P. v. Heard
Defendant comes before us a second time to appeal his case. In the first appeal, defendant asserted that he requested a Marsden motion at the sentencing hearing, and the trial court failed to hold such hearing or even address defendants request. Court 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.
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