Error and/or relief
It was error for the court to not hold a hearing on the defendant’s motion to have his attorney replaced.
First Holding:
Through counsel, the defendant filed a timely notice of appeal in his Case A. About a month later, he filed in pro. per. a notice of appeal in his Case B. The sentencing hearing had encompassed both cases. The prosecution asserts that the appellate court lacks jurisdiction over the appeal in Case B because its notice of appeal was filed after the 60-day deadline.
The notice of appeal must be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. The liberal construction rule exists to implement the strong public policy favoring the hearing of appeals on the merits.
To be sure, a notice of appeal must identify the particular judgment or order being appealed. However, under the liberal construction rule, courts have held that once a notice of appeal is timely filed from one appealable order, a court can construe it as encompassing a separate, related appealable order as to which it is timely filed, if doing so aligns with the filer’s intent and there is no unfair prejudice to the respondent.
As in Jordan, we deem it appropriate, in the interests of justice, to construe the notice of appeal filed in Case A as sufficient to constitute a notice of appeal in both that case and Case B.
Authority:
Cal. Rules of Court, rule 8.304(a)(4)
D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361
K.J. v. Los Angeles Unified School District (2020) 8 Cal.5th 875, 878, 882
In re Jordan (1992) 4 Cal.4th 116, 131, fn. 9
Second Holding:
The defendant submitted a motion to replace counsel under Marsden, asserting various claims pertaining to the adequacy of his representation by counsel. The court marked the motion “Received But Not Filed.” The court never held a hearing on the motion.
The law governing a Marsden motion is well-settled. When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.
Authority:
People v. Marsden (1970) 2 Cal.3d 118
People v. Jackson (2009) 45 Cal.4th 662, 682
Third Holding:
A proper and formal Marsden motion is not required—the defendant need only clearly indicate to the trial court in some manner that he or she is requesting the discharge and replacement of the appointed counsel.
Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. Failure to conduct such a hearing is legal error that compels reversal of the defendant’s conviction unless the record shows beyond a reasonable doubt that the error was harmless.
Authority:
People v. Armijo (2017) 10 Cal.App.5th 1171, 1178-1179
People v. Marsden (1970) 2 Cal.3d 118, 126
Fourth Holding:
When a trial court’s failure to hold a hearing is inadvertent and a defendant fails to press for a hearing, he can abandon his Marsden request. In this case, we conclude that the facts are closer to Armijo (which concluded the defendant did not abandon the motion by failing to press for a ruling) than Jones (which concluded the opposite).
There is nothing in the record suggesting the trial court’s failure to hold a hearing on the Marsden motion was anything other than an inadvertent omission. As in Armijo, the defendant may reasonably have concluded that his motion had been considered by the court and denied.
We cannot speculate on the basis of a silent record that the trial court, after listening to the defendant’s reasons, would decide the appointment of new counsel was unnecessary.
Authority:
People v. Jones (2012) 210 Cal.App.4th 355, 361
People v. Vera (2004) 122 Cal.App.4th 970, 982
Fifth Holding:
We therefore will conditionally to reverse the orders of probation in both superior court cases and remand to the trial court with the following directions:
(1) the court shall hold a hearing on the defendant’s Marsden motion concerning his representation by his attorney;
(2) if the court finds that the defendant 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 and shall entertain such applications as newly appointed counsel may make; and
(3) if newly appointed counsel makes no motions, any motions made are denied, or defendant’s Marsden motion is denied, the court shall reinstate the orders of probation.
Authority:
People v. Sanchez (2011) 53 Cal.4th 80, 92–93
People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184 and fn. 6