Filed 7/31/15
                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D067410

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. FWV1201414)

DARIUS TREVOR KNIGHT,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of San Bernardino County,

Gregory S. Tavill, Judge. Reversed with directions.



        Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.

        A jury convicted defendant and appellant Darius Trevor Knight of robbery (Pen.
Code, § 211) and found not true the special allegation he inflicted great bodily injury on

the victim. Because the robbery was his third strike within the meaning of Penal Code1

section 667, subdivisions (b)-(i), he was sentenced to a term of 25 years to life.

       On appeal, defendant contends the trial court erred in a posttrial, presentence

Marsden2 hearing when the trial court advised defendant he would waive his right to

remain silent if he discussed the circumstances of the robbery. Defendant contends the

trial court's warning effectively prevented him from fully articulating the reasons his

counsel had been ineffective.

       As we explain, we find that the judge's warning was erroneous and that on this

record we cannot conclude beyond a reasonable doubt that the error was harmless. We

reverse and remand to the trial court for the limited purpose of conducting a Marsden

hearing free of error.

                                FACTUAL BACKGROUND

       Around 2:00 a.m., on June 13, 2012, a fast-food restaurant shift manager, Edgar

Velasquez, and a coworker, Maria Escobar, were closing the restaurant. While the two

employees were cleaning the restaurant, Velasquez opened the door to a restroom to

begin cleaning it. Velasquez noticed the lights were off and saw a figure standing three

to four feet away from him, already in the restroom. This figure raised his arm toward

Velasquez in an attacking motion and shoved Velasquez to the floor, where Velasquez hit


1      All further statutory references are to the Penal Code unless otherwise indicated.

2      People v. Marsden (1970) 2 Cal.3d 118, 124-126 (Marsden).
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his head and blacked out. Velasquez regained consciousness when he heard the sound of

his own screaming; the unknown figure told Velasquez to take him to the store's safe.

       Velasquez led his assailant to the store's safe, opened it, and the assailant took

between $100 and $200 in one and five dollar bills. After taking the money, the assailant

left the store. Immediately, however, the assailant rushed back into the store and exited

through the drive-through window.

       When Escobar heard Velasquez's screaming, she left the store and flagged down a

police officer. While the officer was speaking to Escobar, Velasquez hobbled out of the

store, described what had just happened and gave the officer a description of his attacker.

The officer immediately radioed the information Velasquez provided to other officers in

the area.

       Another law enforcement officer spotted defendant and detained him. Velasquez

was transported to a nearby apartment complex where defendant was detained and

Velasquez identified him as his attacker. Defendant was arrested and charged with

robbery; the complaint alleged that defendant inflicted great bodily injury and further

alleged that defendant suffered two prior robbery convictions in 1998 and 1999 and that

they were serious or violent felonies within the meaning of section 667, subdivisions (b)-

(i).

       On July 3, 2013, a jury found defendant guilty of robbery

       Following the jury's verdict, defendant made a Marsden motion, which was heard

on July 8, 2013. During the hearing, defendant expressed dissatisfaction that his attorney


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had failed to take any steps to preserve evidence and that his attorney let the prosecutor

lead witnesses during trial. During the course of the hearing, the following colloquy took

place:

         "The Defendant: . . . The police transmissions of the night of the event, I don't

believe that Mr. Brown had the -- all of them because the police were -- I was in the

apartments across the street and the police were racing over there.

         "The Court: Before you start telling me about the case, I'm your judge. One of the

things that you did is you exercised your right to remain silent and to not testify, and I'm

still your judge. I still got decisions to make in the case.

         "The Defendant: Okay.

         "The Court: I want to caution you not to say anything because if you do that,

you'll be waiving your right to remain silent. The rights that you have and the right

you've already exercised.

         "The Defendant: Okay.

         "The Court: Not that I don't want to listen to you.

         "The Defendant: Right.

         "The Court: But I think you need to be mindful and careful of your circumstance.

You may not want to say much more to me about the substance of the case.

         "The Defendant: Okay.

         "The Court: That's your mama, I take it, right?

         "The Defendant: Yes, sir.


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       "The Court: Listen to your mama.

       "The Mother: I told him to 'shh shh shh.' " (Italics added.)

       The trial court then asked defendant if there was any other basis for relieving his

attorney, and defendant repeated complaints about counsel he had made in earlier

Marsden motions. The trial court stated that counsel had done a good job during the trial

and denied the Marsden motion.

       Thereafter, the trial court considered defendant's Romero3 motion and denied it.

In light of his two prior strike convictions, the trial court sentenced defendant to a term of

25 years to life.

                                       DISCUSSION

       We agree with defendant that the trial court's statement to him with respect to

waiver of his right not to incriminate himself was erroneous. As defendant notes,

statements a defendant makes in the course of a Marsden hearing are, at the very least,

subject to so-called use immunity. (See People v. Dennis (1986) 177 Cal.App.3d 863,

874-875 (Dennis).)

       A. Marsden

       Criminal defendants are entitled the assistance of counsel in their defense. (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15.) A court must appoint counsel to represent

an indigent defendant. (Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.) A

defendant also has a right to seek substitute counsel under Marsden if the defendant can


3      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
                                              5
show that continued representation by present counsel would substantially impair or deny

his or her right to effective assistance of counsel. (People v Cole (2004) 33 Cal.4th 1158,

1190; Marsden, supra, 2 Cal.3d at p. 123.) The trial court must appoint new counsel

when failure to do so would substantially impair the defendant's right to assistance of

counsel. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.)

       During a Marsden hearing, the court must allow the defendant an opportunity to

explain the grounds for the motion and to relate specific instances of his or her attorney's

inadequate performance. (Marsden, supra, 2 Cal.3d at p. 124.) The trial court must

afford the defendant every opportunity to express the specific reasons of dissatisfaction

with counsel. (Ibid.; People v. Ivans (1992) 2 Cal.App.4th 1654, 1665.) Thus, a trial

court abuses its discretion when it refuses to listen to the defendant's reasons for

requesting substitute counsel. (People v. Vera (2004) 122 Cal.App.4th 970, 980; Ivans,

supra, at 1666; People v. Moore (1988) 47 Cal.3d 63, 76; People v. Lewis (1978) 20

Cal.3d 496, 498–499.)

       The right to effective assistance of counsel continues throughout proceedings in

the trial court and on appeal. (See Douglas v. California (1963) 372 U.S. 353, 356-358;

Dennis, supra, 177 Cal.App.3d at pp. 874-875.) As here, it may arise after a verdict and

before judgment is entered in the trial court. (See Dennis, at pp. 874-875; People v. Reed

(2010) 183 Cal.App.4th 1137, 1148 (Reed).) When new counsel is appointed at that

stage of the proceedings, new counsel may, if counsel believes it is appropriate, move for

a new trial on the grounds former counsel was ineffective. (See Dennis, at p. 868; Reed,


                                              6
at pp. 1149-1150.)

       Typically, when conducting a Marsden hearing, trial courts exclude the district

attorney upon defendant's request and "whenever information would be presented during

the hearing to which the district attorney is not entitled, or which could conceivably

lighten the prosecution's burden of proving its case." (People v. Madrid (1985) 168

Cal.App.3d 14, 19.)

       B. Dennis

       In Dennis, after the defendants were convicted of kidnapping and rape, they made

Marsden motions, which the trial court granted. The defendants' new counsel then

moved for a new trial, arguing that by granting the Marsden motion, the trial court

necessarily determined the defendants had not been effectively represented. The trial

court agreed and granted the defendants' a new trial. The People appealed and argued the

trial court had failed to provide them with a fair opportunity to contest the motion for a

new trial and had unfairly removed from the defendants' their burden on a motion for a

new trial.

       The defendants' in Dennis argued that in seeking a motion for a new trial they

could not be required to demonstrate how their respective trial counsel were ineffective,

because doing so would improperly burden their ability to obtain new counsel. They

argued that such a showing might disclose incriminating or otherwise damaging evidence

and conceivably lighten the prosecution's burden in any new trial. (Dennis, supra, 177

Cal.App.3d at p. 874.)


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       The Court of Appeal agreed with the People and reversed. It found that on a

motion for new trial the defendants had the burden of showing both the ineffectiveness of

counsel and the prejudice it caused. (Dennis, supra, 177 Cal.App.3d at p. 872.) Of

pertinence here, in responding to the defendants' concern that in making such a showing

they might be compelled to disclose privileged information that would assist the

prosecution, the Court of Appeal found that any information the defendants disclosed in

asserting their right to effective counsel was subject to use immunity. (Id. at p. 874.)

"Use immunity rules apply where there is a compulsive sanction against exercise of the

privilege against self-incrimination and where the policy of law favors full disclosure or

discussion by the accused. [Citation.] Those factors are present here. As we have noted,

on motion for a new trial the defendant bears the burden of establishing ineffectiveness of

counsel and this burden cannot be met by a silent record; consequently the defendant will

feel compelled to make disclosure of information. The law clearly favors such

disclosure. Trial courts have the duty to ensure that defendants are accorded due process

of law, and they are particularly well suited to rule on the adequacy of counsel in cases

tried before them. [Citation.] And justice will be expedited by presenting the issue of

counsel's effectiveness to the trial court on motion for a new trial. [Citation.] These

factors compel the conclusion that defendant must be granted use immunity for

disclosures he may make in support of a motion for a new trial on grounds of

ineffectiveness of trial counsel." (Id. at pp. 875-876, fn. omitted.)

       The considerations that require use immunity with respect to privileged


                                              8
information disclosed in support of a motion for a new trial based on ineffective

assistance of counsel apply with equal force to disclosures made in support of a Marsden

motion. As the circumstances on this record demonstrate, in order to exercise the right to

effective assistance embodied in Marsden, a defendant faces the same constitutional

dilemma a defendant moving for a new trial based on asserted ineffective assistance of

counsel confronts: The need to fully disclose information in order to obtain effective

counsel, as guaranteed by the Sixth Amendment, may require the defendant to waive the

right against self-incrimination, as guaranteed by the Fifth Amendment. The need for use

immunity in the context of a Marsden hearing is of course especially acute because at a

Marsden hearing a defendant is acting, in many material respects, on his or her own and

without the benefit of counsel. Thus, as in Dennis, statements made in a Marsden

hearing are subject to use immunity; that is, statements made by the defendant may not be

used in further related proceedings, save for the purposes of impeachment and rebuttal in

such proceedings.4 (See Dennis, supra, 177 Cal.App.3d at p. 874.)

4       The use immunity the court adopted in Dennis and we find applicable here, is
based on the remedy fashioned by the Supreme Court in People v. Coleman (1975) 13
Cal.3d 867, 889 (Coleman). "In Coleman the defendant was subject to probation
revocation proceedings on grounds which were also the basis for criminal charges. He
declined to testify at his revocation hearing to avoid incriminating himself at his
subsequent criminal trial. In order to alleviate the harsh testimonial choice such a person
must make, the Supreme Court fashioned 'a judicial rule of evidence that henceforth upon
timely objection the testimony of a probationer at a probation revocation hearing held
prior to the disposition of criminal charges arising out of the alleged violation of the
conditions of his probation, and any evidence derived from such testimony, is
inadmissible against the probationer during subsequent proceedings on the related
criminal charges, save for purposes of impeachment or rebuttal where the probationer's
revocation hearing testimony or evidence derived therefrom and his testimony on direct
examination at the criminal proceeding are so clearly inconsistent as to warrant the trial
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       C. Analysis

       Here, the record shows the trial court did not accurately describe for defendant the

permissible uses of statements defendant made at the Marsden hearing. Contrary to the

statement of the trial court, statements defendant made about the offense would not waive

his Fifth Amendment rights and could not be used against him in further proceedings,

including his pending Romero motion and at sentencing. (See Dennis, supra, 177

Cal.App.3d at pp. 874-875.)

       In response to the trial court's statement, the record suggests defendant abbreviated

his Marsden presentation. Because the trial court's statement was plainly erroneous and

the record suggests defendant limited his remarks in response to it, we will presume that

the trial court's statement substantially and erroneously interfered with defendant's rights

under Marsden.

       However, Marsden does not establish a rule of per se reversible error. (People v.

Chavez (1980) 26 Cal.3d 334, 348-349; Reed, supra, 183 Cal.App.4th at p. 1148; People

v. Washington (1994) 27 Cal.App.4th 940, 944.) Where there is Marsden error, we must

reverse, unless the record shows beyond a reasonable doubt that the defendant was not

prejudiced. (Reed, at p. 1148.) In People v. Washington, the court was able to find that

no prejudice occurred because the defendant's Marsden motion was made in conjunction

with his motion for a new trial based on ineffective assistance of counsel, which the trial


court's admission of the revocation hearing testimony or its fruits in order to reveal to the
trier of fact the probability that the probationer has committed perjury at either the trial or
the revocation hearing.' [Citation.]" (Dennis, supra, 177 Cal.App.3d at p. 874.)
                                              10
court denied and which the defendant did not challenge on appeal. In light of the trial

court's ruling on the motion for a new trial, the Court of Appeal was able to determine

that although the trial court erred in not hearing the companion Marsden motion, the

record on the new trial motion showed that, in any event, no relief from the verdict would

have been achieved. (Washington, at p. 944.)

       Here, we do not have the benefit of any trial court ruling on a motion for new trial

or any other means of determining what, in the absence of the trial court's statement,

defendant would have offered in the way of grounds for appointing new counsel. The

record is silent on these issues. In this regard, our record is similar to the one considered

in Reed, where, at sentencing, the defendant complained about the effectiveness of his

counsel and the trial court failed to make appropriate inquiries as to the basis for the

defendant's complaints and failed to consider appointing counsel for the purpose of

preparing a motion for a new trial. The Court of Appeal determined that the silent record

with respect to what the defendant may have offered, had the required inquiries been

made, made it impossible to conclude beyond a reasonable doubt that the trial court's

error was harmless. (Reed, supra, 183 Cal.App.4th at pp. 1144-1145.) The Court of

Appeal remanded for the limited purpose of determining whether the Marsden motion

should have been granted, and, if it should have been granted, hearing any new trial

motion made by new counsel. (Reed, at pp. 1149-1150.)

       The silent record here leaves us in the same position as the Court of Appeal in

Reed: we cannot conclude beyond a reasonable doubt that defendant's fully articulated


                                             11
Marsden motion would have been unsuccessful or that, if it was successful, new counsel

would have failed in prosecuting a motion for a new trial. Thus, we must reverse for

further proceedings.

                                       DISPOSITION

       Defendant's judgment is reversed and the case is remanded with directions to the

trial court to conduct a Marsden hearing with respect to the representation defendant

received at trial. The hearing shall be conducted consistent with the views we have

expressed with respect to the use of defendant's statements in further proceedings. If the

court determines that defendant's representation by trial counsel gave rise to the right to

new counsel, the court shall appoint new counsel and conduct further proceedings as

necessary in light of that appointment. If, on the other hand, the trial court determines

that defendant's representation at trial did not require appointment of new counsel, the

trial court shall reinstate the judgment.



                                                                       BENKE, Acting P. J.

WE CONCUR:


NARES, J.


McINTYRE, J.




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