Filed 8/31/16 P. v. Washington CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C078617

                   Plaintiff and Respondent,                                     (Super. Ct. No. 14F00282)

         v.

JAMES WASHINGTON,

                   Defendant and Appellant.




         A jury found defendant James Washington guilty of kidnapping and corporal
injury to a spouse and the trial court sentenced him to 22 years in state prison. On appeal,
defendant contends the trial court erred in failing to hold a confidential hearing pursuant
to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), when defendant asked for a new
attorney. The People agree the trial court erred but contend the error was harmless. We
conclude the trial court committed prejudicial error in failing to hold a Marsden hearing
and reverse the judgment accordingly.




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                                   I. BACKGROUND1
       The People charged defendant with kidnapping, making criminal threats, and
inflicting corporal injury on a spouse (domestic violence). The People further alleged
defendant was previously convicted of a strike offense and a serious felony and
previously served a term in prison. A jury later convicted defendant of kidnapping and
domestic violence, and the trial court found true the enhancement allegations.
       Prior to sentencing, defendant asked the trial court for a continuance because he
was considering moving for a new trial and wanted the reporter’s transcript of the trial.
The trial court refused to continue the matter “for any significant period of time.” The
court advised defendant, “It was a short trial. I don’t think that there were any issues,
quite candidly.” The court nevertheless agreed to a brief continuance to allow defendant
to discuss further with counsel “whether any grounds exist[ed] . . . which one can obtain
a new trial.”
       The following exchange then took place:
       “THE DEFENDANT: If I was to file a motion for new trial under ineffective
assistance of counsel, then would that be different? That’s what I was going for as well
so—
       “THE COURT: In terms of ineffective assistance of counsel, your attorney, A, is
an amazingly experienced attorney, who, B, didn’t have a whole lot to work with, other
than cross-examination of witnesses who in some instances were law enforcement, and
addressed those issues appropriately. And in some instances, with civilian witnesses with
absolutely no prior knowledge of you . . . . [¶]
       “I’m not sure exactly what I anticipate an attorney should do with that sort of—
faced with that sort of a factual scenario.



1The facts surrounding defendant’s crimes are not relevant to the issue on appeal.
Accordingly, we do not include them in this opinion.

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       “But what are you asking me to do?
       “THE DEFENDANT: If I can be appointed new counsel. And that’s why I asked
from [sic] the transcripts from the trial, as that way, my new counsel can go through and
see and view them to view all the transcripts on ineffective assistance of counsel.
       “THE COURT: I will tell you what I will do, I’m not going to appoint new
counsel at this point. I don’t think ineffective assistance of counsel is a road that is
appropriately hoed based on my own observations during the trial.”
       The trial court went on to say defendant’s trial counsel was “an exceptional
attorney,” who did “an excellent job.” The court observed that counsel did the best he
could with “the hand that he was dealt.” The court then continued the matter to allow
defendant to bring a motion for new trial.
       Following another short continuance, the trial court heard defendant’s motion for a
new trial based on newly discovered evidence. The trial court heard argument from
counsel and reviewed witness statements obtained by defendant’s counsel. The trial
court found the evidence submitted was not new and denied defendant’s motion. The
issue of effective counsel was not raised. The trial court then sentenced defendant to an
aggregate term of 22 years in state prison.
                                     II. DISCUSSION
       Defendant contends the trial court’s failure to conduct a Marsden hearing was
prejudicial error that requires the judgment be reversed. The People agree the court
erred, but argue the error was harmless beyond a reasonable doubt. Defendant has the
better argument.
       “[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.” (People v. Sanchez
(2011) 53 Cal.4th 80, 90.)



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       Here, defendant made it clear he wanted new counsel because he believed he may
have received ineffective counsel at trial and he wanted another attorney to review the
matter. In response to defendant’s request, the trial court told him that counsel’s conduct
in the courtroom during trial was “excellent” and made no inquiry into the basis for
defendant’s request for new counsel. As a result, defendant was deprived of a
meaningful hearing on his Marsden motion. (See People v. Winbush (1988)
205 Cal.App.3d 987, 991 [once the request for new counsel is made, trial court is
required to “fully explore with defendant” the reasons for wanting new counsel].)
       That it appeared to the trial court that defendant’s counsel performed adequately in
the courtroom does not satisfy its obligation to allow defendant to completely state why
he believed his attorney should be replaced, given that his responses may have been
based on events that occurred outside the courtroom. (See People v. Reed (2010)
183 Cal.App.4th 1137, 1149, fn. 15 (Reed).) And, unlike the circumstances in People v.
Washington (1994) 27 Cal.App.4th 940 (Washington), where the defendant’s claim for
ineffective counsel was fully vetted in a motion for new trial, here the record is silent on
defendant’s claim. (Id. at pp. 942-943; see also Reed, supra, at pp. 1148-1149
[discussing Washington].) Thus, we cannot determine whether the error was harmless.
       Similarly, in People v. Mack (1995) 38 Cal.App.4th 1484, the appellate court
found the trial court’s failure to hold a Marsden hearing was harmless error because
“[t]he issue of trial counsel’s alleged incompetence [had] been thoroughly addressed by
appellate counsel both in the direct appeal and in a collateral writ.” (Id. at p. 1488.)
Again, the defendant’s claim of ineffective counsel was thoroughly explored. That is not
the case here.
       Here, the trial court never inquired into the basis for defendant’s request for a new
attorney. Defendant’s motion for a new trial was based on new evidence, not a claim of
ineffective counsel. And, defendant’s appellant attorney has not raised the issue of trial
counsel’s effectiveness either on this direct appeal or in a collateral writ. As a result,

                                              4
other than the trial court’s opinion that counsel was effective in the courtroom, the record
is silent on trial counsel’s effectiveness. It is thus impossible to determine whether
further inquiry, particularly into matters not in the record, would have resulted in the
appointment of new counsel and thus whether the trial court’s error was harmless. (See
Reed, supra, 183 Cal.App.4th at pp. 1148-1149.) Accordingly, the judgment must be
reversed.
       “Although this case requires reversal of the judgment, it does not require an
automatic retrial. [Citation.] The appropriate course of action is to remand to the trial
court to allow it to fully inquire into appellant’s allegations concerning counsel’s
performance. Following the inquiry, if the trial court determines that defendant has
presented a colorable claim of ineffective assistance, then the court must appoint new
counsel to fully investigate and present the motion for new trial. If, on the other hand, the
inquiry does not disclose a colorable claim, the motion for new trial may be denied and
the judgment reinstated.” (People v. Winbush, supra, 205 Cal.App.3d at p. 992; see also
People v. Kelley (1997) 52 Cal.App.4th 568, 580.)




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                                    III. DISPOSITION
       The judgment is reversed and remanded for the limited purpose of holding a
hearing on defendant’s Marsden motion. If defendant makes a prima facie showing of
ineffective assistance of counsel, the trial court is to appoint new counsel for the purpose
of bringing a motion for new trial. If defendant fails to make a prima facie showing of
ineffective assistance of counsel, the trial court is to reinstate the judgment.



                                                         /S/

                                                   RENNER, J.



We concur:



/S/

DUARTE, Acting P. J.



/S/

HOCH, J.




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