Filed 9/4/26 P. v. Bess CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052852
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. C1919395, B2000478)
v.
RICHARD LEE BESS,
Defendant and Appellant.
Defendant Richard Lee Bess was sentenced in 2020 to 11 years 8 months in prison
for offenses including robbery and identity theft. In an appeal following the enactment of
ameliorative sentencing legislation that applied retroactively, his case was remanded for
resentencing. In 2024, defendant was again sentenced to 11 years 8 months in prison.
Defendant now contends the resentencing court failed to properly consider his request
that appointed counsel be relieved under People v. Marsden (1970) 2 Cal.3d 118
(Marsden). We reject the contention and will affirm the judgment.
I. BACKGROUND
After pleading no contest on 14 felony counts in July 2020, defendant moved to
relieve appointed counsel. In October 2020, the trial court held a Marsden hearing
without the prosecutor present. At the hearing, defendant expressed dissatisfaction about
what he described as insufficient and inappropriate communication on the part of
appointed counsel. Defendant also said he had notified counsel of “mental health issues”
that counsel then failed to bring to the court’s attention. After considering defendant’s
comments and counsel’s responses, the court denied the motion. Defendant was
ultimately sentenced to 11 years 8 months in prison.
In an earlier appeal, a different panel of this court remanded the matter for
resentencing. Defendant was represented on remand by the same attorney who
represented him in 2020. Defendant submitted letters to the court in July and August
2023 reiterating his previous disagreements with appointed counsel and requesting that
counsel no longer be allowed to represent him. Defendant said counsel had failed to
consider or raise various issues relevant to resentencing, including defendant’s mental
health, his rehabilitative efforts while incarcerated, and unspecified “new laws” which
defendant believed entitled him to relief. Defendant submitted another letter in January
2024 raising similar complaints.
At the December 2024 resentencing hearing, conducted by the same judge who
initially sentenced defendant, appointed counsel argued for a lesser sentence of 9 years
8 months in prison: “Well, Your Honor, Mr. Bess has done a lot of good work in prison.
He’s been in prison for a few years now. We’ve attached some certificates of
achievement to the probation report. It’s obvious that the crimes that Mr. Bess
committed were driven by the methamphetamine addiction. [¶] Now, Mr. Bess has
completed high school classes, he’s done a lot of good things to rehabilitate himself in
prison, and so Mr. Bess would ask the Court to revisit its original sentencing scheme.”
The prosecutor argued the original sentence should be reimposed because defendant’s
offenses were committed “over a seven-month period involving eight different victims”
and “were serious and violent crimes, five of them being strike offenses.”
The resentencing court indicated its intent to reimpose the original sentence of
11 years 8 months. As the court provided a breakdown of the new sentence, defendant
interjected and said he had been convicted without evidence. Defendant then referenced
his previous Marsden motion and detailed his ongoing dissatisfaction with appointed
counsel. He again complained of subpar communication from counsel and asserted
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counsel failed to consider “mental health documents” defendant had provided at “the very
beginning” of the case. Defendant said of appointed counsel: “I have sent motions to him
and motions and different laws and different things and my mental health records, my
therapist and the psych at the hospital, the doctor has written him, emailed him, sent
paperwork to him, and still nothing has happened now.” He added: “I have a Marsden
motion for this morning and I’m sitting here and nothing has been said or Mr. Bess, do
you have anything to say on the record? You guys were just going to sentence me again
and there I am thrown in prison and sit and wait and whatever goes on, goes on; you
know?”
The court noted that defendant had pleaded no contest on certain counts in order to
avoid the possibility of a greater sentence had he proceeded to trial on the initial charges,
which included allegations of firearm use under Penal Code section 12022.53. Defendant
responded that he wanted to go to preliminary hearing and trial because he “wanted all
the evidence to be brought in front of me,” but his counsel “was coercing [him] into
taking this deal to get rid of” him. The court asked counsel to respond to defendant’s
comments. Counsel credited defendant “for all of the stuff he’s done in prison and for all
of the work he’s done,” then added: “If anybody is reading this on appeal I would direct
them to the very lengthy Marsden hearing that was conducted before Your Honor before
sentencing on the original sentencing date and that outlines all of the work I’ve done on
the case.” The court then proceeded to impose a sentence of 11 years 8 months in prison.
II. DISCUSSION
Defendant’s sole contention on appeal is that the resentencing court was required
to “hold a Marsden hearing” but failed to do so. The Attorney General argues the court’s
colloquy with defendant and appointed counsel at the resentencing hearing was sufficient
to satisfy the court’s obligations under Marsden, and in any event reversal is not required
because any error was harmless. We conclude reversal is not required on this record
because defendant had an opportunity to share his concerns about appointed counsel with
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the court at the resentencing hearing, and he has not shown the court abused its discretion
in proceeding with resentencing after impliedly denying his request for substitution of
counsel.
Criminal defendants are constitutionally entitled to the assistance of counsel. But
“the decision whether to permit a defendant to discharge his appointed counsel and
substitute another attorney during the trial is within the discretion of the trial court, and a
defendant has no absolute right to more than one appointed attorney.” (Marsden, supra,
2 Cal.3d at p. 123.) Under Marsden, “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.) A Marsden hearing “is not a full-blown adversarial proceeding, but
an informal hearing in which the court ascertains the nature of the defendant’s allegations
regarding the defects in counsel’s representation and decides whether the allegations have
sufficient substance to warrant counsel’s replacement.” (People v. Hines (1997)
15 Cal.4th 997, 1025 (Hines).) “A trial court should grant a defendant’s Marsden motion
only when the defendant has made ‘a substantial showing that failure to order substitution
is likely to result in constitutionally inadequate representation’ ” or, in other words, “ ‘if
the record shows that the first appointed attorney is not providing adequate representation
or that the defendant and the attorney have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result’ ” without a change of counsel.
(Ibid.) We review denial of a Marsden motion for abuse of discretion. (People v.
Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett).)
Defendant notes that as a general matter Marsden hearings are held outside the
presence of the prosecutor, as they “may often entail the disclosure of defense strategy or
evidence to which a prosecutor might not otherwise be privy.” (Barnett, supra,
17 Cal.4th at p. 1094.) But “no single, inflexible procedure exists for conducting a
Marsden inquiry.” (People v. Madrid (1985) 168 Cal.App.3d 14, 18.) “Rather, the
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procedural parameters of the Marsden inquiry should be shaped by the particular facts
and interests involved,” and Marsden hearings are sometimes held with the prosecutor
present. (Id. at pp. 18–19.) “An in camera Marsden hearing is ‘the better practice,’ but a
Marsden hearing in open court is permissible where, as here, neither the defendant nor
defense counsel asks for an in camera hearing and the defendant’s complaints neither
disclose information that conceivably could lighten the prosecutor’s burden of proof nor
involve evidence or strategy to which the prosecutor is not privy.” (People v. Lopez
(2008) 168 Cal.App.4th 801, 815.) Defendant had already pleaded no contest and been
sentenced for his offenses when the matter was remanded for the limited purpose of
resentencing. Neither he nor his counsel specifically asked to be heard without the
prosecutor present, and there is no indication that the prosecutor’s presence discouraged
defendant from stating his concerns about appointed counsel. We see no abuse of
discretion in the court’s choice not to pause proceedings and exclude the prosecutor when
defendant began voicing his criticisms at the resentencing hearing. (See Madrid, at p. 19
[The trial court is in the best position to determine whether a Marsden motion “can be
most expeditiously handled in open court so the court can efficiently manage its
calendar.”].)
Nor do we see an abuse of discretion in declining to substitute counsel.
Defendant’s comments at the resentencing hearing primarily repeated the complaints he
had raised in his previous Marsden motion, which he does not contend was improperly
denied. When asked if he wished to respond, counsel directed the court to the comments
he had made at the earlier Marsden hearing—which had been sufficient to satisfy the
same court that counsel’s representation of defendant was adequate and defendant’s
concerns not irreconcilable. By affording defendant the opportunity to state his
complaints about appointed counsel and inviting counsel to respond, the resentencing
court conducted a legally sufficient Marsden inquiry. (People v. Valdez (2004)
32 Cal.4th 73, 95–96.) To the extent defendant merely sought to relitigate the Marsden
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motion that had previously been denied, the court did not abuse its discretion in letting its
previous ruling stand. And to the extent defendant raised new concerns specific to the
resentencing proceedings, the court did not abuse its discretion in impliedly finding those
limited concerns fell short of the “ ‘substantial showing’ ” necessary to support a
substitution of counsel under Marsden. (Hines, supra, 15 Cal.4th at p. 1025.)
III. DISPOSITION
The judgment is affirmed.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H052852
The People v Bess