P. v. McNair
P. v. McNair
Filed 10/6/08 P. v. McNair CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
LAVANCE MCNAIR,
Defendant and Appellant. |
B200367
(Los Angeles County
Super. Ct. No. NA072304) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur Jean Jr., Judge. Reversed and remanded with directions.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Lavance Bruce McNair entered a negotiated no contest plea to one count of petty theft with a prior theft-related conviction. He contends and the People concede the trial court committed reversible error by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) prior to sentencing. We reverse the judgment and remand with directions for the trial court to hold a Marsden hearing and to conduct further proceedings as authorized by law.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2006, McNair left a Top Valu Market in Long Beach with a backpack of merchandise for which he did not pay. He was detained by the stores loss prevention officers until Long Beach Police Officers arrived and arrested him.
On December 18, 2006, McNair was charged by information with two counts of second degree robbery (Pen. Code, 211)[1](counts 1 and 2) and one count of petty theft ( 484, subd. (a)) with an allegation he had suffered 11 prior theft-related convictions ( 666) (count 3). The information further alleged McNair had previously served 13 separate prison terms for a felony ( 667.5, subd. (b)).
Prior to being arraigned, McNair waived his right to counsel and the court granted his request to proceed in propria persona. (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].) McNair represented himself at the preliminary hearing. On March 2, 2007, McNair relinquished his propria persona status; the public defenders office was appointed to represent him.
On April 30, 2007, McNair waived his right to a jury trial and agreed to plead no contest to committing petty theft with a prior theft-related conviction (count 3) and to admit two prior prison term enhancement allegations. In exchange, McNair was to be sentenced to five years in state prison. The trial court found McNairs plea was freely and voluntarily entered, and there was a factual basis for the plea. Defense counsel joined in the plea and stipulated to a factual basis from the police report. Counts 1 and 2 were dismissed on the Peoples motion.
At the probation and sentencing hearing on May 31, 2007, McNair produced a written motion to withdraw his plea. In his motion, McNair asserted he and his defense counsel had several conflicts of interest; his defense counsel had not adequately investigated [McNairs] case; and had rendered ineffective assistance of counsel on grounds for withdrawing the plea; and McNair was raising a Marsden in the court room on record to show ineffective assistance of counsel. Defense counsel read the motion and informed the court that McNair wanted to have a Marsden hearing.
The court reviewed the motion, and commented that McNair says his motion to withdraw the plea is based on that on the circumstance that he didnt understand the consequences of his plea. I find that to be nonsense. I spoke to him directly. He understood me and he knew what he was doing. And he understood perfectly that he was making a knowing, intelligent and voluntary decision. And I so found at the time. The court then denied McNairs request to withdraw his plea. McNair immediately inquired of the court, What about the ineffective assistance of counsel that the conflict of interest that I have been going through on the matter pertaining to this deal, your Honor? The court told McNair, Other judges have ruled on that. There was no conflict. McNair persisted, I never had that problem. I never got a chance to even address the court pertaining to this matter. . . .
The trial court declined to consider McNairs claims any further and imposed the agreed-upon sentence of five years in state prison, consisting of the three-year upper term for petty theft with a prior theft-related conviction, plus one year for each of two prior prison term enhancements. The remaining prior prison term enhancements were stricken for purposes of sentencing only.
McNair filed a timely notice of appeal on June 25, 2007; his request for a certificate of probable cause was denied. After this court issued an order for peremptory writ of mandate (McNair v. Superior Court (Aug. 13, 2007, B200811)), the superior court granted McNairs request for a certificate of probable cause.
DISCUSSION
McNairs sole contention on appeal is the trial court committed reversible error by failing to conduct a Marsden hearing at the time of sentencing. We agree.
When a defendant complains about the adequacy of appointed counsel, the trial court must permit the defendant to articulate the basis for his or her concerns so that the court can determine if they have merit and, if necessary, appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124; accord, People v. Smith (1993) 6 Cal.4th 684, 691.) [T]he trial court cannot thoughtfully exercise its discretion . . . without listening to [the defendants] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendants request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. (Marsden, supra, 2 Cal.3d at p. 123.) The denial of a Marsden motion without careful inquiry into the defendants reasons for requesting the substitution of counsel does not qualify as an informed judicial determination. (People v.Ivans (1992) 2 Cal.App.4th 1654, 1666.)
The rule requiring a Marsden hearing applies equally posttrial. [T]he trial court should appoint substitute counsel when a proper showing [pursuant to Marsden] has been made at any stage [of the proceedings]. A defendant is entitled to competent representation at all times, including presentation of a new trial motion . . . . (People v.Smith, supra, 6 Cal.4th at p. 695;see also People v. Eastman (2007) 146 Cal.App.4th 688, 696.)
On this record, it appears McNair raised an issue within the scope of Marsden, both orally and in writing. He and defense counsel both made clear to the trial court that Marsden was a basis underlying McNairs motion to withdraw his plea. Finally, McNairs motion expressly referred to conflicts of his interest between himself and his defense counsel, ineffective assistance of counsel, and the failure of defense counsel to adequately investigate his case. Once McNair raised these issues, it was incumbent upon the trial court to allow McNair to explain the specific reasons for his claims. (People v. Fierro (1991) 1 Cal.4th 173, 204 [the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance.) As Marsden made clear, if a defendant complains about the adequacy of appointed counsel, the trial court has the duty to permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering ineffective assistance. (People v. Eastman, supra, 146 Cal.App.4th at p. 695.)
The trial courts understanding that other judges had ruled on his claim of ineffective assistance of counsel was erroneous. As the People noted, other courts had ruled on motions and requests for appointment of an investigator, fingerprint expert, and additional funds, as well as McNairs efforts to hire private counsel and to have the public defenders office appointed to represent him. While McNair was apparently skeptical about allowing a deputy public defender to represent him, he never raised the issue of ineffective assistance at any time before the May 31, 2007 sentencing hearing.
We conclude the courts failure to conduct a Marsden hearing was error. Ordinarily, we review an order denying a Marsden motion under the deferential abuse of discretion standard. (People v. Smith (2005) 135 Cal.App.4th 914, 926.) However, when there is failure to comply with the requirements of Marsden, the error compels reversal unless the record shows beyond a reasonable doubt that the error was harmless. (Marsden, supra, 2 Cal.3d at p. 126; People v. Eastman, supra, 146 Cal.App.4th at p. 697.) Because we do not know what McNair could have shown had he received a hearing on the Marsden motion, we cannot say the error is harmless. (See People v.Eastman, supra, 146 Cal.App.4th at p. 697.) The lack of an inquiry creates a silent record, making appellate review impossible. (People v. Leonard (2000) 78 Cal.App.4th 776, 787.)
As McNair recognizes, he is not entitled to an unqualified reversal. Instead, we reverse the judgment and remand the matter to the trial court for a hearing on McNairs Marsden motion.If the trial court finds McNair establishes a colorable claim of ineffective assistance of counsel or that McNair and the deputy public defender had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result, the trial court should appoint new counsel to assist McNair in filing a motion to withdraw his plea or any other such motions newly appointed counsel may deem appropriate. (See People v. Eastman, supra, 146 Cal.App.4th at p. 699; see also People v. Smith, supra, 6 Cal.4th at p. 696.) However, the trial court shall reinstate the judgment if (a) the Marsden motion is denied, (b) the Marsden motion is granted but substitute counsel declines to file a motion to withdraw the plea or other appropriate motion, or (c) the Marsden motion is granted but the trial court denies a motion to withdraw the plea or other appropriate motions filed by substitute counsel. (People v. Eastman, supra, 146 Cal.App.4th at p. 699.)
DISPOSITION
The judgment is reversed and the cause remanded with directions to the trial court to hold a Marsden hearing, and if granted, to appoint new counsel to assist McNair and to entertain such motions as newly appointed counsel may file. The court shall reinstate the judgment if: (1) the Marsden motion is denied; (2) the Marsden motion is granted but substitute counsel declines to file a motion to withdraw the plea or other appropriate motion; or (3) the Marsden motion is granted but the trial court denies the motion to withdraw the plea or other appropriate motions by substitute counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZELON, J.
We concur:
WOODS, Acting P.J.
JACKSON, J.
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[1] Undesignated statutory references are to the Penal Code.
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