Court: Superior County: Tulare Judge: Juliet L. Boccone Ct.App. 5 F057147 Super. Ct. No. PCF204260A, VCF166696A, and VCF180279
The opinion of the court was delivered by: Chin, J.
In this case we consider under what circumstances a trial court is obligated to conduct a hearing on whether to discharge counsel and appoint new counsel when a criminal defendant indicates a desire to withdraw a guilty or no contest plea on the ground that current counsel has provided ineffective assistance. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We conclude a trial court must conduct such a Marsden hearing only when there is at least some clear indication by the defendant, either personally or through counsel, that defendant wants a substitute attorney. We additionally hold that, if a defendant requests substitute counsel and makes a showing during a Marsden hearing that the right to counsel has been substantially impaired, substitute counsel must be appointed as attorney of record for all purposes. In so holding, we specifically disapprove of the procedure of appointing substitute or "conflict" counsel solely to evaluate a defendant's complaint that his attorney acted incompetently with respect to advice regarding the entry of a guilty or no contest plea.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2008,*fn1 Lindsay police officers responded to a house to investigate a 911 hang-up call and were told by defendant Luis Oscar Sanchez that he had dialed 911 accidentally. The officers searched the house to ensure that no one there needed assistance. Detecting a strong odor of marijuana in one room, the officers looked in that room's closet and discovered four marijuana plants growing inside.*fn2 Defendant was arrested and charged with cultivation of marijuana (Health & Saf. Code, § 11358), in case No. PCF204260A. The complaint in that case also alleged that defendant came within the "Two Strikes" law as a result of a prior attempted first degree murder. (Pen. Code, §§ 459, 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
On October 28, defendant appeared in the trial court represented by Deputy Public Defender Nathan Leedy. Pursuant to a plea bargain that promised him a stipulated term of "32 months in state prison," defendant pleaded guilty to cultivation of marijuana, and admitted having suffered a prior conviction and having violated probation in two other cases. Before entering his plea, defendant told the trial court that he had given his attorney all the information he had about his case, he was advised of his possible defenses, and that he was satisfied with his attorney's advice. Leedy informed the trial court he had thoroughly discussed with defendant his rights, defenses and possible consequences of his plea, and that, in Leedy's judgment, defendant understood his rights. Leedy added that, while he personally did not agree with defendant's decision to change his plea to guilty, he agreed with everything defendant and the court had stated on the record regarding the required advisements.
On December 2, the initial date set for sentencing, Deputy Public Defender Tony Dell'Anno told the trial court that defendant "wishe[d] to have the Public Defender explore having his plea withdrawn." The trial court then asked, "Is this something that you can do or do I need to appoint conflict counsel?" Dell'Anno responded by saying it was his understanding that "conflict counsel cannot be appointed until a Marsden [hearing is] held where the Court would find that [the public defender's office] did not give competent advice before [declaring a] conflict." Dell'Anno then stated his belief that "at this point [the public defender's office] need[s] to check out any issues for possible withdrawal ourselves." The court agreed to give Dell'Anno a week "to let me know whether or not conflict counsel needs to be appointed . . . or [whether] you need to file a motion on his behalf as his representative."
At the December 9 hearing, a different public defender, Kimberly Barnett, appeared and indicated that defendant was present and that conflict counsel needed to be appointed. The trial court responded, "We had discussed you were looking into conflict [counsel] needing to be appointed if you wanted to do a motion to withdraw his plea. Your assessment is that it's necessary, so what I am going to do is . . . appoint conflict counsel for the sole purpose of looking into the motion to withdraw his plea."
After defendant waived time for his sentencing to give the newly appointed attorney time to explore why defendant wanted to withdraw his plea, the trial court set December 30 for a hearing on the motion. The court then told defendant, "In the interim I have appointed conflict counsel and they will contact you. When they contact you, you give them all the reasons why you think you should be able to withdraw your plea. They will give you some advice about that."
On December 30, defendant appeared in the trial court with both Wes Hamilton, the private attorney appointed to look into the motion to withdraw defendant's plea, and Deputy Public Defender Leedy. Hamilton told the court that defendant "wants a trial on his case," that he is "adamant he wants to withdraw his plea but I don't [find] a legal basis" for him to do so. Next, speaking directly to Deputy Public Defender Leedy, the court said, "All right, [defendant] is on for sentencing so it goes back to you representing him." The trial court then continued the matter for sentencing at Leedy's request.
At the January 2, 2009 sentencing hearing, Deputy Public Defender Leedy appeared with defendant. When asked by the trial court whether there is "any legal cause why sentencing cannot take place," Leedy told the court that defendant "is still in the position that he would like to withdraw his plea," but added, "I understand he's had conflict counsel appointed to evaluate that." In response, the court noted that Attorney Hamilton did "an evaluation" and did not find "any basis or grounds for plea withdrawal." The trial court then sentenced defendant to the agreed-upon term of 32 months.
The Court of Appeal held "the trial court's duty to conduct a Marsden hearing was triggered by defense counsel's request for appointment of substitute counsel to investigate the filing of a motion to withdraw [the] plea on [defendant's] behalf" based on "alleged incompetence of counsel." It also concluded the trial court erred "by appointing substitute counsel without a proper showing and by reappointing the public defender's office to represent [defendant] after substitute counsel announced his conclusion that there was no basis for filing a motion to withdraw [the] plea on [defendant's] behalf." The Court of Appeal emphasized that "[t]he proper procedure does not include the appointment of 'conflict' or 'substitute' counsel to investigate or evaluate the defendant's proposed new trial or plea withdrawal motion." It reversed the judgment and remanded the matter with directions concerning how the trial court should conduct a hearing on defendant's Marsden motion concerning his representation by the public defender's office.
We granted the Attorney General's petition ...