Filed 7/30/14 P. v. Zamora CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     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,                                       E057915

v.                                                                       (Super.Ct.No. FBA009351)

PAUL ZAMORA,                                                             OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Reversed with directions.

         Jill M. Klein, 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, Collette C. Cavalier, and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Paul Zamora pled guilty to second degree murder (count 1 – Pen. Code,

§ 187, subd. (a)).1 Pursuant to the plea agreement, the court sentenced defendant to an

indeterminate term of imprisonment of 15 years to life with credit for 3,030 days. On

appeal, defendant contends the court erred in failing to hold a Marsden2 hearing when

defendant sought to withdraw his plea based on ineffective assistance of counsel. We

reverse the judgment and remand the matter to the court with directions.

                    FACTUAL AND PROCEDURAL BACKGROUND3

       On June 26, 1987, Officer Pedro Ortiz, a detective assigned to the homicide

division of the San Bernardino County Sheriff’s Department, responded to a report of a

body found on the side of the Interstate 15 freeway. He found “a female [body] that was

badly decomposed lying on [its] back. [Its] [l]egs were spread. [Its] sweatshirt was

exposing [] most of [the] stomach area as well as one of [the] breasts, and [it] had several

stab wounds to the breast area.” The shorts were pulled down from the waist halfway

down the buttocks in the back, consistent with the body having been dragged.




       1   All further statutory references are to the Penal Code.

       2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). A so-called Marsden
hearing is typically conducted outside the presence of the public, the jury, and the
prosecution and allows the defendant an opportunity to convey to the court reasons he
should be appointed new counsel. (People v. Lopez (2008) 168 Cal.App.4th 801, 814-
815.)

       3 The parties stipulated the preliminary hearing transcript would provide the
factual basis for the plea; thus, we take the facts from the preliminary hearing which took
place on August 2, 2007.

                                               2
          The body was later identified as that of the victim, who had been reported missing

on June 25, 1987, around 8:00 a.m. by her boyfriend Michael Miller. The body was

dressed in the same clothing in which the victim had last been seen. Ortiz interviewed

Miller.

          Miller reported he and the victim had been working in Northern California and

were on their way back to Grand Junction, Colorado with a friend when they stopped for

gas on June 23, 1987, around midnight. They had been drinking; the victim was drunk.

Miller asked the victim for money for gas; she refused. They got into an argument;

Miller reached into her purse and took her money; he then entered the store. He later saw

the victim hitchhiking by the guardrail.

          When he came out of the store, she was gone. Miller and their friend drove

around for about a half an hour looking for her, but could not find her. They drove back

to Grand Junction, Colorado and reported her missing. Criminalist Dan Gregonis arrived

at the scene on June 26, 1987, to collect evidence. He took DNA samples from the

victim’s underwear, shorts, and vagina. The parties stipulated the DNA taken from a

buccal swab of defendant matched the DNA taken from semen on the crotch of the

victim’s underwear, shorts, and vaginal swabs.

          San Bernardino Deputy Sheriff Thomas Shenton arrested defendant and

interviewed him after he waived his Miranda4 rights. Defendant told Shenton he was a

truck driver in June 1987 with a regular route from Santa Fe Springs, California to Las


          4   Miranda v. Arizona (1966) 384 U.S. 436.

                                               3
Vegas, Nevada. Defendant admitted picking up hitchhikers, but denied knowing the

victim.

       Shenton interviewed defendant’s ex-wife, Victoria Olivares. Olivares confirmed

defendant’s employment as a truck driver with a regular route from Santa Fe Springs,

California to Las Vegas, Nevada in June 1987, which he travelled three times a week.

She reported that sometime in June 1987, defendant returned with scratches on his hand

and chest and a finger in a splint.

       Deputy Public Defender Maggie Eisenburg made her first appearance on behalf of

defendant on July 30, 2010. On August 23, 2012, Eisenburg filed six separate in limine

motions seeking, respectively, to permit impeachment of Gregonis with allegations of

alleged improprieties in his evidence collection and processing in other cases, exclusion

of Olivares’s statements to police, exclusion of a knife found in defendant’s residence in

2006, permission to introduce evidence of third party culpability implicating Miller as the

actual killer, exclusion of evidence of defendant’s 1993 kidnapping conviction, and

exclusion of evidence of a green bottle found at the crime scene.5

       At the hearing on September 20, 2012, regarding the motions in limine, the court

granted the defense motion to impeach Gregonis with one of his prior cases, but denied

the motion with respect to impeachment with other cases. The court denied the

remaining defense motions.



       5   Olivares informed police defendant drank from green beer bottles.


                                             4
       Eisenburg observed, “it really cuts [defendant’s] defense off at the knees to not be

able to point [at] the boyfriend of the victim who was her travel partner.” “I understand

the Court’s ruling. I just feel that it cuts off any affirmative defense that we have because

we’re not allowed to attack Gregonis very much on the DNA, which is the entire

prosecution’s case, and I can’t even point the finger at the boyfriend . . . .”

       The People then conveyed to the court they had offered defendant a plea deal with

a sentence of 15 years to life with credit which would place him close to a parole date.6

The court asked if the offer had been conveyed to defendant; defendant replied it had.

The court told defendant to speak with Eisenburg regarding the offer: “I set aside the

whole day. So if you guys want to talk some more, why don’t you go ahead and talk

some more. All right. And then let me know and I’ll come out and confirm everything

unless you’re able to resolve the case.” A recess was taken from 2:00 p.m. to 3:44 p.m.

       When the parties returned, the court announced, “All right. [Defendant], I’m

showing you a [three]-page document entitled Declaration of Defendant Regarding

Change of Plea with your name on the top. Do you recognize it?” Defendant responded,

“Yes.” The court asked defendant if he had signed and initialed “each paragraph after

reading, understanding, and discussing each paragraph with your attorney?” Defendant

responded he had. The court queried defendant, “[b]efore signing and initialing the form,

did you carefully go over both the printed and handwritten portions of the form with your


       6  Defendant’s eventual credit award of 3,030 days (more than eight years), would
require that he serve almost an additional seven years, without considering any credit he
might earn in prison, before he would be eligible for parole.

                                               5
attorney?” Defendant answered, “Yes.” The court inquired whether defendant

understood everything on the form? Defendant said he did.

       The court then covered defendant’s constitutional rights and his waiver of them. It

asked defendant if “you had enough time to discuss your case with your attorney,

including . . . future consequences as a result of entering this plea?” Defendant

responded, “Yes.” The court asked defendant if he had any questions of the court.

Defendant said he did not.

       The court asked Eisenburg whether she “had adequate time to discuss all issues

with [her] client?” She responded she had. The court asked if Eisenburg went “over the

declaration and plea form with [defendant]?” She said she had. The court inquired

whether Eisenburg was “satisfied [defendant] understands everything on the form.” She

said she was. Eisenburg joined in defendant’s waivers. The court then concluded, “After

directly examining the defendant, the court finds he has read and understood the

defendant’s declaration and plea form.”

       Defendant then orally pled guilty to second degree murder. Term 20 of

defendant’s plea form, reading “I waive and give up any right to appeal any motion I may

have brought or could bring and from the conviction and judgment in my case since I am

getting the benefit of my plea bargain[,]” is crossed out; defendant did not initial it.

       On October 10, 2012, Eisenburg “asked to have [the hearing] calendared . . . based

on a miscommunication regarding one aspect of the plea [regarding] . . . appellate

rights, . . . [¶] . . . I understood . . . that [defendant] had the right to appeal the in limine

rulings after [the] plea. . . . And so I indicated that to [defendant] throughout that,

                                                6
somewhere along the line in that conversation that we had about the plea. [¶] And so . . .

I looked into it myself – I found out the next day that . . . in limine rulings are not

appealable [after the] plea. I told [defendant] that and that is what the motion to

withdraw the plea is based on. [¶] And so at this point since he hasn’t been sentenced,

and I told him, I said, I will indicate to the Court that I told you the wrong thing. I told

him the very next day that it was wrong and that we had to try to kind of figure [it] out

. . . . I’m not sure how the Court wants to proceed, if you want to do the typical appoint

someone and do a hearing. . . .” The court responded “That’s the way we’re going to

proceed.”

       The court asked defendant if he wanted to withdraw his plea; defendant responded

he did. The court appointed Richard Crouter, who was present at the hearing, as conflict

counsel for defendant for the purpose of filing a motion to withdraw the plea. The court

asked Crouter how much time he would need to prepare the motion. Crouter responded,

“Well, from what I’ve heard, the basis for the motion, I think it’s going to take some

fairly extensive research, I would say a month.” The court scheduled the hearing for

November 16, 2012, and inquired of Eisenburg, “I would imagine that you will be

testifying as a witness in regards to what you advised your client.” She responded, “Is it

possible to do it earlier that week [be]cause I will be leaving town that day?” The court

replied “We can do it on the 15th.” Esienburg said “That’s fine. That would be great if

that’s possible.” The court asked conflict counsel if that date was satisfactory. Crouter

responded it was. The court set the matter for November 15, 2012.



                                               7
       On December 12, 2012, Crouter was replaced by John Burdick as conflict counsel

for defendant. On January 3, 2013, Burdick filed a motion to withdraw the plea. After

presenting the law regarding the withdrawal of pleas, the motion reads, “In the present

case the defendant[] requests to withdraw his plea having had second thoughts after

entering it. . . . The defendant claims he did not understand the nature and consequences

of his plea as entered. However, a review of [the] ‘Change of Plea’ [form] reveals that

the plea is at least facially valid. We therefore invite the Court to review the proceeding

and record to determine whether the defendant has any basis to withdraw his plea[.]”

Burdick then cited to People v. Wende (1979) 25 Cal.3d 436. (Id. at pp. 441-442 [Court

of Appeal to conduct independent review of record on appeal when appellate counsel

files a brief raising no appellate issues].)

       Burdick attached his own declaration to the motion reading “I had an opportunity

to discuss the case with the defendant who informed me that he had not been properly

advised of the consequences of the plea. [¶] . . . [¶] . . . I am informed that the defendant

contends he did not completely comprehend the nature of his plea. I reviewed the case

records and do not find a basis to withdraw the plea however and therefore invite the

Court to examine the record.”7

       On January 4, 2013, the court held the hearing on the motion to withdraw the plea.

Eisenburg was present at the hearing. Defendant testified he wanted to withdraw his plea

       7  No mention of Eisenburg’s purported misadvisement regarding the appealability
of the rulings on the motions in limine is made in the motion to withdraw the plea.
Likewise, neither is there a declaration from Eisenburg attached to the motion nor any
indication she would testify at the hearing on the motion.

                                               8
“because at the time when I signed the plea agreement – the boxes to the right of the

papers, [Eisenburg], . . . told me to just – to initial each one, and to read all of this. I says,

I can’t read without my reading glasses. I can’t even see it. She said go ahead and – just

go ahead and initial them all. So, I did. . . . [¶] . . . [¶] I – I can’t – if I plead guilty, I

can’t appeal my case.” Defendant testified his attorney did not read or go over the

written portions of his plea form. He did not remember the judge asking him if he had

read and gone over the plea form with Eisenburg or saying that he had “[b]ecause

everything was being said so fast, I couldn’t keep up with [] what the Judge was saying.”

Defendant testified he believed he had told the court he understood the plea because

Eisenburg told him to “[g]o ahead and sign it. Just, you know, agree.”

        On cross-examination, defendant testified he had been convicted of “[p]robably

about 10” felonies, including thefts, kidnapping, armed robberies, burglaries, and

assaults. In each, he had pled guilty; this was not the first time he had signed a plea

agreement. The main reason defendant was attempting to withdraw his plea was because

he was having second thoughts because even if convicted at trial, he could only be

sentenced to imprisonment of up to 25 years to life, while pursuant to his plea he would

already be sentenced to imprisonment of 15 years to life: “I’m getting a life sentence

anyway. . . . And the fact that I didn’t do it – the murder. That’s why I – I decided to go

to trial.”

        The court indicated it had reviewed the motion and the transcript of the plea. “I

set aside that entire day so we could handle motions in limine, as well. But then later in

the day [defendant] decided to enter a guilty plea to the second-degree murder charge.

                                                  9
[¶] At no time was everything going at such a fast pace, because the day was devoted to

[defendant’s] case. I recall even taking the plea. And before taking the plea, Counsel

wanted to have more discussions. [Defendant] wanted to have more discussions after the

motion in limine rulings. And we took plenty of time. And as I went through the plea, I

didn’t take it at a fast pace. I took it slowly and clearly, and waited for his responses to

each of those questions.” The court found defendant’s motion to withdraw the plea was

based on “buyer’s remorse” and denied the motion. The court relieved conflict counsel

and reappointed Eisenburg.

       Eisenburg represented defendant at sentencing. On January 16, 2013, Eisenburg

filed a notice of appeal on defendant’s behalf requesting a certificate of probable cause

based on the court’s denial of the motion to withdraw the plea. The court granted the

certificate of probable cause.

                                       DISCUSSION

       Defendant maintains the court erred in failing to conduct a Marsden hearing upon

Eisenburg’s initial contention there were grounds to withdraw defendant’s guilty plea

based upon Eisenburg’s purported rendition of ineffective assistance of counsel in

advising defendant of the appellate consequences of his plea; in particular, defendant’s

inability to appeal the court’s denial of the motions in limine. The People argue that

since defendant never clearly indicated he wanted substitute counsel, the court was under

no obligation to hold a Marsden hearing. We agree with defendant.

       “[A] trial court must conduct [] a Marsden hearing only when there is at least

some clear indication by the defendant, either personally or through counsel, that

                                              10
defendant wants a substitute attorney. [I]f a defendant requests substitute counsel and

makes a showing during a Marsden hearing that the right to counsel has been

substantially impaired, substitute counsel must be appointed as attorney of record for all

purposes.” (People v. Sanchez (2011) 53 Cal.4th 80, 84 [italics added] (Sanchez); see

People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey).) “[A]t any time during criminal

proceedings, if a defendant requests substitute counsel, the trial court is obligated . . . to

give the defendant an opportunity to state any grounds for dissatisfaction with the current

appointed attorney. [Citation.]” (Sanchez, at p. 90.) “‘[T]he trial court’s duty to conduct

a Marsden hearing [is] triggered by defense counsel’s request for appointment of

substitute counsel to investigate the filing of a motion to withdraw [the] plea on [the

defendant’s] behalf.’” (Sanchez at p. 90, fn. 3.) Thus, a defense counsel’s motion for

substitute counsel to investigate the filing of a motion to withdraw the plea based upon

the incompetency of counsel is a clear indication by a defendant that he wants substitute

counsel which automatically triggers the trial court’s duty to hold a Marsden hearing.

       The Sanchez court “specifically disapprove[d] of the procedure of appointing

substitute or ‘conflict’ counsel solely to evaluate a defendant’s complaint that his attorney

acted incompetently with respect to advice regarding the entry of a guilty or no contest

plea.” (Sanchez, supra, 53 Cal.4th at p. 84.) “‘Defense counsel, like the trial courts,

should abandon their reliance on counsel specially appointed to do the trial court’s job of

evaluating the defendant’s assertions of incompetence of counsel and deciding the

defendant’s . . . plea withdrawal motion. [Citation]’” (Id. at p. 89.) “‘The proper

procedure does not include the appointment of “conflict” or “substitute” counsel to

                                              11
investigate or evaluate the defendant’s proposed . . . plea withdrawal motion.’” (Id. at p.

89.)

       Here, defendant, through counsel, moved to withdraw his plea specifically on the

basis of ineffective assistance of counsel. Defense counsel informed the court she had

expressly informed defendant that he could appeal the pretrial motions in limine if he

pled guilty. Indeed, the term of defendant’s plea agreement expressly informing him he

could not appeal the denial of pretrial motions is crossed out; defendant did not initial the

provision. Eisenburg informed the court that only after defendant had entered his guilty

plea did she discover defendant could not appeal the denial of those motions. She said

that a contemplated motion to withdraw the plea would be based upon her misadvisement

of defendant on that basis.

       Eisenburg asked if the court wanted to appoint someone else: “So seeing that it is

presentencing and because it’s not [defendant] bringing it up after he’s been fully

sentenced, I’m not sure how the Court wants to proceed, if you want to do the typical

appoint someone and do a hearing . . . .” Thus, Eisenburg implicitly recognized the

possibility new counsel should be appointed not only for purposes of the motion to

withdraw the plea, but for sentencing as well. Defense counsel’s suggestion that

substitute counsel be appointed to investigate the filing of a motion to withdraw the plea

based upon her misadvisement is a clear indication by defendant that he wanted substitute

counsel which triggered the trial court’s duty to hold a Marsden hearing.

       Instead of “evaluating [] defendant’s assertions of incompetence of counsel and

deciding [] defendant’s . . . plea withdrawal motion[]”, (Sanchez, supra, 53 Cal.4th at p.

                                             12
89) the court conducted the “specifically disapprove[d] . . . procedure of appointing

substitute or ‘conflict’ counsel solely to evaluate [] defendant’s complaint that his

attorney acted incompetently with respect to advice regarding the entry of [the] guilty . . .

plea. (Id. at p. 84.) Conflict counsel filed a motion to withdraw the plea in which he

effectively argued there was no basis to withdraw the plea. Conflict counsel failed to

raise the specific basis initially raised for defendant’s desire to withdraw the plea,

Eisenburg’s ostensible misrepresentation of the appellate consequences of the plea. Since

defendant had brought an issue of potential ineffective assistance of counsel to the court’s

attention while moving for a withdrawal of his guilty plea and appointment of new

counsel, the court should have conducted a Marsden hearing to evaluate whether

Eisenburg had acted incompetently and, if so, appointed new counsel to represent

defendant during the remainder of the criminal proceedings.

       The People cite People v. Dickey (2005) 35 Cal.4th 884 (Dickey), for the

proposition that, here, defendant did not make the requisite “‘“‘clear indication . . . that

he want[ed] a substitute attorney.’” [Citations.]’ [Citation.]” (Id. at p. 920.) In Dickey,

after defendant was convicted of murder and other charges, but prior to the penalty phase

of trial, defense counsel informed the court the defendant wished to move for a new trial

based partially on a claim of ineffective assistance of counsel. Defense counsel

suggested the appointment of separate counsel to represent the defendant in that effort.

(Id. at pp. 918-920.) The trial court appointed the defendant separate counsel to assist

him in his preparation of a new trial motion filed after the penalty phase which was based

on purported ineffective assistance of counsel and the court’s ostensible error in

                                              13
neglecting to hold a Marsden hearing at the time the subject was initially broached. The

trial court denied the motion. (Id. at pp. 920, 922.)

       The California Supreme Court held the trial court did not commit Marsden error.

(Dickey, supra, 35 Cal.4th at p. 920.) The Court reasoned, “Defendant did not clearly

indicate he wanted substitute counsel appointed for the penalty phase. To the extent he

made his wishes known, he wanted to use counsel’s assertedly incompetent performance

in the guilt phase as one of the bases of a motion for new trial, and he wanted to have

separate counsel appointed to represent him in the preparation of such a motion. As his

expressed wishes were honored, he has no grounds for complaint now.” (Id. at pp. 920-

921.) In addition, the court concluded any “Marsden motion would have been

baseless[]” because “[w]e do not find Marsden error where complaints of counsel’s

inadequacy involve tactical disagreements.” (Id. at pp. 921, 922.) This was because the

new trial motion was based on defendant’s contention certain witnesses who were not

called to testify should have been and that during the defendant’s testimony he should

have been asked questions he was not. (Id. at pp. 919-922.)

       It is difficult to reconcile the holdings in Sanchez and Dickey. Nonetheless, the

unanimous Sanchez court distinguished Dickey, noting the defendant therein “expressed

the desire to have a substitute counsel represent him at a future proceeding, namely, an

anticipated motion for new trial that would not take place until the completion of the

penalty phase. The defendant [] voiced no objection to having his current attorney

represent him at the penalty phase and, unlike the present case, did not seek to discharge

his current attorney.” (Sanchez, supra, 53 Cal.4th at p. 91, italics added.) In its own

                                             14
case, “by contrast, [the] defendant, through counsel, requested that a ‘conflict’ or

substitute attorney be appointed immediately, and the obvious implicit ground for that

request was the incompetency of defendant’s currently appointed counsel.” (Id. at p. 91,

italics added.)

       Here, defendant, through Eisenburg, requested conflict counsel be appointed

immediately based on the Eisenburg’s incompetency in advising him of the appellate

consequences of the plea. Moreover, Eisenburg’s purported act of ineffective assistance

of counsel was not tactical, but substantive: Eisenburg conceded she misadvised

defendant that he could appeal the court’s denial of the motions in limine. This very well

could have affected defendant’s decision to enter the plea. Indeed, defendant testified at

the hearing on the motion to withdraw the plea that at least one of the bases upon which

he wished to withdraw the plea was the fact that “I can’t appeal my case.” Thus, it

cannot be said here that a Marsden motion would be baseless.

       Furthermore, in Dickey, the initial basis for appointment of counsel was for a new

trial motion which was only partially based on incompetence of counsel. In the instant

case, the request for new counsel was for the filing of a motion to withdraw the plea

based, at that point, entirely on ineffective assistance of counsel. Finally, we note the

Sanchez Court made clear that “‘the trial court’s duty to conduct a Marsden hearing [is]

triggered by defense counsel’s request for appointment of substitute counsel to

investigate the filing of a motion to withdraw [the] plea on [the defendant’s] behalf.’”

(Sanchez, supra, 53 Cal.4th at p. 90, fn. 3.) Here, Eisenburg requested appointment of



                                             15
counsel to investigate the filing of a motion to withdraw the plea on defendant’s behalf

which triggered the court’s duty to conduct a Marsden hearing.

       As indicated above, the California Supreme Court in Sanchez specifically

proscribed the procedure adopted by the court in this case; namely, the appointment of a

substitute or “conflict” attorney solely to evaluate whether a criminal defendant has a

legal ground upon which to move to withdraw the plea on the basis of current counsel’s

incompetence. (Sanchez, supra, 53 Cal.4th at p. 84.) The court erred in following the

disapproved procedure rather than immediately holding a Marsden hearing for the

potential appointment of substitute counsel for the remainder of the criminal proceedings.

       The question remains whether the court’s error in neglecting to hold a Marsden

hearing and follow the procedure prescribed in Sanchez could be deemed harmless. Early

courts (never expressly overruled) held the denial of a Marsden hearing upon a

defendant’s motion for substitute counsel was per se prejudicial and required automatic

reversal of the judgment because the failure to permit a defendant to provide his reasons

for requesting new counsel precluded meaningful appellate review. (Marsden, supra, 2

Cal.3d at p. 126; accord People v. Hidalgo (1978) 22 Cal.3d 826, 827; People v. Lewis

(1978) 20 Cal.3d 496, 498; People v. Munoz (1974) 41 Cal.App.3d 62, 67; People v.

Groce (1971) 18 Cal.App.3d 292, 296-297; People v. Hill (1983) 148 Cal.App.3d 744,

755; People v. Winbush (1988) 205 Cal.App.3d 987, 991.) Subsequent courts (also not

overruled) found the refusal to provide a Marsden hearing per se prejudicial and

reversible, but permitted remand for a Marsden hearing which, if denied, permitted

reinstatement of the original judgment. (People v. Minor (1980) 104 Cal.App.3d 194,

                                            16
199; People v. Hall (1983) 35 Cal.3d 161, 170; People v. Maese (1985) 168 Cal.App.3d

803, 808-810; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1401-1402.)

       Nevertheless, the majority of courts since have held the denial of a defendant’s

right to a Marsden hearing must be reversed unless the appellate court finds the error was

harmless beyond a reasonable doubt. (People v. Hill (2013) 219 Cal.App.4th 646, 653.)

Courts finding the erroneous failure to provide a defendant a Marsden hearing harmless

beyond a reasonable doubt, generally fall into one of two categories. The first group

consists of courts which have found the failure of a trial court to conduct a Marsden

hearing immediately upon a defendant’s expression of a desire for new counsel harmless

where the court had either previously or subsequently afforded the defendant a Marsden

hearing at which the defendant raised the same issues as in the other motion(s). (People

v. Taylor (2010) 48 Cal.4th 574, 601 [Prior Marsden hearing rendered failure to provide

subsequent hearing harmless]; People v. Govea (2009) 175 Cal.App.4th 57, 62 [same];

People v. Barnett (1998) 17 Cal.4th 1044, 1105-1113 [same]; People v. Leonard (2000)

78 Cal.App.4th 776, 788 [Any error of court in failing to hold Marsden hearing at the

defendant’s first complaint regarding defense counsel was rendered harmless by court’s

later holding of Marsden hearing.]; People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732

[same].)8



       8  It is notable that the court in Sanchez never addressed whether the trial court’s
failure to provide the defendant with a Marsden hearing could be deemed harmless.
Rather, the Sanchez court automatically reversed the judgment and remanded the matter
for a Marsden hearing without conducting a harmless error analysis.

                                             17
       The second cohort consists of courts which have found the failure of a trial court

to conduct a Marsden hearing harmless beyond a reasonable doubt because the trial

record provided an adequate basis for the court to independently determine that the

defendant’s contentions of inadequacy of trial counsel failed on the merits. (People v.

Mack (1995) 38 Cal.App.4th 1484, 1487-1489 [Failure to hold Marsden hearing harmless

where trial record does not support trial counsel’s purported inadequate performance.];

People v. Washington (1994) 27 Cal.App.4th 940, 944 [Failure to hold Marsden hearing

harmless where only basis for motion could have been counsel’s incompetence and trial

record reflected counsel had performed adequately.].)

       Notwithstanding the aforementioned cases, the bulk of appellate cases addressing

situations in which a trial court erroneously failed to provide the defendant a Marsden

hearing have found the error required reversal and remand for a Marsden hearing.

(People v. Reed (2010) 183 Cal.App.4th 1137, 1148-1149 [Where it remains possible that

upon further inquiry by the court the defendant could have shown ineffective assistance

of counsel, error in failing to hold Marsden hearing cannot be held harmless.]; People v.

Lopez, supra, 168 Cal.App.4th at p. 815 [Court’s failure to hold Marsden hearing was not

harmless and required reversal and remand even where review of trial record reflected no

ineffective assistance of counsel and trial was error free, but where defendant had raised

an issue of conflict of interest between he and his counsel.]; People v. Mendez (2008) 161

Cal.App.4th 1362, 1365-1368 (Mendez) [Trial court’s failure to hold Marsden hearing,

appointment of new counsel to conduct an inquiry whether there was a basis for a new

trial motion on incompetency of counsel, acquiescence to new counsel’s assertion there

                                            18
was no claim of ineffective assistance of counsel, and reappointment of original counsel

was not harmless, requiring reversal and remand for Marsden hearing.]; People v. Mejia

(2008) 159 Cal.App.4th 1081, 1086 (Mejia) [Error in failing to hold Marsden hearing not

harmless where defendant instructed his counsel to move for a new trial based on

counsel’s ineffective assistance at trial.]; People v. Eastman (2007) 146 Cal.App.4th 688,

695-698 (Eastman) [Court’s error in failing to hold a Marsden hearing after the defendant

wrote the court asserting defense counsel had performed inadequately, court appointed

counsel to investigate complaints and to file motion to withdraw, and substitute counsel

did not file a motion to withdraw, required reversal and remand.];9 People v. Solorzano

(2005) 126 Cal.App.4th 1063, 1070 [Court’s error in holding Marsden hearing when the

defendant first expressed a request for substitute counsel was not rendered harmless or

moot by its holding of another hearing a week later with a different attorney representing

the defendant.].)

       Here, the court never afforded defendant a Marsden hearing. (People v.

Solorzano, supra, 126 Cal.App.4th at p. 1070 [Declining the People’s invitation to treat

one type of motion hearing as the functional equivalent of another within the context of a

defendant’s Marsden request.].) Although defendant was given the opportunity to


       9 Mendez, Mejia, and Eastman were all disapproved of by Sanchez, supra, 53
Cal.4th at page 90, footnote 3, to the extent they suggested the court’s duty to hold a
Marsden hearing could be triggered by something less than a clear indication by the
defendant or his counsel that the defendant wanted a substitute attorney. However,
Sanchez did not disapprove of the result in those cases. Thus, their holdings with respect
to the application of the harmless error doctrine in denial of Marsden hearing cases
remains good law.

                                            19
address the court at the hearing on the “motion” to withdraw the plea, defendant was not

asked whether he wanted substitute counsel either before or at the time of the hearing.

Rather, defendant’s communication with the court was addressed solely to the issue of

why he wanted to withdraw the plea. This was not the functional equivalent of a

Marsden hearing. No published case has held that a hearing on a motion to withdraw a

plea may substitute for a Marsden motion.

       Moreover, at the hearing on the motion to withdraw the plea, defendant did refer

to the inadequacy of his counsel’s performance; defendant said that because of his plea,

he could not appeal his case. This was the very basis which initiated the appointment of

substitute counsel because defendant’s prior counsel had conceded she had incorrectly

informed him he would have the right to appeal the denial of his motions in limine even

if he pled guilty. This was the basis upon which defendant originally wished to withdraw

his plea.

       Finally, this is not a case in which we can simply find the error harmless because

the record establishes that counsel performed adequately. On the contrary, defense

counsel herself admitted she had performed ineffectively in advising defendant he could

appeal the denial of his motions in limine even if he pled guilty. The court then asked

defendant if he wanted to withdraw his plea; defendant responded that he did, insinuating

counsel’s misadvisement, the only reason proffered at the time, was the basis for his

desire to withdraw the plea. Defendant reiterated this basis for withdrawing the plea

when afforded the opportunity to address the court at the hearing on the motion to

withdraw the plea. Thus, the court’s failure to hold a Marsden hearing in the instant case

                                            20
is not harmless beyond a reasonable doubt. Therefore, the trial court erred in following

the disapproved procedure of appointing substitute counsel rather than immediately

holding a Marsden hearing for the potential appointment of substitute counsel for the

remainder of the criminal proceedings.

                                      DISPOSITION

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

directions that “‘(1) the court shall hold a hearing on [defendant]’s Marsden motion

concerning his representation by the public defender’s office; (2) if the court finds that

[defendant] 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 and shall entertain such applications as newly appointed counsel may make; and (3)

if newly appointed counsel makes no motions, any motions

made are denied, or [defendant]’s Marsden motion is denied, the court shall reinstate the

judgment.’” (Sanchez, supra, 53 Cal.4th at pp. 92-93.)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                             J.

We concur:


RAMIREZ
                        P. J.


MILLER
                           J.


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