Opinion
H045115
09-05-2018
THE PEOPLE, Plaintiff and Respondent, v. RANDALL RUSSELL DELACRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1791797)
Defendant Randall Russell Delacruz pleaded no contest to three counts of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)). On appeal, defendant argues the trial court erroneously denied his Marsden motion without holding a hearing. The People concede the trial court erred. We agree and reverse the judgment.
Unspecified statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
On April 26, 2017, a complaint was filed charging defendant with six counts of felony vandalism (§ 594, subds. (a), (b)(1)).
The underlying facts of defendant's offenses are not relevant to the issue raised on appeal. --------
On June 14, 2017, the court received a letter from defendant. In his letter, defendant asked to speak to the court during the next hearing and requested a "change of defense to alternate defender [sic]." That same day, the court held a hearing. During the hearing, defendant's counsel stated that defendant "would . . . like to be moved to the alternate defenders [sic] office." In response, the court stated: "I am denying your request to have the alternate defenders [sic] office represent you. The public defender is assigned to you and they are—they have been appointed for you." No further hearing on the matter was held.
On June 26, 2017, defendant pleaded no contest to three of the vandalism charges. On August 3, 2017, the trial court suspended imposition of sentence and placed him on three years' probation subject to various terms and conditions, including that he serve 180 days in county jail.
On September 29, 2017, defendant filed a notice of appeal and requested a certificate of probable cause, which the court granted.
DISCUSSION
Defendant's sole argument on appeal is that the trial court erred when it summarily denied his request for substitution of counsel without holding a hearing as required by Marsden, supra, 2 Cal.3d 118. The People concede, and we find their concession appropriate.
"In California, 'the seminal case regarding the appointment of substitute counsel is Marsden . . . , which gave birth to the term of art, a "Marsden motion." ' " (People v. Sanchez (2011) 53 Cal.4th 80, 86 (Sanchez).) Marsden recognized that "criminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel." (Marsden, supra, 2 Cal.3d at p. 123.) Marsden, however, reiterated that "the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney." (Ibid.) Furthermore, the trial court is not required to grant a request for substitute counsel unless the defendant can sufficiently show that his or her " ' "right to the assistance of counsel would be substantially impaired." ' " (Ibid.)
"In Marsden, [the Supreme Court] held it was 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.' " (Sanchez, supra, 53 Cal.4th at p. 87, quoting Marsden, supra, 2 Cal.3d at p. 124.) " '[A] proper and formal' Marsden motion is not required—the defendant need only clearly indicate to the trial court 'in some manner' that he or she is requesting the discharge and replacement of appointed counsel." (People v. Armijo (2017) 10 Cal.App.5th 1171, 1178 (Armijo).) "[O]nce the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request." (Id. at p. 1179.)
Here, defendant's letter and his counsel's statements to the court during the June 14, 2017 hearing indicated he desired substitution of counsel. Based on his request, the court should have held a Marsden hearing. Instead, the court summarily denied his request. Denying defendant the opportunity to make a showing at a Marsden hearing requires reversal of the judgment, because the record does not show beyond a reasonable doubt that failure to hold a hearing was harmless. (Armijo, supra, 10 Cal.App.5th at p. 1179.)
In Armijo, supra, 10 Cal.App.5th 1171, the appellate court ordered the following conditional reversal when faced with a similar situation: "[W]e conditionally reverse the judgment and remand to the trial court with instructions to hold a Marsden hearing. If the trial court finds after the hearing that [defendant] demonstrated ineffective assistance or an irreconcilable conflict, the court shall appoint new counsel to assist [defendant] in filing a motion to withdraw his plea or any other such motions newly appointed counsel may deem appropriate. However, the trial court shall reinstate the judgment if (1) the court finds after the Marsden hearing that [defendant] failed to demonstrate ineffective assistance or an irreconcilable conflict; or (2) the court grants [defendant's] request for substitute appointed counsel, but either substitute counsel declines to file a motion to withdraw the plea or other appropriate motion, or the court denies any such motion." (Id. at pp. 1183-1184.) We believe the conditional reversal ordered in Armijo is appropriate here and reverse the judgment with similar instructions to the trial court.
DISPOSITION
The judgment is conditionally reversed and the case is remanded with directions to the trial court to hold a Marsden hearing, and, if defendant's request for substitute appointed counsel is granted, to appoint new counsel to assist defendant and to entertain such motions as newly appointed counsel may file. The court shall reinstate the judgment if: (1) defendant's request is denied, or (2) the request is granted but substitute counsel declines to file any appropriate motions, or the court denies any such motions.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.