Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 196220
Pollak, J.
Defendant Fernando Chavez appeals from an order revoking his probation and sentencing him to three years in prison. He contends that the court erred in failing to conduct an inquiry pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after he complained about his attorney’s failure to interview two witnesses and obtain allegedly exculpatory videotapes. We agree.
Background
In August 2005, defendant was placed on supervised probation following the entry of a negotiated guilty plea to one count of theft. (Pen. Code, § 487, subd. (c).) On October 19, 2007, defendant’s probation was summarily revoked based on his arrest for making terrorist threats and carrying a concealed knife. (Pen. Code, §§ 422, 12020, subd. (a)(4).) Following a contested probation revocation hearing on December 21, 2007, the court found that defendant had violated his probation. On December 27, defendant was sentenced to three years in prison on the underlying theft conviction. Defendant filed a timely notice of appeal.
Discussion
At the conclusion of the hearing on December 21, as the testimony of the last witness was concluding, defendant indicated that he would like to address the court. The judge told defendant that he had a right to speak, but advised him to consult with his attorney first so as to not say anything inadvertently that could be used against him. After briefly consulting with his attorney, defendant made the following comments to the court: “With all my respect, your honor, I know -- I find this charge is very seriously, and the report, they’re so bogus, you know, like information, in the first -- you know, in the report here relating to the police department, it say here on the 16th. This happened on the 17th. This -- There is so many discrepancies and contradiction, and they contradictions themselves in the first date, and knife opening and closing. And, then, the elevator is -- is drawn here. There was, you know, eight people, ten people, they assume. How am I going to come in front of people, you know, with a knife? It have to be around the people like ten people, your honor. It’s absolutely bogus going outside and they have two videos, your honor, two videos they were showing me. My character, that I have two witnesses that I told my lawyer. She never went and got it. She never got the videos. She never got my witnesses. She has been making this issue without my consent. I told her from the beginning. This is the fifth time here, your honor.” The judge responded, “All right. Hang on a second. Just tell me things that have to do with things other than your attorney, okay, because for that, I have to change the procedure.” Following the court’s instruction, defendant spoke briefly about why he believed the evidence presented in support of the probation violation was insufficient.
Defendant contends that the court erred in failing to inquire into the potential conflicts with his attorney and directing him not to discuss his concerns about his attorney’s performance. The People argue that the court was not obliged to conduct an inquiry under Marsden because defendant’s “ ‘mere grumbling about his counsel’s failures’ ” was not a clear and unequivocal request to discharge and replace his attorney.
“Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) A defendant does not necessarily have to request new counsel in so many words; it is enough that he or she is complaining about the ineffective assistance of existing appointed counsel. (People v. Mendez (2008) 161 Cal.App.4th 1362, 1367; People v. Eastman, supra, at pp. 695-696; People v. Kelley (1997) 52 Cal.App.4th 568, 579.)
In People v. Eastman, supra, 146 Cal.App.4th at pages 695-696, the court found that a letter submitted to the court by defendant required the court to give defendant an opportunity to articulate his complaints. The court explained, “The letter on its face stated at least one specific factual complaint about Eastman’s appointed attorney: that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him. Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an ‘adequate defense’ and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered.” (Ibid.)
Similarly, in People v. Mendez, supra, 161 Cal.App.4th at page 1367, the court held that defendant’s grievance about the adequacy of appointed counsel was sufficient to suggest ineffective assistance within the scope of Marsden even though the defendant did not expressly request new counsel. In that case, the defendant “identified by name two prospective witnesses who stated there was only one assailant, not two. He informed the trial court that one prospective witness told the district attorney he (Mendez) was not involved in the attack, but his trial attorney failed to call that person as a witness, and that the other prospective witness likewise characterized the assault as a ‘one-on-one,’ but his trial attorney ‘never subpoenaed or questioned’ that person, either.” (Ibid.; see also People v. Kelly, supra, 52 Cal.App.4th at pp. 579-580 [written motion requesting a new trial, setting forth claims under penalty of perjury that his attorney refused to let him testify, and failed to subpoena, or failed to call, several material witnesses, “plainly set forth an arguable case of the attorney’s alleged incompetence, the requisite ground for replacement of counsel under Marsden”].)
Here, defendant was denied an opportunity to fully articulate his concerns about his attorney’s performance. Although his initial comments are not fully developed, he did indicate that he had advised his attorney of the existence of other witnesses and of relevant videotapes that he felt would tend to exonerate him and that his attorney had failed to obtain that evidence or pursue those leads. Moreover, any deficiency in defendant’s presentation is at least partially the result of the court’s directive that he not continue to discuss his attorney’s conduct. Even in their truncated form, defendant’s complaints about his attorney’s failure to investigate additional evidentiary leads required at least limited inquiry. At a minimum, defendant should have been given the opportunity to fully and fairly “articulate his causes of dissatisfaction” and counsel permitted to respond. If any of the defendant’s complaints suggest ineffective assistance, the court must “conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel’s effectiveness, the court must question counsel as necessary to ascertain their veracity.” (People v. Eastman, supra, 146 Cal.App.4th at p. 695.) Moreover, the “court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error.” (Id. at p. 696.)
The People miss the point by arguing that the court could properly have denied the motion because defendant “was mentally unbalanced, he asserted claims that had no plausible basis, and defense counsel implicitly and effectively denied those claims.” The record provides no basis for determining the potential merits of defendant’s claims because he was denied the opportunity to fully express himself and his attorney was not called upon to explain whether he had pursued the leads to which defendant referred or if not, why he had not done so. Accordingly, the appropriate remedy is a limited remand to permit the court to conduct a Marsden hearing. (People v. Eastman, supra, 146 Cal.App.4th at p. 699.)
Disposition
The judgment is reversed and the matter is remanded with directions to the trial court to conduct a Marsden hearing. If the court finds that counsel provided ineffective assistance, substitute counsel shall be appointed, and the court shall entertain any motions that either party shall make thereafter. If the court determines that counsel did not provide ineffective assistance, it shall reinstate the judgment.
We concur: McGuiness, P. J., Siggins, J.