P. v. >Kent>



















Filed 5/8/13 P. v. Kent 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. MICHAEL LAMONT KENT, Defendant and Appellant.

E055711 (Super.Ct.No. SWF10001553) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Mark E.
Petersen, Judge. Reversed.

Patrick
DuNah, 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, A. Natasha Cortina and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

>Introduction

Defendant
Michael Lamont Kent
seeks remand to allow the trial court to hold a Marsdenhref="#_ftn1" name="_ftnref1"
title="">^[1]> hearing. The People agree that the matter should be
remanded.

>Facts
and procedural history

On
February 16, 2011,
defendant was charged with robbery
(Pen. Code § 211, count 1)href="#_ftn2"
name="_ftnref2" title="">^[2] and burglary
of an inhabited dwelling (§§ 459, 667.5, subd. (c)(21), count 2). A jury convicted him of both offenses on November 4, 2011.

As his href="http://www.fearnotlaw.com/">sentencing hearing opened on January 13, 2012, defendant told the
court that he wished to make “A Motion of Ineffective Assistance of
Counsel.” Defendant’s attorney asked the
court to respond to defendant as he (counsel) had never faced this situation
before and was unclear about exactly what his client wanted. The court explained to defendant that a
“Motion for Ineffective Assistance of Counsel” was an issue to be brought up on
appeal, not taken up in the trial court.
And a Marsden motion
“ . . . is you no longer want this gentleman to be your
attorney.” To this, defendant responded,
“Correct, Your Honor. Exactly.” The court then went on: “On the other hand,
if you don’t do that [Marsden]
motion, and just go through with sentencing today, you can always raise your
appeal on grounds of ineffective assistance of counsel if you think that’s one
of the grounds you have. . . . You can raise any and all
issues on appeal that you think are appropriate.”

After conferring
with his attorney, defendant elected to be sentenced that day. The court sentenced him to the low term of
three years in state prison. On February 22, 2012, defendant filed a href="http://www.mcmillanlaw.com/">notice of appeal.

>Discussion

Defendant
contends that the trial court should have provided him with a >Marsden hearing to investigate his
request to discharge his attorney. The
People reply that because defendant was represented by retained counsel, >Marsden does not apply. Nevertheless, pursuant to the rule of >People v. Ortiz (1990) 51 Cal.3d 975 (>Ortiz), the matter should be remanded to
allow the trial court to hear defendant’s request to discharge his
attorney. The People are correct.

In exercising his href="http://www.fearnotlaw.com/">constitutional rights to counsel and to
present a defense, a defendant is entitled to discharge his attorney at any
point so long as it will not interfere with the “‘orderly processes of
justice . . . .’
[Citation.]” (>Ortiz, supra, 51 Cal.3d 975, 982.)
When counsel is retained, as opposed to appointed, the defendant seeking
to discharge his attorney is not required to prove that counsel is incompetent
or that he and his attorney are embroiled in an irreconcilable conflict. (Id. at
pp. 983-984.) “The right of a
nonindigent criminal defendant to discharge his retained attorney, >with or without cause, has long been
recognized in this state [citations] . . . .” (Id. at
p. 983, italics added.) Accordingly,
although the court must exercise its discretion as to whether substitution of
counsel will interrupt the orderly processes of justice, the formalities of a >Marsden hearing are not required.

In >People v. Munoz (2006) 138 Cal.App.4th
860 (Munoz), the Attorney General
argued that, after conviction, this broad right to discharge appointed counsel
should be limited. (Id. at p. 867.) But as the >Munoz court pointed out, >Ortiz made no distinction between
motions to dismiss counsel brought before trial, during trial, or after
conviction. (Ibid.) In >Ortiz, our state Supreme Court was
concerned with the “‘evil engendered by friction or distrust between an
indigent criminal defendant and his attorney’ [citation].” (Munoz at
p. 867.) “To our way of thinking, it is
every bit as important to guard against these undesirable consequences after
trial as it is before trial.” (>Ibid.)
We agree. Accordingly, we will
remand the matter with instructions for the trial court to grant defendant’s
motion to discharge his retained attorney.

Defendant also
argues that his request to discharge his attorney amounts to a motion for a new
trial and that the court erred by not explaining the latter alternative to
him. However, as the People point out,
defendant did not make a motion for a new trial, and we decline to construe his
request to discharge his attorney as such a motion.

>Disposition

The
judgment is reversed and the matter remanded to the trial court with
instructions to allow defendant to discharge his retained attorney. Once new counsel is appointed, the case is to
proceed from the point at which defendant sought to discharge his attorney.

If,
after reviewing the record, defendant’s new attorney moves for a new trial, the
court is to exercise its discretion to grant or deny the motion. If newly appointed counsel makes no motions,
or any motions made are denied, the trial court is to reinstate the judgment.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.





We concur:



KING

Acting
P. J.



MILLER

J.