Opinion
F061024 Super. Ct. No. F09904930
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. OLICE DAVID THORNTON, JR., Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
On July 19, 2010, a jury convicted appellant, Olice David Thornton, Jr., of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true an allegation that in committing one of those offenses he personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a court trial the next day, the court found true allegations that appellant had suffered two "strikes" and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and that he had served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)). On September 8, the court struck one of appellant's strikes and imposed a prison term of 22 years.
References to months and specific dates of events are to months and days in 2010.
All statutory references are to the Penal Code.
We use the term "strike," in its noun form, as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant's sole contention is that the court erred in failing to conduct a Marsden hearing. We will reverse and remand for further proceedings.
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.
PROCEDURAL BACKGROUND
The facts of the instant offenses are not relevant to the issues raised on appeal. Therefore, we will forgo recitation of those facts.
Following his jury trial and court trial in July, appellant, in a letter to the trial court dated August 2, stated he was "seeking a granting on a new trial based on ineffective counseling by attorney" (sic.), and asserted the following: (1) during jury selection, some prospective jurors "made comments on the defendant's failure to testify," and as a result "there was a discriminating seed pla[]nted in ... the mind[s]" of jurors, thereby violating appellant's Fifth Amendment right against self-incrimination; (2) there were many "inconsistencies" in the testimony of prosecution witnesses; (3) some of that testimony "should have been excluded"; and (4) "nothing was proven beyond a reasonable doubt." (Unnecessary capitalization omitted.)
Sentencing was set for August 17. At the outset of the hearing on that date, the court noted that it had received appellant's letter. Thereafter, the court stated it needed additional time to consider issues related to sentencing, and continued sentencing to September 8. The court sentenced appellant on that date. At that hearing, no mention was made of appellant's letter or any of the matters raised by appellant in that letter.
DISCUSSION
Appellant argues that his statement in his August 2 letter that he wished to move for a new trial "based on ineffective counseling by attorney," constituted a claim of ineffective assistance of counsel and triggered a duty on the part of the trial court to conduct a Marsden hearing and inquire into the basis for appellant's motion. Respondent counters that the court had no such duty because appellant's letter "did not make clear his desire for substitute counsel." Respondent points out that appellant "never requested substitute counsel and provided no indication that he wanted different counsel to file a motion for a new trial or represent him at sentencing."
Under Marsden, "'"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]'" (People v. Hart (1999) 20 Cal.4th 546, 603.) A defendant's request that appointed counsel be relieved and new counsel appointed "trigger[s] [a] duty under [Marsden] to inquire further into the bases for [the defendant's] dissatisfaction." (People v. Hill (1983) 148 Cal.App.3d 744, 752-753.) "[T]he court must inquire on the record into the bases of defendant's complaints and afford him an opportunity to relate specific instances of his attorney's asserted inadequacy." (Id. at p. 753.) Although there must be "'"''at least some clear indication by defendant that he wants a substitute attorney'"'" (People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey)) in order to trigger a trial court's duty to conduct a Marsden hearing, "'"no formal motion is necessary"'" (ibid?), and the "semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be according that right" (Marsden, supra, 2 Cal.3d at p. 124).
In People v. Mejia (2008) 159 Cal.App.4th 1081 (Mejia), this court held that "[defense counsel's] representation to the trial court that [the defendant wanted] 'to make a motion for a new trial based in large part on [his counsel's] conduct at trial' was adequate to put the trial court on notice of [the defendant's] request for a Marsden hearing." (Id., at p. 1086.) This court analogized the defendant's case to People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), disapproved on another ground in People v. Smith (1993) 6 Cal.4th 684, 696, as stated in People v. Bolin (1998) 18 Cal.4th 297, 346, fn. 16: "[In Stewart,]defendant 'personally instructed his appointed trial counsel to file a motion for new trial on the basis of incompetence of counsel.' [Citation.] That was adequate to put the trial court on notice of the defendant's request for a Marsden hearing." (Mejia, at p. 1086.)
Similarly, in People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez), the defendant informed his trial attorney, who then informed the court, that the defendant "was making a new trial motion 'based on competency of counsel.'" (Id. at p. 1367.) This court, again analogizing the case to Stewart, and citing the Marsden court's admonition against placing "undue weight" on the "semantics employed by a lay person asserting a constitutional right" (Marsden, supra, 2 Cal.3d at p. 124), held this was "adequate to put the trial court on notice of [defendant's] request for a Marsden hearing," and therefore the trial court erred in failing to conduct a Marsden hearing. (Mendez, at p. 1367.)
Finally, we find instructive People v. Reed (2010) 183 Cal.App.4th 1137 (Reed). In that case, defense counsel, at sentencing, twice informed the court that the defendant wanted counsel to present a motion for a new trial based on counsel's "'incompetence.'" (Id. at p. 1142.) The trial court responded that appellant's request "'[was] not something that [the court could] take into consideration at this time,'" and proceeded to pronounce sentence. (Id. at pp. 1142, 1143.) The appellate court, stating it agreed with Mejia and Mendez, held: "The record shows that the trial court made none of the necessary inquires about the basis for [the defendant's] incompetence claim.... Failure to undertake the 'imperative duty' to make the requisite Marsden inquiries on such issues was error."(Reed, at p. 1148.)
The court noted that the court in People v. Richardson (2009) 171 Cal.App.4th 479 expressly declined to follow Mendez. (Reed, supra, 183 Cal.App.4th at p. 1147.)
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Here, appellant's expression of his desire to move for a new trial based on "ineffective counseling by attorney" was, like the similar expressions in Mejia, Mendez and Reed, properly understood as a claim of ineffective assistance of counsel, and, as in those cases, was sufficient to trigger the court's obligation to conduct the inquiry required under Marsden. Accordingly, the court's failure to conduct the requisite inquiry was error.
Respondent argues that Mejia, Mendez and Reed are contrary to our Supreme Court's decision in Dickey, supra, 35 Cal.4th 884 and are therefore wrongly decided. In our view, however, Dickey is inapposite.
Dickey was a death penalty case where, following the guilt phase of the trial, defense counsel requested the appointment of separate counsel to assist the defendant in making a motion for a new trial based on several grounds, including counsel's ineffectiveness during the guilt phase. In making the request, defense counsel clearly framed the matter as a request for separate counsel, not substitute counsel. He also made it clear that the idea for the request came from him, not the defendant. Defense counsel further told the court that what he sought was "not really a pure Marsden hearing[.]" (Dickey, supra, 35 Cal.4th at p. 918, fn. 12.) After some discussion, the defendant acquiesced in the court's decision to appoint separate counsel after the penalty phase to review the case and determine whether there were any grounds for a motion for new trial. (Id. at pp. 919-920.) After the penalty phase, the trial court did appoint separate counsel, who did file a motion for a new trial alleging that defense counsel was ineffective during the guilt phase and that the court erred in not conducting a Marsden hearing following the guilt phase. (Dickey, at p. 920.) The trial court, in denying the motion, found, as to the defendant's Marsden claim, that the defendant had not asked for a Marsden hearing. (Dickey, at p. 920.)
On appeal, the defendant claimed that he had sought to make a Marsden motion for the appointment of different counsel to represent him in the penalty phase and that the trial court erred by its failure to hold a Marsden hearing and by declining to rule on his motion until the penalty phase was concluded. In rejecting these contentions, the Supreme Court stated, in the portion of the opinion upon which respondent relies: "Although no formal motion is necessary, there must be 'at least some clear indication by defendant that he wants a substitute attorney.'" [Citations.]' [Citation.] 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." (Dickey, supra, 35 Cal.4th at pp. 920-921, some italics added, fn. omitted.)
Dickey is distinguishable from the instant case. In the instant case, appellant's expressed desire for a motion for a new trial based on ineffective assistance of counsel was a sufficiently clear expression of the desire for the appointment of substitute counsel because one would not expect that appellant would want current counsel to bring a motion for a new trial based on current counsel's incompetence. In Dickey, by contrast, it cannot be said that the defendant clearly indicated that he wanted substitute counsel appointed because (1) counsel expressly told the court that the defendant was asking for the appointment of separate counsel to bring the motion for new trial, and (2) defense counsel told the court the request for substitute counsel came from him, and (3) he was not seeking a "pure" Marsden hearing.
Respondent also places some reliance on People v. Valdez (2004) 32 Cal.4th 73 (Valdez) and People v. Mendoza (2000) 24 Cal.4th 130 (Mendoza). In Mendoza, our Supreme Court rejected the defendant's argument that the trial court erred in failing to conduct a Marsden hearing "when [the defendant] asked for the removal of his appointed counsel." (Mendoza, supra, 24 Cal.4th at p. 155.) However, Mendoza is distinguishable because the defendant clearly indicated he did not want the appointment of substitute counsel. Rather, he "expressed in no uncertain terms to the trial court his desire to act as his own attorney." (Id. at p. 157.)
In Valdez, the defendant told the court in a letter that his trial attorney "'didn't surround this case to his best.'" (Sic.) (Valdez, supra, 32 Cal.4th at p. 93.) The Supreme Court held that the "defendant's comments were insufficient to indicate that he was requesting a Marsden hearing." (Id. at p. 97.) Valdez is distinguishable because the defendant, though given ample opportunity to do so by the trial court, through its questioning of the defendant, did not request the appointment of substitute counsel. At a hearing in response to the defendant's request for a meeting with the judge outside the presence of the prosecutor, the court "repeatedly asked defendant why he had requested the hearing" and "specifically asked defendant if his "'motion [was] one to relieve [counsel] so that you can proceed to represent yourself in this matter,'" but the defendant "did not respond in the affirmative ...." (Id. at pp. 96, 97.)
The final question before us is whether the trial court's error was prejudicial. We conclude it was. We recognize, as respondent points out, that none of the specific complaints in appellant's August 2 letter refer to counsel's representation of appellant. However, as we concluded in Mendez, "Here, we cannot determine whether [appellant] had a meritorious claim of ineffective assistance, but that is not the test. Had the trial court complied with Marsden's requirements, [appellant] 'might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel.' [Citations.] 'We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction.' [Citations.]" (Mendez, supra, 161 Cal.App.4th at p. 1368; accord, Mejia, supra, 159 Cal.App.4th at p. 1087 [reversing and remanding when it was unknown what defendant might have shown after inquiry]); Reed, supra, 183 Cal.App.4th at p. 1149 [reversing and remanding when it was unknown what defendant might have shown after inquiry].)
DISPOSITION
The judgment is reversed and the matter is remanded with the following directions: (1) the court shall hold a hearing on appellant's Marsden motion; (2) if the court finds that appellant 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 appellant's Marsden motion is denied, the court shall reinstate the judgment.