man unless I can find a medical and/or psychological reason why you believe the events of the morning of October 31st 2002 were completely in contradiction to the police reports.’ I then directed him to abandon the nonexistent medical theory in lieu of presenting the actual events of the case which are self evident. Then in direct conflict with my direction [Mr. Camber] requested a conference with my psychological consular [sic] Ms. Alice Thompson PhD. [¶] II. I then consulted with Ms. Alice Thompson PhD. and told Mr. Camber she advised me that he would find no such medical condition to support this line of defense.
[¶] III. I then pointed out that pertinent information regarding my arrest and all charges filed against me were not substantiated by any victims or witness[es] on the day of the arrest, and after the fact collaborated the day after by an alleged victim, Mr. Ignacio Marquez whom I have been both physically and verbally threaten[ed] by in the past on two separate occasions. Furthermore, I pointed out, the only other person walking the park on October 31st 2002 at 5:30 a.m. was Mr. John Woolson, and he would not cooperate with the police because he did not support the police charges against me. This man and two other witnesses can verify Mr. Marquez was not present on said morning. Although he alleged he was a victim that morning, he did not feel it important enough to give his statement until the following day. Mr. Camber believes all of these facts are quote, “[m]eaningless and of no importance to proving my innocence.” [¶] IV. After discussing these and other points [of] this case, Mr. Camber finally informed me that it may be in my best interest to represent myself ‘Pro Se’ in the case and [he] could instruct me in the process of doing so on our next court date. I believe this also reflects a [c]onflict of [i]nterest, that no competent lawyer would give this advice to a layman in such a high profile case with so much to lose. [¶] V. I basically reviewed these points with Mr. Camber’s investigator with absolutely no success in reaching any of the witnesses. [¶] VI. I then spoke to Mr. Camber’s supervisor, Mr. Tim Sevein, regarding the two senior defenders and my transferring this case to them and was informed one senior was not taking any new cases and the other was saturated with cases and was not available.”
The court denied defendant’s Marsden motion. As discussed in more detail below, no reporter’s transcript was prepared for the hearing.
It appears a reporter was present at the hearing, but as discussed below, neither the reporter nor her stenotype notes could be found.
In September 2003, the People filed an information charging defendant with assaulting with a deadly weapon and making criminal threats against a John Doe victim (counts 4 and 5) and committing the same offenses against Ignacio Marquez (counts 6 and 7). The information also included assault with a deadly weapon and criminal threats charges involving another victim, criminal threats charges involving two other victims, and a charge of resisting, obstructing or delaying a public officer. The deadly weapon in question was a dog.
Trial commenced on January 11, 2005. At trial Ignacio Marquez testified he was walking his pit bull at a park at almost 6:00 a.m. on October 31, 2002 when he saw defendant “chasing an older gentleman across the field and . . . across the street to the condos.” He described the older gentleman as being “at least 65” with “gray hair” and “lean.” The John Doe victim was “running and screaming” for help “or trying to run and scream” because he could not “move that fast” and spoke “words of . . . being terrified.” Defendant was screaming “threats and obscenities,” including “I’m going to strangle you, you son of a bitch” and “I’m going to hurt you.” Defendant had his “big” Rottweiler on a short leash as he ran “a couple of feet behind” the John Doe victim; the dog “was barking and growling.” Marquez ran toward the scene, yelling at defendant, “What’s going on? Stop.” As Marquez approached defendant, defendant “turned and started coming towards” him, causing Marquez to fear for his safety. Defendant spoke to Marquez, but at trial Marquez could not recall “what he said.” Marquez could not tell if defendant or the Rottweiler ever caught the John Doe victim or if defendant ever “made contact” with him. The John Doe victim was “so scared that he [continued to walk] away.” The John Doe victim was “known to run in that park,” and Marquez had seen him there previously running.
Marquez and his son had experienced three or four prior incidents where defendant with his dog “made verbal statements that caused [Marquez] to have fear for [himself and his] son,” and partially for this reason Marquez moved to a residence further away from defendant’s. During one of those incidents, defendant had mentioned Marquez’s son; that was “why” Marquez chose to testify at defendant’s trial.
Two other victims, Julie Wu and Delaine Carlson, testified at trial. Carlson testified that on May 20, 2003, defendant commanded his dog, “Attack, attack,” and released the Rottweiler from the leash whereupon the dog bit Carlson on his thigh. In addition, the complaint charged defendant in count 3 with making criminal threats to Marquez’s son, but the son testified he was not scared of defendant or his dog. The People recalled Marquez as a witness to impeach his son’s testimony; Marquez testified his son had been scared of defendant and his dog.
The John Doe victim did not testify. In closing argument, the prosecutor stated, “It would be inappropriate for me to stand up here and say perhaps that witness is still in a sustained fear. That’s why he didn’t come in.”
A police officer testified, inter alia, that defendant complained “about kids moving his trash cans and then made another comment that they were all involved.”
Lale Blackwood testified for the defense that defendant lived with her as her tenant and roommate. On October 31, 2002, she saw defendant walking the dog and yelling and also noticed an “older” gentleman “jogging going in the opposite direction.” Defendant was asking the gentleman whether “he saw anyone messing with his trash cans.” She did not hear anyone make threats to the man.
The jury convicted defendant of assaulting John Doe and Carlson with a deadly weapon, and of making criminal threats against John Doe, Marquez, Carlson, and Wu. The jury acquitted defendant on the charges of assaulting Marquez with a deadly weapon and of making criminal threats to Marquez’s son. The jury found Carlson did not suffer great bodily injury.
Defendant moved for a new trial on the basis of newly discovered evidence pursuant to section 1181, subdivision (8). Attached to the motion was an affidavit of defense counsel stating that during his preparation for trial, he had asked his investigator “to interview all potential witnesses,” including John Woolston. The investigator was unable to interview Woolston despite several attempts. “Based upon [Woolston’s] unwillingness to cooperate with either side, and [defense counsel’s] unwillingness to call a witness without knowing whether his testimony will be favorable, [defense counsel] did not call him as a witness for the defense.” On April 4, 2005, Woolston was interviewed by the investigator. Had defense counsel “known the substance of Mr. Woolston’s statements, [defense counsel] would have called him as a witness” because “his statement contradicts the testimony of Ignacio Marquez, whose testimony was the essential evidence leading to my client’s conviction at least as to Counts 4, 5 and 7. It is also quite likely that this information would have changed [defense counsel’s] trial strategy and quite possibly [defendant’s] decision not to testify.”
Also attached to the new trial motion was the investigator’s report regarding Woolston. According to the report, the investigator had, “on four separate occasions” between May and July 2003, knocked on the door of Woolston’s residence, received no response, and left her business card asking Woolston to phone her. On July 9, 2003, Woolston answered the door, but when the investigator handed him her card and started to speak, Woolston “slammed the door in [her] face.” The investigator discontinued efforts to contact Woolston. Not until April 1, 2005, after the trial was over, did the investigator, at defense counsel’s request, again contact Woolston who agreed to meet with her. Woolston explained he had received the business cards previously left by the investigator, but had not been willing to speak with her because “he did not feel comfortable discussing matters with individuals with whom he was not familiar.” “Mr. Woolston went on to say that he had made notes of the incident at Lilly Park involving [defendant], but because no one had contacted him he discarded his notes. Mr. Woolston went on to relate that on May 20th, 2002, at approximately 6:30 a.m. he went out for his usual morning jog/walk. . . . [H]e heard [defendant] using profanity . . . verbalizing an incident involving trash cans and cars. He stated there was no one else in the park or around the area. He thought that [defendant’s] comments were not directed at anyone. [Defendant] was walking his dog as he verbalized profanities and his concerns and he kept the dog on a leash during the entire time [Woolston] observed him. [Defendant] did not display any threatening actions or words that were directed at him as he walked a distance of approximate[ly] 60 feet away. [¶] . . . Woolston . . . concluded his morning walk by walking to the center of the park and remained there for approximately 30 minutes doing exercises.” Woolston was not certain whether the incident occurred in May or October “because he had already destroyed his notes.” But Woolston did not recall “any other encounters with [defendant].” Marquez viewed a photo of Woolston and stated he was “approximately 70% certain that the male in the picture was the same person that was confronted by [defendant] and his dog Bear in Lilly Park.”
Also attached to the new trial motion was Woolston’s declaration under penalty of perjury stating, inter alia: “In the year 2002, in either October or May, I was walking . . . . I heard loud profanity from Mr. Wensinger, who was walking his dog . . . . It sounded like Mr. Wensinger was verbalizing an incident that he had in front of his house at no one in particular. I did hear profanity and words about trashcans and a car as Mr. Wensinger continued to walk along the sidewalk . . . . The distance between Mr. Wensinger and myself was about 60 feet . . . . Mr. Wensinger did not deviate from his direction as he walked on the sidewalk . . . . Mr. Wensinger’s dog was on a leash and he did not display any threatening actions or words directed at me while passing at a distance of about 60 feet. I don’t remember seeing anyone else in the immediate vicinity. . . . I continued walking on the sidewalk and crossed over to the center of the park and remained there doing some exercises for about 30 minutes. I am not a victim in this incident.”
The People did not submit written opposition to defendant’s new trial motion. At the hearing on the motion, the prosecutor argued the information in defendant’s brief was “speculative at best and available prior to the trial specifically because the witness was known.” Defense counsel clarified he was requesting a new trial on the counts involving John Doe and Marquez. The court ruled: “I’m going to deny it at this point. I watched the witnesses testify. Maybe, maybe not it would affect. . . . It does appear to be speculative at this point. I’m going to deny it for purposes of the record, but I understand the point being made.”
After filing a notice of appeal, defendant moved to augment the record and asked this court to order the Superior Court to prepare “a sealed reporter’s transcript of the June 6, 2003 Marsden hearing” and a sealed copy of defendant’s June 6, 2003 letter. In a declaration, defendant’s counsel on appeal stated he was informed and believed that on March 2, 2004, defendant “communicated (via email) with his appointed counsel (the same attorney who was the subject of the June 6, 2003 letter) and repeated his complaints and objections.” In appellate counsel’s “view, this letter conferred an obligation on counsel to bring the matter to the attention of the trial court, and required the court to conduct a hearing, however, it [was] impossible for [appellate counsel] to tell whether there was or may have been a second or subsequent hearing triggered by [defendant’s] later letter to his attorney.”
We granted the motion, but were subsequently informed by the Superior Court that the court reporter who had attended the hearing could not be located and had “not turn[ed] in her paper notes to the Court.” We therefore ordered the Superior Court to prepare a settled statement of the June 6, 2003 Marsden hearing.
The resulting engrossed settled statement stated: “The Marsden hearing was conducted on June 6, 2003. [¶] The Courtroom was cleared except for the defendant, defendant’s attorney (Michael Camber, Esq.), and the Court staff. [¶] The Court advised the defendant of having received and read his letter, dated June 6, 2003. [¶] The Court then had a discussion with both the defendant and his attorney, Mr. Camber, about defendant’s concerns. The court specifically recalls the discussion including, but not limited to, [defendant’s] concerns regarding witnesses in the park he referred to in his letter. The hearing took approximately 15 minutes to conduct. [¶] The Court reviewed the file and noted that Mr. Camber had just been appointed and that it was early in the case for Mr. Camber. [¶] The Court stated that the court is familiar with Mr. Camber and he is an excellent attorney. [¶] Other than the above, the Court does not specifically recall any additional details of the Marsden hearing.” The settled statement also contained a recitation of the court’s “custom and practice . . . when conducting Marsden hearings.”
Defendant did not concur that the settled statement was “an accurate statement of the hearing on his June 6, 2003 Marsden hearing.”
DISCUSSION
Defendant contends the record of the Marsden hearing requires reversal of the judgment, whether one views the record itself as inadequate or the hearing as represented by the record as deficient. As a threshold matter, he argues the court’s summary of its custom and practice is not a proper part of the settled statement and should be disregarded. As to the remaining part of the settled statement, he argues it fails “to establish that the trial court discussed all of [defendant’s] concerns with him, or that the trial court inquired of defense counsel his reasons for the conduct that was the basis for [defendant’s] complaints.” Defendant further contends the court’s two stated reasons for denying his Marsden motion — i.e., (1) that defense counsel had just been appointed and it was early in the case for [defense counsel], and (2) the court is “familiar with [defense counsel] and he is an excellent attorney” — did not support denial of his motion.
When a defendant moves for a substitution of court-appointed counsel, the court, in order to “thoughtfully exercise its discretion in this matter . . . [must] listen[] to his 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 [the judge] is cognizant of the grounds which prompted the request.” (Marsden, supra, 2 Cal.3d at p. 123.) Thus, the court must afford the defendant an opportunity “to explain the basis of his contention[,] to relate specific instances of the attorney’s inadequate performance” (People v. Memro (1995) 11 Cal.4th 786, 857), and to “catalogue[] acts and events beyond the observations of the trial judge to establish the incompetence of his counsel.” (Marsden, supra, 2 Cal.3d at p. 126; see also People v. Silva (2001) 25 Cal.4th 345, 367 [then trial judge Ronald George “asked defendant three times to state the grounds of his motion, never interrupted defendant’s explanation, and read and considered the letter that defendant submitted].) The defendant’s opportunity to explain his grounds is critical because he or she “may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, ‘[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.’” (Marsden, at pp. 123-124.)
Here, in the “Custom and Practice” section of the settled statement, the court describes its custom and practice “when conducting Marsden hearings . . . .” That custom and practice includes: The court “reviews the [defendant’s] letter and advises the defendant of that fact[,] asks the defendant if there is anything further he would like to say,” “asks the attorney to respond to the defendant’s concerns,” and “asks the defendant and/or counsel questions or clarifications if necessary.” Thus, the court’s custom is to offer a defendant an opportunity to orally explain the concerns expressed in his or her letter. In contrast, the other portion of the settled statement — the part reciting what actually took place at defendant’s Marsden hearing —does not state such an opportunity was afforded him. Therefore, the first question we must address is whether the court’s recitation of its custom and practice is properly included in the settled statement such that we may presume the court followed its customary practice here and defendant was in fact afforded an opportunity to orally explain his grounds for being dissatisfied with counsel.
“[T]he purpose of a settled statement is to provide the appellate court with a record of trial court proceedings for which there is no formal contemporary record, commonly because the court reporter’s notes have been lost . . . .” (People v. Anderson (2006) 141 Cal.App.4th 430, 440.) “Consistent with this limited purpose, the settled statement is ‘intended to ensure that the record transmitted to the reviewing court preserves and conforms to the proceedings actually undertaken in the trial court.’” (Ibid, italics added.) A settled statement cannot “supply what was omitted from those proceedings.” (People v. Griffin (2004) 33 Cal.4th 536, 554, fn. 4.) The case law is clear. A settled statement is intended to record what actually took place in proceedings for which a reporter’s transcript or notes are unavailable. Here, the crucial question is whether defendant had an opportunity at the hearing to explain the reasons for his substitution of counsel motion. We cannot answer that critical question by relying on the court’s recitation of what it would normally have done in a Marsden hearing.
The People counter that the custom and practice section is properly included in the settled statement, referring us “by analogy” to Evidence Code section 1105 which provides: “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” We cannot accept that “analogy” as applicable or helpful on this issue. The term “evidence” is defined as “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140, italics added.) This court is not a trier of fact. Our function is not to weigh evidence of the court’s custom and practice within the context of other admissible evidence to determine what in fact happened at the Marsden hearing. We must instead rely on the settled statement prepared by those who were present at the hearing based on their notes and recollections. The court acknowledged it did “not specifically recall any additional details of the Marsden hearing” beyond the summary provided in the first part of the settled statement. The court’s custom and practice cannot supply what may have been omitted from the actual hearing.
We thus consider only the first portion of the settled statement which stated that in an approximately 15-minute long hearing attended only by defendant, his counsel, and court staff, the court advised defendant it had read his letter. The court then “had a discussion” with defendant and his attorney “about defendant’s concerns.” The discussion included defendant’s “concerns regarding witnesses in the park he referred to in his letter.” “The Court reviewed the file and noted that Mr. Camber had just been appointed and that it was early in the case for Mr. Camber.” “The Court stated that [it] is familiar with Mr. Camber and he is an excellent attorney.”
The foregoing summary does not reveal whether the court gave defendant a chance to explain his reasons for requesting new counsel and to respond to any “explanations to the judge” made by his attorney. (People v. Hill (1983) 148 Cal.App.3d 744, 755.) Yet, the question whether defendant received such an opportunity lies at the “very heart of the Marsden inquiry.” (Ibid.) Although the settled statement reveals the court had a “discussion” with defendant and his counsel “about the defendant’s concerns,” it does not specify what those concerns were, other than a vague reference to witnesses in the park. The settled statement’s broad reference to a “discussion” could connote a predominantly one-sided explanation by the court of its reaction to defendant’s letter. In other words, the settled statement is silent as to whether the court invited defendant to explain in more detail the grounds expressed in his letter and/or to state new grounds and whether defendant had an opportunity to respond to any averments of his attorney. Thus, whether we conclude the hearing was deficient under Marsden standards, or alternatively, that the record of the hearing is insufficient to permit “meaningful appellate review” (People v. Bills (1995) 38 Cal.App.4th 953, 959), the end result is the same: We cannot confirm the Marsden requirements were met. Nor do either of the court’s stated reasons for denying the motion support its ruling. Regarding the court’s statement it was familiar with defense counsel and knew him to be an excellent attorney, a court may not base its denial of a Marsden motion on the court’s own estimation of an attorney’s competence based on prior experiences: “As Marsden and its progeny emphatically hold, a court may not go outside the record of the immediate prosecution and base the disposition of defendant’s request upon observations of the attorney on other occasions.” (People v. Hill, supra, 148 Cal.App.3d at p. 755.) And as to the court’s statement defense counsel was still new to the case, Camber had been defendant’s counsel for four to six weeks at the time of the hearing. Moreover, the People provide no argument or authority to support the implied proposition that Marsden’s procedural requirements need not be met where defense counsel is new to the case. For example, a conflict of interest may be immediately apparent upon appointment of counsel and defendant should be permitted to explain this ground to the judge.
The People rely on People v. Bills, supra, 38 Cal.App.4th 953 (Bills) where the Court of Appeal held, “under the circumstances of this case,” that the loss of Marsden transcripts did not constitute “a substantial and prejudicial omission requiring that a new trial be granted.” (Id. at p. 960.) In Bills, despite the lost transcripts, “some of the circumstances surrounding [the Marsden] motions” were known “because of statements by [the defendant’s] counsel on the record.” (Ibid.) In those statements, defense counsel “informed the court that ‘although last Friday my client and I had a very amicable conversation . . . in fact, he apologized to me for things he said and positions he took previously, [but] just before the court resumed this afternoon . . . it seems that again, Mr. Bills, angry with the message, is becoming angry with the messenger and, again, he has taken a position he does not want me as his lawyer. . . . [F]or instance, he insists he will not wear any clothing other than his jail blues even if I were to obtain his clothing. He does not want his mother here or doesn’t want any of the witnesses I plan to call brought out. Above all, he doesn’t want me. I don’t think anything is going to be said of a confidential nature at this juncture, so Mr. Bills can address the court if he wishes. [¶] The Court: You want to address the court? [¶] The Defendant: Just don’t want him as an attorney.’” (Ibid.) The Bills court noted that the defendant’s complaints on the record “did not indicate good grounds for relieving counsel” and “offered nothing specific.” (Id. at p. 961.) The court further pointed out that subsequent to the Marsden pretrial motions, “nothing in the record of the trial, which is not missing, indicat[ed defense] counsel actually rendered ineffective assistance of counsel.” (Ibid.) Finally, the Bills court pointed to “the trial court[‘s] comment[] that it remembered no details of the Marsden hearings in part because, ‘[t]o me this case went smoothly compared to other cases.’” (Id. at p. 962.) In conclusion the appellate court held that, “[g]iven (1) the extreme burden for a defendant to prevail on a Marsden motion, (2) what we do know from the record concerning the motions, (3) the effective assistance of counsel given during the trial following the pretrial motions, and (4) the trial court’s failure to remember that [the defendant] raised any significant issue during the in camera proceedings, [the defendant] has not borne his burden of demonstrating that the omission was substantial or of showing any probability that a more favorable outcome would result had the records not been lost.” (Ibid.)
Defendant argues Bills is not controlling here because, inter alia, Bills “appears to conflict with Marsden itself in requiring proof that counsel was actually ineffective after the Marsden hearing for which there was no transcript” and Bills “has never been cited with approval on the point for which [the People] relied on it.” We find these arguments to be persuasive. Moreover, Bills is distinguishable from the case at hand in several ways. First, in contrast to the Bills defendant’s declaration he just did not “want [the lawyer] as an attorney,” here defendant’s letter articulated specific complaints. For example, defendant complained that (1) Woolston and two other witnesses could verify Marquez was not present at the park that morning, and (2) defense counsel’s investigator had failed to reach any witnesses. Presumably defendant could have further explained, supported or elaborated upon those complaints at the Marsden hearing if given the opportunity. Second, the trial record here is not pristinely free of possible ineffective assistance of counsel. Defendant was convicted of making criminal threats to Marquez even though the People concede there was insufficient evidence that defendant threatened to commit a crime against Marquez. Yet defense counsel did not raise this point in closing argument. And although he did make a blanket section 1118.1 motion to dismiss “all counts and enhancements based on insufficiency of the evidence,” when the court invited him to “specifically talk about any of them,” defense counsel declined. Also, subsequent to July 9, 2003 (a year and a half before trial), defense counsel apparently waited until the trial was over to ask his investigator to again contact Woolston. Third, the judge who heard the Marsden hearing here did not preside at trial and never indicated the case “went smoothly.” Thus, even if we were to find the Bills rationale to be a good one, it is inapplicable here.
Bills’s fourth stated factor, that the trial court did not recall any significant issue raised by defendant, is also troubling because after a passage of over five years, the “judge and counsel had little recollection of what occurred at these hearings.” (Bills, supra, 38 Cal.App.4th at p. 958.) A defendant should not be penalized for a trial court’s inability to recall prior proceedings.
The People contend that if any Marsden error occurred, the remedy is “a limited remand for the purpose of holding a new hearing to adequately consider appellant’s written complaints concerning defense counsel’s performance.” But that remedy is held to be appropriate in cases where the “trial record is free of error and there is no indication in the record of inadequacy on the part of trial counsel.” (People v. Minor (1980)104 Cal.App.3d 194, 200.) This is not the case here. The People cite two other cases which are inapplicable because they involved Marsden motions made after trial. (People v. Winbush (1988) 205 Cal.App.3d 987, 989; People v. Ivans (1992) 2 Cal.App.4th 1654, 1667.)
DISPOSITION
The judgment is reversed and the matter remanded for a new trial with new counsel appointed for defendant.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.