Filed 4/11/14 P. v. Hutchinson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063596

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF132260)

OMAR TYREE HUTCHINSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Helios J.

Hernandez, Judge. Affirmed.

         Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and

Respondent.


         In 2010, a jury convicted Omar Hutchinson of murder. Before sentencing,

Hutchinson submitted a letter to the trial court delineating his complaints about his trial
counsel's representation. The trial court did not hold a Marsden1 hearing, and on appeal

we reversed and remanded with directions to hold a Marsden hearing. In the current

appeal, Hutchinson asserts the trial court erred at the Marsden hearing because it failed to

retrieve from its files the letter he originally wrote to the court setting forth his

complaints about his counsel. We find no reversible error and affirm.

                                       BACKGROUND

       In July 2010, Hutchinson submitted his postverdict letter to the trial court stating

his trial counsel (Ryan Markson) had provided ineffective representation, and listing

various complaints about his counsel's representation. At Markson's request, the trial

court appointed a new attorney to examine whether there were grounds for a new trial

motion based on ineffective representation. After the new attorney told the court she had

found no grounds for a new trial motion, the trial court reappointed Markson to represent

Hutchinson, and thereafter sentenced Hutchinson. On appeal from these proceedings, we

held, pursuant to People v. Sanchez (2011) 53 Cal.4th 80, that the procedure of

appointing conflict counsel to evaluate claims of ineffective representation was improper;

the trial court could not rely on counsel to decide ineffective representation claims; and

the court was instead required to hold a Marsden hearing to itself determine whether

Hutchinson was entitled to new counsel for all purposes. We remanded the matter to the

trial court to conduct a Marsden hearing to evaluate Hutchinson's request for new




1      People v. Marsden (1970) 2 Cal.3d 118.
                                                2
counsel, and to decide any new trial motion. (People v. Hutchinson (Sept. 7, 2012,

D059349) [nonpub. opn.].)

       At the Marsden hearing held on January 31, 2013, the court asked Hutchinson

why he wanted a new attorney. Hutchinson set forth various complaints concerning his

lack of opportunity to speak with a particular defense investigator and request to have

another investigator dismissed; his counsel's absence during pretrial motions due to

surgery and failure to sever the case; and his counsel's failure to look at correspondence

from Hutchinson in a timely fashion, call certain witnesses, recall a detective to the stand

due to inaccuracies in his testimony, and request a pinpoint instruction. In response,

Markson stated the witnesses mentioned by Hutchinson were either unavailable because

they were transient or they did not help the defense; a defense investigator had a number

of contacts with Hutchinson and the investigators tried to locate the witnesses identified

by Hutchinson; Markson reviewed Hutchinson's letters to him providing information

about the case although some were not reviewed immediately upon receipt; and he would

not have proceeded with the case if he had not felt prepared and capable after his surgery.

Markson also discussed various matters that affected the case, including Hutchinson's

incriminating statements to a detective with no Miranda2 violations, and the fact that the

information provided by witnesses identified by Hutchinson failed to provide a defense.

       Markson also mentioned the letter that Hutchinson had originally filed with the

court after the jury's verdict, stating that he recalled Hutchinson's main contention was



2      Miranda v. Arizona (1966) 384 U.S. 436.
                                             3
the failure to call particular witnesses. When Markson inquired whether the court

currently had a copy of the letter, the court stated it did not have the letter "right now" but

it was in the file.

       After listening to Hutchinson and Markson, the trial court ruled Hutchinson was

not entitled to new counsel. The court stated it did not observe any problems during the

trial and his attorney did a "fine job"; Markson was an experienced criminal law attorney

with a good reputation; and complaints about matters such as which witnesses to call

concerned trial tactics that are "strictly within the province of the attorney." Further, the

court concluded there was no indication that anything had occurred that had undermined

the attorney-client relationship between Hutchinson and Markson. Regarding the letter

filed by Hutchinson after the jury's verdict, the court stated it had read the letter and did

not "see anything wrong."

       After denying the request for new counsel, the court inquired whether Markson

thought a new trial motion was appropriate, and Markson responded that he did not.

Accordingly, the court reinstated the judgment.

                                        DISCUSSION

       Hutchinson argues that at the January 2013 Marsden hearing, the trial court should

have retrieved his July 2010 letter from its file and addressed the specific issues raised in

the letter. He asserts it was unreasonable to expect him to remember all his complaints

about his attorney two and one-half years after he wrote the letter, and the court's failure

to retrieve the letter effectively denied him the right to present all of his reasons for

requesting new counsel.

                                               4
       A defendant is entitled to new appointed counsel if the record shows the first

appointed attorney is not providing adequate representation or that there is such an

irreconcilable conflict that ineffective representation is likely to result. (People v. Valdez

(2004) 32 Cal.4th 73, 95.) When a defendant requests substitute appointed counsel, the

trial court must permit the defendant to explain the reasons for his dissatisfaction with his

current counsel. (People v. Sanchez, supra, 53 Cal.4th at pp. 87, 90.) We review the trial

court's resolution of Marsden issues for abuse of discretion. (People v. Memro (1995) 11

Cal.4th 786, 857.) If the trial court failed to conduct an adequate inquiry into the reasons

for the substitution request, the case should be remanded for a reopened Marsden hearing

unless the record shows the error was harmless beyond a reasonable doubt. (See People

v. Hill (2013) 219 Cal.App.4th 646, 653-654; People v. Leonard (2000) 78 Cal.App.4th

776, 787.)

       On appeal, Hutchinson identifies only one issue that the court failed to consider

due to its failure to retrieve the letter—i.e., his complaint about lack of communication

with his attorney. In support, Hutchinson cites a portion of the letter where he states that

he had not received any legal counseling from his attorney; he had tried calling Markson

and leaving messages; his family also tried contacting Markson; and they "received three

verbal responses between 6-26-08 to 4-15-10." Hutchinson contends the trial court

should have explored this complaint about lack of communication to determine if there

had been a breakdown in the attorney-client relationship.

       We need not decide whether the trial court abused its discretion by failing to

obtain the letter from its files during the Marsden hearing because any error was harmless

                                              5
beyond a reasonable doubt. Although a total lack of communication between a defendant

and counsel may show inadequate representation or an irreconcilable conflict, complaints

about the number of times counsel has communicated with the defendant do not alone

show impairment of the right to assistance of counsel. (See People v. Valdez, supra, 32

Cal.4th at p. 96 [substitution not warranted based on complaint that defendant "had not

been able to speak with counsel as often as he would have liked"]; People v. Smith (2003)

30 Cal.4th 581, 606 [substitution warranted if there is conflict creating " ' "total lack of

communication preventing an adequate defense" ' "].) Hutchinson's complaints in the

letter about difficulties in reaching his counsel do not suggest that counsel had ceased

communicating with him or that counsel's preparation of a defense was impeded. To the

contrary, the letter (which we have reviewed on appeal) indicates that there were

communications with his counsel, stating there were about six visits with Markson before

the preliminary hearing, a visit in June 2008, three verbal communications from June

2008 to April 2010, and contacts at scheduled court appearances. Further, the discussions

at the Marsden hearing show that the court explored Hutchinson's opportunity to convey

information to the defense team, including discussions about Hutchinson's

communication with defense investigators, the defense attempts to find witnesses

identified by Hutchinson, and counsel's review of Hutchinson's letters providing

information about the case.

       There is no reasonable possibility that Hutchinson might have prevailed at the

Marsden hearing based on the lack of communication claim set forth in his letter; hence,

the court's failure to retrieve the letter caused no prejudice.

                                               6
                                 DISPOSITION

     The judgment is affirmed.




                                               HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.




                                      7
