In September 2021, an information was filed charging Appellant with unlawful handling of human remains (§ 7052, subd. (a); count one); removal or possession of a memento from human remains (§ 7051.5, subd. (a); count two); and unauthorized entry of a dwelling house (Pen. Code, § 605.2, subd. (a); count three). The charges were based on evidence that Appellant had mishandled human remains while staying at an abandoned house.
In October 2021, defense counsel requested a doctor be appointed to determine Appellant’s competency because Appellant sustained a head injury in a motor vehicle accident just before his arrest. In November, following receipt of the doctor’s report, both counsel stipulated to a finding of competency and the trial court so found.
At the same hearing, Appellant asked to address the trial court about “something that is very important,” continuing, “[m]aybe you would like to understand this is a corrupt officer in my case.” The trial court referenced a pending offer to resolve the case and Appellant responded, “I understand that and I’m actually considering the offer, but I still want to reveal the corrupt officer.” The court proposed a break to provide Appellant and his attorney an opportunity to confer and defense counsel requested a confidential Marsden[1] hearing to address Appellant’s request. The court said it did not sound like a Marsden issue and asked defense counsel to address whether a Marsden hearing was appropriate. Defense counsel responded that one situation where a Marsden hearing is appropriate is where there is “some type of breakdown in the attorney/client relationship over a disputed issue which is causing . . . the case not to go forward.” Counsel continued, “I do think if [Appellant] were able to address that with the Court, that’s going to involve attorney/client privileged information that’s not something that would be suitable in open court which is why I’m asking for the Marsden to facilitate that.”
The trial court then asked Appellant if he was requesting a Marsden hearing and explained the nature of such a hearing. The court told Appellant, a “Marsden hearing is for individuals like yourself who believe that . . . their attorney is not working on their behalf and that the relationship has broken down. I normally refer to it as someone wanting to fire their attorney. Do you request such a hearing?” Appellant said that he understood and that he was considering the prosecutor’s offer. He then expressed his concern about the investigating officer’s testimony, stating that the officer “was manipulating my testimony and falsifying it and would like to prove that.” The court found Appellant was not requesting a Marsden hearing, but asked defense counsel to explain to Appellant his right to file a citizen’s complaint against the officer.
After a break, Appellant pleaded no contest to count two. Defense counsel stipulated to a factual basis for the plea and the court found that the plea was free and voluntary and that there was a factual basis for the plea.
In December 2021, before sentencing, defense counsel said Appellant wished to withdraw his plea. The court appointed an attorney to represent Appellant on the issue of the validity of the plea. At a hearing on December 20, the attorney said that she did not believe Appellant had a legal basis to withdraw his plea and that she had so advised Appellant.
Also on December 20, 2021, the trial court imposed the aggravated term of three years, with 662 days on mandatory supervision and the balance in custody. The court granted credit for time served in the total amount of 433 days, so Appellant was released on supervision.[2]
The present appeal followed. The
[1] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
[2] Appellate counsel’s Wende brief describes subsequent procedural history in the case, but that history is not relevant to the appeal.
