Filed 10/17/13 P. v. Mercado CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B246129
                                                                           (Super. Ct. No. PA073781)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

RICHARD MERCADO,

     Defendant and Appellant.




                   Richard Mercado appeals from a judgment of conviction upon a plea of no
contest to carrying a dirk or dagger (Pen. Code, § 21310)1 for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(A)). Mercado asserts the trial court erred when it
failed to hold a Marsden2 hearing on his second request for new counsel due to
ineffective representation by his trial counsel. The Attorney General concedes the error
based on People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez). We conditionally reverse
and remand with directions to the trial court to conduct a Marsden hearing.


                            FACTS AND PROCEDURAL BACKGROUND

         1 All statutory references are to the Penal Code.

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


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              On May 25, 2012, police officers responded to complaints of gang
members selling narcotics at an intersection in Los Angeles. Mercado and a codefendant
saw the officers and started walking away. Mercado took a knife from his pocket, threw
it on the ground and began to run. Officers arrested him.
              Mercado was charged with carrying a dirk or dagger (§ 21310) and
violating a criminal street gang injunction (§ 166, subd. (a)(9)).3 It was alleged that the
offenses were committed for the benefit of a criminal street gang (§ 186.22, subds.
(b)(1)(A), (d)), and that Mercado had four prior convictions (§ 667.5, subd. (b)).
              Before his arraignment, Mercado's appointed counsel, Craig Renetzky,
informed the trial court that Mercado wished to represent himself. Mercado confirmed
that request and stated that he had represented himself in an earlier proceeding. The trial
court explained that self-representation in criminal cases generally is a mistake and noted
that Renetzky is an experienced criminal attorney. Mercado responded that he had an
issue with his present representation. Interpreting this as a request for a Marsden hearing,
the court asked the prosecutor to leave the courtroom. Following a Marsden hearing, the
trial court denied Mercado's request for substitute counsel.
              When the arraignment continued, the trial court discussed settlement
options with the parties. Under a negotiated plea agreement, Mercado pled no contest to
carrying a dirk or dagger and admitted one of the criminal street gang allegations. At
Mercado's request, the trial court postponed the sentencing hearing.
              Mercado subsequently sent a handwritten letter to the trial court requesting
substitute trial counsel and withdrawal of his plea. He stated he was "misadvised by
counsel/prosecution as to the collateral consequences of the plea," and did not fully
understand that he was pleading to a strike and gang enhancement. Mercado asked the
court to appoint new counsel or, alternatively, to allow him to represent himself. The



       3 Mercado was incorrectly charged under section 166, subdivision (a)(9).
Effective January 1, 2012, the statute was amended to move the contempt provision for
willful disobedience of a criminal street gang injunction from subdivision (a)(9) to
subdivision (a)(10). (Stats. 2011, ch. 181, § 4.)
                                              2
trial court appointed a second attorney, Brent Merritt, "to investigate and prepare the
defendant's motion [to withdraw the plea]."
              After completing his evaluation of Mercado's case, Merritt informed the
trial court that he believed there were no grounds to move to withdraw the plea, and no
such motion was filed. The trial court excused Merritt and proceeded with Renetzky as
Mercado's counsel. Pursuant to the plea agreement, the court sentenced Mercado to three
years four months in prison, consisting of the low term of sixteen months for the violation
of section 21310 (§ 1170, subd. (h)), plus two years for the criminal street gang
enhancement (§ 186.22, subd. (b)(1)(A)). The remaining count and allegations were
dismissed.
              Mercado filed a timely notice of appeal. The trial court granted his request
for a certificate of probable cause.
                                       DISCUSSION
              Mercado contends, and the Attorney General concedes, the trial court erred
in failing to conduct a Marsden hearing after he clearly stated his desire to withdraw his
plea and to obtain substitute counsel. In Sanchez, the Supreme Court "specifically
disapprove[d]" the practice of appointing conflict counsel to investigate the competence
of appointed trial counsel, for purposes of deciding whether to proceed with a motion to
withdraw a plea. (53 Cal.4th at p. 90.) The court held that a "trial court is obligated to
conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint
new counsel when a criminal defendant indicates after conviction a desire to withdraw
his plea on the ground that his current counsel provided ineffective assistance [if] there is
'at least some clear indication by defendant,' either personally or through his current
counsel, that defendant 'wants a substitute attorney.' [Citation.]" (Id. at pp. 89-90 & fn.
3.) "'[A] trial court's duty to permit a defendant to state his reasons for dissatisfaction
with his attorney arises when the defendant in some manner moves to discharge his
current counsel.' [Citation.]" (Id. at p. 87.)
              Mercado specifically requested, by letter to the trial court, that the court
appoint substitute counsel and allow him to withdraw his plea. Among other things, he

                                                 3
stated he was misadvised by his current trial counsel as to the consequences of his plea.
Given this clear indication of Mercado's desire for a substitute attorney, the trial court had
a duty to conduct a Marsden hearing. (Sanchez, supra, 53 Cal.4th at p. 84.) Its failure to
do so requires us to reverse and remand with the directions approved in Sanchez. (Id. at
pp. 92-93.)
                                      DISPOSITION
              The judgment is conditionally reversed and the matter remanded with the
following directions: (1) the trial court shall hold a hearing on Mercado's Marsden
motion concerning his representation by Renetzky; (2) if the court finds Mercado 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 for all
purposes and shall entertain such applications as newly appointed counsel may make,
including a motion to withdraw the plea; and (3) if newly appointed counsel makes no
motions, or any motions made are denied, or Mercado's Marsden motion is denied, the
court shall reinstate the judgment.
              NOT TO BE PUBLISHED.


                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                              4
                               Daniel B. Feldstern, Judge

                         Superior Court County of Los Angeles

                          ______________________________

             Carlos Ramirez, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.




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