P. v. Lockett
Before his trial for stealing a pickup truck and other charges, Lamont Deon Lockett gave his attorney a handwritten declaration discussing several topics. One topic was that Lockett claimed he borrowed the truck from a man named James Fuller and had no knowledge that it was stolen. Another was that the attorney had failed to undertake any investigation of Fuller. Although the declaration did not state that Lockett wanted a new lawyer, the attorney interpreted it as a request for substitution of counsel. He therefore informed the court that he was making a Marsden motion on Lockett’s behalf. (People v. Marsden (1970) 2 Cal.3d 118.) The court read the declaration and then questioned Lockett and his attorney outside the prosecutor’s presence. Lockett did not tell the court he wanted a new lawyer. The court said, “I don’t see this as a Marsden,†and explained that the gist of both the declaration and Lockett’s oral remarks was that he wanted to plead guilty to reduced charges, an option not then available. The court did not question Lockett or his attorney about the attorney’s investigation, or lack of investigation, of a James Fuller, and no such witness was ever produced. The trial proceeded and Lockett was found guilty.
Lockett now argues that the court failed in its duty under Marsden when it made no inquiry about the attorney’s investigation of Fuller. We disagree. To trigger the trial court’s duty of inquiry under Marsden, a defendant must make some clear indication that he wants a new lawyer. Lockett never did this. It is true that Lockett’s counsel stated that he was making a Marsden motion, which by definition is a request for substitution of counsel. This case is unusual, however, in that the trial court had before it a document written by the defendant that was the basis of defense counsel’s belief that a Marsden hearing was warranted. The court read that document and saw that it did not ask for substitution of counsel; then it asked Lockett for an oral account of what he wanted, and Lockett did not ask for new counsel. Under these circumstances, the court properly concluded that, in spite of defense counsel’s interpretation of the declaration, no request for substitution of counsel was genuinely before it and its duty of inquiry under Marsden was not triggered. There was no error.
This appeal includes a separate case in which Lockett pleaded guilty to resisting arrest and possessing drugs. In that case, the trial court imposed, but stayed execution of, three 1-year sentence enhancements based on prior prison terms. The parties agree that the proper procedure was to strike the enhancements, not stay them. We will order them stricken.
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