P. v. Mercado
Filed 10/17/13 P. v. Mercado CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICHARD MERCADO,
Defendant and
Appellant.
2d Crim. No.
B246129
(Super. Ct.
No. PA073781)
(Los
Angeles County)
Richard Mercado appeals
from a judgment of conviction upon a
plea of no contest to carrying a dirk or dagger (Pen. Code, § 21310)
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Mercado asserts the trial court erred when it
failed to hold a Marsden
counsel due to ineffective representation by his trial counsel. The Attorney General concedes the error based
on People v. Sanchez (2011) 53
Cal.4th 80 (Sanchez). We conditionally reverse and remand with
directions to the trial court to conduct a Marsden
hearing.
FACTS AND PROCEDURAL BACKGROUND
On May 25, 2012, police officers responded to
complaints of gang members selling narcotics at an intersection in Los
Angeles.
Mercado and a codefendant saw the officers and started walking
away. Mercado took a knife from his
pocket, threw it on the ground and began to run. Officers arrested him.
Mercado was charged with
carrying a dirk or dagger (§ 21310) and violating a
subd. (a)(9)).
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committed for the benefit of a criminal street gang (§ 186.22, subds.
(b)(1)(A), (d)), and that Mercado had four prior convictions (§ 667.5, subd.
(b)).
Before his arraignment,
Mercado's appointed counsel, Craig Renetzky, informed the trial court that
Mercado wished to represent himself.
Mercado confirmed that request and stated that he had represented
himself in an earlier proceeding. The
trial court explained that self-representation in criminal cases generally is a
mistake and noted that Renetzky is an experienced criminal attorney. Mercado responded that he had an issue with
his present representation. Interpreting
this as a request for a Marsden
hearing, the court asked the prosecutor to leave the courtroom. Following a Marsden hearing, the trial court denied Mercado's request for
substitute counsel.
When the arraignment
continued, the trial court discussed settlement options with the parties. Under a negotiated plea agreement, Mercado
pled no contest to carrying a dirk or dagger and admitted one of the criminal
street gang allegations. At Mercado's
request, the trial court postponed the sentencing
hearing.
Mercado subsequently
sent a handwritten letter to the trial court requesting substitute trial
counsel and withdrawal of his plea. He
stated he was "misadvised by counsel/prosecution as to the collateral
consequences of the plea," and did not fully understand that he was
pleading to a strike and gang enhancement.
Mercado asked the court to appoint new counsel or, alternatively, to
allow him to represent himself. The
trial court appointed a second attorney, Brent Merritt, "to investigate
and prepare the defendant's motion [to withdraw the plea]."
After completing his
evaluation of Mercado's case, Merritt informed the trial court that he believed
there were no grounds to move to withdraw the plea, and no such motion was
filed. The trial court excused Merritt and
proceeded with Renetzky as Mercado's counsel.
Pursuant to the plea agreement, the court sentenced Mercado to three
years four months in prison, consisting of the low term of sixteen months for
the violation of section 21310 (§ 1170, subd. (h)), plus two years for the criminal
street gang enhancement (§ 186.22, subd. (b)(1)(A)). The remaining count and allegations were
dismissed.
Mercado filed a timely
certificate of probable cause.
DISCUSSION
Mercado contends, and
the Attorney General concedes, the trial court erred in failing to conduct a
his desire to withdraw his plea and to obtain substitute counsel. In Sanchez,
the Supreme Court "specifically disapprove[d]" the practice of
appointing conflict counsel to investigate the competence of appointed trial
counsel, for purposes of deciding whether to proceed with a motion to withdraw
a plea. (53 Cal.4th at p. 90.) The court held 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 [if] there is 'at least some clear indication by defendant,' either
personally or through his current counsel, that defendant 'wants a substitute
attorney.' [Citation.]" (Id.
at pp. 89-90 & fn. 3.) "'[A]
trial court's duty to permit a defendant to state his reasons for
dissatisfaction with his attorney arises when
the defendant in some manner moves to discharge his current counsel.' [Citation.]" (Id.
at p. 87.)
Mercado specifically
requested, by letter to the trial court, that the court appoint substitute
counsel and allow him to withdraw his plea.
Among other things, he stated he was misadvised by his current trial
counsel as to the consequences of his plea.
Given this clear indication of Mercado's desire for a substitute
attorney, the trial court had a duty to conduct a Marsden hearing. (
84.) Its failure to do so requires us to
reverse and remand with the directions approved in Sanchez. (
DISPOSITION
The judgment is
conditionally reversed and the matter remanded with the following
directions: (1) the trial court shall
hold a hearing on Mercado's Marsden
motion concerning his representation by Renetzky; (2) if the court finds
Mercado 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 for all purposes and shall entertain such
applications as newly appointed counsel may make, including a motion to
withdraw the plea; and (3) if newly appointed counsel makes no motions, or any
motions made are denied, or Mercado's Marsden
motion is denied, the court shall reinstate the judgment.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Daniel
B. Feldstern, Judge
Superior
Court County of Los Angeles
______________________________
Carlos Ramirez, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff
and Respondent.
references are to the Penal Code.
