Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. SF100071A
MORRISON, J.
A jury found defendant Clarence Henry Dixon guilty of two counts of residential burglary (Pen. Code, § 459; further undesignated references are to this code). The court denied defendant’s motion for new trial and sentenced him to 15 years 8 months in state prison. Defendant appeals the trial court’s denial of his motion, claiming the court’s failure to conduct a Marsden hearing denied him due process of law. We shall affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
Police responded to a call of a residential burglary in progress at a duplex. Finding a broken window and a bent screen on the ground beneath it, officers entered the duplex. Once inside, they discovered a large hole (approximately three feet high and 15 inches wide) in a common wall between the duplexes. They announced their presence, received no answer and climbed through to the other side of the duplex. The room was in disarray, with several items including a computer and a toy rifle piled on the bed. The door to a nearby bathroom was closed and locked. They again announced their presence, but received no response. When officers kicked the door in, defendant, who was sitting on the commode with his pants down, said “I give up.” He had sheetrock dust on his hands and clothing.
The resident of the duplex testified the room was “nice and clean” and the computer was lying on the table beside the bed when she left earlier that morning.
The information in case No. SF100071A charged defendant with two counts of first degree residential burglary (§ 459), and alleged as special circumstances a prior serious felony conviction for burglary (§§ 1170.12, subd. (b), and 667, subd. (d)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd. (b)).
The jury found defendant guilty of both burglary charges. Defendant waived trial by jury on the enhancements, and later admitted the special circumstance allegations pursuant to sections 1170.12, subdivision (b), and 667, subdivision (d) as to both counts, and the enhancement pursuant to 667, subdivision (a)(1) as to the second count only. The remaining special allegations were stricken.
Based upon the guilty verdict in case No. SF100071A, the court found defendant in violation of probation in case No. SF092538A.
Prior to sentencing, defendant submitted a handwritten letter directly to the court requesting a “motion for a [mistrial on the grounds [misrepresentation].” The court treated defendant’s request as a motion for new trial and, after discussing with the defendant the grounds set forth in the letter, denied the motion.
The court sentenced defendant to an aggregate term of 15 years eight months in state prison in case No. SF100071A and, in case No. SF092538A, imposed the previously suspended four-year term to run concurrent therewith.
Defendant filed timely notices of appeal in both cases.
DISCUSSION
Defendant contends the court denied him due process in failing to conduct a Marsden hearing in response to his motion for mistrial. We disagree.
When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (People v. Marsden (1970) 2 Cal.3d 118, 124.) “‘Although no formal motion is necessary, there must be “at least some clear indication by defendant that he wants a substitute attorney.”’ (People v. Mendoza (2000) 24 Cal.4th 130, 157[], quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8[.])” (People v. Valdez (2004) 32 Cal.4th 73, 97.)
Here, defendant made no such request, either in his written motion or orally to the court. Relying on People v. Fosselman (1983) 33 Cal.3d 572, 582 (Fosselman), and People v. Smith (1993) 6 Cal.4th 684, 690 (Smith), he argues that a motion for new trial based on ineffective assistance of counsel triggers the trial court’s duty to conduct a Marsden hearing. Not so. In Fosselman, the trial court declined to rule on the merits of defendant’s motion for a new trial because it believed it did not have the authority to order a new trial on the ground of inadequate representation of counsel. (Fosselman, supra, at p. 582.) The Court of Appeal reversed, holding that the trial court did have authority to determine the effectiveness of counsel for purposes of the new trial motion and should have done so. (Id. at pp. 582-583.) It did not, however, hold that the trial court was required to conduct a Marsden hearing to accomplish that goal, particularly in light of the fact that defendant made no request to substitute counsel, only a request for new trial.
Defendant’s reliance on Smith is similarly misplaced. In Smith, this state’s highest court held only that “the standard expressed in Marsden and its progeny applies equally preconviction and postconviction.” (Smith, supra, 6 Cal.4th at p. 694.) That holding did not require that the trial court conduct a Marsden hearing in the absence of a request for substitute counsel.
Here, defendant submitted his letter to the court following entry of guilty verdicts against him. The letter stated that defendant was making a “motion for a [mistrial] . . .” and the court treated it as such. The letter set forth defendant’s complaints regarding the inadequacy of his representation at trial; it did not request new counsel to assist in making the motion for mistrial or provide representation at sentencing or for any other purpose going forward. The letter makes no mention of defendant’s desire to obtain substitute counsel, nor did defendant make any such desire known during his colloquy with the court. While the law does not require that defendant use the word “Marsden” to request substitute counsel, we will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that he made his desire for appointment of new counsel known to the court. (People v. Dickey (2005) 35 Cal.4th 884, 920-921.)
To say the least, we are perplexed as to why the court entertained defendant’s “motion for mistrial” at all, given that defendant was represented by counsel who was present at the hearing.
Furthermore, it is clear from the record that defendant was familiar with the procedure by which to invoke his right to substitute counsel, having done so on three prior occasions, each of which resulted in a Marsden hearing. Indeed, defendant’s most recent request for new counsel was made on the eve of trial before the same judge who presided over the trial and considered defendant’s subsequent motion for new trial. Defendant had certainly demonstrated in the past that he was capable of requesting new counsel and invoking his right to a Marsden hearing; he did not do so here.
Contrary to defendant’s claim, a motion for new trial based on ineffective assistance of counsel alone does not trigger the court’s duty to conduct a Marsden hearing where the defendant has not made clear his desire for substitute counsel. We find no error by the trial court for failure to conduct a Marsden hearing.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P.J., BUTZ, J.