Filed 5/19/14 P. v. Jamison CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)



THE PEOPLE,                                                                                  C073826

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF112494)

         v.

JEREMY JAMISON,

                   Defendant and Appellant.




         Defendant Jeremy Jamison was sentenced to seven years in state prison for theft
from an elder pursuant to a no contest plea. On appeal, defendant contends the trial court
prejudicially erred by failing to hear his postplea but presentencing Marsden1 motion, in
which he claimed his plea was involuntary because it was entered as a result of his
attorney’s lies and manipulations of defendant. We reverse the judgment and remand the
matter to the trial court to hold a hearing on defendant’s postplea Marsden motion.




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

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                               FACTUAL BACKGROUND
        Because of the nature of the issue raised on appeal, the substantive facts are only
briefly summarized. At a neighbor’s request, the 74-year-old-victim allowed defendant,
who was homeless, to stay with her for a couple of weeks “until he could get set up with
his own place.” One morning, the victim woke to find defendant and his possessions
gone. Soon thereafter, the victim was notified of possible fraudulent activity against her
credit card and discovered defendant had stolen her credit card and some of her gold
jewelry. Defendant charged an Amtrak ticket and two nights at a local motel, among
other things, to the victim’s credit card without her permission. Defendant also wrote a
check against the victim’s bank account.
                            PROCEDURAL BACKGROUND
        Defendant was charged with grand theft (Pen. Code, §§ 484, subd. (a), 487, subd.
(a)2 -- count 1), unauthorized use of an access card (§§ 484g, 487, subd. (a) -- count 2),
identity theft (§ 530.5, subd. (a) -- count 3), theft or embezzlement from an elder (§ 368,
subd. (d) -- count 4), and possession of marijuana (Health & Saf. Code, § 11357, subd.
(b) -- count 5). Defendant was also alleged to have a prior conviction for a serious felony
(§ 667, subd. (e)(1)) and a prior prison term within five years prior to the current charges
(§ 667.5, subd. (b)).
        Defendant was represented by appointed counsel Rodney Beede. Defendant
initially entered a plea of not guilty and denied all enhancements on July 25, 2011. On
March 22, 2012, defendant was deemed incompetent to stand trial and was committed to
a state hospital for treatment. On October 4, 2012, proceedings recommenced. On
February 4, 2013, defendant entered a plea of not guilty and not guilty by reason of
insanity.




2   Undesignated statutory references are to the Penal Code.

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       On February 11, 2013, defendant, without the assistance of counsel, sought to
have his appointed counsel replaced with different appointed counsel. On March 18,
2013, defendant, through Beede, withdrew his request for a Marsden hearing. The court
specifically confirmed the withdrawal with defendant.
       In that same court appearance, defendant pleaded no contest to theft from an elder
(count 4) and admitted enhancements for a prior strike and prior prison term in exchange
for a state prison sentence of seven years. All other counts and enhancements were
dismissed. Defendant indicated he had discussed the terms of the plea and its possible
consequences with his attorney and that he had not been threatened or promised anything
to enter his plea.
       Defendant renewed his pro. per. campaign to have new counsel appointed (and
began attempting to withdraw his plea). He wrote to the court on March 18, 2013,
claiming Beede manipulated him into accepting the plea and that he did not intend to
withdraw his Marsden motion. On March 19, 2013, he made an identical request. On
March 20, 2013, he again informed the court he did not intend to withdraw his Marsden
motion. On March 22, 2013, defendant reiterated his requests for new counsel. On
March 24, 2013, defendant submitted another written request seeking the same relief. On
April 2, 2013, defendant moved to fire his counsel.
       At a court hearing on April 12, 2013, defendant withdrew his Marsden motion,
without prejudice. After counsel indicated he and defendant had spoken and defendant
had decided to withdraw his motion, the court asked defendant directly, and defendant
confirmed he was no longer requesting Beede’s removal “at this point.”
       On April 13, 2013, defendant, without counsel’s assistance, attempted to appeal
his case and obtain a certificate of probable cause. In his request for a certificate of
probable case, he contended he withdrew his Marsden motion because Beede told him
the attorney who would be appointed to replace him was one whom defendant had fired
in a previous criminal matter. Defendant wrote he “need[ed] new counsel.”

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       Defendant made two other requests to have new counsel appointed before his
sentencing hearing. On April 14, 2013, defendant asked the court to replace Beede with
other defense counsel “[i]f Mr. Beede fails to keep all his promises this time . . . .” On
April 15, 2013, defendant renewed his request for a Marsden hearing3 to appoint new
counsel based on counsel’s alleged repeated lies and manipulation of defendant.
       On April 30, 2013, at a court hearing, Beede indicated he would be able to address
defendant’s concerns at sentencing and that no meeting in chambers would be required.
The prosecution asked the court whether it had ruled on defendant’s numerous
handwritten pro. per. motions. The court indicated that it had the last time (at the
April 12, 2013, hearing) and defendant’s counsel indicated defendant withdrew both his
Marsden motion and his motion to withdraw his plea. Defendant agreed.
       Without any further discussion of defendant’s subsequent Marsden motions, the
court sentenced defendant to seven years in state prison, ordered defendant to pay
restitution and enumerated fines and fees, and awarded defendant presentencing credits.
Beede requested that instead of being sent to prison, that defendant be sentenced to “an
appropriate mental health facility,” and if that were not possible, to order defendant
placed into the transgender facility. The court declined to direct the Department of
Corrections and Rehabilitation regarding placement of defendant, but noted that a doctor
had recommended defendant be placed in a transgender facility.
       Defendant’s request for a certificate of probable cause was denied.
                                      DISCUSSION
       Defendant contends the trial court committed reversible error by not holding a
hearing on his postplea Marsden motion prior to sentencing him. The People claim any



3 Defendant actually requested a “Moresy hearing,” but the context of the motion makes
clear that defendant sought to have Beede removed as counsel and to have new counsel
appointed.

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error in failing to hear defendant’s “conditional” request for appointment of new counsel
was harmless because defendant has not shown his motion would have been granted or
that he would have achieved a more favorable result. We find it was error for the trial
court to sentence defendant without holding a Marsden hearing based on defendant’s
April 14 and April 15 requests, and that such error is prejudicial pursuant to the
applicable standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705, 710-711] (Chapman).
       “When a defendant seeks new counsel on the basis that his appointed counsel is
providing inadequate representation--i.e., makes what is commonly called a Marsden
motion [citation]--the trial court must permit the defendant to explain the basis of his
contention and to relate specific instances of inadequate performance.” (People v. Smith
(2003) 30 Cal.4th 581, 604.) Thus, “when a defendant complains about the adequacy of
appointed counsel, the trial court [must] permit the defendant to articulate his causes of
dissatisfaction and, if any of them suggest ineffective assistance, [must] conduct an
inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance.
[Citations.] If the defendant states facts sufficient to raise a question about counsel’s
effectiveness, the court must question counsel as necessary to ascertain their veracity.”
(People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).)
       Here, defendant agreed with the court that he had withdrawn his previous requests
at the April 12, 2013, hearing, but defendant made two subsequent requests to have new
counsel appointed. At the sentencing hearing, the court relied on Beede’s statement that
he would address defendant’s concerns and did not hold a Marsden hearing to permit
defendant to articulate his dissatisfaction or to ascertain whether Beede provided
ineffective assistance. Rather, the court sentenced defendant despite defendant’s
unaddressed expressions of dissatisfaction with the adequacy of counsel’s representation.
Therefore, the trial court erred in failing to hear defendant’s postplea Marsden requests
prior to sentencing.

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        We cannot deem the error harmless. The Attorney General argues People v.
Chavez (1980) 26 Cal.3d 334 (Chavez) and People v. Washington (1994) 27 Cal.App.4th
940 (Washington) support her contention that there was no prejudice. In Chavez, the
court found that declining a defendant’s request to reappoint previous counsel was
harmless error because the defendant never asserted his then-appointed counsel was
inadequate. (Chavez, supra, at pp. 348-349.) That is not the case here, where defendant
did assert that his counsel was inadequate. In Washington, the court found harmless error
where the defendant did not show he would have obtained a more favorable result if his
motion had been entertained “[b]ecause the failure to hold a Marsden hearing did not
deprive the defendant of any arguments on appeal or otherwise affect the verdict or
sentence . . . .” (People v. Reed (2010) 183 Cal.App.4th 1137, 1148-1149, citing
Washington, supra, at p. 944.) Here, in contrast, different counsel could have moved to
withdraw defendant’s plea, which plea defendant may not otherwise challenge now.
Therefore, Washington is inapposite.
        Thus, we employ the standard of review set forth in Chapman, i.e., error is
reversible unless the record shows beyond a reasonable doubt that the error did not
prejudice defendant. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman, supra, 386
U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]; accord People v. Leonard (2000)
78 Cal.App.4th 776, 787.) While the record reflects some of defendant’s complaints
about counsel, namely, his unverified letters indicating that counsel manipulated
defendant outside the record into entering his no contest plea, we do not know what
defendant would have orally presented to the court had he been given the opportunity.
Nor do we know what counsel’s responses would have been. We cannot consider the
merits or veracity of defendant’s claims because they were not presented to the trial
court. Accordingly, the proper remedy is to remand for further proceedings. (Eastman,
supra, 146 Cal.App.4th at pp. 697, 699; see also People v. Hill (2013) 219 Cal.App.4th
646.)

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                                     DISPOSITION
      The judgment is reversed and the matter is remanded for the trial court to conduct
a Marsden hearing. If defendant makes the required showing under Marsden, the court
shall appoint new counsel. If defendant’s Marsden motion is denied, the trial court shall
reinstate the judgment.


                                            BLEASE                   , Acting P. J.


We concur:


         BUTZ                     , J.


         HOCH                     , J.




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