Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028145
ROBIE, J.
Defendant Nicholas Ray Baker pled no contest to assault with a semiautomatic firearm. Before sentencing, defendant informed the court he wished to relieve retained defense counsel and wished to withdraw his plea. The trial court denied defendant’s request to discharge his retained counsel. However, the court appointed an attorney to represent defendant for the purpose of “look[ing] into any grounds for [moving] to withdraw the plea.” Defendant later sought to withdraw his plea, arguing, among other things, that his retained counsel was ineffective. The court denied the motion.
On appeal, defendant contends the court erred in denying his request to discharge his retained counsel and erred thereafter in denying his motion to withdraw the plea. The People concede the trial court erred in refusing to allow defendant to discharge retained counsel. (See People v. Ortiz (1990) 51 Cal.3d 975, 986.) We agree and reverse and remand to allow defendant an opportunity to obtain new counsel.
BACKGROUND
Apparently upset over the break up of his father’s marriage, defendant confronted his stepmother’s brother, whom he blamed for the break up. Defendant put a gun to the victim’s head and threatened to kill him.
Charged with assault with a semiautomatic firearm, attempted criminal threats, and possession of a firearm by a felon, defendant changed his not guilty plea on the eve of trial to a no contest plea to the first charge in exchange for dismissal of the other two charges. He also admitted a prior strike conviction.
Defendant entered a conditional plea pursuant to People v. West (1970) 3 Cal.3d 595.
In the course of entering his no contest plea, defendant acknowledged that (in view of his prior criminal history) he could receive a sentence of 18 years, i.e., the upper term of nine years for assault with a semiautomatic weapon, doubled by virtue of his prior strike.
I
Request To Relieve Counsel
Defendant first indicated a desire to relieve his retained counsel three days before entering his no contest plea. The court asked defendant to “briefly indicate the reasons why” he wished to relieve retained counsel, and defendant responded (among other things) that defense counsel, Grady Davis, had failed to confer with defendant and had failed to perform critical investigation. The prosecutor argued against allowing defendant to substitute counsel on the eve of trial, criticized defense counsel’s “mishandling” of the defense, concurred with defendant’s assertion that counsel “does not appear to be competent,” “had not sought an investigator,” and “appeared to be unaware [of] how much time his client was facing or what offenses qualified as a serious violence [sic] offense.”
After attorney Davis responded that he was “fully prepared to go to trial” and had interviewed all the witnesses, defendant announced, “I’m going to keep him now. I’ve changed my mind.”
II
The “Marsden-Type” Hearing
But soon after entering his no contest plea, defendant sought to withdraw his plea and asserted that attorney Davis had provided inadequate representation. The court then declared that “[t]he proper procedure at this point... would be for me to hold a Marsden-type hearing” to determine whether defendant “has some reason that Mr. Davis’ advice [against withdrawing the plea] should not be followed.”
People v. Marsden (1970) 2 Cal.3d 118.
At the closed-door hearing that followed, defendant confirmed that he wanted to make a Marsden motion. The court responded: “Marsden doesn’t apply when you have retained counsel. You can fire your attorney
“THE DEFENDANT: Okay.
“THE COURT: -- with my permission. But let’s pretend that it does apply, because I want to see what the relationship is if you think it’s gone bad. So why don’t you tell me.”
Defendant complained Davis told him prior to the plea that he would “probably” receive only a ten-year sentence and that Davis failed to engage an investigator, leaving defendant’s wife to conduct an investigation.
Defendant also told the court he wanted to “pull [his] plea” because he learned the victim told attorney Davis “there was no injury” and, in any event, defendant’s father had confessed to the crime.
Attorney Davis disputed these assertions, and the court declined to relieve him. The court did, however, appoint Robert Radcliffe, “to look into any grounds for withdrawing the plea.”
III
The Motion To Withdraw The Plea
Attorney Radcliffe filed a motion on behalf of defendant to withdraw his plea, on the grounds: (1) defendant was “under duress” when he entered the no contest plea, rendering it involuntary; (2) defendant was misinformed by attorney Davis about the impact of his plea; and (3) attorney Davis had failed to properly investigate the case or prepare an adequate defense.
The court denied defendant’s motion and sentenced defendant to 18 years in state prison.
DISCUSSION
Defendant argues, and the People agree, that the judgment must be reversed, and the matter remanded.
A defendant may discharge retained counsel without showing an impairment of his right to counsel. (People v. Ortiz, supra, 51 Cal.3d at p. 987.) The erroneous denial of a motion to discharge retained counsel is reversible per se: “The right to counsel of choice is one of the constitutional rights most basic to a fair trial. Accordingly, it is clear that a criminal defendant need not demonstrate prejudice resulting from a violation of that right in order to have his conviction reversed.” (Id. at p. 988.) However, a court has discretion to deny a motion to discharge privately retained counsel if it would result in significant prejudice to the defendant or is not timely, i.e., if it will result in “‘disruption of the orderly processes of justice.’” (Id. at p. 983.)
Defendant’s request to discharge retained counsel was timely. (See People v. Munoz (2006) 138 Cal.App.4th 860, 866.) It was improper for the trial court to hold a “Marsden-type” hearing. (Ibid.) There was no justification for the court’s actions here. Although the court apparently understood that no Marsden hearing was required, it should not have directed defendant nonetheless to “pretend” Marsden applies to requests to relieve retained counsel, should not have examined defendant about his relationship with retained attorney Davis, and should not have declined defendant’s request to relieve Davis.
By appointing attorney Radcliffe to evaluate and, if appropriate, to prepare a motion to withdraw defendant’s plea while Davis remained as retained counsel did not alleviate the problem. If anything, it compounded it. (Cf. People v. Smith (1993) 6 Cal.4th 684, 695 [“When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first”].)
Under these circumstances, the proper remedy is to set aside the judgment, but not the conviction. (People v. Munoz, supra,138 Cal.App.4th at p. 871.) “Once new counsel is appointed, the case shall proceed anew from the point [the] defendant originally sought to discharge his attorney.” (Ibid.) On remand, defendant shall be permitted to proceed from the point, after entering his no contest plea, at which the court should have granted his request to relieve attorney Davis.
DISPOSITION
Defendant’s conviction is affirmed. We reverse the judgment and remand the matter with the following directions: (1) the trial court shall hold a hearing to allow defendant to indicate the retained counsel of his choice, or to apply for the appointment of counsel upon an adequate showing of indigence; (2) if newly retained or appointed counsel determines there is a basis for moving to withdraw defendant’s plea, the court shall consider and decide that motion; and (3) if counsel does not make such a motion, or the motion is denied, the trial court shall reinstate the original judgment and sentence which is affirmed.
We concur: SCOTLAND, P. J., HULL, J.