Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA287234. Ruth Ann Kwan, Judge.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
ZELON, J.
In an amended Information filed by the Los Angeles County District Attorney, appellant Edward Hall (“Hall”) was charged with a single count of selling, transporting, and offering to transport a controlled substance, cocaine base, in violation of Health and Safety Code section 11352, subdivision (a). The Information further alleged that Hall had one prior serious felony conviction within the meaning of Penal Code sections 1170.12 and 667, and seven prior convictions for which he had served prison terms within the meaning of Penal Code section 667.5. Hall pleaded not guilty and denied the special allegations. Following a jury trial, he was found guilty of the sole charged offense.
Unless otherwise stated, all further statutory references are to the Penal Code.
On appeal, Hall raises three arguments. First, he asserts that the prosecution failed to disclose impeachment evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), and that the trial court improperly excluded such evidence under Evidence Code section 352. Second, he contends that the trial court erred in failing to hold a hearing to address his request to terminate representation by his appointed counsel, as required by People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Third, he argues that the trial court applied the incorrect standard of review in denying his renewed motion for a new trial by refusing to independently weigh the credibility of witnesses.
For the reasons set forth below, we reject Hall’s argument regarding the non-disclosure and exclusion of the alleged impeachment evidence. We also conclude that, even if the trial court applied the incorrect standard of review in denying Hall’s renewed motion for a new trial, any such error was harmless. However, we agree with Hall that the trial court erred in failing to hold a Marsden hearing and that such Marsden error cannot be found to be harmless beyond a reasonable doubt. We accordingly reverse and remand the matter for reconsideration of Hall’s Marsden motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Prosecution’s Case
On July 19, 2005, at approximately 4:00 p.m., five Los Angeles police officers were monitoring the area of 5th and Main Streets in downtown Los Angeles for narcotics activity. Officer George Mejia and his partner, Officer Singh, were standing on the ground level of a parking structure located on the west side of Main Street, south of 5th Street. Officers Brown, Hoffman, and Green were positioned nearby in marked patrol cars and were assigned to carry out orders from Officers Mejia and Singh to detain suspects.
Through binoculars, Officer Mejia saw Hall standing and talking with a woman on the southeast corner of 5th and Main Streets. Hall was wearing white shorts, white socks, and no shirt. The woman was wearing blue pants and a bright multi-colored shirt. Officer Mejia observed two Hispanic men approach Hall and the woman as they stood on the corner. After a brief conversation, one of the men, who later was identified as Pedro Garcia (“Garcia”), removed his wallet from his back pocket and handed the woman some paper currency. The woman accepted the money and placed it in her right front pants pocket. Hall then reached down and removed a white paper “bindle” from his right sock. Hall “unraveled” the paper, removed something from it, and placed it in Garcia’s open palm. Officer Mejia saw two off-white solids resembling rock cocaine in Garcia’s palm. Officer Mejia gave Officer Singh a description of Hall, the woman, and the two Hispanic men, and told him to direct the other officers to detain them.
As Officer Singh broadcast descriptions of the suspects, Officer Mejia observed Hall walk southbound on Main Street and Garcia and his companion walk into a liquor store. The woman remained on the corner. Officer Hoffman approached the area first and entered the liquor store behind Garcia. Officers Brown and Green arrived immediately thereafter. Officer Green handcuffed Hall while Officer Brown stood by ready to assist if necessary. Officer Brown then followed Officer Hoffman into the liquor store to assist him in detaining the two other men. Meanwhile, the woman began walking eastbound on 5th Street. Outside the liquor store, Officer Green searched Hall and found a booklet of white Zig Zag papers and one loose Zig Zag paper. The loose paper was crumbled and appeared to be the same as the “bindle” that Officer Mejia had seen earlier. No currency or narcotics were recovered from Hall.
According to Officer Hoffman, as he entered the liquor store, he observed Garcia drop an off-white solid item from his hand to the ground. According to Officer Brown, Officer Hoffman removed Garcia’s hand from his pocket, at which time a small item resembling rock cocaine fell to the ground. Garcia and his companion were handcuffed and taken outside. Once outside, Officer Brown searched Garcia and recovered a second off-white solid from his right front pants pocket. Garcia’s companion was briefly detained and then released. Hall and Garcia were both arrested and taken into custody. Officer Hoffman later searched for the woman on 5th Street, but was unable to locate her. Hall’s booking photograph showed him wearing a grey t-shirt.
Based on his experience in narcotics enforcement, Officer Mejia testified that narcotics sellers often carry only small amounts of drugs on them in case they are apprehended by the police. He further stated that narcotics sellers often sell drugs in small amounts and replenish their supply as needed. The off-white solids recovered from Garcia were analyzed by a criminalist with the Los Angeles Police Department. One item weighed 0.08 grams and the other weighed 0.05 grams. Both items contained cocaine base.
II. The Defense Case
Hall testified on his own behalf. On July 19, 2005, he was living with a friend at the Leonard Hotel, which was located about 75 feet from the corner of 5th and Main Streets. At approximately 4:00 p.m., Hall left the hotel to go to King’s Market on the corner to buy some Zig-Zags. He was wearing white shorts, socks, and sandals, and had a greenish-gray t-shirt draped over his shoulder. He was holding a blunt, or marijuana cigarette, in his hand. After purchasing a packet of Zig-Zag papers, he began walking back toward the hotel and removed one of the papers to cover a hole in his cigarette. Garcia and his companion then approached Hall and asked him for some papers. In the course of giving Garcia’s companion the papers, one came loose. Hall folded it and placed it in his sock. He never spoke with or saw a woman in a multi-colored shirt.
Hall then returned to the hotel. While he waited for his friend to let him in, he saw Officers Brown and Green walking down the street. The officers ordered Hall to put his hands up and to drop the marijuana cigarette. Officer Green searched him and recovered Zig-Zags and a lighter. Hall testified that he never was in possession of rock cocaine and did not participate in any sale of drugs to Garcia.
III. Verdict and Sentencing
The jury found Hall guilty of the sole charged offense of selling, transporting, and offering to transport a controlled substance in the form of cocaine base. In a bifurcated proceeding, the trial court found true the allegation on the prior serious felony conviction, and on the prosecution’s motion, the court dismissed the allegations on the prior prison term convictions. On April 24, 2007, the trial court sentenced Hall to an aggregate term of eight years, consisting of the mid-level term of four years, doubled to eight years by the prior serious felony “strike.” Hall was awarded a total custody credit of 967 days, which included 645 days in actual custody and 322 days of conduct credits. On April 24, 2007, Hall filed a timely notice of appeal.
DISCUSSION
I. Non-Disclosure And Exclusion Of Evidence
Hall first contends that the prosecution committed a Brady violation when it failed to disclose evidence of a prior citizen complaint against Officer Mejia for misdemeanor disorderly conduct. He also claims that the trial court improperly excluded such evidence under Evidence Code section 352 in violation of his federal constitutional right to present a defense. We disagree.
A. Relevant Proceedings
During the trial, defense counsel attempted to cross-examine Officer Mejia about a citizen complaint brought against him in April 2000. The prosecution immediately objected. Outside the presence of the jury, defense counsel informed the trial court that, earlier that morning and by mere coincidence, she had obtained a report regarding an internal affairs investigation of a complaint made against Officer Mejia for violation of section 647, subdivision (a). She argued that, because the report was evidence of a crime involving moral turpitude, the prosecution violated Brady in failing to disclose it. She also indicated that she intended to use the report to impeach Officer Mejia’s credibility as a witness. The prosecuting attorney asserted that he had not been aware the report existed. He contended, however, that the report did not state that Officer Mejia had committed the alleged offense, and objected to its admission under Evidence Code section 352.
Section 647, subdivision (a) provides that “[e]very person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶] (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” (§ 647, subd. (a).)
As described by counsel and the trial court, the report consisted of a three-page document entitled “Los Angeles County District Attorney Charge Evaluation Worksheet.” It summarized an internal affairs investigation of a complaint made by Alva Bautista (“Bautista”) on April 18, 2000. According to the report, Bautista was entering a nightclub at approximately 2:30 a.m. on April 16, 2000, when she noticed a black and white police vehicle parked nearby. She observed two male police officers in the car and a group of five women around the passenger door. The trial court read the following excerpt from the report for the record:
“The females were laughing and being very loud. Suddenly one of the females lifted her top and exposed her bare breasts to the officers. She then moved toward the car and put her breasts through the open window. The passenger officer then stroked the female breast with his hand. The female pulled back from the window and replaced her top.
“At that moment, another of the females turned her back on the officers, lifted her skirt and exposed her buttocks. Neither officer touched this female. As the two females walked away toward the club, two of the others exposed first their buttocks and then their breasts to the officers.
“Ms. Bautista then entered the club. She was alone when she made those observations. However, when she left the club about ten minutes later, she and three of her friends saw the police car was still there. Ms. Bautista was not able to identify either officer. However, with the help of a friend, she was able to remember the car’s license plate number, 040514.
“Ms. Bautista said that she was upset with the officer for not stopping the female conduct, for touching the female breasts, and for seemingly sitting and enjoying the acts. Ms. Bautista would not identify her three friends. She gave only one name, Liz. Ms. Bautista has been asked on several occasions to place the investigators in contact with her friends. She has failed to return any of their calls.
“Subsequently, it was determined that the patrol car for that -- at that time that early morning was manned by Officer Mejia and his partner, Officer Singh. And both officers gave statements under administrative order compelling them to do so, but those statements, obviously, were not given to the D.A.’s office because they were made under compulsion.
“Legal analysis by the D.A.’s office[:] Section 8028 of the California Penal Code, states except as provided in -- prosecutions for an offense not punishable by death or imprisonment shall not [sic] commenced within one year from the commence of the offense. Conclusion: The misdemeanor offense is disorderly conduct, Penal Code 647(a), [and] is subject to this one year limitations. Since this incident occurred in April of 2000, the statute of limitations expired in April of 2001. This case was submitted to us in July of 2001. Any action is therefore barred by the statute [of] limitations. Therefore, we decline to file criminal charges against Officer Mejia. We are closing our file and will take no further action on this matter.’”
After hearing argument from counsel, the trial court excluded evidence of the alleged conduct under Evidence Code section 352. The court noted that the report did not state that Officer Mejia was the individual who touched the woman’s breasts, and although it indicated that charges were not being filed against Officer Mejia, a separate report may have been prepared for Officer Singh. The court also reasoned that, because Bautista could not identify which officer committed the offense, “it would be improper for the court to allow you to ask [Officer Mejia] this when you don’t have . . . anyone really coming in to impeach him.” The court further found that the prosecution did not violate Brady in failing to disclose the report, and that even if there was a Brady violation, it did not warrant dismissal because the evidence was ultimately inadmissible.
B. Legal Analysis
Under Brady, supra, 373 U.S. 83, the prosecution must disclose to the defense any evidence that is favorable to the defendant and material on the issue of guilt or punishment. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7.) “Failure to do so violates the accused’s constitutional right to due process. [Citation.]” (Ibid.) Generally, “[e]vidence is ‘favorable’ if it either helps the defendant or hurts the prosecution.” (In re Sassounian (1995) 9 Cal.4th 535, 544.) The Brady disclosure obligation thus encompasses both exculpatory and impeachment evidence. (United States v. Bagley (1985) 473 U.S. 667, 676; City of Los Angeles v. Superior Court, supra, at p. 8.) It also applies regardless of whether the accused makes a specific request for the information. (United States v. Agurs (1976) 427 U.S. 97, 107; In re Brown (1998) 17 Cal.4th 873, 879.) The duty to disclose under Brady “extends beyond the contents of the prosecutor’s case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence known to the others acting on the government’s behalf. . . .’ [Citation.]” (In re Brown, supra, at p. 879; Kyles v. Whitley (1995) 514 U.S. 419, 437-438.)
Evidence is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682; City of Los Angeles v. Superior Court, supra, 29 Cal.4th at pp. 7-8.) In determining the materiality of evidence that was not disclosed, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Kyles v. Whitley, supra, 514 U.S. at p. 434; In re Brown, supra, 17 Cal.4th at p. 886.) “A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ [Citation.]” (Kyles v. Whitley, supra, at p. 434.) “Although Brady disclosure issues may arise ‘in advance of,’ ‘during,’ or ‘after trial’ [citation], the test is always the same. [Citation.]” (City of Los Angeles v. Superior Court, supra, at p. 8.) The defendant bears the burden of demonstrating materiality under Brady. (People v. Hoyos (2007) 41 Cal.4th 872, 918.)
In this case, we conclude that Hall has failed to establish a Brady violation. We do agree that misdemeanor conduct of the type alleged here constitutes prior misconduct involving moral turpitude, and hence, evidence of such conduct is admissible for impeachment purposes subject to the trial court’s discretion. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296 [“Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction.”].) However, the fact that the report may have been “favorable” to the defense as alleged impeachment evidence does not make it “material” under Brady. To demonstrate Brady materiality, Hall had to show that there was a reasonable probability that, had the report been disclosed to the defense, the result of his trial would have been different. (United States v. Bagley, supra, 473 U.S. at p. 682; City of Los Angeles v. Superior Court, supra, 29 Cal.4th at pp. 7-8.) He has failed to do so here because the report did not sufficiently connect Officer Mejia to the alleged conduct. As reflected in the record before us, the report did not indicate that either the district attorney’s office or the internal affairs department had determined that Officer Mejia was the individual who touched the woman’s breasts. Instead, it stated that the sole complaining witness, Bautista, could not identify either officer in the patrol car. Hall argues that the district attorney’s office must have concluded that Officer Mejia was the perpetrator because the report specified that the office was declining to file criminal charges against Officer Mejia, but was silent with respect to Officer Singh. However, the report itself did not set forth any evidence from which one could conclude that Officer Mejia, as opposed to Officer Singh, committed the offense. Nor did the report identify any witness who could testify to that effect on behalf of the defense. Given that the report failed to identify Officer Mejia as the perpetrator of the purported conduct, Hall cannot prove that its non-disclosure undermined confidence in the outcome of his trial.
We also reject Hall’s argument that the trial court abused its discretion in excluding evidence of the alleged conduct under Evidence Code section 352. “When a section 352 objection is raised, the trial court ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense.’ [Citation.]” (People v. Cardenas (1982) 31 Cal.3d 897, 904.) “‘[The] fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’ [Citation.]” (Ibid.) In the context of Evidence Code section 352, evidence is overly prejudicial if it “uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.” (People v. Crittenden (1994) 9 Cal.4th 83, 134.) A trial court’s decision to admit or exclude evidence under Evidence Code section 352 is reviewed for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.) “Where, as here, a discretionary power is vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Evidence Code section 352 states that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
As our Supreme Court explained in People v. Wheeler, supra, 4 Cal.4th at pp. 296-297, although evidence of past misconduct involving moral turpitude may be admissible for impeachment purposes, it is nevertheless subject to exclusion under Evidence Code section 352. Indeed, “the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Id. at p. 296.) Evidence of misdemeanor conduct, in particular, may be subject to exclusion under the statute because “a misdemeanor . . . is a less forceful indicator of immoral character or dishonesty than is a felony,” (ibid.) and its use at trial “entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present.” (Ibid.) A trial court therefore “should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.)
Here, the trial court acted within its discretion in deciding that the prejudicial effect of the proffered evidence outweighed any slight probative value. As discussed above, the report never identified Officer Mejia as the individual who committed the offense, but instead stated that the complaining witness could not identify either officer present in the patrol car. To prove that Officer Mejia was the perpetrator, the defense would have had to locate and produce other unknown witnesses to testify at trial, resulting in a mini-trial on a collateral credibility issue. (See People v. Geier (2007) 41 Cal.4th 555, 582 [no error in excluding evidence under Evid. Code, § 352 where “admission of the evidence would have necessitated a minitrial . . . thus creating the possibility ‘of confusing the issues, or of misleading the jury’”].) In excluding evidence of the alleged lewd act, the trial court acknowledged that misdemeanor conduct might be admissible as impeachment evidence, but found that its admission in this case “would only confuse the issue” and was “substantially more prejudicial than probative.” On this record, we cannot conclude that the trial court’s decision to exclude the evidence under Evidence Code section 352 was an abuse of discretion.
Hall’s claim that the trial court’s exclusion of the evidence deprived him of his federal constitutional right to present a defense is likewise without merit. As our Supreme Court has long observed, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834; see also People v. Snow (2003) 30 Cal.4th 43, 90 [“Application of the ordinary rules of evidence, such as Evidence Code section 352, generally does not deprive the defendant of the opportunity to present a defense.”].) Rather, a trial court retains “a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]” (People v. Hall, supra, at p. 834.) “Although completely excluding evidence of an accused’s defense theoretically could rise to [the level of a constitutional deprivation], excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) In this case, the evidence of prior uncharged misdemeanor conduct was not of such probative strength that its exclusion violated Hall’s constitutional right to present a defense.
II. Failure To Hold A Marsden Hearing
Hall also argues that the trial court committed reversible error when it refused to hold a Marsden hearing to address his claim that he had a conflict of interest with his appointed counsel and that her continued representation of him would violate his constitutional rights. We conclude that the trial court did err in failing to conduct an adequate Marsden inquiry into Hall’s allegation of a conflict of interest and that such error cannot be found to be harmless beyond a reasonable doubt.
A. Relevant Proceedings
Following the jury’s finding of guilt, Hall’s appointed counsel, Judith Greenberg (“Greenberg”), filed a motion for a new trial on the grounds of prosecutorial misconduct and legal error. On February 7, 2007, prior to the hearing on the new trial motion, Hall moved the trial court to proceed in pro. per. The court first advised Hall that he had a right to appointed counsel throughout the proceedings. The following exchange then took place:
“The Court: And I’ve indicated to you that if you didn’t want Miss Greenberg, I could have a hearing to determine whether she should be relieved and a new and different lawyer be appointed. You indicated you’re not interested in having that hearing, is that correct?
“The Defendant: Yes, ma’am.”
The court granted Hall’s request to proceed in pro. per., but warned him that if he were only attempting to delay the proceedings or if he continued to be unruly and disrespectful, the court would revoke his pro. per. status.
Acting in pro. per., Hall thereafter filed a supplemental motion for a new trial in which he argued ineffective assistance of counsel by Greenberg. In his supplemental briefing, Hall asserted that, among other things, Greenberg failed to secure the presence of the arresting officer at trial, failed to present impeachment and other favorable evidence, and failed to interview witnesses and to thoroughly investigate the case. On April 4, 2007, the trial court heard Hall’s motion for a new trial. During oral argument, Hall summarized the contentions made by Greenberg in her original motion and then read at length from his supplemental brief regarding the alleged inadequate representation. The court denied the motion for a new trial. As the trial judge attempted to state her reasons for the denial on the record, Hall became disruptive and repeatedly accused the judge of racism. When Hall refused to cease such conduct, the court revoked his pro. per. status and called Greenberg to the court.
Following a brief recess, the proceedings were resumed. In the presence of Hall, Greenberg, and the prosecuting attorney, the court re-appointed Greenberg as defense counsel. The reporter’s transcript of the proceeding reflects the following exchange:
“The Court: All right. People versus Hall. He is present in court. This is BA287234. Earlier this morning, I revoked Mr. Hall’s pro per status. Miss Greenberg, you are now reappointed on this case.
“The Defendant: I object.
“The Court: Noted. [¶] And for the record, Miss Greenberg, I just want you to know that I have been
“The Defendant: It’s conflict of interest.
“Ms. Greenberg: Mr. Hall, be quiet at this point.
“The Defendant: No, I object.
“The Court: I have actually allowed Mr. Hall to argue his entire motion for about 45 minutes or more, the motion for new trial. I denied it. I was in the process of stating my reasons for the denial, and that was when he started acting up. [¶] I just want to complete my reasons at this point. Basically, I indicated -- and I’m going to indicate
“The Defendant: I object, your Honor, Miss Greenberg cannot represent me. It’s conflict of interest.
“The Court: Just a moment.
“The Defendant: It’s conflict of interest. I mean
“The Court: I am
“The Defendant: -- me and this attorney.
“The Court: Just a moment. I indicated that the rulings made by the court, I do not believe were erroneous and that the record [speaks] for itself at the time that I made those rulings because I explained my reasons for those ruling[s], and I did not intend to go into it.
“The Defendant: I object to proceeding.
“The Court: And also I did not feel there was any prosecutorial misconduct on the part of the -- Mr. Chen and as far as
“The Defendant: I object to proceeding.
“The Court: -- as far as the claim that the defense counsel Miss Greenberg
“The Defendant: Yes. Was -- tell her. Say it.
“The Court: -- was ineffective, I do not find that to be the case. In fact, she vigorously represented the defendant throughout the course of this trial, and
“The Defendant: And I object to all this. This whole proceeding, I object to.
“The Court: -- and also the counts, the defendant was unable to show that any of the points that he has raised with regard to Miss Greenberg’s conduct fell below as [sic] the established norm and that a different result would
“Ms. Greenberg: But for my performance, a different result would have come about.
“The Court: Well, no, no, no, no. -- Nor would a different result have been found by the jury if, in fact, counsel’s performance was below the professional norm which I did not find that the counsel’s
“The Defendant: A personal level
“The Court: -- fell below
“The Defendant: You’re
“The Court: The professional norm. And I really don’t see a conflict just because he is claiming ineffective assistance of counsel. [¶] And let me state for the record that
“The Defendant: You know this.
“The Court: Unless there’s a new and different reason, I’m not going to even go into a Marsden hearing because right before he went pro per, we had a Marsden hearing; and I denied it, and you have not represented him since he went pro per.
“The Defendant: We ain’t have no Marsden on nothing.
“The Court: So that Marsden was held February 27, ’07. [¶] Although the -- I’m sure that the reporter is only taking down the court’s statement, throughout this entire time, Mr. Hall’s been talking and being disruptive and will not stop talking, despite the fact Miss Greenberg told him to be quiet. For the record, it doesn’t reflect that because the reporter cannot take both the court and the defendant at the same time.
“The Defendant: Miss Greenberg was fired and to proceed with Miss Greenberg is violating my constitutional rights. She’s been fired. How can she go about after she’s been fired?
“The Court: All right. Counsel?”
The court then set a new date for a bench trial on the prior conviction allegations and a hearing on sentencing. Hall stated that he wished to proceed in pro. per., but the court denied his request.
B. Legal Analysis
It is well-established that a defendant “may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.” (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Under Marsden, when a defendant seeks to substitute appointed counsel based on a claim of inadequate representation, the trial court must afford the defendant an opportunity to articulate the basis for the request and to relate specific instances of counsel’s deficient performance. (Marsden, supra, 2 Cal.3d at pp. 123-124.) A defendant is entitled to relief if the record clearly shows that the appointed attorney is not providing adequate representation or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation likely will result. (People v. Crandell (1988) 46 Cal.3d 833, 854; Marsden, supra, at pp. 124-125.) The rule requiring a Marsden hearing applies equally post-trial. “[T]he trial court should appoint substitute counsel when a proper [Marsden] showing has been made at any stage” because “[a] defendant is entitled to competent representation at all times” during the proceedings. (People v. Smith (1993) 6 Cal.4th 684, 695.)
While the decision whether to allow a defendant to substitute appointed counsel rests with the sound discretion of the trial court, the court “cannot thoughtfully exercise its discretion in this matter without listening to [the defendant’s] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant’s request for substitution of attorneys unless he is cognizant of the grounds which prompted the request.” (Marsden, supra, 2 Cal.3d at p. 123.) Accordingly, “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” (Id. at p. 124; see also People v. Lewis (1978) 20 Cal.3d 496, 499 [“Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial court’s denial of the motion without giving the defendant an opportunity to do so denied him a fair trial.”].) The denial of a Marsden motion without careful inquiry into the defendant’s reasons for requesting substitute counsel does not qualify as an informed judicial determination. (Marsden, supra, 2 Cal.3d at p. 124; People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.)
In this case, the record reflects that the trial court refused to conduct any inquiry into Hall’s claim of a conflict of interest with re-appointed counsel because the court mistakenly believed that it had already held a Marsden hearing when Hall first requested to proceed in pro. per. It appears that no such Marsden hearing was ever held. The clerk’s transcript does contain a minute order which states that the court heard and denied a Marsden motion on February 7, 2007. However, the reporter’s transcript of the February 7, 2007 proceeding reflects that, immediately prior to granting Hall pro. per. status, the trial court stated on the record that it was not going to hold a Marsden hearing because Hall was not interested in having one. The Attorney General concedes that there never was a Marsden hearing before Greenberg was re-appointed as defense counsel, but contends that the hearing on the motion for a new trial effectively served as a Marsden hearing because the court allowed Hall to present argument about Greenberg’s alleged inadequate representation in support of his motion. The Attorney General notes that the court rejected that argument in denying the motion for a new trial and stated on the record that Hall’s claim of ineffective assistance of counsel did not create a conflict of interest. We disagree, however, that this hearing constituted an adequate Marsden inquiry.
Although the trial court referred to a Marsden hearing on February 27, 2007, there is nothing in the record to support that any such hearing was held on that date. Rather, the record indicates that, by that date, Hall’s appointed counsel had been relieved and Hall was proceeding in pro. per.
To begin with, neither the trial court nor the parties treated the hearing on the motion for a new trial as a Marsden hearing. The court did not make any specific inquiry into Hall’s allegations of inadequate representation, nor did it take any steps to protect the confidentiality of any privileged communications between Hall and Greenberg. Instead, Hall’s argument was made in open court in the presence of the prosecuting attorney. Furthermore, while Hall based his motion for a new trial on Greenberg’s alleged deficient performance at trial, his objection to her re-appointment as counsel was based on a purported conflict of interest. The trial court assumed that Hall believed there was a conflict of interest solely because he was claiming ineffective assistance of counsel in his motion for a new trial, but the court never inquired if that was the case. Without an adequate inquiry into Hall’s objection to the re-appointment of Greenberg, it cannot be determined whether his conflict of interest claim was based on the same allegations supporting his motion for a new trial or on other facts not known to the trial court. The trial court therefore erred in failing to hold a Marsden hearing.
We ordinarily review an order denying a Marsden motion under the deferential abuse of discretion standard. (People v. Berryman, supra, 6 Cal.4th at p. 1070.) However, where, as here, there is a failure to comply with the requirements of Marsden, the error compels reversal unless the record shows that the error was harmless beyond a reasonable doubt. (People v. Chavez (1980) 26 Cal.3d 334, 348-349; Marsden, supra, 2 Cal.3d at p. 126.) In People v. Washington (1994) 27 Cal.App.4th 940, for instance, the First District held that the trial court’s failure to hold a post-trial Marsden hearing was harmless error. Following his conviction, the defendant in that case brought a Marsden motion in conjunction with a motion for a new trial. (Id. at p. 942.) The trial court heard the new trial motion, but failed to hold a Marsden hearing, believing the issue had already been ruled upon. (Id. at p. 943.) In deciding that the error in failing to hold a Marsden hearing was not prejudicial, the Court of Appeal explained that, because the Marsden motion was made after trial when the sole remaining proceeding was sentencing, the only basis for the motion could be that counsel performed ineffectively during trial or could not adequately represent the defendant at sentencing. (Id. at p. 944.) The court found that no grounds for ineffective assistance of counsel existed and that appointment of new counsel would not have affected the sentence. (Ibid.) Because the failure to hold a Marsden hearing did not deprive the defendant of any arguments on appeal or affect his verdict or sentence, the court concluded that he was not prejudiced. (Ibid.)
Hall first claimed a conflict of interest with Greenberg after he had been convicted of the charged offense and his motion for a new trial had been denied. Thus, when the trial court failed to hold a Marsden hearing, the only proceedings that remained were the hearing on the prior conviction allegations and sentencing. It is the Attorney General’s burden to establish that the failure to hold a Marsden hearing was harmless beyond a reasonable doubt by demonstrating that the error did not have any effect on these post-conviction proceedings. No such showing has been made here. We cannot determine from the record before us whether substitute counsel would have pursued additional arguments or raised different issues at the sentencing hearing that would have resulted in a more favorable sentence for Hall. Given that the trial court sentenced Hall to a mid-level term of four years, doubled to eight years based on the prior “strike” finding, a more favorable sentence was at least possible. Under these circumstances, we cannot say that the error in failing to hold a Marsden hearing was harmless beyond a reasonable doubt.
Accordingly, the matter must be remanded for a hearing on Hall’s Marsden motion. If the motion is granted, the trial court shall appoint substitute counsel to represent Hall at a new sentencing hearing and new trial on the prior conviction allegations. If the motion is denied, the trial court shall reinstate the judgment.
Our opinion should not be read to suggest that Hall’s Marsden motion should be granted or that we believe Hall will make a sufficient Marsden showing to justify the appointment of substitute counsel. That decision rests in the discretion of the trial court and will depend on the facts presented to the court at the Marsden hearing.
III. Denial Of The Motion For A New Trial
Hall also asserts that the trial court erred in denying his renewed motion for a new trial on the grounds that it could not weigh the credibility of witnesses. We agree that the trial court applied the incorrect standard of review in considering what it described as a renewed motion for new trial at the time of the sentencing hearing. We conclude, however, that any such error was harmless given that Hall was not entitled to a rehearing on his original motion for a new trial and is not claiming that his original motion was improperly denied.
A. Relevant Proceedings
As discussed above, during the sentencing hearing, Hall’s re-appointed counsel sought to renew the motion for a new trial that she previously had filed on his behalf. Specifically, as Greenberg began her argument on sentencing, she indicated that she understood Hall had argued the motion for a new trial during her absence and that she wanted to “incorporate [her] written arguments into Officer Mejia’s credibility issues.” She then contended that Officer Mejia was inconsistent in his testimony and was not a credible witness. At the close of counsel’s argument, the trial court stated as follows:
“The Court: All right. First of all, you know, Mr. Hall did argue his motion for a new trial which was denied. I will assume that your argument supplements
“Ms. Greenberg: Yes.
“The Court: -- his motion for new trial, and I am going to deny that motion, as well because the jury made that -- obviously believed the officers, and found your client guilty. And I am not here in a motion -- the court is not here to reweigh credibility issue[s] in a motion for new trial, counsel. And so I’m going to deny it.”
Hall relies on these statements by the trial court in contending that the court applied the incorrect standard of review.
B. Legal Analysis
In ruling on a motion for a new trial based on the insufficiency of evidence to support the verdict, the trial court “must review the evidence independently, considering the proper weight to be afforded to the evidence, and then deciding whether there is sufficient credible evidence to support the verdict. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 364.) This duty to evaluate the evidence independently includes a duty to weigh the credibility of witnesses. (People v. Robarge (1953) 41 Cal.2d 628, 633-634.) The trial court is “guided by a presumption in favor of the correctness of the verdict and proceedings supporting it.” (People v. Davis (1995) 10 Cal.4th 463, 524.) It is not, however, bound by the jury’s determination as to conflicts in the evidence or as to the weight to be afforded to the evidence. (People v. Robarge, supra, at pp. 633-634.) Rather, the court must “consider the probative force of the evidence” independently and must “satisfy itself that the evidence as a whole is sufficient to sustain the verdict.” (Id. at p. 633.) “A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. (People v. Davis, supra, at p. 524.)
In People v. Robarge, supra, 41 Cal.2d at pp. 634-635, for instance, the Supreme Court held that the trial court applied the incorrect standard of review when it denied a motion for a new trial on the grounds that it was bound by the conclusions of the jury. In denying the motion, the trial court had stated, among other things, that the jurors were “‘the sole judges of the credibility of witnesses and the determiners of the facts,’” and that “‘[i]f there is any evidence upon which they have the right to base their conclusion, this Court is not in a position where it could upset it.’” (Id. at p. 634.) The Supreme Court found that it was “evident that the trial court failed to give defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict.” (Ibid.) It therefore remanded the matter to the trial court for reconsideration of the motion under the proper standard of review. (Id. at p. 635.)
Here, the parties dispute whether the trial court was actually ruling on a motion for a new trial when it stated at the sentencing hearing that it was “not here to reweigh credibility issue[s] in a motion for new trial” and was “going to deny it.” Hall argues that the trial court was making such a ruling because it allowed re-appointed counsel to renew the motion for a new trial during her argument on sentencing, and then stated that it was “going to deny that motion.” The Attorney General, on the other hand, asserts that the trial court merely was reiterating that it had already denied Hall’s prior motion for a new trial and that the parties were now present for sentencing. If, as Hall contends, the trial court was ruling on a renewed motion for a new trial, then we agree that it applied the incorrect standard of review. The trial court’s statements that the jury “believed the officers” and that it was “not here to reweigh credibility issue[s] in a motion for new trial” indicate that the court did not consider the credibility of witnesses in ruling on the motion, and thus, that it did not conduct an independent evaluation of the evidence.
However, we also conclude that any such error, if it did occur, was harmless. It is undisputed that the trial court had no duty to rehear Hall’s motion for a new trial at the sentencing hearing. To the extent the court agreed to entertain a renewed motion at that time, such decision actually benefited Hall. Moreover, Hall is not alleging any error in the trial court’s denial of his original motion for a new trial, which was ruled upon before the Marsden error occurred when Hall was acting in pro. per. The ruling on the original motion for a new trial is therefore not at issue in this appeal. Given that Hall was not entitled to make a second motion for a new trial and is not claiming that his original motion was improperly denied, he has failed to show how he was prejudiced by the alleged error in the denial of the second motion. Any error in applying the incorrect standard of review to Hall’s renewed motion for a new trial was accordingly harmless.
DISPOSITION
The judgment is reversed and the matter is remanded for the purpose of holding a hearing on Hall’s Marsden motion. If the Marsden motion is granted, the trial court shall appoint substitute counsel to represent Hall at a new sentencing hearing and new trial on the prior conviction allegations. If the Marsden motion is denied, the trial court shall reinstate the judgment.
We concur: PERLUSS, P. J., WOODS, J.