P. v. Lucero

Filed 4/17/07 P. v. Lucero CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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After defendant Stephen Gino Lucero, Jr., pleaded guilty to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), the court suspended execution of a prison sentence and placed him on formal probation, ordering him to attend Drug Court. Defendant made two motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the first of which was heard and denied, and the second of which was neither heard nor decided. When the trial court found defendant had violated his probation, the court sent defendant to prison.

Defendant contends on appeal that the court failed to ascertain the reasons for his second Marsden motion, rendering the probation violation finding and the resulting three-year prison sentence reversible per se. We remand for further proceedings.

Facts and Proceedings

Law enforcement officers stopped defendant for various traffic violations and found he was in possession of .18 grams of cocaine base. Defendant was arrested and charged with possession of a controlled substance (count 1), being under the influence of a controlled substance (count 2), driving under the influence of alcohol or drugs (count 3), driving under the influence of .08 or higher blood alcohol (count 4), driving without a license (count 5), and failure to provide evidence of financial responsibility (count 6), as well as two prior prison term allegations and a prior serious felony allegation.

As part of a negotiated plea agreement, defendant pleaded guilty to count 1 in exchange for dismissal of all remaining counts and allegations. In accordance with the plea agreement, the trial court sentenced defendant to three years in state prison. The court suspended execution of the sentence, placed defendant on five years formal probation, and ordered defendant to complete the Drug Court program.

Approximately five months later, the Drug Court filed a report of violation, alleging that defendant had been terminated from its program for noncompliance with the Drug Court contract, for failure to attend a Drug Court status hearing, for having been terminated at New Directions (a residential treatment facility), and for failure to contact Drug Court staff.

The court appointed Attorney David Atkinson to represent defendant for purposes of filing a motion to withdraw his plea. On December 2, 2005, Atkinson reported to the court that he could find no basis for a motion to withdraw the plea. Defendant requested, and the court conducted, a Marsden hearing to discharge him. The court denied the request.

Defendant made an oral motion to withdraw his guilty plea at a subsequent hearing, notwithstanding his attorneys prior conclusion. That motion was also denied. Atkinson was relieved as defendants counsel, having fulfilled his limited duties with respect to the motion to withdraw, and defendant requested appointment of another public defender for purposes of responding to the Drug Court report of violation.

At the next probation violation hearing, defendant was represented by public defender Janis Everett. Everett informed the court of defendants desire to appeal the denial of his motion to withdraw the plea, and further informed the court that the public defenders office would be unable to represent defendant in that regard due to the fact that it had represented him with respect to entry of the plea. When the court informed defendant that he would have to speak with Atkinson about a possible appeal because Everett cant do it, defendant requested a Marsden hearing, to which the court replied, Well hear it your next time in court.

The next hearing took place on January 3, 2006. The People offered evidence to support the alleged probation violations, and the hearing was continued to accommodate witness schedules. Defendants Marsden request was never mentioned.

At the continued hearing on January 17, 2006, defendant lodged his appeal of the denial of his motion to withdraw the guilty plea, and expressed several complaints regarding Everetts representation during the prior probation violation hearing, namely that she failed to meet with him or discuss the case with him. Noting that defendant had already raised a Marsden, which was denied, the court refused to discuss the matter further and proceeded with the probation violation hearing, after which it concluded defendant violated probation. The court terminated defendants probation and executed the three-year prison sentence previously imposed, minus applicable custody credits.

Defendant filed a timely notice of appeal.

Discussion

Defendant contends the trial court erred in denying him the opportunity to explain the basis for his Marsden request. We conclude that contention has merit.

Marsden holds that the trial court must afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel when he makes a request for the appointment of new counsel. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.) Defendant requested a Marsden hearing regarding Everetts representation at the December 18, 2005 hearing. He was told the matter would be heard [defendants] next time in court. Although defendants Marsden request was not discussed at the January 3, 2006 hearing, defendant raised the issue at the January 17, 2006 hearing when he attempted to explain the reasons for his dissatisfaction with Everett. The court interrupted and admonished him, saying, youre going back over an issue I already ruled on. In refusing to entertain defendants request to be heard on those complaints, it appears the court was acting under the erroneous impression that defendant was simply reiterating issues already addressed at the hearing on his first Marsden motion regarding Atkinsons representation. That was clearly not the case, as defendants complaints related not to Atkinson, but to his newly-appointed public defender, Everett. Defendant was entitled to an opportunity to explain the specific reasons he felt Everett was not adequately representing him. He was not given that opportunity.

Defendant contends that the courts failure to conduct the Marsden hearing requires reversal of the finding that he violated probation and the subsequent imposition of a three-year prison sentence. We disagree that the judgment must necessarily be finally reversed.

It is well settled that the erroneous failure to conduct a Marsden hearing does not necessarily require reversal of the judgment. [W]hen 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, the appropriate disposition is to reverse the judgment, remand to the trial court for a Marsden hearing, and then to reinstate the judgment if the Marsden motion is denied. (People v. Minor (1980) 104 Cal.App.3d 194, 199; approved in People v. Hall (1983) 35 Cal.3d 161, 170; followed in People v. Olivencia, supra, 204 Cal.App.3d at p. 1401, and People v. Maese (1985) 168 Cal.App.3d 803, 808-810.) Since there is no evidence in the record of Everetts incompetence, we therefore remand for a hearing to determine whether good cause existed for appointment of new counsel by allowing defendant an opportunity to state his reasons for wanting new counsel appointed. (People v. Minor, supra, 104 Cal.App.3d at p. 200.)

Disposition

The judgment is reversed with directions to the trial court to conduct a hearing at which defendant shall have a full opportunity to state his reasons for desiring replacement of Everett with new counsel. If, at the conclusion of such hearing, the court determines that defendant has shown good cause for appointment of new counsel, new counsel shall be appointed and a rehearing on the alleged probation violation conducted. If, on the other hand, the court determines

defendant has failed to show good cause for appointment of new counsel, it shall reinstate the judgment against defendant.

HULL, J.

We concur:

SIMS , Acting P.J.

NICHOLSON , J.

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