Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF203035, Gary L. Paden, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Dawson, J. and Hill, J.
OPINION
A jury convicted appellant Anthony Miguel Ramirez of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true an enhancement allegation that in committing that offense appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a separate proceeding, appellant admitted allegations he had suffered three prior serious felony convictions within the meaning of section 667, subdivision (a) (section 667(a)) and three “strikes,” and that he had served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed a prison term of 30 years to life under the three strikes law, with the determinate portion of the sentence consisting of 25 years on the substantive offense and five years on one of the prior serious felony enhancements. The court stayed the remaining enhancements.
Except as otherwise indicated, all further statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant contends the court erred in failing to conduct a Marsden hearing. In addition, we have concluded that the staying of prior serious felony enhancements resulted in an unauthorized sentence. We will reverse and remand for further proceedings.
In People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the California Supreme Court held that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.) A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation, and the hearing on that motion, are commonly called, respectively, a Marsden motion and a Marsden hearing.
PROCEDURAL BACKGROUND
On May 23, 2008, at the close of the preliminary hearing, immediately after the court ruled that appellant would be held to answer, appellant stated as follows: “Your Honor, and I haven’t got nothing from that or nothing. I don’t know what’s going on with my case. I don’t know nothing. I haven’t seen none of the discovery in my case. [¶] The last time I came to court on the 15th, the Public Defender told me they were going to come and see me at Sequoia Field. Nobody has came and seen me and told me nothing about my case. I don’t know nothing about my case. [¶] How can I study my case? I don’t know what’s going on. [¶] … [¶] I am mad because I ain’t got nothing on my case, so how can I know what’s going on with my case? I know I am facing life no matter what. If my lawyer is not going to do nothing for me I am going to fire him because I am getting mad.”
All references to dates of events are to dates in 2008.
At that point, the court asked appellant to let defense counsel speak without interruption. Counsel then stated he had been appointed to represent appellant two days prior when the public defender declared a conflict of interest. He speculated that appellant was upset because counsel “didn’t ask any questions” at the just-concluded preliminary hearing, and that appellant was “getting the impression … that he is not being adequately represented.” Counsel further stated: “He is entitled to that opinion. If he wants a Marsden to get somebody else, whatever works for him works for me. I just want him to feel that he is being represented.”
There followed an exchange between the court and defense counsel in which defense counsel confirmed that appellant would receive “copies of … reports that have been redacted,” at which point appellant stated, “But I [am] entitled to all my copies and all my statements no matter what the victim said and everything. The last time I went to court I got it all.” The court then advised appellant as follows: “There are certain rulings that pertain to how Mr. Bartlett [defense counsel] has to prepare discovery for you. [¶] He has a law clerk who is in the court at this time to assist him with your case. And as Mr. Bartlett indicated, if at some point in time you wish to have a Marsden hearing that is one of the options that you will have.” The court then set the arraignment for June 6.
On June 6, at the outset of the proceeding, Mr. Bartlett reminded the court that at the conclusion of the preliminary hearing appellant had “expressed come concerns about [counsel],” and that appellant had indicated he “wanted to do a Marsden to get another lawyer.” Counsel asked the court to schedule a Marsden hearing, “if that’s still [appellant’s] wish at this point.” There followed the following colloquy:
“THE COURT: Mr. Ramirez, you tell me what you want to do. We’ve appointed an attorney to represent you. I can tell you, you’re not going to be able to choose whatever lawyer you want to represent you unless you hire your own.
“[APPELLANT]: I know that, but my lawyer hadn’t come and talk to me or nothing. Doesn’t know what’s going on … my case and I ain’t seen none of my documents and I don’t know what’s going on. I don’t know what’s going on and I haven’t discussed it with my lawyer. He hasn’t come to see me. [¶] … [¶] I’m entitled to my discovery and I ain’t got nothing yet. [¶] … [¶]
“THE COURT: My suggestion is this, that we continue your arraignment approximately a week and a half.… In that time Mr. Bartlett will come out to see you to discuss your case. [¶] If you still feel the same way then, then we’ll have a Marsden Hearing to see whether or not Mr. Bartlett continues to represent you. Do you think that’s fair?
“[APPELLANT]: I don’t want him to represent me no more because I’m, I’m entitled to what I want, you know what I mean?
“THE COURT: No. If you’re entitled to what you want, you go hire your own[] lawyer.
“[APPELLANT]: But I mean, I can fire my lawyer, you know what I mean, if I want to.
“THE COURT: You can fire him. Do you want to represent yourself?
“[APPELLANT]: Yeah.
“THE COURT: Is that what you want to do?
“[APPELLANT]: Yes, I do.”
At that point the court explained there would have to be a hearing to determine whether appellant would be allowed to represent himself and set a “Faretta hearing” for June 10. The court then told appellant: “I know Mr. Bartlett. He’s a very good lawyer. He does a good job. You’re not going to be able to pick and choose unless you want to hire your own attorney. Otherwise we’re not going to play this game.”
The United States Supreme Court held in Faretta v. California (1975) 422 U.S. 806 that when a competent, literate defendant makes a timely, knowing, voluntary, and unequivocal waiver of the right to counsel, then the trial court must permit him to proceed without assistance of counsel. (Id. at pp. 835-836.) A request for self-representation, and the hearing at which that request is considered, are commonly called, respectively, a Faretta motion and a Faretta hearing.
At the Faretta hearing on June 10, the court advised appellant of his right to represent himself and admonished him as to the danger of self-representation. Thereafter, appellant indicated, with some hesitation and apparent uncertainty, that he wished to represent himself, at which point the following exchange occurred:
“THE COURT: It’s the advisement of this Court that you not represent yourself. You understand that?
“[APPELLANT]: Yes, I do. But the reason -- the reason I’m -- I was out --- I was inquiring about it, because my lawyer hasn’t come and seen me and never gave me any kind of documents, you know what I mean? I haven’t spoken to my lawyer or nothing like that, you know what I mean? I mean, that’s the reason I was getting my --”
The court then further advised appellant as to the dangers of self-representation and proposed that instead of ruling on the Faretta motion at that time, the court would continue the hearing and direct Mr. Bartlett to meet with appellant in the jail and determine thereafter if appellant still wished to represent himself. Appellant indicated that arrangement was agreeable to him, and the court continued the hearing to the following day.
The next day, June 11, appellant told the court he still wished to represent himself. The court granted appellant’s Faretta motion and relieved Mr. Bartlett as counsel of record.
On July 31, at the time set to confirm the trial date of August 12, appellant stated he had changed his mind and wanted an attorney. The court reappointed Mr. Bartlett. Mr. Bartlett represented appellant throughout the trial.
DISCUSSION
Failure to Conduct Marsden Hearing
Appellant contends the trial court committed reversible error when, despite appellant’s repeated complaints that attorney Bartlett was failing to communicate with him, the court failed to conduct a Marsden hearing. The People counter that there was no error in the failure to conduct a Marsden hearing because “there was no … clear indication” appellant wanted the court to appoint a substitute 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. [Citations].” (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).)
Thus, in Eastman, at the sentencing hearing, defense counsel (Mr. Garcia) stated that Eastman, the defendant, wished to withdraw his plea. Mr. Garcia presented to the court a letter from Eastman’s mother stating that Mr. Garcia and the prosecutor “‘conspired’” to persuade Eastman to accept a plea bargain by falsely telling him that his mother was going to testify against him. (Eastman, supra, 146 Cal.App.4th at p. 691.) The court appointed other counsel, who at a subsequent proceeding reported to the court that he would not present a motion to withdraw Eastman’s plea because, based on his “preparation [and] looking into this matter,” he “[did not] find... a legal or factual basis” for such a motion. (Id. at p. 693.) Shortly thereafter, Eastman presented the court with a letter in which he asserted that he wanted to withdraw his plea based on certain acts of “dishonesty” by the prosecutor and defense counsel, which he detailed. (Ibid.)
This court, unpersuaded by the prosecution’s argument that Eastman had not made a “clear and unequivocal request to discharge and replace his attorney” (Eastman, supra, 146 Cal.App.4th at p. 695), held that the trial court “erred in not holding a Marsden hearing and instead appointing a second attorney to investigate Eastman’s claims” (id. at p. 698). This court stated that because Eastman, in his letter, had “stated at least one specific factual complaint about [Garcia],” viz., that Mr. Garcia and the prosecutor were “acting in cahoots … when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him,” the trial 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 pp. 695-696.)
Also instructive is this court’s decision in People v. Mejía (2008) 159 Cal.App.4th 1081 (Mejía). In that case, at sentencing, counsel for one of the two defendants told the court that “[a]fter consulting with [his] client,” he (counsel) had determined the defendant “would like to make a motion for a new trial based in large part on [counsel’s] conduct at the trial,” but that he (counsel) “[could not] do that for him.” (Id. at p. 1084.) The other defense counsel stated his client took the same position. A few moments later each counsel summarized for the court his client’s complaints about counsel’s representation. These complaints included lack of preparation and failure to make certain motions.
This court, rejecting the prosecution argument that no Marsden hearing was required because none was ever requested and there was nothing in the record “‘to suggest the trial court should have divined such an intent,’” held: “Indisputably, the record shows [the defendant] instructed his counsel to move for a new trial largely on the basis of his counsel’s performance at trial and that his counsel so informed the trial court.… That was adequate to put the trial court on notice of the defendant’s request for a Marsden hearing. [Citation.]” (Mejía, supra, 159 Cal.App.4th at p. 1086.) Because the defendant “‘personally instructed his appointed trial counsel to file a motion for a new trial on the basis of incompetence of counsel,’” the trial court had an “‘imperative’ duty to elicit from ‘defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believe[d] he was inadequately represented at trial.’ [Citation.]” (Ibid.)
Thus, as in the instant case, in neither Eastman nor Mejía did the defendant explicitly make a Marsden motion. Nonetheless, in each case this court held that the trial court erred in failing to conduct a Marsden hearing because the defendant instructed his counsel to make a motion seeking to undo a conviction (a motion for a new trial in Mejía, a motion to withdraw a plea in Eastman) on grounds that amounted to ineffective assistance of counsel and provided some factual basis for that claim.
In the instant case, on May 23 appellant complained that counsel had failed to communicate with him about the case and that as a result appellant did not know what was “going on” with his case. Appellant stated he wanted to “fire” Mr. Bartlett. The court did not hold a Marsden hearing. On June 6, appellant reiterated his complaint that he did not know what was “going on” because his lawyer had not “come to see” him. When the court proposed a Marsden hearing in approximately 10 days if, at that time, appellant was still dissatisfied with Mr. Bartlett, appellant told the court “I don’t want him to represent me no more.” The court however, rather than conducting a Marsden hearing, indicated to appellant that his choice was either to hire his own attorney or represent himself.
Thus appellant, by complaining that counsel failed to communicate with him, made a claim of what amounted to ineffective assistance of counsel. As in Eastman and Mejía, these complaints were sufficient to trigger the trial court’s obligation to conduct a Marsden hearing.
Moreover, the court’s error in failing to conduct a Marsden hearing was prejudicial. On the issue of prejudice, we find applicable the following statement from People v. Lewis (1978) 20 Cal.3d 496, 499: “Was the error prejudicial? ‘There can be no doubt it was. On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. 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 judge’s denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant’s conviction.’ [Citations.]”
We turn now to the question of whether the prejudicial error in the instant case requires outright reversal. In People v. Minor (1980) 104 Cal.App.3d 194 (Minor), an alternative to outright reversal for Marsden error was adopted. In that case, the court found error under Marsden in the trial court’s failure to inquire into a defendant’s reasons for requesting the appointment of different counsel. The court stated, “In its disposition of a criminal case the appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from. The court ‘may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances’ (Pen. Code, § 1260).… But when the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment, appellate courts have, in several instances, directed the trial court to take evidence, resolve the pending question, and take further proceedings giving effect to the determination thus made.” (Minor, at p. 199.) The court held, “The trial record is free of error and there is no indication in the record of inadequacy on the part of trial counsel. The only infirmity in the judgment is the pretrial Marsden error discussed above. The question whether good cause existed for appointing new counsel can now be resolved at a hearing in which appellant can be given an opportunity to state his reasons for wanting to have new counsel appointed.” (Id. at p. 200.)
The Minor court reversed for Marsden error, but directed the trial court to conduct a posttrial Marsden hearing. The appellate court directed the trial court to order a new trial if it determined that good cause for appointment of new counsel had been shown, or to reinstate the verdict if it found that good cause had not been established. (Minor, supra, 104 Cal.App.3d at p. 200.) The Minor remedy for Marsden error has been cited with approval by the Supreme Court (People v. Hall (1983) 35 Cal.3d 161, 170) and has been followed by this court in People v. Maese (1985) 168 Cal.App.3d 803, 808-810.
We believe the Minor remedy is appropriate in the instant case.
Prior Serious Felony Enhancements
As indicated above, it was alleged in the information that appellant had suffered three prior serious felony convictions within the meaning of section 667(a); appellant admitted these allegations; and the court imposed sentence on one of them and purported to stay “all the other enhancements.” However, the imposition of the five-year enhancement required by section 667(a) is mandatory. (People v. Ayon (1996) 46 Cal.App.4th 385, 395 (Ayon), disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see also People v. Purata (1996) 42 Cal.App.4th 489, 498.) A trial court lacks discretion to stay or strike the prior serious felony enhancement under section 667(a). (People v. Askey (1996) 49 Cal.App.4th 381, 389.) The failure to impose the mandatory prior serious felony enhancement results in an unauthorized sentence. (Ayon, at pp. 395-396 & fn. 7.)
We note further that, when applicable, section 667(a) mandates the imposition of a five-year enhancement for each prior serious felony conviction “on charges brought and tried separately.” (§ 667, subd. (a)(1); see also Ayon, supra, 46 Cal.App.4th at p. 395.) Here, two of the section 667(a) enhancements appellant admitted were based on appellant’s convictions of two counts of first degree burglary in the same 1999 case, viz., Tulare County Superior Court case No. 33559. Thus, appellant is subject to two, not three, section 667(a) enhancements.
If, following remand, the judgment is reinstated, appellant must be resentenced consistent with the foregoing.
We advised the parties, pursuant to Government Code section 68081, that we proposed to direct the court to resentence appellant for the reasons set forth above in the event of reversal followed by reinstatement of judgment, and we invited briefing on the issue. Neither part submitted supplemental briefing.
DISPOSITION
The judgment is reversed and the matter remanded with directions to the trial court to conduct a Marsden hearing with Mr. Bartlett, appellant’s appointed trial counsel. If the court determines that good cause for the discharge of appointed counsel has been shown, the court shall discharge appointed counsel and set the matter for retrial. In that event, if appellant requests the appointment of substitute counsel, the court shall appoint substitute counsel. Appellant may also proceed with retained counsel. If the court determines that good cause for the discharge of appointed counsel has not been shown, it shall reinstate the judgment. In the event judgment is reinstated, the court shall resentence appellant consistent with the views set forth in this opinion.