Filed 5/8/13 P. v. Kent 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E055711

v.                                                                       (Super.Ct.No. SWF10001553)

MICHAEL LAMONT KENT,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge.

Reversed.

         Patrick DuNah, 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, A. Natasha Cortina and Kimberley

A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.




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                                     INTRODUCTION

       Defendant Michael Lamont Kent seeks remand to allow the trial court to hold a

Marsden1 hearing. The People agree that the matter should be remanded.

                           FACTS AND PROCEDURAL HISTORY

       On February 16, 2011, defendant was charged with robbery (Pen. Code § 211,

count 1)2 and burglary of an inhabited dwelling (§§ 459, 667.5, subd. (c)(21), count 2).

A jury convicted him of both offenses on November 4, 2011.

       As his sentencing hearing opened on January 13, 2012, defendant told the court

that he wished to make “A Motion of Ineffective Assistance of Counsel.” Defendant’s

attorney asked the court to respond to defendant as he (counsel) had never faced this

situation before and was unclear about exactly what his client wanted. The court

explained to defendant that a “Motion for Ineffective Assistance of Counsel” was an

issue to be brought up on appeal, not taken up in the trial court. And a Marsden motion

“ . . . is you no longer want this gentleman to be your attorney.” To this, defendant

responded, “Correct, Your Honor. Exactly.” The court then went on: “On the other

hand, if you don’t do that [Marsden] motion, and just go through with sentencing today,

you can always raise your appeal on grounds of ineffective assistance of counsel if you

think that’s one of the grounds you have. . . . You can raise any and all issues on appeal

that you think are appropriate.”


       1 People v. Marsden (1970) 2 Cal.3d 118.

       2 All further statutory references are to the Penal Code.


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       After conferring with his attorney, defendant elected to be sentenced that day. The

court sentenced him to the low term of three years in state prison. On February 22, 2012,

defendant filed a notice of appeal.

                                          DISCUSSION

       Defendant contends that the trial court should have provided him with a Marsden

hearing to investigate his request to discharge his attorney. The People reply that because

defendant was represented by retained counsel, Marsden does not apply. Nevertheless,

pursuant to the rule of People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), the matter should be

remanded to allow the trial court to hear defendant’s request to discharge his attorney.

The People are correct.

       In exercising his constitutional rights to counsel and to present a defense, a

defendant is entitled to discharge his attorney at any point so long as it will not interfere

with the “‘orderly processes of justice . . . .’ [Citation.]” (Ortiz, supra, 51 Cal.3d 975,

982.) When counsel is retained, as opposed to appointed, the defendant seeking to

discharge his attorney is not required to prove that counsel is incompetent or that he and

his attorney are embroiled in an irreconcilable conflict. (Id. at pp. 983-984.) “The right

of a nonindigent criminal defendant to discharge his retained attorney, with or without

cause, has long been recognized in this state [citations] . . . .” (Id. at p. 983, italics

added.) Accordingly, although the court must exercise its discretion as to whether

substitution of counsel will interrupt the orderly processes of justice, the formalities of a

Marsden hearing are not required.




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       In People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz), the Attorney General

argued that, after conviction, this broad right to discharge appointed counsel should be

limited. (Id. at p. 867.) But as the Munoz court pointed out, Ortiz made no distinction

between motions to dismiss counsel brought before trial, during trial, or after conviction.

(Ibid.) In Ortiz, our state Supreme Court was concerned with the “‘evil engendered by

friction or distrust between an indigent criminal defendant and his attorney’ [citation].”

(Munoz at p. 867.) “To our way of thinking, it is every bit as important to guard against

these undesirable consequences after trial as it is before trial.” (Ibid.) We agree.

Accordingly, we will remand the matter with instructions for the trial court to grant

defendant’s motion to discharge his retained attorney.

       Defendant also argues that his request to discharge his attorney amounts to a

motion for a new trial and that the court erred by not explaining the latter alternative to

him. However, as the People point out, defendant did not make a motion for a new trial,

and we decline to construe his request to discharge his attorney as such a motion.

                                       DISPOSITION

       The judgment is reversed and the matter remanded to the trial court with

instructions to allow defendant to discharge his retained attorney. Once new counsel is

appointed, the case is to proceed from the point at which defendant sought to discharge

his attorney.

       If, after reviewing the record, defendant’s new attorney moves for a new trial, the

court is to exercise its discretion to grant or deny the motion. If newly appointed counsel




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makes no motions, or any motions made are denied, the trial court is to reinstate the

judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                        J.


We concur:

KING
                Acting P. J.

MILLER
                          J.




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