People v. Sanchez

Filed 12/5/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S188453

v. )

) Ct.App. 5 F057147

LUIS OSCAR SANCHEZ, )

) Tulare County

Defendant and Appellant. ) Super. Ct. No. PCF204260A,

) VCF166696A,

) and VCF180279

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.

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I. FACTUAL AND PROCEDURAL BACKGROUND

On May 10, 2008,1 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.2 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

1 All subsequent dates refer to the year 2008 unless otherwise noted.

2 The statement of facts is taken from the probation report filed in case No.

PCF204260A. The facts underlying defendant‟s two other cases are not relevant

to the issue before us.

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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.”

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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

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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 for review.

II. DISCUSSION

In California, the “seminal case regarding the appointment of substitute

counsel is Marsden, supra, 2 Cal.3d 118, which gave birth to the term of art, a

„Marsden motion.‟ ” (People v. Smith (1993) 6 Cal.4th 684, 690 (Smith).)

In Marsden, the defendant contended he was “deprived of his constitutional

right to the effective assistance of counsel because the trial court denied his

motion to substitute new counsel without giving him an opportunity to state the

reasons for his request.” (Marsden, supra, 2 Cal.3d at p. 120.) The defendant told

the trial court he did not believe he was “ „getting adequately represented or

competently represented‟ ” during his jury trial, and he expressed his belief that

the “ „court‟s transcript prior to this meeting here can reveal that fact.‟ ” (Id. at p.

121.) Accordingly, the defendant asked to make a motion for substitution of “

„proper counsel.‟ ” (Ibid.) In evaluating the motion to substitute counsel, the trial

court refused the defendant‟s request to “ „bring up some specific instances‟ ” of

ineffective assistance. (Id. at p. 122.)

We 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, citing Gideon v. Wainwright

(1963) 372 U.S. 335.) We explained 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,” that “a defendant has no

absolute right to more than one appointed attorney,” and that a trial court is not

bound to accede to a request for substitute counsel unless the defendant makes a

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“ „ “sufficient showing . . . that the right to the assistance of counsel would be

substantially impaired” ‟ ” if the original attorney continued to represent the

defendant. (Marsden, at p. 123.)

In holding the defendant was denied a fair trial because he was not given

the opportunity to tell the trial judge the reasons underlying his belief that his

appointed attorney was providing ineffective assistance of counsel, we noted that

“although defendant was represented by counsel, he was groping for the proper

manner in which to demonstrate the alleged lack of competence of his attorney,”

and that the judge was only being called upon “to listen to defendant‟s reasons for

requesting different counsel.” (Marsden, supra, 2 Cal.3d at p. 126.)

In Marsden, we 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.”

(Marsden, supra, 2 Cal.3d at p. 124.) We found the error prejudicial in Marsden

because, in that case, we could not “conclude beyond a reasonable doubt that this

denial of the effective assistance of counsel did not contribute to the defendant‟s

conviction.” (Id. at p. 126.)

In People v. Lucky (1988) 45 Cal.3d 259 (Lucky), the defendant contended

the trial court erred by continuing trial proceedings “without giving him the

opportunity to state the specific reasons for his „conflict‟ with appointed counsel.

Specifically he contend[ed] that when appointed counsel . . . informed the court

that defendant was considering the idea of retaining private counsel in lieu of [his

appointed counsel], the court had a duty under . . . Marsden . . . to give defendant

an opportunity to state fully the grounds for his dissatisfaction with appointed

counsel.” (Id. at p. 280.) We held “a trial court‟s duty to permit a defendant to

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state his reasons for dissatisfaction with his attorney arises when the defendant in

some manner moves to discharge his current counsel.” (Id. at p. 281, italics

added.) By footnote, we explained that “[w]e do not necessarily require a proper

and formal legal motion, but at least some clear indication by defendant that he

wants a substitute attorney.” (Ibid., fn. 8.) In Lucky, we found nothing in the

record that revealed such an indication by the defendant. (Id. at p. 283.)

In Smith, supra, 6 Cal.4th 684, this court held that when a defendant

requests substitute counsel, “the standard expressed in Marsden and its progeny

applies equally preconviction and postconviction. . . . A defendant has no greater

right to substitute counsel at the later stage than the earlier.” (Id. at p. 694.) We

explained: “It is the very nature of a Marsden motion, at whatever stage it is

made, that the trial court must determine whether counsel has been providing

competent representation. Whenever the motion is made, the inquiry is forward-

looking in the sense that counsel would be substituted in order to provide effective

assistance in the future. But the decision must always be based on what has

happened in the past. The further one is in the process, the more counsel has done

in the past that can be challenged, but that is a difference of degree, not kind.” (Id.

at pp. 694-695.)

In Smith, we noted that “[a]ppointment of counsel for the purpose of

arguing that previous counsel was incompetent, without an adequate showing by

defendant, can have undesirable consequences.” (Smith, supra, 6 Cal.4th at p.

695, italics added.) As an example of such undesirable consequences, we cited

People v. Makabali (1993) 14 Cal.App.4th 847. We noted that, in Makabali, the

“the trial court appointed second counsel to investigate a possible motion to

withdraw a guilty plea on the basis of ineffective assistance of counsel. New

counsel did not make the motion. On appeal, appointed appellate counsel, i.e., the

third attorney, claimed (unsuccessfully) that the second was incompetent for not

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claiming the first was incompetent.” (Smith, at p. 695.) Thereafter, the original

attorney in Makabali, who was “apparently not relieved of further representation

of the defendant[,] . . . represented the defendant at sentencing, after the second

attorney did not move to withdraw the plea.” (Smith, at p. 695.) In Smith, we

criticized the appointment of a “series of attorneys . . . at public expense whose

sole job, or at least a major portion of whose job, is to claim the previous attorney

was, or previous attorneys were, incompetent” and found no “authority supporting

the appointment of simultaneous and independent, but potentially rival, attorneys

to represent defendant.” (Ibid.)

We concluded that “[w]hen a Marsden motion is granted, new counsel is

substituted for all purposes in place of the original attorney, who is then relieved

of further representation. If the Marsden motion is denied, at whatever stage of

the proceeding, the defendant is not entitled to another attorney who would act in

effect as a watchdog over the first. [¶] We stress, therefore, that the trial court

should appoint substitute counsel when a proper showing has been made at any

stage. . . . [W]hen a defendant satisfies the trial court that adequate grounds exist,

substitute counsel should be appointed. Substitute counsel could then investigate a

possible motion to withdraw the plea or a motion for new trial based upon alleged

ineffective assistance of counsel. Whether, after such appointment, any particular

motion should actually be made will, of course, be determined by the new

attorney.” (Smith, supra, 6 Cal.4th at pp. 695-696.)

In Smith, we noted that “it is difficult for counsel to argue his or her own

incompetence” (Smith, supra, 6 Cal.4th at p. 694), but we neither suggested it is

impossible for counsel to do so nor that a trial court should presume a defendant is

requesting substitute counsel without at least some indication that he or she wants

to be represented by counsel other than the current appointed attorney.

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Instead, our holding was that “substitute counsel should be appointed

when . . . necessary under the Marsden standard, that is whenever, in the exercise

of its discretion, the court finds that the defendant has shown that a failure to

replace the appointed attorney would substantially impair the right to assistance of

counsel (People v. Webster [(1991)] 54 Cal.3d [411,] 435), or, stated slightly

differently, if the record shows that the first appointed attorney is not providing

adequate representation or that the defendant and the attorney have become

embroiled in such an irreconcilable conflict that ineffective representation is likely

to result (People v. Crandell [(1988)] 46 Cal.3d [833,] 854).” (Smith, supra, 6

Cal.4th at p. 696.)

As the Court of Appeal in the present case appropriately noted, “[d]efense

counsel, like the trial courts, should abandon their reliance on counsel specially

appointed to do the trial court‟s job of evaluating the defendant‟s assertions of

incompetence of counsel and deciding the defendant‟s new trial or plea

withdrawal motion. (See [People v.] Eastman [(2007)] 146 Cal.App.4th [668,]

697 [„the court cannot abandon its own constitutional and statutory obligations to

make the ultimate determination itself based upon the relevant facts and law of

which the court is made aware by some legally sanctioned procedure‟].)” The

Court of Appeal aptly concluded 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.”

We conclude that a trial court is obligated to conduct a Marsden hearing on

whether to discharge counsel for all purposes and appoint new counsel when a

criminal defendant indicates after conviction a desire to withdraw his plea on the

ground that his current counsel provided ineffective assistance only when there is

“at least some clear indication by defendant,” either personally or through his

current counsel, that defendant “wants a substitute attorney.” (Lucky, supra, 45

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Cal.3d at p. 281, fn. 8.) We additionally hold that, at any time during criminal

proceedings, if a defendant requests substitute counsel, the trial court is obligated,

pursuant to our holding in Marsden, to give the defendant an opportunity to state

any grounds for dissatisfaction with the current appointed attorney. (Marsden,

supra, 2 Cal.3d at p. 126.)3 In turn, if the defendant makes a showing during a

Marsden hearing that his right to counsel has been “substantially impaired”

(Marsden, supra, 2 Cal.3d at p. 123), substitute counsel must be appointed as

attorney of record for all purposes. (Smith, supra, 6 Cal.4th at pp. 695-696.) In so

holding, we specifically disapprove of the procedure adopted by the trial court in

this case, namely, the appointment of a substitute or “conflict” attorney solely to

evaluate whether a criminal defendant has a legal ground on which to move to

withdraw the plea on the basis of the current counsel‟s incompetence.

The People cite People v. Dickey (2005) 35 Cal.4th 884 (Dickey), in

support of their claim that a trial court may, in its discretion, “appoint additional,

special counsel for the limited purpose of exploring the prospect of moving to set

aside the conviction on a theory the conviction resulted from ineffective assistance

of counsel,” and that “[i]f special counsel makes no motion, or if a motion is made

3 The Court of Appeal therefore correctly concluded that “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 Sanchez‟s behalf.” However, the Fifth District Court of Appeal, in

the present case and in its earlier cases, People v. Eastman (2007) 146 Cal.App.4th

688, People v. Mejia (2008) 159 Cal.App.4th 1081, and People v. Mendez (2008)

161 Cal.App.4th 1362, incorrectly implied that a Marsden motion can be triggered

with something less than a clear indication by a defendant, either personally or

through current counsel, that the defendant “wants a substitute attorney.” (Lucky,

supra, 45 Cal.3d at p. 281, fn. 8.) Nonetheless, we shall affirm the judgment of

the Court of Appeal because we agree with its disposition of defendant Sanchez‟s

case.

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but denied, special counsel‟s duties end, and proceedings continue with defendant

represented by original counsel.” Dickey does not stand for that proposition.

In Dickey, the defendant contended that “following the guilt phase of the

trial, he sought to make a motion for the appointment of different counsel to assist

him in the penalty phase, and the court, without conducting the hearing required

by Marsden, prejudicially erred by declining to rule on his motion until the penalty

phase was concluded.” (Dickey, supra, 35 Cal.4th at p. 918.)

This court concluded the defendant in Dickey mischaracterized his trial

motion as a motion for substitute counsel during the penalty phase. We agreed

with the Attorney General that the defendant instead had moved “for the

appointment of separate counsel for the purposes of preparing a motion for a new

trial based on, among other grounds, incompetence of counsel during the guilt

phase.” (Dickey, supra, 35 Cal.4th at p. 918.) The trial court explained to the

defendant that a motion for new trial is appropriate before sentencing, and, at the

completion of the penalty phase, the court did appoint separate counsel to assist

the defendant in the preparation of a motion for new trial. That motion was filed,

and it was based in part on the ground that the defendant‟s trial counsel was

ineffective during the guilt phase and that the trial court had erred by failing to

conduct a Marsden hearing following the guilt phase. (Id. at p. 920.) In denying

the motion, the trial court clarified that it was aware a Marsden motion may be

made and heard “ „at any stage of the proceedings,‟ ” but then held “ „there was no

reason to have a Marsden hearing at the time. It was not asked for.‟ ” (Ibid.)

In concluding the trial court did not commit Marsden error, we reiterated

that “ „ “[a]lthough no formal motion is necessary, there must be „at least some

clear indication by defendant that he wants a substitute attorney.‟ ” [Citations.]‟

[Citation.]” (Dickey, supra, 35 Cal.4th at p. 920.) In Dickey, the defendant “did

not clearly indicate he wanted substitute counsel appointed for the penalty phase.

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To the extent he made his wishes known, he wanted to use counsel‟s assertedly

incompetent performance in the guilt phase as one of the bases of a motion for

new trial, and he wanted to have separate counsel appointed to represent him in

the preparation of such a motion. As his expressed wishes were honored, he has

no grounds for complaint now.” (Id. at pp. 920-921.)

Dickey is distinguishable from the instant case. The defendant in Dickey

expressed the desire to have a substitute counsel represent him at a future

proceeding, namely, an anticipated motion for new trial, that would not take place

until the completion of the penalty phase. The defendant in Dickey voiced no

objection to having his current attorney represent him at the penalty phase and,

unlike the present case, did not seek to discharge his current attorney. Having

concluded that the defendant in Dickey did not make a motion for substitute

counsel to represent him in the penalty phase, we characterized the trial court‟s

references to Marsden as “confused and confusing.” (Dickey, supra, 35 Cal.4th at

p. 918.) Here, by contrast, defendant, through counsel, requested that a “conflict”

or substitute attorney be appointed immediately, and the obvious implicit ground

for that request was the incompetency of defendant‟s currently appointed counsel.

The People also rely on our recent decision in People v. Clark (2011) 52

Cal.4th 856 (Clark). In Clark, the trial court conducted several pretrial Marsden

hearings, each time listening to the defendant‟s complaints about his lead attorney

and to her responses, and then denied the motions. The trial court previously had

denied the defendant‟s request to have appointed independent counsel to assist

him in discharging his attorneys, but it then reversed itself during a midtrial

Marsden motion and agreed to appoint “independent counsel” to represent

defendant at his latest Marsden hearing. (Id. at p. 914.) We held that although we

have warned that such appointments may cause delay and may damage the

attorney-client relationship, the trial court did not abuse its discretion under the

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circumstances of that case. (Id. at p. 917.) Clark provides no guidance on the

issue presented here because the procedural context is entirely different. In Clark,

the trial court, after conducting several Marsden hearings, appointed independent

counsel to assist defendant with his Marsden motion “just to make sure every

possible point will be brought forth that legally can be brought forth.” (Ibid.) In

the present case, the trial court appointed substitute counsel to represent defendant

on a motion to withdraw his plea in lieu of conducting a Marsden hearing — in

effect, granting the defendant‟s Marsden motion without conducting the required

hearing.

In the present case, we agree with the Court of Appeal that the trial court

erred by failing to hold a hearing on defendant‟s informal Marsden motion

concerning his representation by the public defender‟s office, by appointing

substitute counsel without a sufficient showing that failure to appoint substitute

counsel would substantially impair or deny defendant‟s right to assistance of

counsel, and by appointing substitute counsel for the limited purpose of evaluating

defendant‟s reasons for wanting to withdraw his plea rather than appointing

substitute counsel for all purposes.

As noted above, we held in Marsden that it was prejudicial 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” (Marsden, supra, 2 Cal.3d at p. 124), and, in that case, we could not

“conclude beyond a reasonable doubt that this denial of the effective assistance of

counsel did not contribute to the defendant‟s conviction.” (Id. at p. 126.)

In the present case, the Court of Appeal reversed the judgment of the trial

court and remanded the matter to that court with the following directions: “(1)

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the court shall hold a hearing on [defendant]‟s Marsden motion concerning his

representation by the public defender‟s office; (2) if the court finds that

[defendant] has shown that a failure to replace his appointed attorney would

substantially impair his right to assistance of counsel, the court shall appoint new

counsel to represent him and shall entertain such applications as newly appointed

counsel may make; and (3) if newly appointed counsel makes no motions, any

motions made are denied, or [defendant]‟s Marsden motion is denied, the court

shall reinstate the judgment.” We believe this is the proper disposition.

III. DISPOSITION

We affirm the judgment of the Court of Appeal.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sanchez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 189 Cal.App.4th 374

Rehearing Granted

__________________________________________________________________________________

Opinion No. S188453

Date Filed: December 5, 2011

__________________________________________________________________________________

Court: Superior

County: Tulare

Judge: Juliet L. Boccone

__________________________________________________________________________________

Counsel:

Diane Nichols, under appointment by the Supreme Court, and Eleanor M. Kraft, under appointment by the

Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Brian G. Smiley,

David Andrew Eldridge and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Diane Nichols

P.O. box 2194

Grass Valley, CA 95945

(530) 477-8448

David Andrew Eldridge

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 324-6291