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The minor appeals from a dispositional order placing him on probation and ordering him to register as a gang member. He argues that the juvenile court erred in failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to determine whether to permit the minor to discharge his appointed attorney. We disagree and affirm. I. Factual and Procedural Background[1] On October 1, 2009, the 16-year-old minor was taken into custody after a robbery victim first told Santa Rosa police officers that the minor had taken $20 from him, but later stated that the minor had taken a small plastic bag containing marijuana from him. A search of the minor’s home revealed several items of Crip gang paraphernalia, including clothing and writings. An amended petition alleged that the minor came within the provisions of Welfare and Institutions Code section 602, in that he committed felony grand theft (Pen. Code, § 487, subd. (c))[2] and participated in a street gang (§ 186.22, subd. (a)), a misdemeanor. At a jurisdictional hearing on November 30, 2009, the minor admitted the allegations. The juvenile court adjudged the minor a ward of the court at a dispositional hearing on December 18, 2009, and placed him on probation in the home of his parents. Over the district attorney’s objection, the juvenile court stayed the requirement that the minor register as a gang member pursuant to section 186.30. The district attorney filed a motion for reconsideration, arguing that a gang registration order was mandatory. ( 116 Cal.App.4th 753, 758-759.) At a hearing on the motion, the juvenile court concluded that its previous order was inconsistent with the applicable statute, and directed that the minor register with law enforcement as a gang member. After the reconsideration hearing, the minor’s counsel apparently returned to court and asked that the case be recalled, but the minor’s file was no longer available. The minor returned to court the next day with another attorney from the public defender’s office, who told the court: “I’ve had discussions with Raymond and his family, and I believe that they would like to withdraw the plea. Move to withdraw the plea. And I think that they need to have a counsel other than the public defender appointed to evaluate the advice that was given and to advise them further.” The juvenile court disagreed, stating, “Since the matter has already been through the dispositional stage, I thought that procedurally the appropriate thing would be an appeal of the dispositional orders, in which case conflicts attorney would not need to be appointed at this stage of the proceeding.” After further discussion, the following exchange took place: “[The minor’s attorney]: Well, I think that given the reopening of the case and—by the district attorney’s office and the further disposition, I think it just kind of caught everybody off guard, and that’s why I think that it’s—to me it seems like the appropriate remedy is to have another attorney take a look at this matter and see whether the—whether they were given the proper advice and whether they understood it, and the manner it was put forward. I’d submit it on that. “The Court: I understand what you’re asking, [minor’s counsel], but I think that what happened yesterday was my reconsideration of the one provision only in the disposition, which was the gang registration requirement, and that was the sole purpose for addressing the dispositional findings a second time yesterday. [¶] So I do think that the appropriate first step is to file a notice of appeal with regard to the disposition. And depending on what happens there, it may be that a different representation is required, but at this point I don’t see that that’s necessary.” The minor timely appealed. II. Discussion The minor’s sole argument on appeal is that the juvenile court erred in failing to conduct a Marsden hearing. “ ‘A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 917.) “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (People v. Marsden, supra, 2 Cal.3d at p. 124.) ‘ “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” [Citations.]’ [Citation.] While the law does not require that defendant use the word ‘Marsden’ to request substitute counsel, we 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. [Citation.]” ( (2009) 171 Cal.App.4th 479, 484.) The minor argues that when he asked to withdraw his admission[3] and have a different attorney appointed to determine whether the minor’s first attorney had properly advised him, the juvenile court was obligated to hold a minor had received ineffective assistance of counsel. We disagree, because no request was made for the minor’s counsel to be discharged. Instead, the minor’s counsel requested that a new attorney “evaluate the evidence,” “look at the matter,” and “advise them [the minor and his family] further.” This was, at most, a request for further investigation into the effectiveness of the minor’s attorney. We agree with respondent that the minor was not entitled to the appointment of a second attorney to conduct such an investigation. (People v. Hines (1997) 15 Cal.4th 997, 1024; People v. Smith (1993) 6 Cal.4th 684, 695; Cal.App.4th 688, 695, 697.) The minor did not clearly indicate that he wanted to replace his counsel or that he and his attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. (People v. Dickey, supra, 35 Cal.4th at pp. 917, 920.) There was therefore no error in declining to hold a Marsden hearing. This is especially true in light of the procedural posture of the case when the minor raised the issue of possible dissatisfaction with his attorney. Section 1018 provides that a guilty plea may be withdrawn before judgment (or within six months after an order granting probation is made if entry of judgment is suspended) upon a showing of good cause. (See also People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; People v. Totari (2003) 111 Cal.App.4th 1202, 1206 [§ 1018 has “strict time limits”].) Section 1018 is not expressly applicable to admissions in juvenile court, and there is no comparable provision in the Welfare and Institutions Code. However, the broad principles underlying the statute are applicable to juvenile court proceedings (In re Francis W. (1974) 42 Cal.App.3d 892, 903; In re M.G.S. (1968) 267 Cal.App.2d 329, 339), and juvenile courts “routinely entertain motions to withdraw admissions” under Welfare and Institutions Code section 775.[4] (People v. Mortera (1993) 14 Cal.App.4th 861, 865.) Here, the minor raised the issue of possible dissatisfaction with his attorney after entry of the dispositional order (which was not stayed), but did not base the motion on changed circumstances or new evidence (cf. Welf. & Inst. Code, § 778) or make “ ‘a strong and convincing showing of the deprivation of legal rights by extrinsic causes.’ ” (Cf. People v. Castaneda, supra, 37 Cal.App.4th at p. 1617.) Instead, the minor’s counsel requested that another attorney “evaluate the advice that was given,” apparently about a gang registration provision that all parties agree was mandatory.[5] (People v. Martinez, supra, 116 Cal.App.4th at pp. 758-759.) Considering these circumstances, we agree with the juvenile court that the appropriate procedure in this case was an appeal of the dispositional order, rather than entertaining a motion to withdraw the minor’s admission based on a possible complaint about counsel’s effectiveness. (E.g. People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [“The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by petition for a writ of habeas corpus.”]) Finding no error in “the four corners of the record on appeal” (In re Carpenter (1995) 9 Cal.4th 634, 646), we reject the minor’s claim of error. III. Disposition The dispositional order is affirmed. _ Sepulveda, J. We concur: _ Reardon, Acting P.J. _ Rivera, J. Publication courtesy of San Diego pro bono legal advice. Analysis and review provided by Poway Property line attorney. San Diego Case Information provided by www.fearnotlaw.com id=ftn1> [1] The facts underlying the allegations against the minor are taken from the probation report, as the minor admitted the allegations before any evidentiary hearing was held. id=ftn2> [2] All statutory references are to the Penal Code unless otherwise indicated. id=ftn3> [3] The minor’s counsel stated that the minor wanted to withdraw his “plea.” A minor’s admission of a juvenile court petition is analogous to a guilty plea in an adult criminal proceeding. ( 128 Cal.App.4th 783, 791.) id=ftn4> [4] Welfare and Institutions Code section 775 provides: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” Welfare and Institutions Code section 778 sets forth the procedure for petitioning the juvenile court to change, modify, or set aside any order of the court, and requires that such petition be based upon “change of circumstance or new evidence.” This is analogous to the required showing for postjudgment motions to set aside the judgment as a means of allowing a defendant to withdraw a guilty plea in adult criminal proceedings: “ ‘[W]here on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment . . . , if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty . . . . It should be noted, however, . . . that this exceptional remedy applies . . . only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes.’ [Citation.]” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617, original italics.) id=ftn5> [5] There is little support in the record for the minor’s claim that his trial attorney “advised him that she might be able to get the reporting requirement under section 186.30, subd. (b)(1), stayed.” The form the minor signed admitting the petition did not include any promises about staying the registration requirement. Although the minor’s mother told the court at the hearing on the motion for reconsideration that it was her understanding that the minor would not have to register if he admitted the petition, the minor’s attorney said that she told the minor after the juvenile court stayed the registration requirement that the minor “got a tremendous break here,” because “[i]t’s the law that you register.” |
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