Filed 4/21/16 P. v. Alexander CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067307

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD252994)

KENDOL JOHN ALEXANDER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.

         Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.

Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
       Kendol John Alexander appeals a judgment following his guilty plea to one count

of robbery (Pen. Code, § 211)1 and one count of attempted robbery (§§ 664, 211). On

appeal, he contends the trial court violated his constitutional right to assistance of counsel

when it denied his motion to withdraw his plea at the same hearing during which it

considered, and denied, his Marsden2 motion for new counsel. Alexander argues that

because the trial court also found he was not competent to represent himself, it was

required to appoint substitute counsel to represent him during the hearing on his motion

to withdraw his plea and instead improperly allowed him to represent himself.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In December 2013, Alexander and another male entered a hair salon and robbed

two women at gunpoint, taking property from one and nothing from the other. An

information charged Alexander with one count of robbery (§ 211) and one count of

attempted robbery (§§ 664, 211), and alleged he had one prison prior (§§ 667.5, subd. (b),

668), one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one prior

strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12).

       Alexander pleaded guilty to the two counts and admitted the truth of the prior

prison, serious felony and strike allegations. At the time of his sentencing hearing, he

made a Marsden motion, moving to withdraw his plea and to represent himself. The trial

court denied those motions and then sentenced him to nine years in prison. He timely

1      All statutory references are to the Penal Code.

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

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filed a notice of appeal and the court granted his request for a certificate of probable

cause.

                                        DISCUSSION

                                               I

              Constitutional Right to Counsel and Marsden Motions Generally

         A criminal defendant has the right to assistance of counsel in his or her defense.

(U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; King v. Superior Court (2003)

107 Cal.App.4th 929, 937.) "A [criminal] defendant is entitled to competent

representation at all times, including presentation of a new trial motion or motion to

withdraw a plea." (People v. Smith (1993) 6 Cal.4th 684, 695 (Smith).) The right to

counsel includes the right to effective assistance of counsel to fully investigate and

advocate grounds for a motion to withdraw a plea. (People v. Brown (1986) 179

Cal.App.3d 207, 214; People v. Garcia (1991) 227 Cal.App.3d 1369, 1374-1375.)

         If a defendant believes he or she is not receiving effective assistance from counsel,

the defendant may move to have counsel discharged and new counsel appointed.

(Marsden, supra, 2 Cal.3d at pp. 123, 125; Smith, supra, 6 Cal.4th at pp. 694-695.)

When a defendant makes that motion, the trial court must hold a closed hearing and give

the defendant an opportunity to explain the reasons for his or her request for new counsel.

(Marsden, at pp. 123-125.) "[T]he trial court cannot thoughtfully exercise its discretion

[to appoint substitute counsel] . . . without listening to [the defendant's] reasons for

requesting a change of attorneys." (Id. at p. 123.) "When a defendant moves for

substitution of appointed counsel, the court must consider any specific examples of

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counsel's inadequate representation that the defendant wishes to enumerate. Thereafter,

substitution is a matter of judicial discretion. Denial of the motion is not an abuse of

discretion unless the defendant has shown that a failure to replace the appointed attorney

would 'substantially impair' the defendant's right to assistance of counsel." (People v.

Webster (1991) 54 Cal.3d 411, 435.)

       Alternatively stated, when a defendant makes a Marsden motion, the trial court

must "permit the defendant to articulate his [or her] causes of dissatisfaction and, if any

of them suggest ineffective assistance, to 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.) Whether a Marsden motion is made before or after a defendant's

conviction, "[t]he court must allow the defendant to express any specific complaints

about the attorney and the attorney to respond accordingly." (Smith, supra, 6 Cal.4th at

p. 694.)

       A Marsden hearing is not a "full-blown adversarial proceeding, but an informal

hearing in which the court ascertains the nature of the defendant's allegations regarding

the defects in counsel's representation and decides whether the allegations have sufficient

substance to warrant counsel's replacement." (People v. Hines (1997) 15 Cal.4th 997,

1025.) A defendant is not entitled to appointment of a second, independent attorney to

assist him or her in making a Marsden motion. (Hines, at p. 1025.) "When a Marsden

motion is granted, new counsel is substituted for all purposes in place of the original

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attorney, who is then relieved of further representation. If the Marsden motion is denied,

at whatever stage of the proceeding, the defendant is not entitled to another attorney who

would act in effect as a watchdog over the first." (Smith, supra, 6 Cal.4th at p. 695.)

                                             II

                        Alexander's Representation by Counsel
                    During Hearing on Motion to Withdraw His Plea

       Alexander contends the trial court violated his constitutional right to assistance of

counsel when it heard, and denied, his motion to withdraw his guilty plea during the same

hearing on his Marsden motion because the court, in effect, allowed him to represent

himself even though it deemed him not competent to do so in denying his alternative

motion for self-representation.

                                             A

       At the beginning of Alexander's sentencing hearing, his counsel informed the trial

court that Alexander wanted a Marsden hearing, might want to represent himself, and

wanted to withdraw his plea. Alexander informed the court he wanted to withdraw his

plea because he was coerced by his counsel to accept it. The court stated it would hold a

Marsden hearing and believed that hearing would also address Alexander's grounds for

his motion to withdraw his plea.

       In a closed hearing outside of the prosecutor's presence, Alexander explained to

the trial court that his counsel had told him he had no defense to the charged offenses,

inadequately investigated his case, intentionally tried to get him a long prison term, and

improperly threatened him with a maximum term of 17 years. The court replied that the


                                             5
maximum term he faced was 17 years in prison. Alexander's counsel responded to his

client's assertions, stating there was no defense he could create because, after

investigating the case, no witnesses provided an alibi defense refuting the evidence that

showed Alexander committing the charged offenses. His counsel also stated he had

never deliberately tried to get any of his clients a long prison term. When discussing the

possible plea agreement with Alexander, his counsel had given him information

regarding the range of sentences he might receive if he went to trial versus pleading

guilty. His counsel stated that although he wanted Alexander to accept the plea offer, he

did not "push" him to accept it.

       The court stated Alexander's motion to withdraw his plea went "hand in hand"

with his Marsden motion for new counsel. It stated: "Both basically [are] based on your

assertion that you were coerced [into] taking a plea by your attorney and not provided

adequate information . . . and[,] therefore, you had ineffective assistance of counsel when

you agreed to enter your plea." The court noted the surveillance videotape showed the

robbery perpetrators wearing distinctive clothing, and Alexander and his codefendant

were caught one mile away wearing that same distinctive clothing. It noted that because

there was no defense case, his counsel probably should have been pushing him to accept

the plea offer. The court noted Alexander's counsel passionately argued on his behalf to

persuade it to give him a 10-year term rather than the higher term sought by the

prosecution. The court denied his motion to withdraw his plea, stating it would be unfair

to the People and to him and there were no grounds for it. It then found Alexander had



                                              6
"very effective assistance of counsel all along this process" and denied his Marsden

motion for new counsel.

       The court then addressed Alexander's motion to represent himself. The court

noted it had granted his prior request to represent himself and he later requested

reinstatement of his attorney. The court also stated his instant motion was not timely or

in his best interest and, in any event, it did not believe he was competent to represent

himself. The court explained Alexander appeared delusional regarding the strength of his

case and in his belief his counsel was conspiring against him. It further explained he did

not appear able to identify possible defenses, properly conduct himself during trial,

examine witnesses, or present evidence. The court denied his request to represent

himself. The court then concluded the closed hearing and proceeded with sentencing

Alexander in open court.

                                              B

       The crux of Alexander's argument on appeal appears to be that he was wrongly

deprived of representation by counsel during the hearing on his motion to withdraw his

plea and, in effect, represented himself despite the trial court's finding he was not

competent to do so. We disagree with his interpretation of what transpired during the

hearing. Based on our review of the record, we conclude Alexander remained

represented by his defense counsel throughout the entire closed hearing. Although his

motion to withdraw his plea was heard together with his Marsden motion for new counsel

and motion to represent himself, the court did not, at any point, discharge his counsel or

grant Alexander the right to represent himself. Rather, his counsel continued to represent

                                              7
him during all phases of that hearing, including the hearing of his motion to withdraw his

plea, his Marsden motion, and his motion to represent himself. Because the court never

granted his Marsden motion or motion to represent himself, Alexander continued to be

represented by his counsel throughout the hearing. (Smith, supra, 6 Cal.4th at p. 695.)

His counsel would have been discharged and relieved of further representation of

Alexander only if the court had granted either his Marsden motion or motion to represent

himself. (Ibid.)

          To the extent Alexander argues he, in effect, represented himself (even though he

was not competent to do so) during the Marsden hearing because his counsel had a

conflict in defending himself against allegations of ineffective assistance, the California

Supreme Court implicitly rejected a similar argument in Smith. In that case, the court

stated:

             "It is true that when a defendant claims after trial or guilty plea that
             defense counsel was ineffective, and seeks substitute counsel to
             pursue the claim, the original attorney is placed in an awkward
             position. The attorney must defend against charges from the very
             client he or she is supposed to be representing. The potential for
             conflict is obvious. But the same potential for conflict exists before
             trial as well. And the conflict is unavoidable.

             "Unless we hold that a defendant may never obtain substitute trial
             counsel . . . or that a defendant may obtain substitute counsel on
             demand—both of which extremes were rejected in Marsden—then it
             is inevitable that counsel will be placed in a conflict position when a
             defendant requests substitute counsel, whether the request is before
             or after conviction." (Smith, supra, 6 Cal.4th at p. 694.)

Although Smith recognized the inherent conflict defense counsel faces when a defendant

makes a Marsden motion for new counsel on the ground of ineffective assistance, it is


                                                 8
implicit within Smith's discussion that defense counsel nevertheless continues to fully

represent the defendant during the hearing and thereafter unless, and until, the court

grants the Marsden motion and discharges counsel. Alternatively stated, the existence of

a conflict for defense counsel in having to defend him- or herself against allegations of

ineffective assistance does not result in any "temporary" discharge of counsel during the

Marsden hearing. (Cf. People v. Sanchez (2011) 53 Cal.4th 80, 89 [although Smith noted

the difficulty for defense counsel to argue his or her incompetence, we did not suggest "it

is impossible for counsel to do so"].) Likewise, the fact that a defendant is given the

opportunity during a Marsden hearing to explain the reasons he or she is seeking new

counsel does not mean the defendant is representing him- or herself during that hearing.

Until such time as the court grants a Marsden motion and discharges a defendant's

counsel (or, alternatively, grants a defendant's motion to represent him- or herself),

defense counsel continues to represent the defendant during the Marsden hearing and

thereafter. Because the trial court in this case did not grant either Alexander's Marsden

motion or motion to represent himself, he continued to be represented by his appointed

counsel throughout the entire closed hearing. Therefore, contrary to his assertion,

Alexander was, in fact, represented by counsel during the hearing on his motion to

withdraw his plea.

       To the extent Alexander asserts the trial court denied him his right to assistance of

counsel to represent him during the hearing on his motion to withdraw his plea because it

found he was not competent to represent himself, that assertion is both unfounded and

moot. As we concluded above, the record shows he was, in fact, represented by his

                                              9
defense counsel throughout the hearing. Therefore, at no point during the hearing did

Alexander represent himself, whether competent or not to do so. Although the court

found he was not competent to represent himself, that finding did not have the effect, as

Alexander apparently argues, of having him represent himself during the hearing on his

motion to withdraw his plea. People v. Lightsey (2012) 54 Cal.4th 668, cited by

Alexander, is inapposite to this case and does not persuade us to reach a contrary

conclusion. Contrary to his apparent assertion, the fact that a defendant is afforded the

opportunity during a Marsden hearing to explain his or her reasons for requesting new

counsel does not mean the defendant is, in fact, representing him- or herself during that

hearing. Therefore, a defendant need not be competent to represent him- or herself in

order to explain the reasons for a Marsden motion.

       To the extent Alexander argues the trial court nevertheless should have appointed

substitute, or "conflict," counsel to represent him in moving to withdraw his plea, the

California Supreme Court has expressly disapproved of such a procedure. In People v.

Sanchez, supra, 53 Cal.4th at page 90, the court stated:

          "[W]e specifically disapprove of the procedure adopted by the trial
          court in this case, namely, the appointment of a substitute or
          'conflict' attorney solely to evaluate whether a criminal defendant
          has a legal ground on which to move to withdraw the plea on the
          basis of the current counsel's incompetence."

Alexander has not cited any case or other authority showing he was not represented by

counsel during the hearing on his motion to withdraw his plea or that he was entitled to

substitute or conflict counsel to represent him during that hearing. We conclude he has



                                            10
not carried his burden on appeal to show he was denied his constitutional right to

assistance of counsel during the hearing on his motion to withdraw his plea.3

                                     DISPOSITION

       The judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


IRION, J.




3      Because Alexander does not contend on appeal that the trial court abused its
discretion in denying his motion to withdraw his plea, his Marsden motion, or his motion
to represent himself, we need not, and do not, address those issues.

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