Filed 8/21/20 P. v. Springer CA1/1
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                   DIVISION ONE


THE PEOPLE                                                            A158263
    Plaintiff and Respondent,
                                                                      (Del Norte County
    v.                                                                Super. Ct. No. CRF 19-9075)
TRAVIS LELAND SPRINGER,
    Defendant and Appellant.

         Appellant Travis Springer pleaded guilty to sexual abuse of a minor
and was sentenced to 12 years in prison. On appeal he argues that the trial
court erred in failing to hold a hearing under People v. Marsden (1970)
2 Cal.3d 118 (Marsden)1 and in imposing fines and fees without first
determining his ability to pay. We conclude that Springer forfeited his
challenge to the imposition of the fines and fees, but we agree that the trial
court erred in failing to hold a Marsden hearing. We therefore conditionally
reverse the judgment and remand for the trial court to hold a such a hearing.




       Marsden requires a trial court to give a criminal defendant a hearing
         1

when he or she seeks the substitution of appointed counsel on the ground
that counsel has provided ineffective assistance. (Marsden, at p. 120.)
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                                    I.
                          FACTUAL AND PROCEDURAL
                               BACKGROUND

      Felony charges were brought against Springer for allegedly having
sexually abused a minor friend of his 13-year-old daughter. In April 2019,
before the preliminary hearing took place, Springer asked the trial court to
discharge his appointed counsel and substitute another attorney for him.
The court held a brief Marsden hearing and denied the request. The
preliminary hearing ensued, and Springer was subsequently charged by
felony information with nine sex crimes.
      In June 2019, Springer pleaded guilty to one count of continuous sexual
abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)), and the
remaining charges were dismissed. When sentencing was to take place,
Springer again indicated that he was dissatisfied with his attorney and
wanted substitute counsel appointed. This time, the trial court did not hold a
Marsden hearing, and it proceeded to sentence Springer to the negotiated
term of 12 years in prison. It also imposed various fines and fees.
                                      II.
                                  DISCUSSION
   A. The Trial Court Erred in Failing to Conduct a Marsden Hearing Before
      Sentencing.
      1. Additional background.
         a. The trial court holds a Marsden hearing in April 2019.
      As we have mentioned, the trial court held a Marsden hearing in April
2019 before the preliminary hearing. The court held the hearing after
Springer said that his attorney was “not really fighting” for him and had
never said whether he believed Springer was “guilty or innocent.” Springer
asked for an attorney who was “non-biased” because he felt his attorney was
“against [him].” The court explained the process of a preliminary hearing to
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Springer, and then asked for counsel’s input. Springer’s attorney said he had
interviewed witnesses and had told Springer it “look[ed] really bad.”
Springer then complained about the prosecutor’s withdrawal of a plea offer
and the way a defense investigator had conducted her research. The court
explained that Springer’s attorney could not control how the prosecutor
handled a plea offer, that Springer’s attorney had conducted adequate work
on the case, and that it (the trial court) didn’t “think appointing somebody
else [was] going to make a difference.”
      When the trial court indicated it would deny the Marsden request,
Springer asked, “Can we postpone it or something?” He explained, “I was
hoping to get some U.S. Codes that I have ordered.” The trial court denied
the postponement request, and the court proceeded with the preliminary
hearing.
           b. Springer reiterates his dissatisfaction with his attorney.
      At his arraignment eight days later, Springer pleaded not guilty. After
the court scheduled a trial date, Springer’s attorney, in referring to Springer,
said, “He wants to fire me. But we just did a Marsden hearing [last week].”
The court denied the request for a second Marsden hearing, ruling that
“[u]nless there’s been a change, [it was] not going to hear [the request]
because it’s called a repetition, an excessive request.” The court then
scheduled a readiness conference for May 15.
           c. Springer pleads guilty.
      Instead of proceeding to trial, Springer pleaded guilty in June to one
count of continuous sexual abuse of a minor. The declaration Springer signed
in connection with his guilty plea stated he was freely and voluntarily
entering the plea “[b]ecause [he was] guilty” or because he had discussed
defenses with his attorney and the possibility of being convicted “on other or


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more serious charges and risking . . . the possibility of a longer sentence.”
Springer indicated on the form that he was aware of the rights he was giving
up by pleading guilty.
      At the hearing at which Springer entered his guilty plea, the trial court
first confirmed with Springer that he understood the charge against him, had
signed the proposed plea agreement, was afforded enough time to discuss the
case with his attorney, and did not have questions about the plea agreement.
The prosecutor then offered a factual basis for the plea. The trial court asked
Springer, “Sir, do you disagree with any of that?” Springer replied, “Yeah,
honestly, yes.” As his defense attorney began to interject, Springer added,
“But, I guess the plea—so I guess I will agree with it. I don’t know, I’m not
sure.” He then said, “A lot of that is not true.” Springer’s defense attorney
remarked, “But some of it is, you know.” After the prosecutor said that he
thought “the defense counsel would stipulate that those are the allegations,”
Springer’s attorney responded, “Yes, those are the allegations. And from
what I understand is maybe this, certain specifics he doesn’t agree with, but
generally yes, that’s what I’m understanding.”
      Springer then pleaded guilty. The court accepted the plea and found
that there was a “factual basis for the plea,” that Springer was “fully advised
of [sic] the constitutional rights and the consequences of the plea and
knowingly and intelligently waived those rights,” and “the plea was freely
and voluntarily entered into.”
      After some scheduling issues were discussed, the prosecutor asked
whether Springer had been advised of certain implications of his plea form,
and Springer’s counsel affirmed that he had. The prosecutor stated,
“[T]ypically when we have a plea, even though we have the change of plea
form filled out by the defendant, we would go over his rights with him; if the


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Court is not inclined to do that, I would just [request Springer’s counsel] to
represent everything that has been initialed by the defendant. [Springer’s
counsel] has been over that with the defendant and he believes that the
defendant understands everything that he initialed on [the] form.” Springer’s
attorney said he had gone over Springer’s trial rights with him and believed
Springer understood them. Directing its remarks to Springer, the court then
stated, “Okay. Simply put, what everybody said was you have the right to a
lawyer. You have the right to a jury trial. You have the right to confront and
cross-examine witnesses. The lawyer would ask questions of anyone who
would testify against you. You have the right to witnesses. You have the
right to testify if you chose to do so. You can’t be compelled to testify. Do you
have any questions about any of your rights?” After Springer said he did not,
the court responded, “All right, I’m satisfied.” A sentencing hearing was
scheduled for August 12.
         d. The trial court holds its first sentencing hearing.
      On the day originally scheduled for Springer’s sentencing, August 12,
the prosecutor argued that Springer should be sentenced to the maximum
term allowed under the plea agreement. The prosecutor then stated that the
victim and her parents were present and wanted to make statements. Before
they took the stand, however, Springer’s attorney told the trial court, “The
defendant is telling me he wants to make a motion to withdraw his plea.”
The trial court explained that Springer had a right to do so, and it then
ordered everyone to return to court the following week.
         e. Springer indicates a desire for another Marsden hearing.

      When the parties reconvened the following week, the trial court asked
about Springer’s interest in withdrawing his plea. His attorney replied that
he had “talked to him about it,” but “[t]here didn’t appear to be any grounds,”

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and that Springer was considering alleging that he had been “misadvised.”
When asked, the attorney confirmed that he (the attorney) wanted to proceed
but said he was “really questioning whether [Springer] was capable of
assisting [him] rationally.” Suggesting a doubt about Springer’s mental
competency, the attorney said that “perhaps” an evaluation should be
prepared under Penal Code section 1368.2 The court advised the attorney to
explain his request and to provide examples of Springer’s incompetence.
Defense counsel repeatedly asserted that Springer did not appear capable of
rationally assisting him in putting on a defense in part because he refused to
“write out his side of the story.” The court denied the request after noting
that Springer had the right to remain silent through the proceedings and
that it had “not heard anything beyond a conclusive statement [Springer] is
not able to assist you for whatever reason.”
      Before proceeding to sentencing, Springer’s attorney said he had “[j]ust
one last issue.” After informing the trial court that Springer had “talked
about a Marsden,” Springer’s attorney first addressed Springer and the
following exchange took place:
      “[Defense counsel]: I need to know right now are you going to or not?
Do you want a Marsden hearing or not? I need to know before we go to[o] far.
      “[Springer]: I don’t know what I want man. It’s true, your Honor, what
he says is true, it’s not that I don’t want to know, I want the truth to come
out. [¶] . . . [¶] I asked him to help me and I want a Marsden motion because
he has directed me the wrong way, like, it was, like, I don’t care about 12
years or six years, I want the truth and it’s wrong with him, to live with that,

      2 Under Penal Code section 1368, subdivision (b), if counsel informs the
court that he or she believes the defendant is or may be mentally
incompetent, the court shall determine the defendant's mental competence in
a hearing.
                                       6
with that guilt of—I don’t care—I know I do care, I mean, I don’t know, I don’t
know what I want, man.
      “THE COURT: Okay.
      “[Springer]: I haven’t from day one, I can’t be around my kids, and
when I first got in here all I wanted was to get out and see my kids, and I
didn’t say anything in the beginning. And I admitted I lied to him and he has
lied to me. I don’t know if he’s going to admit it or not.
      “[Defense counsel]: Do you want a Marsden hearing?
      “[Springer]: I don’t know what I want. That’s what I’m saying, man. I
don’t mean to be upset. And I don’t freaking know what I want. I don’t know
what I want to do, man. I tried to be honest, I’m trying to be honest. I pray
to God every day to show which direction to take and I haven’t seen it yet.
      “[Defense counsel]: This is what I’m dealing with as far as a [Penal
Code section] 1368 motion.
      “[Springer]: . . . I don’t know what to do right now. I have no clue. I’m
being honest, why can’t everybody be honest? I need to, yes, I need a
Marsden hearing. I don’t know what I need, I really don’t.
      “[Defense counsel]: He wants a Marsden.
      “[Springer]: I want the truth to be said on the table.
      “[Defense counsel]: Do you want a Marsden? Then say so.
      “THE COURT: All right.
      “[Springer]: I want a continuance, please.”
      The trial court did not rule on whether there should be a Marsden
hearing, and no such hearing was held. Instead, the trial court stated,
“People, you may submit your side.” The prosecutor again detailed factors in
aggravation and argued that a 12-year sentence was appropriate. The




                                        7
victim, her parents, and the probation department all made statements to the
court.
         The defense attorney said he believed Springer wanted to “testify on
[his] own behalf.” Springer took the stand, and his attorney questioned him
about potentially mitigating circumstances. The trial court agreed with the
prosecution that “the circumstances in aggravation far outweigh . . . the
circumstances in mitigation,” and imposed the maximum sentence under the
plea agreement, 12 years (the midterm sentence).
         2. Analysis.
         Springer argues that the trial court erred in failing to hold a Marsden
hearing after he asked for one at his final sentencing hearing. We agree that
a Marsden hearing should have been held.
         When a defendant asks to replace his appointed attorney, the trial
court is required to “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.) “A defendant is entitled to relief
if the record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.” (Ibid.) A defendant’s Sixth Amendment right to effective
assistance does not mean that he possesses the right to present a defense of
his choosing. (See People v. Cole (2004) 33 Cal.4th 1158, 1192; People v.
Hamilton (1989) 48 Cal.3d 1142, 1162.) However, “to compel one charged
with [a] grievous crime to undergo a trial with the assistance of any attorney
with whom he has become embroiled in irreconcilable conflict is to deprive
him of the effective assistance of any counsel whatsoever.” (Schell v. Witek
(9th Cir. 2000) 218 F.3d 1017, 1025.) The denial of a Marsden motion is


                                          8
reviewed for abuse of discretion. (People v. Smith, supra, 30 Cal.4th at
p. 604.) But a trial court’s refusal “to afford a defendant an opportunity to set
forth the reasons underlying his request for the substitution of appointed
counsel constitutes an abuse of discretion by the court.” (People v. Chavez
(1980) 26 Cal.3d 334, 346.)
      A trial court is not obligated to initiate a Marsden inquiry sua sponte.
(People v. Lara (2001) 86 Cal.App.4th 139, 150.) Rather, the court’s duty to
conduct an inquiry arises only when the defendant “ ‘asserts directly or by
implication that his counsel’s performance has been so inadequate as to deny
him his constitutional right to effective counsel.’ ” (People v. Leonard (2000)
78 Cal.App.4th 776, 787, italics omitted.) A defendant’s “[m]ere grumbling
about his counsel’s failure . . . is insufficient” to constitute a request for new
counsel. (People v. Lee (2002) 95 Cal.App.4th 772, 780.) And although a
formal, legal motion is not required, the defendant must “at least [make]
some clear indication . . . that he wants a substitute attorney.” (People v.
Lucky (1988) 45 Cal.3d 259, 281, fn. 8 (Lucky).) Further, a reviewing court
“will not find error on the part of the trial court for failure to conduct a
Marsden hearing in the absence of evidence that defendant made his desire
for appointment of new counsel known to the court.” (People v. Richardson
(2009) 171 Cal.App.4th 479, 484.) Under Marsden, a defendant can seek the
discharge and replacement of counsel at any stage of a criminal proceedings,
including before or after a defendant is convicted. (People v. Smith (1993)
6 Cal.4th 684, 694.)
      We agree with Springer that he was sufficiently clear in indicating his
desire for a Marsden hearing on the day of his sentencing, both when he said,
“I want a Marsden” and when his attorney said, “he wants a Marsden.”
Respondent all but concedes that the statement by Springer’s counsel that


                                         9
Springer “want[ed] a Marsden” was a sufficiently clear assertion, but argues
that Springer “immediately contradicted” this statement by saying he
“want[ed] the truth to be said on the table.” Far from contradicting the
Marsden request, however, Springer’s statement was consistent with his
stated desire to withdraw his plea—which itself was part of his reason for
wanting the appointment of substitute counsel.
      Springer argues that this case is similar to People v. Armijo (2017)
10 Cal.App.5th 1171, 1180. In Armijo, the defendant sent a letter to the trial
court asking for substitute counsel in which he stated, “I am requesting that
you assign my case to a state-appointed attorney.” (Id. at pp. 1176–1177.)
The court received this letter, but it did not hold a Marsden hearing, and the
defendant went on to accept a plea agreement. (Armijo, at p. 1180.) The
court of appeal deemed the trial court’s failure to hold the hearing reversible
error. (Ibid.) Although Springer’s statements were more equivocal than the
defendant’s statement in Armijo, we cannot say they failed to directly or
implicitly challenge his counsel’s effectiveness or to invoke his right to a
Marsden hearing.
      People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez) is instructive. There,
the defendant pleaded guilty. (Id. at p. 84.) At his initial date for sentencing,
a deputy public defender, who was not his appointed counsel, told the trial
court that the defendant wanted to explore having his plea withdrawn. (Id.
at p. 85.) The trial court eventually appointed private conflict counsel to
evaluate the defendant’s motion to withdraw the plea. (Ibid.) The defendant
appeared at a subsequent hearing with the private attorney and his
appointed public defender. (Ibid.) The private attorney told the court that
the defendant was adamant about withdrawing his plea even though he (the
private attorney) had found no legal grounds to support such a withdrawal.


                                        10
(Ibid.) The court then indicated that it would proceed with sentencing at a
later date and told the appointed public defender that he would continue to
represent the defendant. (Ibid.) At the subsequent sentencing hearing, his
appointed public defender told the court that the defendant still wanted to
withdraw his plea. (Id. at pp. 85–86.) The court denied the plea withdrawal
and sentenced the defendant to the negotiated term. (Id. at p. 86.)
      The Supreme Court held that the trial court’s duty to conduct a
Marsden hearing was triggered when the defendant’s attorney requested the
appointment of substitute counsel to investigate the defendant’s desire to
withdraw his plea. (Sanchez, supra, 53 Cal.4th. at pp. 86, 92.) The Supreme
Court concluded that “when a criminal defendant indicates after conviction a
desire to withdraw his plea on the ground that his current counsel provided
ineffective assistance,” the “trial court is obligated to conduct a Marsden
hearing . . . only when there is ‘at least some clear indication by defendant,’
either personally or through his current counsel, that defendant ‘wants a
substitute attorney.’ ” (Sanchez, at pp. 89-90, citing Lucky, supra, 45 Cal.3d
at p. 281.)
      Here, Springer gave “ ‘at least some clear indication’ ” that he wanted a
substitute attorney when he discussed wanting to explore withdrawing his
plea on the basis that he had been inadequately represented. (Sanchez,
supra, 53 Cal.4th at pp. 89–90.) Respondent claims that Springer failed to
assert or imply that his counsel’s performance was inadequate. We disagree.
Springer and his defense counsel were in conflict throughout the proceedings,
and Springer’s comments on the record went beyond mere grumblings about
his attorney’s failings. While not perfectly articulated, Springer’s complaints
conveyed both a desire to withdraw his plea and a belief that he had been
inadequately advised. Springer specifically claimed that his counsel had


                                       11
“directed [him] the wrong way” and suggested that his desire for the truth to
be “said on the table” was more important to him than proceeding under the
negotiated plea agreement.
      The California Supreme Court stated in Lucky that “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.” (Lucky, supra, 45 Cal.3d at p. 281, italics added.) Here,
Springer unquestionably moved in some manner to seek a discharge of his
attorney by stating he wanted a Marsden hearing. Further, as Marsden itself
explained, a trial court errs in denying a “a motion for substitution of
attorneys solely on the basis of [its] courtroom observations.” (Marsden,
supra, 2 Cal.3d at p. 124.) Here, we must conclude that the trial court denied
Springer’s motion for a Marsden hearing at the time of the sentencing
hearing on the sole basis of courtroom observations because nothing in the
record indicates that he was given the opportunity to expound on his request
for substitute counsel outside the presence of the prosecution.
      Accordingly, we remand the matter because we are unable to conclude
beyond a reasonable doubt that Springer’s plea and resulting judgment were
not the result of the denial of effective assistance. (Marsden, supra, 2 Cal.3d
at p. 126.) In doing so, we take no position on the merits of Springer’s
request. After inquiring into Springer’s desire for new counsel, the trial court
shall exercise its discretion in determining whether his claims are credible.
   B. Springer Forfeited His Challenge to the Imposition of Fines and Fees.
      Without objection, the trial court ordered Springer to pay $300 in
restitution (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a $300
parole-revocation fine (Pen. Code, § 1202.45), imposed a court security fee of
$40 (Pen. Code, § 1465.8) and a criminal conviction assessment of $30 (Gov.
Code, § 70373). Relying on People v. Dueñas, Springer argues that the trial
                                       12
court violated his constitutional rights when it imposed these assessments
and fines totaling $670 without first determining his ability to pay. (People v.
Dueñas (2019) 30 Cal. App.5th 1157, 1168 (Dueñas).) He asks that we vacate
these assessments, and stay theses fines, or remand the matter for a hearing
on his ability to pay. We agree with respondent that Springer forfeited this
claim by failing to object in the trial court.
      Dueñas held that “due process of law requires the trial court to conduct
an ability to pay hearing and ascertain a defendant’s present ability to pay
before it imposes court facilities and court operations assessments under
Penal Code section 1465.8 and Government Code section 70373.” (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) Springer was sentenced eight months
after Dueñas was decided. Therefore, at the time of sentencing he could have
raised an ability to pay objection based on Dueñas yet neglected to do so.
Generally, a criminal defendant who fails to challenge “an assertedly
erroneous ruling of the trial court in that court has forfeited his or her right
to raise the claim on appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880.)
Further, “ ‘ “a constitutional right,” or a right of any other sort,’ ” may be
forfeited. (Ibid.) Thus, Springer’s failure to express concern about his
inability to pay in the trial court forfeits his right to challenge the fines and
fees on appeal.
      Because we decide this issue on forfeiture grounds, we express no view
as to the substantive ruling of Dueñas, and note that our state Supreme
Court granted review of its holding in People v. Kopp (2019) 38 Cal.App.5th
47, review granted Nov. 13, 2019, S257844. We further note that, depending
on the outcome of the Marsden hearing held on remand, Springer may have
the ability to raise this issue at a new sentencing hearing.




                                         13
                                       III.
                                  DISPOSITION
      The judgment is conditionally reversed. The case is remanded to the
trial court with directions to hold a Marsden hearing and to appoint new
counsel if Springer can show that failure to do so would substantially impair
his right to assistance of counsel. (Sanchez, supra, 53 Cal.4th p. 92.) The
trial court shall entertain any motions that potential new counsel makes, but
if counsel makes no motions or they are denied, the court shall reinstate the
judgment. (Id. at pp. 92–93.) If Springer’s Marsden motion is denied, the
court is directed to reinstate the judgment. (Id. at p. 93.)




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                                  _________________________
                                  Humes, P.J.




WE CONCUR:




_________________________
Margulies, J.




_________________________
Sanchez, J.




People v. Springer A158263


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