Filed 7/30/14 P. v. Zamora CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057915
v. (Super.Ct.No. FBA009351)
PAUL ZAMORA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,
Judge. Reversed with directions.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant Paul Zamora pled guilty to second degree murder (count 1 – Pen. Code,
§ 187, subd. (a)).1 Pursuant to the plea agreement, the court sentenced defendant to an
indeterminate term of imprisonment of 15 years to life with credit for 3,030 days. On
appeal, defendant contends the court erred in failing to hold a Marsden2 hearing when
defendant sought to withdraw his plea based on ineffective assistance of counsel. We
reverse the judgment and remand the matter to the court with directions.
FACTUAL AND PROCEDURAL BACKGROUND3
On June 26, 1987, Officer Pedro Ortiz, a detective assigned to the homicide
division of the San Bernardino County Sheriff’s Department, responded to a report of a
body found on the side of the Interstate 15 freeway. He found “a female [body] that was
badly decomposed lying on [its] back. [Its] [l]egs were spread. [Its] sweatshirt was
exposing [] most of [the] stomach area as well as one of [the] breasts, and [it] had several
stab wounds to the breast area.” The shorts were pulled down from the waist halfway
down the buttocks in the back, consistent with the body having been dragged.
1 All further statutory references are to the Penal Code.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). A so-called Marsden hearing is typically conducted outside the presence of the public, the jury, and the prosecution and allows the defendant an opportunity to convey to the court reasons he should be appointed new counsel. (People v. Lopez (2008) 168 Cal.App.4th 801, 814- 815.)
3 The parties stipulated the preliminary hearing transcript would provide the factual basis for the plea; thus, we take the facts from the preliminary hearing which took place on August 2, 2007.
2 The body was later identified as that of the victim, who had been reported missing
on June 25, 1987, around 8:00 a.m. by her boyfriend Michael Miller. The body was
dressed in the same clothing in which the victim had last been seen. Ortiz interviewed
Miller.
Miller reported he and the victim had been working in Northern California and
were on their way back to Grand Junction, Colorado with a friend when they stopped for
gas on June 23, 1987, around midnight. They had been drinking; the victim was drunk.
Miller asked the victim for money for gas; she refused. They got into an argument;
Miller reached into her purse and took her money; he then entered the store. He later saw
the victim hitchhiking by the guardrail.
When he came out of the store, she was gone. Miller and their friend drove
around for about a half an hour looking for her, but could not find her. They drove back
to Grand Junction, Colorado and reported her missing. Criminalist Dan Gregonis arrived
at the scene on June 26, 1987, to collect evidence. He took DNA samples from the
victim’s underwear, shorts, and vagina. The parties stipulated the DNA taken from a
buccal swab of defendant matched the DNA taken from semen on the crotch of the
victim’s underwear, shorts, and vaginal swabs.
San Bernardino Deputy Sheriff Thomas Shenton arrested defendant and
interviewed him after he waived his Miranda4 rights. Defendant told Shenton he was a
truck driver in June 1987 with a regular route from Santa Fe Springs, California to Las
4 Miranda v. Arizona (1966) 384 U.S. 436.
3 Vegas, Nevada. Defendant admitted picking up hitchhikers, but denied knowing the
victim.
Shenton interviewed defendant’s ex-wife, Victoria Olivares. Olivares confirmed
defendant’s employment as a truck driver with a regular route from Santa Fe Springs,
California to Las Vegas, Nevada in June 1987, which he travelled three times a week.
She reported that sometime in June 1987, defendant returned with scratches on his hand
and chest and a finger in a splint.
Deputy Public Defender Maggie Eisenburg made her first appearance on behalf of
defendant on July 30, 2010. On August 23, 2012, Eisenburg filed six separate in limine
motions seeking, respectively, to permit impeachment of Gregonis with allegations of
alleged improprieties in his evidence collection and processing in other cases, exclusion
of Olivares’s statements to police, exclusion of a knife found in defendant’s residence in
2006, permission to introduce evidence of third party culpability implicating Miller as the
actual killer, exclusion of evidence of defendant’s 1993 kidnapping conviction, and
exclusion of evidence of a green bottle found at the crime scene.5
At the hearing on September 20, 2012, regarding the motions in limine, the court
granted the defense motion to impeach Gregonis with one of his prior cases, but denied
the motion with respect to impeachment with other cases. The court denied the
remaining defense motions.
5 Olivares informed police defendant drank from green beer bottles.
4 Eisenburg observed, “it really cuts [defendant’s] defense off at the knees to not be
able to point [at] the boyfriend of the victim who was her travel partner.” “I understand
the Court’s ruling. I just feel that it cuts off any affirmative defense that we have because
we’re not allowed to attack Gregonis very much on the DNA, which is the entire
prosecution’s case, and I can’t even point the finger at the boyfriend . . . .”
The People then conveyed to the court they had offered defendant a plea deal with
a sentence of 15 years to life with credit which would place him close to a parole date.6
The court asked if the offer had been conveyed to defendant; defendant replied it had.
The court told defendant to speak with Eisenburg regarding the offer: “I set aside the
whole day. So if you guys want to talk some more, why don’t you go ahead and talk
some more. All right. And then let me know and I’ll come out and confirm everything
unless you’re able to resolve the case.” A recess was taken from 2:00 p.m. to 3:44 p.m.
When the parties returned, the court announced, “All right. [Defendant], I’m
showing you a [three]-page document entitled Declaration of Defendant Regarding
Change of Plea with your name on the top. Do you recognize it?” Defendant responded,
“Yes.” The court asked defendant if he had signed and initialed “each paragraph after
reading, understanding, and discussing each paragraph with your attorney?” Defendant
responded he had. The court queried defendant, “[b]efore signing and initialing the form,
did you carefully go over both the printed and handwritten portions of the form with your
6 Defendant’s eventual credit award of 3,030 days (more than eight years), would require that he serve almost an additional seven years, without considering any credit he might earn in prison, before he would be eligible for parole.
5 attorney?” Defendant answered, “Yes.” The court inquired whether defendant
understood everything on the form? Defendant said he did.
The court then covered defendant’s constitutional rights and his waiver of them. It
asked defendant if “you had enough time to discuss your case with your attorney,
including . . . future consequences as a result of entering this plea?” Defendant
responded, “Yes.” The court asked defendant if he had any questions of the court.
Defendant said he did not.
The court asked Eisenburg whether she “had adequate time to discuss all issues
with [her] client?” She responded she had. The court asked if Eisenburg went “over the
declaration and plea form with [defendant]?” She said she had. The court inquired
whether Eisenburg was “satisfied [defendant] understands everything on the form.” She
said she was. Eisenburg joined in defendant’s waivers. The court then concluded, “After
directly examining the defendant, the court finds he has read and understood the
defendant’s declaration and plea form.”
Defendant then orally pled guilty to second degree murder. Term 20 of
defendant’s plea form, reading “I waive and give up any right to appeal any motion I may
have brought or could bring and from the conviction and judgment in my case since I am
getting the benefit of my plea bargain[,]” is crossed out; defendant did not initial it.
On October 10, 2012, Eisenburg “asked to have [the hearing] calendared . . . based
on a miscommunication regarding one aspect of the plea [regarding] . . . appellate
rights, . . . [¶] . . . I understood . . . that [defendant] had the right to appeal the in limine
rulings after [the] plea. . . . And so I indicated that to [defendant] throughout that,
6 somewhere along the line in that conversation that we had about the plea. [¶] And so . . .
I looked into it myself – I found out the next day that . . . in limine rulings are not
appealable [after the] plea. I told [defendant] that and that is what the motion to
withdraw the plea is based on. [¶] And so at this point since he hasn’t been sentenced,
and I told him, I said, I will indicate to the Court that I told you the wrong thing. I told
him the very next day that it was wrong and that we had to try to kind of figure [it] out
. . . . I’m not sure how the Court wants to proceed, if you want to do the typical appoint
someone and do a hearing. . . .” The court responded “That’s the way we’re going to
proceed.”
The court asked defendant if he wanted to withdraw his plea; defendant responded
he did. The court appointed Richard Crouter, who was present at the hearing, as conflict
counsel for defendant for the purpose of filing a motion to withdraw the plea. The court
asked Crouter how much time he would need to prepare the motion. Crouter responded,
“Well, from what I’ve heard, the basis for the motion, I think it’s going to take some
fairly extensive research, I would say a month.” The court scheduled the hearing for
November 16, 2012, and inquired of Eisenburg, “I would imagine that you will be
testifying as a witness in regards to what you advised your client.” She responded, “Is it
possible to do it earlier that week [be]cause I will be leaving town that day?” The court
replied “We can do it on the 15th.” Esienburg said “That’s fine. That would be great if
that’s possible.” The court asked conflict counsel if that date was satisfactory. Crouter
responded it was. The court set the matter for November 15, 2012.
7 On December 12, 2012, Crouter was replaced by John Burdick as conflict counsel
for defendant. On January 3, 2013, Burdick filed a motion to withdraw the plea. After
presenting the law regarding the withdrawal of pleas, the motion reads, “In the present
case the defendant[] requests to withdraw his plea having had second thoughts after
entering it. . . . The defendant claims he did not understand the nature and consequences
of his plea as entered. However, a review of [the] ‘Change of Plea’ [form] reveals that
the plea is at least facially valid. We therefore invite the Court to review the proceeding
and record to determine whether the defendant has any basis to withdraw his plea[.]”
Burdick then cited to People v. Wende (1979) 25 Cal.3d 436. (Id. at pp. 441-442 [Court
of Appeal to conduct independent review of record on appeal when appellate counsel
files a brief raising no appellate issues].)
Burdick attached his own declaration to the motion reading “I had an opportunity
to discuss the case with the defendant who informed me that he had not been properly
advised of the consequences of the plea. [¶] . . . [¶] . . . I am informed that the defendant
contends he did not completely comprehend the nature of his plea. I reviewed the case
records and do not find a basis to withdraw the plea however and therefore invite the
Court to examine the record.”7
On January 4, 2013, the court held the hearing on the motion to withdraw the plea.
Eisenburg was present at the hearing. Defendant testified he wanted to withdraw his plea
7 No mention of Eisenburg’s purported misadvisement regarding the appealability of the rulings on the motions in limine is made in the motion to withdraw the plea. Likewise, neither is there a declaration from Eisenburg attached to the motion nor any indication she would testify at the hearing on the motion.
8 “because at the time when I signed the plea agreement – the boxes to the right of the
papers, [Eisenburg], . . . told me to just – to initial each one, and to read all of this. I says,
I can’t read without my reading glasses. I can’t even see it. She said go ahead and – just
go ahead and initial them all. So, I did. . . . [¶] . . . [¶] I – I can’t – if I plead guilty, I
can’t appeal my case.” Defendant testified his attorney did not read or go over the
written portions of his plea form. He did not remember the judge asking him if he had
read and gone over the plea form with Eisenburg or saying that he had “[b]ecause
everything was being said so fast, I couldn’t keep up with [] what the Judge was saying.”
Defendant testified he believed he had told the court he understood the plea because
Eisenburg told him to “[g]o ahead and sign it. Just, you know, agree.”
On cross-examination, defendant testified he had been convicted of “[p]robably
about 10” felonies, including thefts, kidnapping, armed robberies, burglaries, and
assaults. In each, he had pled guilty; this was not the first time he had signed a plea
agreement. The main reason defendant was attempting to withdraw his plea was because
he was having second thoughts because even if convicted at trial, he could only be
sentenced to imprisonment of up to 25 years to life, while pursuant to his plea he would
already be sentenced to imprisonment of 15 years to life: “I’m getting a life sentence
anyway. . . . And the fact that I didn’t do it – the murder. That’s why I – I decided to go
to trial.”
The court indicated it had reviewed the motion and the transcript of the plea. “I
set aside that entire day so we could handle motions in limine, as well. But then later in
the day [defendant] decided to enter a guilty plea to the second-degree murder charge.
9 [¶] At no time was everything going at such a fast pace, because the day was devoted to
[defendant’s] case. I recall even taking the plea. And before taking the plea, Counsel
wanted to have more discussions. [Defendant] wanted to have more discussions after the
motion in limine rulings. And we took plenty of time. And as I went through the plea, I
didn’t take it at a fast pace. I took it slowly and clearly, and waited for his responses to
each of those questions.” The court found defendant’s motion to withdraw the plea was
based on “buyer’s remorse” and denied the motion. The court relieved conflict counsel
and reappointed Eisenburg.
Eisenburg represented defendant at sentencing. On January 16, 2013, Eisenburg
filed a notice of appeal on defendant’s behalf requesting a certificate of probable cause
based on the court’s denial of the motion to withdraw the plea. The court granted the
certificate of probable cause.
DISCUSSION
Defendant maintains the court erred in failing to conduct a Marsden hearing upon
Eisenburg’s initial contention there were grounds to withdraw defendant’s guilty plea
based upon Eisenburg’s purported rendition of ineffective assistance of counsel in
advising defendant of the appellate consequences of his plea; in particular, defendant’s
inability to appeal the court’s denial of the motions in limine. The People argue that
since defendant never clearly indicated he wanted substitute counsel, the court was under
no obligation to hold a Marsden hearing. We agree with defendant.
“[A] trial court must conduct [] a Marsden hearing only when there is at least
some clear indication by the defendant, either personally or through counsel, that
10 defendant wants a substitute attorney. [I]f a defendant requests substitute counsel and
makes a showing during a Marsden hearing that the right to counsel has been
substantially impaired, substitute counsel must be appointed as attorney of record for all
purposes.” (People v. Sanchez (2011) 53 Cal.4th 80, 84 [italics added] (Sanchez); see
People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey).) “[A]t any time during criminal
proceedings, if a defendant requests substitute counsel, the trial court is obligated . . . to
give the defendant an opportunity to state any grounds for dissatisfaction with the current
appointed attorney. [Citation.]” (Sanchez, at p. 90.) “‘[T]he trial court’s duty to conduct
a Marsden hearing [is] triggered by defense counsel’s request for appointment of
substitute counsel to investigate the filing of a motion to withdraw [the] plea on [the
defendant’s] behalf.’” (Sanchez at p. 90, fn. 3.) Thus, a defense counsel’s motion for
substitute counsel to investigate the filing of a motion to withdraw the plea based upon
the incompetency of counsel is a clear indication by a defendant that he wants substitute
counsel which automatically triggers the trial court’s duty to hold a Marsden hearing.
The Sanchez court “specifically disapprove[d] of the procedure of appointing
substitute or ‘conflict’ counsel solely to evaluate a defendant’s complaint that his attorney
acted incompetently with respect to advice regarding the entry of a guilty or no contest
plea.” (Sanchez, supra, 53 Cal.4th at p. 84.) “‘Defense counsel, like the trial courts,
should abandon their reliance on counsel specially appointed to do the trial court’s job of
evaluating the defendant’s assertions of incompetence of counsel and deciding the
defendant’s . . . plea withdrawal motion. [Citation]’” (Id. at p. 89.) “‘The proper
procedure does not include the appointment of “conflict” or “substitute” counsel to
11 investigate or evaluate the defendant’s proposed . . . plea withdrawal motion.’” (Id. at p.
89.)
Here, defendant, through counsel, moved to withdraw his plea specifically on the
basis of ineffective assistance of counsel. Defense counsel informed the court she had
expressly informed defendant that he could appeal the pretrial motions in limine if he
pled guilty. Indeed, the term of defendant’s plea agreement expressly informing him he
could not appeal the denial of pretrial motions is crossed out; defendant did not initial the
provision. Eisenburg informed the court that only after defendant had entered his guilty
plea did she discover defendant could not appeal the denial of those motions. She said
that a contemplated motion to withdraw the plea would be based upon her misadvisement
of defendant on that basis.
Eisenburg asked if the court wanted to appoint someone else: “So seeing that it is
presentencing and because it’s not [defendant] bringing it up after he’s been fully
sentenced, I’m not sure how the Court wants to proceed, if you want to do the typical
appoint someone and do a hearing . . . .” Thus, Eisenburg implicitly recognized the
possibility new counsel should be appointed not only for purposes of the motion to
withdraw the plea, but for sentencing as well. Defense counsel’s suggestion that
substitute counsel be appointed to investigate the filing of a motion to withdraw the plea
based upon her misadvisement is a clear indication by defendant that he wanted substitute
counsel which triggered the trial court’s duty to hold a Marsden hearing.
Instead of “evaluating [] defendant’s assertions of incompetence of counsel and
deciding [] defendant’s . . . plea withdrawal motion[]”, (Sanchez, supra, 53 Cal.4th at p.
12 89) the court conducted the “specifically disapprove[d] . . . procedure of appointing
substitute or ‘conflict’ counsel solely to evaluate [] defendant’s complaint that his
attorney acted incompetently with respect to advice regarding the entry of [the] guilty . . .
plea. (Id. at p. 84.) Conflict counsel filed a motion to withdraw the plea in which he
effectively argued there was no basis to withdraw the plea. Conflict counsel failed to
raise the specific basis initially raised for defendant’s desire to withdraw the plea,
Eisenburg’s ostensible misrepresentation of the appellate consequences of the plea. Since
defendant had brought an issue of potential ineffective assistance of counsel to the court’s
attention while moving for a withdrawal of his guilty plea and appointment of new
counsel, the court should have conducted a Marsden hearing to evaluate whether
Eisenburg had acted incompetently and, if so, appointed new counsel to represent
defendant during the remainder of the criminal proceedings.
The People cite People v. Dickey (2005) 35 Cal.4th 884 (Dickey), for the
proposition that, here, defendant did not make the requisite “‘“‘clear indication . . . that
he want[ed] a substitute attorney.’” [Citations.]’ [Citation.]” (Id. at p. 920.) In Dickey,
after defendant was convicted of murder and other charges, but prior to the penalty phase
of trial, defense counsel informed the court the defendant wished to move for a new trial
based partially on a claim of ineffective assistance of counsel. Defense counsel
suggested the appointment of separate counsel to represent the defendant in that effort.
(Id. at pp. 918-920.) The trial court appointed the defendant separate counsel to assist
him in his preparation of a new trial motion filed after the penalty phase which was based
on purported ineffective assistance of counsel and the court’s ostensible error in
13 neglecting to hold a Marsden hearing at the time the subject was initially broached. The
trial court denied the motion. (Id. at pp. 920, 922.)
The California Supreme Court held the trial court did not commit Marsden error.
(Dickey, supra, 35 Cal.4th at p. 920.) The Court reasoned, “Defendant did not clearly
indicate he wanted substitute counsel appointed for the penalty phase. To the extent he
made his wishes known, he wanted to use counsel’s assertedly incompetent performance
in the guilt phase as one of the bases of a motion for new trial, and he wanted to have
separate counsel appointed to represent him in the preparation of such a motion. As his
expressed wishes were honored, he has no grounds for complaint now.” (Id. at pp. 920-
921.) In addition, the court concluded any “Marsden motion would have been
baseless[]” because “[w]e do not find Marsden error where complaints of counsel’s
inadequacy involve tactical disagreements.” (Id. at pp. 921, 922.) This was because the
new trial motion was based on defendant’s contention certain witnesses who were not
called to testify should have been and that during the defendant’s testimony he should
have been asked questions he was not. (Id. at pp. 919-922.)
It is difficult to reconcile the holdings in Sanchez and Dickey. Nonetheless, the
unanimous Sanchez court distinguished Dickey, noting the defendant therein “expressed
the desire to have a substitute counsel represent him at a future proceeding, namely, an
anticipated motion for new trial that would not take place until the completion of the
penalty phase. The defendant [] voiced no objection to having his current attorney
represent him at the penalty phase and, unlike the present case, did not seek to discharge
his current attorney.” (Sanchez, supra, 53 Cal.4th at p. 91, italics added.) In its own
14 case, “by contrast, [the] defendant, through counsel, requested that a ‘conflict’ or
substitute attorney be appointed immediately, and the obvious implicit ground for that
request was the incompetency of defendant’s currently appointed counsel.” (Id. at p. 91,
italics added.)
Here, defendant, through Eisenburg, requested conflict counsel be appointed
immediately based on the Eisenburg’s incompetency in advising him of the appellate
consequences of the plea. Moreover, Eisenburg’s purported act of ineffective assistance
of counsel was not tactical, but substantive: Eisenburg conceded she misadvised
defendant that he could appeal the court’s denial of the motions in limine. This very well
could have affected defendant’s decision to enter the plea. Indeed, defendant testified at
the hearing on the motion to withdraw the plea that at least one of the bases upon which
he wished to withdraw the plea was the fact that “I can’t appeal my case.” Thus, it
cannot be said here that a Marsden motion would be baseless.
Furthermore, in Dickey, the initial basis for appointment of counsel was for a new
trial motion which was only partially based on incompetence of counsel. In the instant
case, the request for new counsel was for the filing of a motion to withdraw the plea
based, at that point, entirely on ineffective assistance of counsel. Finally, we note the
Sanchez Court made clear that “‘the trial court’s duty to conduct a Marsden hearing [is]
triggered by defense counsel’s request for appointment of substitute counsel to
investigate the filing of a motion to withdraw [the] plea on [the defendant’s] behalf.’”
(Sanchez, supra, 53 Cal.4th at p. 90, fn. 3.) Here, Eisenburg requested appointment of
15 counsel to investigate the filing of a motion to withdraw the plea on defendant’s behalf
which triggered the court’s duty to conduct a Marsden hearing.
As indicated above, the California Supreme Court in Sanchez specifically
proscribed the procedure adopted by the court in this case; namely, the appointment of a
substitute or “conflict” attorney solely to evaluate whether a criminal defendant has a
legal ground upon which to move to withdraw the plea on the basis of current counsel’s
incompetence. (Sanchez, supra, 53 Cal.4th at p. 84.) The court erred in following the
disapproved procedure rather than immediately holding a Marsden hearing for the
potential appointment of substitute counsel for the remainder of the criminal proceedings.
The question remains whether the court’s error in neglecting to hold a Marsden
hearing and follow the procedure prescribed in Sanchez could be deemed harmless. Early
courts (never expressly overruled) held the denial of a Marsden hearing upon a
defendant’s motion for substitute counsel was per se prejudicial and required automatic
reversal of the judgment because the failure to permit a defendant to provide his reasons
for requesting new counsel precluded meaningful appellate review. (Marsden, supra, 2
Cal.3d at p. 126; accord People v. Hidalgo (1978) 22 Cal.3d 826, 827; People v. Lewis
(1978) 20 Cal.3d 496, 498; People v. Munoz (1974) 41 Cal.App.3d 62, 67; People v.
Groce (1971) 18 Cal.App.3d 292, 296-297; People v. Hill (1983) 148 Cal.App.3d 744,
755; People v. Winbush (1988) 205 Cal.App.3d 987, 991.) Subsequent courts (also not
overruled) found the refusal to provide a Marsden hearing per se prejudicial and
reversible, but permitted remand for a Marsden hearing which, if denied, permitted
reinstatement of the original judgment. (People v. Minor (1980) 104 Cal.App.3d 194,
16 199; People v. Hall (1983) 35 Cal.3d 161, 170; People v. Maese (1985) 168 Cal.App.3d
803, 808-810; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1401-1402.)
Nevertheless, the majority of courts since have held the denial of a defendant’s
right to a Marsden hearing must be reversed unless the appellate court finds the error was
harmless beyond a reasonable doubt. (People v. Hill (2013) 219 Cal.App.4th 646, 653.)
Courts finding the erroneous failure to provide a defendant a Marsden hearing harmless
beyond a reasonable doubt, generally fall into one of two categories. The first group
consists of courts which have found the failure of a trial court to conduct a Marsden
hearing immediately upon a defendant’s expression of a desire for new counsel harmless
where the court had either previously or subsequently afforded the defendant a Marsden
hearing at which the defendant raised the same issues as in the other motion(s). (People
v. Taylor (2010) 48 Cal.4th 574, 601 [Prior Marsden hearing rendered failure to provide
subsequent hearing harmless]; People v. Govea (2009) 175 Cal.App.4th 57, 62 [same];
People v. Barnett (1998) 17 Cal.4th 1044, 1105-1113 [same]; People v. Leonard (2000)
78 Cal.App.4th 776, 788 [Any error of court in failing to hold Marsden hearing at the
defendant’s first complaint regarding defense counsel was rendered harmless by court’s
later holding of Marsden hearing.]; People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732
[same].)8
8 It is notable that the court in Sanchez never addressed whether the trial court’s failure to provide the defendant with a Marsden hearing could be deemed harmless. Rather, the Sanchez court automatically reversed the judgment and remanded the matter for a Marsden hearing without conducting a harmless error analysis.
17 The second cohort consists of courts which have found the failure of a trial court
to conduct a Marsden hearing harmless beyond a reasonable doubt because the trial
record provided an adequate basis for the court to independently determine that the
defendant’s contentions of inadequacy of trial counsel failed on the merits. (People v.
Mack (1995) 38 Cal.App.4th 1484, 1487-1489 [Failure to hold Marsden hearing harmless
where trial record does not support trial counsel’s purported inadequate performance.];
People v. Washington (1994) 27 Cal.App.4th 940, 944 [Failure to hold Marsden hearing
harmless where only basis for motion could have been counsel’s incompetence and trial
record reflected counsel had performed adequately.].)
Notwithstanding the aforementioned cases, the bulk of appellate cases addressing
situations in which a trial court erroneously failed to provide the defendant a Marsden
hearing have found the error required reversal and remand for a Marsden hearing.
(People v. Reed (2010) 183 Cal.App.4th 1137, 1148-1149 [Where it remains possible that
upon further inquiry by the court the defendant could have shown ineffective assistance
of counsel, error in failing to hold Marsden hearing cannot be held harmless.]; People v.
Lopez, supra, 168 Cal.App.4th at p. 815 [Court’s failure to hold Marsden hearing was not
harmless and required reversal and remand even where review of trial record reflected no
ineffective assistance of counsel and trial was error free, but where defendant had raised
an issue of conflict of interest between he and his counsel.]; People v. Mendez (2008) 161
Cal.App.4th 1362, 1365-1368 (Mendez) [Trial court’s failure to hold Marsden hearing,
appointment of new counsel to conduct an inquiry whether there was a basis for a new
trial motion on incompetency of counsel, acquiescence to new counsel’s assertion there
18 was no claim of ineffective assistance of counsel, and reappointment of original counsel
was not harmless, requiring reversal and remand for Marsden hearing.]; People v. Mejia
(2008) 159 Cal.App.4th 1081, 1086 (Mejia) [Error in failing to hold Marsden hearing not
harmless where defendant instructed his counsel to move for a new trial based on
counsel’s ineffective assistance at trial.]; People v. Eastman (2007) 146 Cal.App.4th 688,
695-698 (Eastman) [Court’s error in failing to hold a Marsden hearing after the defendant
wrote the court asserting defense counsel had performed inadequately, court appointed
counsel to investigate complaints and to file motion to withdraw, and substitute counsel
did not file a motion to withdraw, required reversal and remand.];9 People v. Solorzano
(2005) 126 Cal.App.4th 1063, 1070 [Court’s error in holding Marsden hearing when the
defendant first expressed a request for substitute counsel was not rendered harmless or
moot by its holding of another hearing a week later with a different attorney representing
the defendant.].)
Here, the court never afforded defendant a Marsden hearing. (People v.
Solorzano, supra, 126 Cal.App.4th at p. 1070 [Declining the People’s invitation to treat
one type of motion hearing as the functional equivalent of another within the context of a
defendant’s Marsden request.].) Although defendant was given the opportunity to
9 Mendez, Mejia, and Eastman were all disapproved of by Sanchez, supra, 53 Cal.4th at page 90, footnote 3, to the extent they suggested the court’s duty to hold a Marsden hearing could be triggered by something less than a clear indication by the defendant or his counsel that the defendant wanted a substitute attorney. However, Sanchez did not disapprove of the result in those cases. Thus, their holdings with respect to the application of the harmless error doctrine in denial of Marsden hearing cases remains good law.
19 address the court at the hearing on the “motion” to withdraw the plea, defendant was not
asked whether he wanted substitute counsel either before or at the time of the hearing.
Rather, defendant’s communication with the court was addressed solely to the issue of
why he wanted to withdraw the plea. This was not the functional equivalent of a
Marsden hearing. No published case has held that a hearing on a motion to withdraw a
plea may substitute for a Marsden motion.
Moreover, at the hearing on the motion to withdraw the plea, defendant did refer
to the inadequacy of his counsel’s performance; defendant said that because of his plea,
he could not appeal his case. This was the very basis which initiated the appointment of
substitute counsel because defendant’s prior counsel had conceded she had incorrectly
informed him he would have the right to appeal the denial of his motions in limine even
if he pled guilty. This was the basis upon which defendant originally wished to withdraw
his plea.
Finally, this is not a case in which we can simply find the error harmless because
the record establishes that counsel performed adequately. On the contrary, defense
counsel herself admitted she had performed ineffectively in advising defendant he could
appeal the denial of his motions in limine even if he pled guilty. The court then asked
defendant if he wanted to withdraw his plea; defendant responded that he did, insinuating
counsel’s misadvisement, the only reason proffered at the time, was the basis for his
desire to withdraw the plea. Defendant reiterated this basis for withdrawing the plea
when afforded the opportunity to address the court at the hearing on the motion to
withdraw the plea. Thus, the court’s failure to hold a Marsden hearing in the instant case
20 is not harmless beyond a reasonable doubt. Therefore, the trial court erred in following
the disapproved procedure of appointing substitute counsel rather than immediately
holding a Marsden hearing for the potential appointment of substitute counsel for the
remainder of the criminal proceedings.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with
directions that “‘(1) the court shall hold a hearing on [defendant]’s Marsden motion
concerning his representation by the public defender’s office; (2) if the court finds that
[defendant] has shown that a failure to replace his appointed attorney would substantially
impair his right to assistance of counsel, the court shall appoint new counsel to represent
him and shall entertain such applications as newly appointed counsel may make; and (3)
if newly appointed counsel makes no motions, any motions
made are denied, or [defendant]’s Marsden motion is denied, the court shall reinstate the
judgment.’” (Sanchez, supra, 53 Cal.4th at pp. 92-93.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.