P. v. Heard

Filed 6/1/07 P. v. Heard CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant John Heard comes before us a second time to appeal his case. In the first appeal, defendant asserted that he requested a Marsden^[1] motion at the sentencing hearing, and the trial court failed to hold such hearing or even address defendants request. We reviewed the transcript of the sentencing hearing, and deemed it to be ambiguous whether defendant in fact made such request. As a result, we remanded the matter to the trial court for it to make such determination. Our disposition provided that in the event defendant did make a request for a Marsden hearing, the trial court needed to hold such hearing, and if required, appoint a new attorney for defendant. However, if the court determined that such request was not made, the original judgment was to be reinstated. (People v. Heard, (Feb. 14, 2006, H027023) [nonpub. opn.].)

Pursuant to our opinion in the original appeal, the trial court held a hearing to determine whether defendant made a request for a Marsden hearing at his sentencing. Although defendants original attorney and the prosecutor were present, defendant was not. The trial court reviewed the transcript and determined defendant had not requested the Marsden hearing, and reinstated the judgment.

Defendant now appeals a second time, asserting the failure to ensure his presence at the hearing to determine whether he requested a Marsden was a violation of his federal and state constitutional rights to be present at a critical stage.

Statement of the Case[2]

Following the disposition in the original appeal, on May 11, 2006, this case was before the trial court for a determination of whether defendant had requested a Marsden hearing at his sentencing. At the hearing after remand, defendants attorney who represented him in the original case, as well as the prosecutor were present. Defendant was not present. The trial court indicated it reviewed the transcript from the original sentencing hearing, and defendants attorney submitted the matter without comment. The trial court stated that the reference in the transcript of a defendant requesting a Marsden motion was not defendant, but another defendant who was in the courtroom at the time who had made a comment that was picked up by the court reporter. The trial court also observed that defendants attorney continued to represent him in other matters after the sentencing in the current case.

Based upon its review of the transcript alone, the trial court determined that defendant had not requested a Marsden motion at his sentencing hearing, and the original judgment was reinstated.

Defendant now appeals the trial courts determination, asserting he should have been present for the hearing, and been able to respond to the inquiry regarding the Marsden motion.

Discussion

The issue in this appeal is whether defendant should have been personally present for the hearing to determine whether he requested a Marsden motion at his original sentencing hearing.

Defendant argues the courts failure to ensure his presence at the hearing to determine if he made a request for a Marsden motion at his sentencing hearing violated his right to be personally present at every stage under the Sixth and Fourteenth Amendments of the federal Constitution and under article I, section 15 of the state Constitution. He further argues this error is structural and the judgment is reversible per se. In the alternative, defendant asserts the error was not harmless beyond a reasonable doubt. Additionally, he argues his trial counsel was ineffective for failing to ensure his presence at the hearing.

A criminal defendants right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. (People v. Hines (1997) 15 Cal.4th 997, 1038-1039.) However, a defendant does not have a right to be present at every hearing held in the course of a trial. During trial, a defendant is not entitled to be personally present at the courts discussions with counsel occurring outside the jurys presence on questions of law or other matters unless the defendant's presence bears a reasonable and substantial relation to a full opportunity to defend against the charges. [Citation.] A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that personal presence could have substantially benefited the defense. [Citation.] (People v. Price (1991)1 Cal.4th 324, 407-408.)

Here, there is no question defendant should have been present at the hearing to determine if he requested a Marsden motion. Rather than hear from defendant directly, the trial court chose to review the transcript from the sentencing hearing, and determined that defendant had not requested a Marsden. However, this is the very same transcript wereviewed in the first appeal, and found to be too ambiguous to make a determination.

Indeed, the opinion in the first appeal states as follows regarding the ambiguity of the sentencing hearing transcript:

In this case, we note that in the reporters transcript of defendants sentencing hearing on November 26, 2003, defendant is referred to specifically as THE DEFENDANT. However, the actual Marsden invocation occurs directly after a notation in the transcript stating WHEREUPON OTHER MATTERS WERE HEARD, and refers to the speaker as A DEFENDANT, rather than THE DEFENDANT, as defendant was referred to in all other places in the transcript.

We find the transcripts varying references of THE DEFENDANT and A DEFENDANT at the time of the Marsden request particularly curious in light of the fact that after the request was made, not a single participant in defendants sentencing proceeding, including the trial judge, defense counsel or the prosecutor made any acknowledgment of the request. This combination of varying reference and lack of acknowledgment leads us to have significant doubt that defendant actually made the request for the Marsden hearing.

In light of our doubt as to whether defendant made the Marsden request, we see no other recourse than to remand the matter to the trial court. (People v. Heard, supra, at pp. 3-4, fn. omitted [nonpub. opn.].)

In remanding the matter to the trial court to determine if defendant requested a Marsden motion at his sentencing hearing, we intended that the ambiguity of the transcript be resolved. We did not remand the matter for the trial court to review a transcript we ourselves reviewed and determined to be ambiguous on the issue.

It is clear the only person in this case who could shed light on this issue is defendant himself. By not having defendant personally present at the remand hearing, the court erred.

Because this was an error in failing to ensure defendants present, it is evaluated by the harmless beyond a reasonably doubt standard. (People v. Davis (2005) 36 Cal.4th 510, 532, Chapman v. California (1967) 386 U.S. 18, 23.) Here, without question, the trial courts error is not harmless beyond a reasonable doubt. As discussed above, defendants presence was critical to resolve the ambiguity in the transcript and make a final determination of whether defendant had requested a Marsden motion.

Disposition

The judgment is reversed and the matter is remanded to the trial court to determine if defendant actually requested a Marsden hearing at his November 26, 2003 sentencing.

The trial court shall hold a hearing to determine if defendant requested a Marsden hearing. Defendant shall be personally present at the hearing.

If the trial court finds defendant did request a Marsden hearing at his

November 26, 2003 sentencing, the trial court shall conduct such hearing. If the trial court conducts a Marsden hearing and determines that appointment of substitute counsel is not required, the original judgment shall be reinstated and affirmed. Should the trial court find that substitute counsel is required, the court is directed to appoint substitute counsel and proceed accordingly.

In addition, if the trial court finds defendant did not make a request for a Marsden hearing at his sentencing, the original judgment shall be reinstated and affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1]People v. Marsden (1970) 2 Cal.3d 118.

[2] We omit the underlying facts of this case, because they are not relevant to the appeal.