IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

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1 Filed 11/22/10 P. v. Muhammad CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. RAHIM MUHAMMAD, Defendant and Appellant. A (Solano County Super. Ct. No. VCR & VCR ) At the commencement of a hearing on whether to revoke his probation, appellant Rahim Muhammad s counsel informed the court that his client wants to do a Marsden motion. The court denied the motion on the ground it was untimely. Appellant's probation was revoked and he was subsequently sentenced to state prison for two years on the underlying felony offense of unlawful driving of a vehicle (Veh. Code, 10851, subd. (a)) and an eight-month consecutive term for the felony offense of stalking (Pen. Code, 646.9, subd. (a)). Appellant claims the court s denial of the motion without conducting the hearing mandated by People v. Marsden (1970) 2 Cal.3d 118 (Marsden) violates his Sixth Amendment right to the effective assistance of counsel and requires reversal. We agree and shall therefore remand the case with instructions to conduct the requisite hearing. FACTS AND PROCEEDINGS BELOW Appellant was charged under separate criminal complaints, both filed in May In Solano County Superior Court case No. VCR , the district attorney 1

2 alleged that appellant had committed the felony offenses of unlawfully driving a vehicle and evading an officer (Veh. Code, 10851, subd. (a), , subd. (a)) and the misdemeanor offenses of hit and run driving and resisting a peace officer (Veh. Code, 20002, subd. (a); Pen. Code, 148, subd. (a)(1)). Appellant pleaded nolo contendere to the unlawful driving of an automobile and the three remaining charges were dismissed. In Solano County Superior Court case No. VCR , the complaint charged appellant with the felony offense of stalking (Pen. Code, 646.9, subd. (a)), and appellant also pleaded nolo contendere to this charge. Sentencing in both cases took place on October 26, Appellant was sentenced to state prison, the sentence was suspended, and he was placed on probation for three years. Among the conditions were that appellant was required to enter a treatment program and prohibited from uninvited contact with S.P., the victim of the stalking offense, who was protected by a restraining order. Appellant s probation was revoked on November 25, 2009, on the grounds he failed to successfully complete his treatment program and had contact with S.P. in violation of the restraining order. Appellant denied both allegations. A formal revocation hearing regarding both cases was held on December 15, At the close of that hearing, appellant s probation was revoked in both cases on the ground that he failed to complete his treatment program; the court found he had not violated the restraining order. Appellant was, on January 27, 2010, sentenced to two years eight months in state prison, the sentence that had earlier been suspended. The only facts pertinent to this appeal are those relating to the denial of appellant s Marsden motion at the revocation hearing conducted on December 15, At the commencement of the hearing, the following colloquy took place among defense counsel, Marc Tirrell, the trial judge, appellant, and the prosecutor, Jack Allen: MR. TIRRELL:... Your Honor, Mr. Muhammad has just given a letter to me, which I haven t read. Apparently he wants to submit it to the Court. He s indicating to me he s not ready to proceed today, so 2

3 THE COURT: His readiness is not, um, um, you know, we set this MR. TIRRELL: He s indicating to me THE COURT: His lawyer on the 8th of December [sic], we short-set it for him and the People, who have subpoenaed witnesses to be here today, my recollection is, correct? So the People are ready to go. This is what you all asked for. Are you asking for a motion to continue, Mr. Tirrell? MR. TIRELL: He s indicating to me he wants to seek new counsel. I m assuming he wants to do a Marsden motion. THE COURT: I find that to be untimely, so that will be denied. People ready? MR. ALLEN: Yes. THE DEFENDANT: Well, I would like THE COURT: Anything else? THE DEFENDANT: Yes, sir. THE COURT: What else? THE DEFENDANT: You know, I talked to my attorney already, and over the phone last Friday regarding this matter. I just saw him last night before we came up here, and for my indication of what s going on here, you know, we he already told me that, um, that, you are going to find me guilty. THE COURT: We have a hearing set, sir. I haven t reached that point. THE DEFENDANT: I m just telling you what my attorney is telling me. Also, that you you are not going to reinstate me. You are going to send me to prison, and that if I don t want to, um, and if, um, and then I told him, Well, I spoke with the other attorneys already, and he told me, Well, you need to get new attorneys or have your family in there, put the money together and go get them. So I m like this: If I come up here, and my attorney is already telling me that I m not going to make it, man, I don t want him. I want a new attorney, man. 3

4 THE COURT: Well, I find your request for that new attorney at today s hearing untimely, so I m going to deny that. DISCUSSION Appellant s central argument is that, as a matter of law, a Marsden motion cannot be denied on the ground it was untimely, the court s failure to make the inquiry mandated by Marsden cannot be deemed harmless error, and, accordingly the judgment must be reversed. The Attorney General tacitly concedes, as he must, that Marsden motions are not subject to a timeliness requirement. Such motions must be considered even when made after conviction. (See, e.g., People v. Garcia (1991) 227 Cal.App.3d 1369; People v. Winbush (1988) 205 Cal.App.3d 987; People v. Stewart (1985) 171 Cal.App.3d 388; see also People v. Lopez (2008) 168 Cal.App.4th 801, 809, ) As our Supreme Court has said, [i]t 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. (People v. Smith (1993) 6 Cal.4th 684, ) The People s primary response is that appellant did not genuinely make a Marsden motion. According to the Attorney General, appellant simply indicated that he wanted to substitute in retained counsel, and as to that matter timeliness was an appropriate factor for the court to consider. 1 The contention that appellant did not really make a Marsden motion is based on a statement made by the court at the close of the December 15, 2009 hearing, after it revoked appellant s probation and was determining a date for the sentencing hearing. In 1 With respect to the timeliness of a motion to replace counsel with a privately retained attorney, the Attorney General cites People v. Ortiz (1990) 51 Cal.3d 975, 983, and People v. Turner (1992) 7 Cal.App.4th 913,

5 that context, the court noted that Mr. Rahim Muhammad may wish to hire private counsel for purposes of sentencing, so I will put that over to give him that opportunity, and why don t we come back in January? Defense counsel then observed, I think the Court was just sort of making an aside comment, that if Mr. Muhammad wants to hire private counsel, he could do so by then; is that what the Court was referring to? The court responded, Right. The Attorney General s argument is unavailing. First of all, defense counsel represented that appellant wished to make a Marsden motion and, at the time it denied the motion as untimely, the court never indicated that it treated the motion as anything else. 2 Moreover, even if the court reasonably understood that appellant wanted to and would be able to retain private counsel, and was merely requesting a continuance so he could do so, which is far from clear in the record, Marsden would still apply. The discharge of appointed counsel is subject to Marsden regardless whether the defendant wants to replace such counsel with another appointed attorney or with an attorney who is privately retained. 2 It is worth noting that appellant previously filed a Marsden motion to replace defense counsel Tirrell at the October 19, 2009 sentencing hearing that took place after appellant entered his pleas of nolo contendere. At the commencement of that hearing, Tirrell advised the court that appellant had told him that he wanted to do a Marsden motion. Advising appellant it didn t want to get into the details of his relationship with defense counsel in front of the district attorney, the court stated that [t]he only issue I thought... existed, was whether, one, your lawyer convinces me to give you probation, which I think is probably a mistake on my part. [ ] But nonetheless, I agree to do that. [ ] Now he says there are maybe some witnesses from out of state that you want to put on that he may want to put on, at your insistence, concerning what amount of county time I might give you on probation. After the court asked appellant whether he was agreeable to this happening and appellant answered that he was, the court asked, So do you still want to fire him? and appellant said no, adding that, I like Mr. Tirrell. He has enough experience. However, I want to make sure my interests is being represented to the fullest.... This interchange indicates that the trial court fully understood appellant was making a Marsden motion and persuaded him to withdraw it. 5

6 Nor are we persuaded by the Attorney General s alternative argument: that even if appellant made a Marsden motion, the court gave appellant an opportunity to express his concerns about his attorney. California courts have for many years and in legions of cases repeatedly emphasized the nature of the judicial inquiry required to be made when a defendant asserts the right to substitute counsel pursuant to Marsden. To take just several examples, People v. Hill (1983) 148 Cal.App.3d 744, states that the court must inquire on the record into the bases of defendant s complaints and afford him an opportunity to relate specific instances of his attorney s asserted inadequacy. (Id. at p. 753 (italics added), citing People v. Molina (1977) 74 Cal.App.3d 544, ; People v. Munoz (1974) 41 Cal.App.3d 62, 66; People v. Groce (1971) 18 Cal.App.3d 292, 297.) The Hill court additionally noted that, [d]epending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. (People v. Hill, at p. 753, citing People v. Young (1981) 118 Cal.App.3d 959, ; People v. Penrod (1980) 112 Cal.App.3d 738, 746; People v. Munoz, supra, 41 Cal.App.3d 62, 66; People v. Groce, supra, 18 Cal.App.3d 292, 297.) People v. Stewart, supra, 171 Cal.App.3d 388, underscores how imperative it is that the trial judge elicit from the defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believes he was inadequately represented at trial. (Id. at p. 395.) Again, in People v. Winbush, supra, 205 Cal.App.3d 987, the court emphasized that [o]nce the request for new counsel is made, the trial court s first duty is to fully explore with defendant, in open court or during an in camera session without the presence of the prosecutor, defendant s reasons for desiring new counsel. (Id. at p. 991.) The trial judge in this case, who expressed no interest in entertaining appellant s Marsden motion, did not elicit the bases of his complaint against defense counsel. After peremptorily denying the motion as untimely, the judge allowed appellant to explain that his attorney had indicated to him the hopelessness of his case, but the judge made no inquiry about whether appellant had any reason to think his counsel s attitude about the case would inhibit the quality of his representation. The judge never asked, for example, 6

7 whether counsel had refused a reasonable request from appellant to produce specific evidence or pursue a particular strategy. In short, there was no hearing on the bases, if any, of appellant s motion; nor, perforce, any exercise of discretion as to the effectiveness of counsel and the need for substitution. Indeed, after appellant s brief statement about his attorney s negative attitude, the trial judge simply reiterated his denial of the motion on the ground it was untimely. The final question is whether the error in the trial court was prejudicial to appellant. On the record before us we cannot ascertain that appellant had a meritorious claim, but that is not the test. Under Marsden, the error is reversible unless the record shows beyond a reasonable doubt that the error did not prejudice appellant. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18, 24.) As stated in People v. Eastman (2007) 146 Cal.App.4th 688, [b]ecause we do not know what [appellant] might have shown had he received a full hearing on his Marsden motion, we cannot say the error was harmless. (Id. at p. 697; see also People v. Mejia (2008) 159 Cal.App.4th 1081, 1087.) We appreciate the heavy pressures on trial judges sitting in busy criminal departments. The inquiry necessitated by Marsden is not really that burdensome, however, and considerably less onerous when discharged at the time it arises rather than on remand after reversal of the judgment. DISPOSITION The judgment is reversed and the matter is remanded with the following directions: (1) the court shall hold a hearing on appellant s Marsden motion concerning attorney Marc Tirrell; (2) if the court finds that appellant 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 or permit retained counsel to represent him and shall entertain such applications as newly appointed or retained counsel may make; and (3) if newly appointed or retained counsel makes no motions, any motions made are denied, or appellant s Marsden motion is denied, the court shall reinstate the judgment. 7

8 Kline, P.J. We concur: Lambden, J. Richman, J. 8