P. v. Garcia

















Filed 10/22/12 P. v. Garcia CA4/2

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO AGUIRRE GARCIA, Defendant and Appellant.

E052639 (Super.Ct.No. RIF10005410) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Harry (Skip) A.
Staley, Judge. (Retired judge of the
Kern Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed in part; reversed in
part with directions.

Jonathan
E. Demson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant
Francisco Aguirre Garcia guilty of robbery (Pen. Code, § 211)href="#_ftn1" name="_ftnref1" title="">^[1] against a person over the age of 65 (§ 667.9,
subd. (a)).href="#_ftn2" name="_ftnref2"
title="">^[2] Defendant subsequently admitted that he had
sustained a prior prison term (§ 667.5, subd. (b)), and a prior strike
conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of
eight years in state prison with
credit for time served.

On
appeal, defendant contends his conviction must be reversed because the trial
court’s failure to conduct an adequate Marsdenhref="#_ftn3" name="_ftnref3" title="">^[3] inquiry in response to his motion for a new
trial on grounds of ineffective assistance of counsel was in error and in
violation of his constitutional rights
to effective assistance of counsel and a fair
trial. We agree that the matter must
be remanded for further proceedings.

I

FACTUAL
BACKGROUND

On
May 16, 2010, the then
77-year-old victim was hanging out behind a market in the Rubidoux area of Riverside
County, when defendant, also known
as “Poncho,” arrived and asked the victim for alcohol or drugs. Defendant and the victim had known each other
for about three to four years and had often spent time together behind the
market. The victim told defendant that
he did not have anything because he had already consumed all the alcohol he had
and shot up his heroin earlier that morning.
Defendant told the victim that he did not believe him. The victim then followed defendant into a
nearby alley because the defendant told the victim that he had some beer. Thereafter, while holding a knife to the
victim’s throat, defendant searched the victim and took his wallet and two
watches.

After
defendant left, the victim flagged down Riverside County Sheriff’s Deputy
Murphy, who was patrolling the area and reported the incident. While Deputy Murphy was talking to the
victim, Riverside County Sheriff’s Deputy Morando, who knew defendant from
prior contacts, saw defendant walking down the street about a block away.

Defendant
began walking faster as Deputy Morando approached. Deputy Morando yelled at defendant to stop,
but defendant continued into a residence.
Deputy Morando followed defendant through the house and into the
backyard where defendant was found hiding.
Defendant refused to obey Deputy Morando’s orders, resulting in
defendant being “tazed” twice by the deputy.

Defendant
eventually complied and was taken into custody.
Deputy Morando found the victim’s wallet on the ground near where
defendant was standing, and two watches on defendant’s person. Defendant was not found in possession of any
weapons. The victim identified defendant
as the man who had robbed him, after the victim was taken to the area where
defendant had been detained.



Defendant claimed that the victim
had left his jacket in the alley while he went to buy beer. The victim never returned, so he put on the
jacket because he was cold and did not want to leave it in the alley. Defendant did not think the victim would mind
because they were friends. Defendant
noticed a wallet, watches, and a syringe in the pockets of the jacket. Defendant then headed to his brother’s house
and claimed that he did not hear the deputy’s commands. He hid from the deputy because of the syringe
in the jacket pocket, and because he was accustomed to being harassed by the
police.

II

DISCUSSION

Defendant
contends that the trial court erred by failing to hold a Marsden hearing in response to his request to file a motion for a
new trial on grounds of ineffective assistance of counsel. He claims the judgment must be reversed and
the case remanded so that the trial court may hold a postconviction >Marsden hearing. The People disagree, arguing defendant never
clearly requested a substitute attorney and, therefore, never triggered the
trial court’s Marsden
obligations. In the alternative, the
People claim any error was harmless and, if not harmless, the matter should be
remanded for the limited purpose of holding a Marsden hearing.

A. Additional
Background

At
the sentencing hearing, the following colloquy occurred between defense
counsel, the trial court, and the prosecutor:

“THE
COURT: Counsel prepared to go forward on
the sentencing?

“[DEFENSE
COUNSEL]: Actually, Your Honor,
[defendant] is requesting a motion for a new trial.

“THE
COURT: I’ll hear that first, then.

“[DEFENSE
COUNSEL]: Okay. He wants a motion for new trial based on
ineffective assistance of counsel, so I would have to declare a conflict and
have [a conflict attorney] appointed.

“THE
COURT: Any comments from the People?

“[THE
PROSECUTOR]: Well, Your Honor, the
People don’t feel that there was ineffective assistance of counsel, however, if
[defense counsel] has to declare a conflict, I guess at this point we’d have to
get a conflict’s attorney.

“THE
COURT: It seems to me there would have
to be some grounds stated.

“[THE
PROSECUTOR]: And, Your Honor, the People
would also request a written motion, but I guess if that’s based on ineffective
assistance of counsel—

“THE
COURT: Assuming if we get that far we’ll
get one, but I don’t know that just the bold assertion of ineffective
assistance of counsel, essentially after, unfortunate for the defendant,
verdicts c[a]me back is enough to trigger that.

“Do
you have some basis to feel that he received ineffective representation?

“[DEFENSE
COUNSEL]: During jury selection, there
was a potential juror who made the statement that by virtue of having a
teardrop tattoo, the defendant had killed somebody, and [defendant] felt that
he was prejudiced at that point, and I didn’t make a motion to have a new jury
panel.

“THE
COURT: Any further comments from the
People?

“[THE
PROSECUTOR]: Your Honor, I believe that
juror, I know we didn’t bring in a new panel, but I believe that juror was
kicked.

“THE
COURT: All right. And I assume part of the assertion is that
the other jurors heard that?

“[DEFENSE
COUNSEL]: Correct.

“THE
COURT: Anything further on the request
to have conflict counsel appointed on those grounds?

“[DEFENSE
COUNSEL]: It’s also [defendant]’s
contention that the victim that testified was under the influence at the time
he testified and was allowed to testify in that state.

“THE
COURT: Are there any other grounds the
defendant is asserting?

“[DEFENSE
COUNSEL]: That’s it.

“THE
COURT: Any further comments from the
People?

“[DEFENSE
COUNSEL]: No, Your Honor.

“THE
COURT: Okay. Well, the Court is going to deny the request
to appoint independent counsel to
raise those grounds. The Court feels
those are at this point frivolous, and the request is denied.”

The
trial court thereafter proceeded with sentencing, ultimately sentencing
defendant to a total of eight years in state
prison.



B. >Discussion

When a defendant with appointed
counsel seeks new counsel on the grounds of inadequate representation, the
court must allow the defendant to explain the bases for his contentions and
describe specific instances of ineffective representation. (Marsden,
supra, 2 Cal.3d 118, 124; >People v. Hart (1999) 20 Cal.4th 546,
603.) “‘“Although no formal motion is
necessary, there must be ‘at least some clear indication by defendant that he
wants a substitute attorney.’”
[Citations.]’” (>People v. Richardson (2009) 171
Cal.App.4th 479, 484 (Richardson);
see also People v. Lucky (1988) 45
Cal.3d 259, 281 [“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”].) A trial court’s failure to hear personally
from the defendant and actively inquire into the basis for his contention of
ineffective assistance of counsel constitutes reversible, prejudicial
error. (People v. Stewart (1985) 171 Cal.App.3d 388, 396-398, disapproved
of on other grounds in People v. Smith
(1993) 6 Cal.4th 684, 696, 693 (Smith).)

In
Smith, supra, 6 Cal.4th 684, our Supreme Court explained a >Marsden motion may be brought not only
during trial, but also after trial; for example, prior to moving for a new
trial or to withdraw a plea on the basis of inadequate representation. (Smith,
at pp. 692-696.) Specifically, the >Smith court addressed whether different
standards apply to preconviction and postconviction requests for substituted
counsel. The Supreme Court held “the
standard expressed in Marsden and its
progeny applies equally preconviction and postconviction.” (Id.
at p. 694.)

After
defendant’s opening brief and respondent’s brief were submitted, our Supreme
Court issued its decision in People v.
Sanchez (2011) 53 Cal.4th 80 (Sanchez),
addressing the question of when a trial court’s duty to conduct a >Marsden hearing is triggered and the
common practice of appointing “‘conflict’” counsel. (Sanchez,
at pp. 91-92.) In >Sanchez, at the sentencing hearing, the
defendant’s deputy public defender told the trial court that the defendant
“‘wishe[d]’” to have the public defender “‘explore having his plea
withdrawn.’” (Id. at p. 85.) The trial
court asked if this was something counsel could do or whether it had to appoint
“‘conflict counsel.’” (>Ibid.)
Appointed counsel responded “‘conflict counsel cannot be appointed’”
until the trial court held a Marsden
hearing and declared a conflict. (>Sanchez, at p. 85.) At the next hearing, the trial court
appointed “‘conflict counsel for the sole purpose of looking into the motion to
withdraw [defendant’s] plea.’” (>Ibid.)
When “‘conflict’” counsel reported that he found no basis for such a
motion, the trial court confirmed the public defender’s continued
representation of defendant and proceeded with sentencing. (Id.
at p. 86.) The Court of Appeal reversed,
finding Marsden error. (Sanchez,
at p. 86.) The Supreme Court affirmed
the appellate court’s judgment. (>Id. at p. 93.)

The
Supreme Court in Sanchez reiterated
that a Marsden hearing is required
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, supra, 53
Cal.4th at pp. 89-90.) The Supreme
Court then determined that defense counsel had so indicated (>id. at p. 92), by requesting the
“‘appointment of substitute counsel to investigate the filing of a href="http://www.fearnotlaw.com/">motion to withdraw [the] plea on [the
defendant]’s behalf.’” (>Id. at p. 86.) “[D]efendant, through counsel, requested that
a ‘conflict’ or substitute attorney be appointed immediately, and the obvious
implicit ground for that request was the incompetency of defendant’s currently
appointed counsel.” (>Id. at p. 91.) Accordingly, the Supreme Court agreed with
the Court of Appeal that the trial court should have conducted a >Marsden hearing to determine whether or
not appointed counsel should be relieved and substitute counsel appointed. (Sanchez,
at pp. 92-93.)

While
the Supreme Court and appellate court agreed that defense counsel had given a
sufficiently clear indication that defendant wanted a new lawyer, triggering a >Marsden hearing, the Supreme Court
expressly disapproved other cases decided by that appellate courthref="#_ftn4" name="_ftnref4" title="">^[4] and also Sanchez
to the extent they “incorrectly implied that a Marsden motion can be triggered with something less than a clear
indication by a defendant” or his counsel that the defendant “‘wants a
substitute attorney.’” (>Sanchez, supra, 53 Cal.4th at p. 90, fn. 3.)
In the disapproved cases, the appellate court implicitly, if not explicitly,
held that a defendant’s expressed desire to make a new trial motion or motion
to withdraw a plea on the basis of claimed ineffective assistance of counsel,
without more, should be treated as a Marsden
motion, triggering Marsden hearing
requirements. (See, e.g., >Mejía, supra, 159 Cal.App.4th at p. 1086 [although defendant made no
request for substitute or even “conflict” counsel, the trial court nevertheless
concluded that the defendant had made a Marsden
motion because he had “instructed his counsel to move for a new trial largely
on the basis of his counsel’s performance at trial and that his counsel so
informed the trial court”].)

The
Supreme Court also specifically disapproved the practice of appointing
“‘conflict’” counsel. Under that
practice, conflict counsel would enter the case only to determine whether the
defendant had grounds to seek relief on the basis of ineffective assistance of
counsel and, if he or she determined such grounds existed, to pursue such
relief. At the same time, previously
appointed defense counsel remained counsel of record for all other trial court
matters. (Sanchez, supra, 53
Cal.4th at pp. 84-85, 88-89.) The >Sanchez court agreed with the Court of
Appeal that “‘[t]he proper procedure [under Marsden]
does not include the appointment of “conflict” or “substitute” counsel to
investigate or evaluate the defendant’s proposed new trial or plea withdrawal
motion.’” (Id. at p. 89.) As did the
appellate court, the Supreme Court viewed use of such specially appointed
counsel as an abandonment by the trial court of its responsibility to hear
ineffective assistance of counsel claims and exercise its discretion to
determine whether substitute counsel should be appointed. (Id.
at pp. 89-90.)

Here,
prior to sentencing, defendant’s trial counsel expressed that defendant desired
to move for a new trial based on specific grounds of ineffective counsel during
jury selection and trial. Defendant’s
trial counsel explained that he would have to “declare a conflict and have
[conflict attorney] appointed.” The
prosecutor also noted, “I guess at this point we’d have to get a conflict’s
attorney.” However, the trial court
never sought any explanation from defendant, and defendant never
interjected. Nonetheless, like in >Sanchez, defendant, through his trial
counsel, indicated that defendant wanted substitute counsel appointed
immediately. (Sanchez, supra, 53
Cal.4th at p. 91 [“defendant, through counsel, requested that a ‘conflict’ or
substitute attorney be appointed immediately”]; People v. Reed (2010) 183 Cal.App.4th 1137, 1145-1146 [combination
of the defendant’s “expressed desire to pursue a motion for new trial based on
counsel’s incompetence, the fact that defense counsel said, ‘I cannot make it
for him,’ and the context of [the defendant]’s prior unsuccessful >Marsden motions, made it sufficiently
clear that [he] was in fact requesting substitute counsel to pursue the motion
for new trial”].)href="#_ftn5" name="_ftnref5"
title="">^[5]

The
People maintain that the facts of this case “parallel those presented” in >Richardson, >supra, 171 Cal.App.4th 479 and >People v. Dickey (2005) 35 Cal.4th 884 (>Dickey).
In our view, however, Dickey
and Richardson are inapposite.

In
both Dickey and Richardson, the courts failed to conduct Marsden hearings regarding the defendants’ complaints of the
inadequacy of their counsels’ performances during trial, but appointed separate
counsel to investigate the defendants’ claims to determine whether there were
any bases for filing motions for new trial on such grounds. (Dickey,
supra, 35 Cal.4th at p. 918; >Richardson, supra, 171 Cal.App.4th at p. 485.)
The separately appointed counsel in >Richardson
concluded there were no such grounds. (>Richardson, at p. 485.) In Dickey,
a death penalty case, the separately appointed counsel filed a motion for new trial
based on ineffective assistance of counsel and the trial court’s failure to
hold a Marsden hearing, which the >Dickey court denied. (Dickey,
at p. 920.) In addition, in >Dickey, defense counsel clearly framed
the matter as a request for separate counsel, not substitute counsel. He also made it clear that the idea for the
request came from him, not the defendant.
Defense counsel further told the trial court that what he sought was
“not really a pure Marsden
hearing.” (Id. at p. 918, fn. 12.) The
trial court, in denying the motion for
new trial, found, as to the defendant’s Marsden
claim, that the defendant had not asked for a Marsden hearing. (>Id. at 920.)


On appeal in both >Dickey and Richardson, the defendants claimed their complaints below were
sufficient to trigger the respective obligations of the trial courts to hold >Marsden hearings with regard to whether
they should have relieved their originally appointed counsel and appointed new
counsel for the penalty phases. (>Dickey, supra, 35 Cal.4th at p. 918; Richardson,
supra, 171 Cal.App.4th at p.
485.) The courts found no error in that
the defendants had not expressly requested substitute counsel be appointed for
the penalty phases. (>Dickey, at p. 920; Richardson, at p. 485.)
Since the defendants’ expressed wishes for new counsel to investigate
the bases for filing a motion for new trial on the grounds of ineffective
assistance of counsel were granted, the courts concluded that the defendants
had no valid grounds for complaint. (>Dickey, at pp. 920-921; >Richardson, at p. 485.)



The
Supreme Court in Dickey explained
that “‘“[a]lthough no formal motion is necessary,”’” the defendant failed to
clearly state that he wanted a substitute counsel appointed for the penalty
phase. (Dickey, supra, 35 Cal.4th
at p. 920.) “To the extent he made his
wishes known, he wanted to use counsel’s assertedly incompetent performance in
the guilt phase as one of the bases of a motion for new trial, and he wanted to
have separate counsel appointed to represent him in the preparation of such a
motion. As his expressed wishes were
honored, he has no grounds for complaint now.”
(Id. at pp. 920-921.)

We
find Dickey and Richardson distinguishable in that the trial courts appointed
separate counsel to investigate the defendants’ claims of inadequacy of counsel
during trial and whether those allegations would support viable motions for new
trial. (Dickey, supra, 35 Cal.4th
at p. 920; Richardson, >supra, 171 Cal.App.4th at p. 485.) In addition, in the instant case, unlike in >Dickey and Richardson, the trial court never gave defendant an opportunity to
address it directly. (>Dickey, at p. 919; Richardson, at p. 485.)
Further, like in Sanchez,
defendant’s trial counsel’s statements clearly indicated that defendant wanted
substitute counsel. In >Dickey, by contrast, it cannot be said
that the defendant clearly indicated that he wanted substitute counsel
appointed because (1) counsel expressly told the trial court that the
defendant was asking for the appointment of separate counsel to bring the
motion for new trial; (2) defense counsel told the court the request for
substitute counsel came from defense counsel and not defendant; and
(3) defendant was not seeking a “pure” Marsden
hearing. (Dickey, at p. 918, fn 2.)

The
final question before us is whether the trial court’s error was
prejudicial. As explained in >Sanchez, supra, 53 Cal.4th at page 92, we conclude it was. “[I]t was prejudicial error to deny the
defendant the opportunity to explain the basis for his claim because a trial
court that ‘denies a motion for substitution of attorneys solely on the basis
of [its] courtroom observations, despite a defendant’s offer to relate specific
instances of misconduct, abuses the exercise of [its] discretion to determine
the competency of the attorney’ [citation], and, in that case, we could not
‘conclude beyond a reasonable doubt that this denial of the effective
assistance of counsel did not contribute to the defendant’s conviction.’ [Citation.]”

Thus,
on remand, the trial court should conduct a hearing in order to inquire
sufficiently into defendant’s grounds for asserting ineffective assistance of
counsel. In compliance with the
authorities herein cited, the trial court should permit defendant to personally
express his concerns and allow defense counsel to respond. (Sanchez,
supra, 53 Cal.4th at p. 92.)

III

DISPOSITION

The
judgment is reversed and the matter is remanded with the following
directions: (1) the trial court shall
hold a hearing on defendant’s Marsden
motion; (2) if the trial court finds that defendant has shown that a
failure to replace his appointed attorney would substantially impair his right
to assistance of counsel, the trial court shall appoint new counsel to represent
him and shall entertain such applications as newly appointed counsel may make;
and (3) if newly appointed counsel makes no motions, any motions made are
denied, or defendant’s Marsden motion
is denied, the trial court shall reinstate the judgment.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS





RAMIREZ

P.
J.



We concur:







HOLLENHORST

J.







MILLER

J.