Filed 1/6/16 P. v. Aguilera CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F068828
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 11CM2048)
                   v.

NESTOR AGUILERA,                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Thomas DeSantos, Louis F. Bissig,* John G. O’Rourke,* and Michael J. Reinhart,
Judges.

         Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-

         *Retired judge of the Kings Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                       INTRODUCTION
       Defendant Nestor Aguilera entered into a plea agreement, admitting one count of
rape of a victim under 14 years, defendant being older than the victim by more than seven
years (Pen. Code,1 §§ 269, subd. (a)(1), 261, subd. (a)(2), count 7) and lewd and
lascivious conduct on a victim under age 14 (§ 288, subd. (a), count 24).2 Pursuant to the
plea agreement, defendant received a stipulated sentence of 15 years to life on count 7
and a consecutive sentence of three years on count 24. The remaining counts were
dismissed.
       Defendant contends on appeal the trial court violated his due process rights for
failing to have him properly evaluated for his disability by the Regional Director of the
Central Valley Regional Center, Inc. (Regional Center) or another qualified expert
pursuant to section 1369. Defendant contends the trial court erred in not allowing him to
discharge his retained counsel. Defendant argues that even though he had retained
counsel, the trial court erred in failing to conduct a hearing pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden) because defendant was indigent, and the trial
court further erred for failing to appoint an independent attorney for all purposes to
investigate a potential motion to withdraw his plea pursuant to People v. Sanchez (2011)
53 Cal.4th 80, 87-91. Defendant finally contends his retained counsel was ineffective for
failing to present evidence in support of defendant’s motion to withdraw his plea.
       We conclude the trial court erred in failing to allow defendant to discharge his
retained counsel pursuant to People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz) and
People v. Lara (2001) 86 Cal.App.4th 139, 156-158 (Lara). The error requires




       1Unless   otherwise designated, statutory references are to the Penal Code.
       2Because  the issues raised by the parties do not involve the facts of the underlying
offenses, we do not recount them.


                                                2.
conditional reversal of the judgment. We discuss defendant’s contentions involving his
mental disability and physical illnesses to guide the trial court on remand.
                                     PROCEEDINGS
Initiation of Criminal Proceedings
       On July 5, 2011, a felony complaint was filed against defendant alleging he had
committed multiple sexual offenses against two victims who were minors. On the same
date, Maria Sanchez, a counselor and service manager with the Regional Center, faxed a
letter to the Kings Superior Court stating her understanding that defendant would be
appearing in court that day. Sanchez informed the court defendant was a client of the
Regional Center under the diagnosis of mild mental retardation and suffered from
hypertension, thyroid and chronic kidney disease, and had a kidney transplant in 2007.
Marsden Hearing
       On Friday, June 22, 2012, defendant’s retained counsel, Antonio Reyes, informed
Judge Bissig defendant wanted the opportunity to hire a new attorney. Reyes told
defendant that if he did so, the new attorney would have to be ready to go to trial after a
weekend prior to trial. The trial court conducted what it called a Marsden hearing outside
the presence of the prosecutor.
       During the hearing, Reyes explained he had reviewed everything with defendant.
Defendant told the court the accusations against him were not true, he was “being
accused of 20 years as if [he] would have killed someone,” he was not the person
everyone thought he was, and the prosecutor had a cold heart. Defendant thought he was
being accused without any proof. Defendant thought Reyes believed the alleged victims
more than Reyes believed defendant. Defendant did not believe Reyes helped him.
       The court explained to defendant that Reyes was very experienced and it was his
job to relate the charges and evidence to defendant, explain them to defendant, and to
give an assessment of how believable he thinks the witnesses would be during their
testimony. Reyes was a messenger. The court advised defendant that he had a right

                                             3.
under the Constitution to be represented by an attorney of his own choosing; defendant
could make a change, but doing so would not automatically entitle defendant to a
continuance. The court did not believe as a practical matter that defendant would be able
to find a competent attorney willing to take his case on such short notice.
       Reyes explained the prosecutor had provided him with information on Evidence
Code section 1108 issues in January 2012, which had necessitated a continuance. It
involved evidence from a police report dating back 10 years. Recently, a statement had
been obtained from a witness and counsel received it only a few days earlier. Reyes met
with defendant the day before and discussed the entire report with him. Reyes told
defendant this evidence would not help defendant’s case and he should reconsider the
prosecutor’s offer of a plea bargain.
       Defendant said if he got another attorney, it was a difficult situation because that
attorney would have to be prepared by Monday. Defendant again said he did not know
why people would think badly about him. The court found no indication of inadequate
representation of counsel. Defendant made no direct or indirect criticism of Reyes or his
representation.
Suspension of Proceedings
       During a hearing before Judge Tarter on November 2, 2012, Reyes informed the
court defendant was having “some serious memory issues.” Reyes told the court
defendant said he was no longer receiving medications previously given to him and he
could not comprehend things counsel discussed with him. Reyes was very concerned
about defendant’s mental status and requested the appointment of a psychiatrist to
examine defendant pursuant to section 1368. Reyes explained when he went over things
with defendant, defendant could not recall what he was told. Defendant also complained
about hearing people talking to him. The court set the matter over for the psychiatric
evaluation and report.



                                             4.
       Dr. Luis Velosa examined defendant on November 14, 2012. Prior to the
examination, Dr. Velosa reviewed: (1) a report from a private investigator who had
contacted Dr. Carolyn Sharp from the Regional Center in March 2012, (2) the Regional
Center reports, including one from October 2010, and (3) the police reports of the alleged
offenses. Dr. Velosa stated he obtained defendant’s demographic data and medical
history directly from defendant, whose descriptions were clear, coherent, and appropriate.
Defendant described his living arrangements over the past five years and his studies in
high school. Defendant could read and write in Spanish.
       Defendant worked as a janitor. He had problems with his kidneys and denied any
problems with drugs and alcohol. Defendant said he had a kidney transplant. Prior to the
transplant, defendant received dialysis. He recently suffered stomach pains, nausea,
vomiting, and difficulty going to the bathroom. Defendant was cooperative during the
psychiatric examination, his command of Spanish was quite adequate, and he was able to
express his opinions and describe his ideas rationally and coherently. Defendant also had
the ability to use verbal abstractions and describe historical events having a good use of
time spans such as years and months.
       Defendant understood the roles of his attorney, the prosecutor, the judge, and the
jury. Dr. Velosa stated defendant was alert and oriented as to time, place, and person.
His speech was rational, coherent, and goal oriented. Dr. Velosa found defendant’s
thinking process adequate without evidence of looseness of associations or auditory or
visual hallucinations. There was also no evidence of “delusional material” or of a mood
disorder. Defendant could adequately modulate his emotions and there was no evidence
of suicidal ideations.
       Dr. Velosa stated defendant had no history of physical disorder, though defendant
had informed him of his kidney transplant and the Regional Center had sent reports
concerning defendant. Dr. Velosa found defendant free of a psychiatric disorder that
could impair his concept of reality. Defendant had never taken psychiatric medications

                                             5.
and had never been a patient in a psychiatric hospital. Dr. Velosa noted the defendant
was a client of the Regional Center and suffered from borderline intellectual functioning.
Although diagnosed as having mild mental retardation, Dr. Velosa found defendant
functioned behaviorally “on a much higher intellectual level.”
       Dr. Velosa concluded defendant was presently able to understand the nature and
purpose of the proceedings, was capable of cooperating in a rational manner with his
counsel, and was competent to stand trial. On December 5, 2012, the parties submitted
the issue of defendant’s competency to stand trial on Dr. Velosa’s report. The trial court
accepted Dr. Velosa’s report and found defendant competent to stand trial.
Change of Counsel
       Defendant needed new counsel because Mr. Reyes had been appointed to the
bench. On June 4, 2013, the court appointed Ralph Kaelble to represent defendant. On
June 14, 2013, Albert Garcia appeared with defendant and Kaelble and indicated he
needed time to assess whether to represent defendant as retained counsel. On June 21,
2013, Kaelble was relieved as appointed defense counsel and Albert Garcia was
substituted as defendant’s retained counsel.
Change of Plea
       On October 21, 2013, the parties entered into a plea agreement before Judge
Reinhart. Under the terms of the agreement, defendant admitted count 7 (§§ 269, subd.
(a)(1), 261, subd. (a)(2)) with a stipulated sentence of 15 years to life and count 24
(§ 288, subd. (a)) with a stipulated consecutive sentence of three years. The trial court
advised defendant of his constitutional rights pursuant to Boykin v. Alabama (1969) 395
U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Defendant stated he had discussed these
rights with his attorney, Garcia. When the court asked defendant if he had questions,
defendant replied, “Yes,” then had a brief discussion off the record with Garcia. After
these discussions with Garcia, defendant told the court he had no questions about his
rights and waived them.

                                               6.
       The court reviewed with defendant the consequences of his plea. During this
exchange, defendant indicated he did not understand what the court meant when it
explained the conditions of parole, including that defendant could serve a year in prison
for a violation of his parole. Garcia and defendant had another discussion off the record.
The court resumed its explanation of the consequences of entering into the plea
agreement. When advised of the immigration consequences of the change of plea and
asked if he had discussed these with Garcia, defendant replied, “No.” After a brief
discussion with defendant, Garcia and defendant told the court they had just discussed the
immigration consequences of defendant’s change of plea.
       The court explained to defendant the waiver the parties were entering into
pursuant to People v. Harvey (1979) 25 Cal.3d 754. When the court asked defendant if
he had enough time to discuss the bargain with Garcia, defendant replied, “No.” After a
brief discussion with Garcia, defendant said he did have enough time to discuss the plea
agreement with Garcia. Defendant said he was satisfied with Garcia’s services and
advice. Defendant said he had received no threats to himself or loved ones or promises
other than what was stated in open court to change his plea. Defendant said he
understood what he was charged with and understood his rights and defenses.
       When asked if he was taking any medications, was under the influence of any
substance, or suffering from any medical conditions that could impair his ability to
understand the plea or what was happening in court, defendant replied: “Well, actually, I
don’t know because I take quite a bit of medication, and I don’t know what I’m being
given.” Garcia explained he was aware defendant took medication, but did not know
what kind.
       When the court asked defendant if he was suffering from anything that would
prevent him from understanding what was occurring, defendant replied: “Yeah.
Actually, the truth is … that I don’t understand—I don’t learn a lot of things.” The court



                                            7.
had Garcia talk to defendant to determine whether defendant suffered from anything that
would prevent him from understanding the proceedings.
       After a discussion with defendant, Garcia told the court there was nothing that
would impair defendant’s ability to understand the plea agreement or the proceedings.
Garcia added there was obviously discussion going back and forth concerning the
negotiations. This included many questions and concerns, but Garcia believed he was
able to communicate well with defendant. Garcia was satisfied his client understood the
charges.
       Defendant pled no contest to counts 7 and 24. The court found an express,
knowing, and intelligent waiver of statutory and constitutional rights by defendant. The
court further found defendant freely and voluntarily entered into the plea agreement,
understanding the nature of the charges and the consequences of the plea.
Commencement of Sentencing Hearing
       The sentencing hearing began on November 15, 2013, before Judge O’Rourke
who asked if Garcia and defendant were prepared to proceed to sentencing. Garcia
replied that defendant had reported him to the California State Bar since the plea was
taken and defendant had also reported Reyes to the bar. Defendant told Garcia he had
scared defendant into taking the plea and was not a good attorney. Garcia informed the
court, “I don’t know if he’s requesting ineffective assistance of counsel, but I gather from
reporting me to the State Bar, I believe that’s what his objectives were.”
       When the court asked if they should have a Marsden hearing, Garcia replied he
did not know if a Marsden hearing would suffice, it was up to the court. The court asked
Garcia if defendant had a problem with Garcia’s representation. Garcia replied that if
defendant had a problem with him as counsel, Garcia could not prepare a motion for
defendant to withdraw his plea based on ineffective assistance of counsel. While Garcia
was ready to go forward with sentencing, he thought independent counsel would have to
be appointed. Judge O’Rourke decided to send the matter back to Judge Reinhart and to

                                             8.
appoint independent counsel to investigate any potential claim for ineffective assistance
of trial counsel.
Independent Counsel’s Declaration
        James Oliver investigated whether there was ineffective assistance of trial counsel.
Oliver filed a declaration stating he had been appointed by the court to assess whether
defendant had a legal basis to withdraw his no contest plea. Oliver personally
interviewed defendant to assess whether Garcia had been ineffective in his representation
of defendant. According to Oliver, defendant did not claim Garcia improperly
represented him, only that he wanted Garcia to visit him more frequently. When asked if
he made a mistake in admitting the allegations, defendant said he wished he had gone
through with a jury trial and asserted his innocence. Defendant explained that 18 years
was too long and he wanted a better deal with less time. Oliver did not interview Garcia.
Oliver read the reporter’s transcript of the change of plea hearing. Based on the
transcript, Oliver concluded defendant entered the no contest plea intelligently, freely,
and voluntarily. In Oliver’s opinion, there was no basis for defendant to withdraw his
plea.
Sentencing Hearing
        On December 18, 2013, Garcia and Oliver appeared at the continued sentencing
hearing. Judge Reinhart first addressed the potential motion to withdraw defendant’s
plea. Garcia said defendant had earlier indicated he wanted to withdraw his plea on
different grounds. One was that he was under different types of medications. Garcia
obtained a list of those medications from the jail. Defendant also asserted he did not feel
Garcia represented his interest and this was how Oliver was appointed by Judge
O’Rourke. Garcia said he felt he had a conflict of interest with defendant.
        Garcia told the court he had nothing to add to Oliver’s declaration and submitted
the matter for the court. Oliver stated as he finished his interview with defendant, Oliver
suggested to defendant that it sounded as though he made a bad choice and was sorry he

                                             9.
changed his plea. Defendant responded he did not want a trial, he wanted a better deal.
Oliver submitted the matter on his declaration.
       Garcia explained that on the date set for trial, he was ready to proceed. Defendant
was on the fence about whether to have a trial or to take the plea bargain. During the
change of plea proceeding, defendant indicated he was taking medication. The court
addressed the issue by asking counsel to look into whether defendant could form a proper
opinion. Garcia believed defendant’s position was that the medications affected his
ability to make a proper judgment call. Garcia did discuss this point with defendant who
said he was ready to proceed with the plea, but since then felt he was not able to enter
into a plea. Garcia then added: “And, again, the medication that he—I’m not a
physician, I’m not a psychiatrist, I have no knowledge as to what or how these
medications will affect that. I just bring it to the Court’s attention because [defendant]
wants me to bring it to the Court’s attention that he does want to withdraw his plea and it
is based on that.” Judge Reinhart observed he, too, was not a pharmacist or a physician
and did not know the effect, if any, the medications would have on defendant.
       Garcia responded, “Exactly. I just don’t know how to address it. And short of
call[ing] an expert, which I don’t intend to do, this came—we did address it generally
that he was taking medication and so after that we proceeded and you felt he was able to
still proceed. And when I received the list I thought, well, it could be significant, it might
not be significant. But nevertheless I’ll read it on the record if the Court allows me to.”
The court had counsel submit the list as an exhibit.3
       The court noted it took defendant’s plea and, from its own recollection and the
reporter’s transcript, found defendant responded appropriately to the questions asked and

       3Although  the parties refer to 11 medications, the list submitted to the court contained 10
medications. All the medications were administered in the morning between 4:00 a.m. and 5:00
a.m. Three of the medications were also given in the evening. The medications were:
metoprolol 25 mg., prednisone 10 mg., Prilosec 20 mg., vitamin D3 1000 IU, Synthroid 75 mcg.,
Procardia 90 mg., lisinopril 10 mg., folic acid 1 mg., Rapamune 1 mg., mycophenolate 1000 mg.


                                               10.
there was nothing in his behavior that would lead one to believe he did not fully
understand what was happening. The court found defendant made a knowing, intelligent,
and voluntary change of plea. The court found no legal basis for him to withdraw his
plea and denied the motion.
                                      DISCUSSION
1.     Representation By Retained Counsel
Introduction
       Defendant raises several issues related to his attorney’s representation. Because
defense counsel was retained, not appointed, the trial court erred in failing to follow the
procedures set forth by the California Supreme Court in Ortiz and our court in Lara. The
error requires conditional reversal of the judgment. Because defense counsel was
retained, we reject defendant’s additional contention the trial court should have held a
Marsden hearing at the commencement of the sentencing hearing in November 2013.
Legal Principles
       In Ortiz, supra, 51 Cal.3d 975, our high court held a nonindigent defendant was
not required to satisfy the requirements of Marsden if he or she wished to discharge
retained counsel. Ortiz found this right was not absolute and the trial court retained
discretion to deny the motion if discharging counsel would cause the defendant
significant prejudice by forcing him or her to trial without adequate representation, or, if
the discharge was untimely and would result in a disruption of orderly judicial process.
(Id. at p. 982.)
       A nonindigent defendant does not have to show inadequate representation or
embroilment in an irreconcilable conflict with retained counsel. (Ortiz, supra, 51 Cal.3d
at pp. 984, 987; People v. Maciel (2013) 57 Cal.4th 482, 512; People v. Sanchez, supra,
53 Cal.4th at p. 89.) In light of the importance of the right to counsel of choice, Ortiz
found a court must not allow a defendant’s indigence to prevent the timely discharge of



                                             11.
retained counsel the defendant no longer wishes to have represent him or her. (Ortiz,
supra, at pp. 984, 987.)
       Because the right to discharge retained counsel is broader than the right to
discharge appointed counsel, it is error to conduct a Marsden hearing and apply the
Marsden standard for the discharge of retained counsel. The trial court should conduct a
hearing to determine whether the defendant seeks to discharge retained counsel. (People
v. Keshishian (2008) 162 Cal.App.4th 425, 429; People v. Hernandez (2006) 139
Cal.App.4th 101, 108-109.) If a defendant has made a timely motion to discharge his or
her retained counsel, the court can only consider the defendant’s indigent status after
retained counsel is dismissed. (Ortiz, supra, 51 Cal.3d at p. 987.) The trial court can
then proceed to the appointment of substitute counsel pursuant to section 987.2. (Ortiz,
supra, at pp. 987, 989-990.) In People v. Sanchez, supra, 53 Cal.4th at pages 87-91, the
California Supreme Court found that where a defendant seeks to challenge the
effectiveness of his or her appointed trial counsel and independent counsel must be
appointed to investigate the claim, the attorney becomes the defendant’s representative
for all purposes and all subsequent proceedings.
       In Lara, supra, 86 Cal.App.4th 139, this court reviewed a full Marsden hearing
conducted by the trial court where the defendant sought to substitute his retained counsel
before trial. Following Ortiz, we found the trial court improperly applied the Marsden
standard for substitution of retained counsel. (Lara, supra, at pp. 152-156.) In Lara,
defense counsel told the court he believed his client was making a Marsden motion.
(Lara, at pp. 157-158.) At the conclusion of a Marsden hearing, the trial court found a
mere tactical difference between the defendant and his attorney and denied the request to
substitute counsel.
       Lara acknowledged it was a close question concerning whether the defendant
actually wanted to discharge his attorney. (Lara, supra, 86 Cal.App.4th at pp. 156-158.)
This court concluded there was an improper Marsden-type hearing but we could rely on

                                            12.
the trial court’s “factual interpretation of the situation as involving a request by appellant
to discharge his defense attorney and obtain a new attorney to represent him ….” (Lara,
supra, at p. 158.) After reviewing the Marsden hearing, we found the defendant had
serious tactical disputes with his retained counsel concerning how to proceed at trial.
(Lara, at pp 156-158.) The disputes included whether the defendant should testify at trial
and whether his accomplice should be called as a defense witness. (Id. at p. 147.) We
concluded the defendant’s complaints about his attorney “were sufficient to implicate his
right to discharge his retained counsel, and either hire a new attorney or request the
appointment of counsel.” (Id. at p. 158.)
       Lara further held any mistake by defense counsel’s misunderstanding that
Marsden was applicable to a case involving retained counsel could not be resolved by the
doctrine of invited error. (Lara, supra, 86 Cal.App.4th at p. 165.) Because the defendant
articulated reasons to discharge his counsel and the trial court misapplied Marsden, the
case had to be reversed. (Id. at pp. 165-166.) Reversal is automatic where the trial court
applied the wrong standard and the defendant has been deprived of his or her right to
defense with counsel of choice. (Ortiz, supra, 51 Cal.3d at p. 988; People v. Hernandez,
supra, 139 Cal.App.4th at p. 109; People v. Munoz (2006) 138 Cal.App.4th 860, 870-
871; see People v. Vasquez (2006) 39 Cal.4th 47, 69, fn. 12.)
       It was error for the trial court here to appoint James Oliver without first learning
from defendant what he desired to do.4




       4Where an     appointed attorney is substituted to investigate a claim of ineffective
assistance of trial counsel, the proper procedure is to substitute a new appointed attorney to
investigate the claim and for all other purposes. (People v. Sanchez, supra, 53 Cal.4th at pp. 89-
90.) We reject defendant’s contention on appeal the trial court should have appointed a new
attorney for all purposes as set forth in Sanchez. The People correctly argue the procedure
explained in Sanchez is employed when a defendant has appointed counsel and there is an
assertion of ineffective assistance of trial counsel.


                                               13.
Analysis
       We initially note the timeliness of a motion to replace counsel and the potential
disruption of the judicial process are relevant to the instant action. Granting a motion to
dismiss defense counsel at the time of sentencing would not have caused any prejudice to
defendant. Defendant’s conflict with Garcia occurred during and after defendant’s
change of plea. Defendant was not about to begin trial nor was he in the middle of trial,
and he was prepared to continue hearings when necessary so there was no potential
disruption to orderly judicial process.
       As in Lara, the question concerning whether defendant wished to discharge Garcia
is ambiguous. The trial court never directly asked defendant if he wanted to dismiss
Garcia. Garcia informed the court on November 15, 2013, that defendant had reported
him to the California State Bar after the plea was taken. Defendant believed Garcia had
scared defendant into taking the plea and was not a good attorney. Garcia stated, “I don’t
know if he’s requesting ineffective assistance of counsel, but I gather from reporting me
to the State Bar, I believe that’s what his objectives were.”
       When the trial court asked if there should be a Marsden hearing, Garcia replied he
did not know if a Marsden hearing would suffice and left the decision to the court. The
court asked Garcia if defendant had a problem with his representation. Garcia said that if
defendant had a problem with him as counsel, Garcia could not prepare a motion for
defendant to withdraw his plea based on ineffective assistance of counsel.
       At this juncture, the court appointed Oliver to represent defendant on his potential
motion to withdraw his plea, without first asking defendant if he sought to discharge
Garcia. This procedure was flawed under Ortiz and Lara. The proper procedure for the
court was to determine if defendant wanted to dismiss Garcia. Though defendant may
have been indigent, his family had been able to retain both Reyes and Garcia. Defendant
should have been given the opportunity to seek his own retained counsel. If defendant or



                                             14.
his family could not afford to retain a new attorney, only then should the trial court have
appointed Oliver as counsel as set forth in Ortiz and section 987.2.
       The defendant’s reliance on People v. Sanchez, supra, 53 Cal.4th at pages 87-91 is
misplaced. As noted above, Oliver was prematurely appointed to investigate a potential
claim of ineffective assistance of trial counsel by Garcia. Only after discharging Garcia
and determining defendant was indigent should a new attorney be appointed to represent
a defendant.5 Pursuant to Sanchez, a new appointed attorney would then represent
defendant for all purposes in future hearings. (Ibid.) Defendant also argues in his
opening brief that because he was indigent, the trial court and this court should apply the
Marsden procedure in his case. This procedure was expressly rejected by our Supreme
Court in Ortiz. (People v. Ortiz, supra, 51 Cal.3d at pp. 982-987.) The rulings of the
Supreme Court are binding on all lower courts. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
       At the continued sentencing hearing on December 18, 2013, Garcia and Oliver
appeared. The court addressed the potential motion to withdraw defendant’s plea.
Several things are clear from Garcia’s presentation to the court. Garcia explained
defendant sought to withdraw his plea because he was taking numerous medications and
did not feel Garcia was representing defendant’s interests. Oliver told the court
defendant did not want a trial, he wanted a better deal. Garcia stated he was not a
physician, did not know how the medications could affect his client, did not know how to
address the issue, and did not plan to obtain a medical opinion to support the defendant’s
motion to withdraw his plea.



       5Earlier in  the proceedings, when this case was originally scheduled for trial, Judge
Bissig held what he called a Marsden hearing. Although not accurately denoted, Judge Bissig
focused on the critical issue that had to be resolved when he directly asked defendant if he
sought to dismiss his then counsel, Mr. Reyes. Judge Bissig correctly analyzed the timing of the
potential substitution of counsel and defendant elected to keep his lawyer at that time.


                                              15.
       Although defendant did not directly state he wanted to discharge Garcia, over the
course of two hearings in November and December 2013, everything Garcia told the
court pointed to a complete rift in the attorney-client relationship over tactics. This
disagreement did not relate only to a potential claim of ineffective assistance of trial
counsel, it also involved defendant’s assertion he could not enter into a knowing,
intelligent, and voluntary plea agreement because of his medical condition and the
multiple prescribed medications he was taking.
       Garcia represented his client was dissatisfied with his representation and defendant
felt forced by Garcia into entering the plea agreement. Defendant had reported Garcia to
the State Bar and wanted Garcia to file a motion to withdraw his plea, based on the effect
of all the medications he was taking. Garcia acknowledged he did not know the effect, if
any, of the medications on defendant’s ability to understand the plea agreement but
declined to consult a doctor in pursuit of defendant’s motion to withdraw his plea.
       Garcia further told the court he did not know what to do. It is clear Garcia was
refusing to investigate whether there was medical support for defendant to withdraw his
plea. Although defendant did not expressly tell the court he wanted to dismiss Garcia,
and was never directly asked if he wished to do so, the evidence adduced at the continued
sentencing hearing leads us to the conclusion this is precisely what defendant sought. We
had to draw similar inferences from the evidence adduced at the Marsden hearing in
Lara. The facts here are more compelling than those in Lara in support of defendant
seeking to discharge his retained attorney. We conclude, therefore, the trial court erred in
failing to permit or offer to defendant the option of discharging his retained counsel
without having to establish ineffective assistance of counsel through a Marsden hearing.
This error affected defendant’s right to counsel as explained in Ortiz and Lara,
necessitating conditional reversal of the judgment.




                                             16.
2.     Defendant’s Disability and Illnesses
       We do not decide the issues concerning whether defendant had a colorable claim
to withdraw his plea, but remand the case without prejudice to defendant to raise these
issues and any other points affecting his competency as well as his ability to enter into a
plea bargain or to understand the terms of a plea agreement.6 We review two factual
issues affecting the defendant’s competency for guidance to the trial court on remand.
These are (1) defendant’s mental status resulting from the diagnosis of mild retardation
by the Regional Center, and (2) the effect, if any, of the 10 medications defendant was
prescribed for various health problems including kidney and heart disease.
       The Regional Center sent a letter to the court when the criminal complaint was
filed indicating defendant was a client and diagnosed with mild mental retardation. The
letter further stated defendant had a kidney transplant and suffered from kidney and heart
disease. Dr. Velosa was later appointed to evaluate defendant’s mental competency when
defendant’s first counsel, Antonio Reyes, informed the court defendant could not
remember things he was told. However, Dr. Velosa did not address memory issues in his
evaluation of defendant. Further, although Dr. Velosa did not find any indication of
mental illness and concluded defendant was competent to stand trial, he made only
passing reference to defendant’s physical health problems and mild mental retardation.
Subsequently, during the change of plea hearing, the proceedings had to be stopped
several times for Garcia to explain to defendant what was happening.
       Dr. Velosa also referred in his evaluation to reports from the Regional Center
concerning defendant’s mental retardation diagnosis, but included no information from
them. These reports from the Regional Center were not attached to Dr. Velosa’s
evaluation of defendant and have not been included in the record on appeal. Because the


       6If the Marsden standard applied to this case as proposed by defendant, there was more
than a colorable claim by defendant to support an inquiry into a motion for him to withdraw his
plea. (See People v. Smith (1993) 6 Cal.4th 684, 692-693.)


                                              17.
record is not complete, we are unable to determine whether the court erred by failing to
appoint the regional director to evaluate defendant for developmental disability, or
whether, assuming error, it was harmless. The case is remanded without prejudice to
defendant to raise any issue concerning his diagnosis of mild retardation and/or problems
with memory already raised in the reports from the Regional Center, or to have an
evaluation by the Director of the Regional Center or other qualified evaluator. The trial
court and the parties shall be guided by section 1369 and People v. Leonard (2007) 40
Cal.4th 1370, 1389-1393.)
       Garcia raised the issue of the effect of the medications defendant had been
prescribed for heart and kidney problems. Both Garcia and the trial court stated they
were unaware of the effects, if any, of these medications on defendant’s ability to enter
into a knowing, intelligent, and voluntary plea bargain. This point is foundational to
whether defendant was competent to enter into a valid plea agreement or to stand trial.
The case is also remanded without prejudice to defendant to have an evaluation from a
qualified physician to determine if his medications and general health condition have any
effect on his ability to understand the proceedings, to assist his counsel, or to enter into a
valid plea agreement.
                                       DISPOSITION
       The judgment is conditionally reversed and the case remanded for further
proceedings as follows. On remand the trial court shall conduct a hearing to verify
whether defendant still seeks to dismiss Mr. Garcia as his counsel. If defendant desires
new counsel, the court shall allow defendant to retain new counsel, or if the court
determines defendant is indigent, the court shall appoint counsel to represent defendant
for all further proceedings. The court shall further grant leave for Mr. Garcia, or new
counsel, to investigate all matters related to defendant’s disability and competency, as
well as whether to file a motion for defendant to withdraw his plea. If defendant files a
motion to withdraw his plea and it is granted by the trial court, the case may proceed to

                                              18.
trial or other disposition. If defendant fails to file a motion to withdraw his plea, or files a
motion to withdraw his plea and after a hearing the court denies the motion, the court
shall reinstate the judgment.

                                                           ___________________________
                                                                               PEÑA, J.
WE CONCUR:


 ________________________________
FRANSON, Acting P.J.


 ________________________________
SMITH, J.




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