No. A149267.

THE PEOPLE, Plaintiff and Respondent, v. JEREMIAH JAMES JOHNSON, Defendant and Appellant.

Court of Appeals of California, First District, Division Five.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

SIMONS, Acting P.J.

Defendant and appellant Jeremiah James Johnson (appellant) appeals, contending the trial court erred in failing to conduct the hearing required by People v. Marsden (1970) 2 Cal.3d 118, in response to his requests to replace defense counsel, prior to his competency trial. We conditionally reverse and remand for a Marsden hearing, but we reject appellant's contention he is entitled to a new competency trial regardless of the outcome of the hearing.


On May 6, 2016, appellant was charged by complaint with one count of arson (Pen. Code, § 451, subd. (d)) and two counts of possession of a controlled substance (Health and Saf. Code, § 11377). The complaint further alleged appellant had prior convictions for serious or violent felonies.

On May 20, 2016, appellant's counsel declared doubt as to his competency to stand trial. The trial court suspended criminal proceedings and scheduled a hearing for a referral for a doctor's evaluation. On July 15, the court found appellant was not competent to stand trial based on three doctor's evaluation reports; counsel stipulated to the court making the determination based on the reports. On August 8, the trial court committed appellant to the Department of State Hospitals for treatment.

This appeal followed.


Appellant contends the trial court erred in failing to conduct a Marsden hearing in response to his requests for substitution of counsel. We agree.

Marsden, supra, 2 Cal.3d 118, "mandates a court hearing to determine whether a defendant's appointed counsel offers constitutionally inadequate representation when defendant requests substitution of appointed counsel. The legal principles governing a Marsden motion are 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. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result."'" (People v. Lara (2001) 86 Cal.App.4th 139, 150.) "[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." (People v. Lucky (1988) 45 Cal.3d 259, 281.) A defendant is entitled to request substitution of counsel even though criminal proceedings have been suspended. (People v. Taylor (2010) 48 Cal.4th 574, 599.)

In the present case, appellant objected when his counsel declared doubt as to his competency on May 20, 2016. When the trial court discussed referring appellant for an evaluation, appellant said, "Then I'm going to file a Marsden motion. I talked to Susan Clark at the, um, Public Defender's office and left messages. . . ." Appellant also told the court, "I'm firing her. I'm filing my Marsden motion." The court responded, "You are welcome to do that, sir," and concluded the proceedings without any further inquiry.

Subsequently, at a May 26, 2016 hearing, appellant interrupted a discussion about identifying doctors for referral and stated, "Okay. Ma'am, so I'm gonna, um, have to pay for my own counsel, obviously." The trial court responded, "All right. Well, whenever you find somebody, just . . ." Appellant then interrupted and stated, "I'm trying to fire your attorneys." He asserted he was "perfectly capable of understanding what I'm going through, the proceedings, because I know I'm not guilty."

Despite appellant's expressions of his desire to replace his counsel on May 20 and 26, 2016, the trial court did not ask appellant about the bases for the requests. Instead, on July 15, the court proceeded to determine appellant's competency on the basis of the evaluation reports. Appellant continued to object, complaining that the police reports did not support the arson charge, that defense counsel was "not my attorney," and that counsel was "convicting" him rather than defending him.

Respondent argues appellant "made no clear request to substitute counsel prior to the court's factual determination that he was not competent to stand trial." We disagree. Appellant said he was filing a "Marsden motion" and trying to "fire" defense counsel. No more formal request was required. (People v. Lucky, supra, 45 Cal.3d at p. 281, fn. 8 ["We do not necessarily require a proper and formal legal motion, but at least some clear indication by defendant that he wants a substitute attorney."]; accord People v. Mendoza (2000) 24 Cal.4th 130, 157.) Respondent also appears to suggest there was no need for further inquiry because this court can assume appellant's only complaint about trial counsel was that she questioned his competency to stand trial. The record does not clearly support that assertion, and respondent cites no authority this court can excuse the trial court's failure to conduct a Marsden hearing on that basis. (See People v. Armijo (2017) 10 Cal.App.5th 1171, 1183 ["we `cannot speculate upon the basis of a silent record that the trial court, after listening to defendant's reasons, would decide the appointment of new counsel was unnecessary'"].)

Regarding the appropriate remedy, respondent asserts that, if the trial court erred, "the appropriate remedy is a limited remand for the court to afford appellant an opportunity to express his objections so the court can rule on his request to substitute counsel." Appellant, on the other hand, contends he is entitled to a new competency trial regardless of the result of such a hearing. He cites People v. Solorzano (2005) 126 Cal.App.4th 1063, in which the trial court failed to conduct a Marsden hearing and then subsequently found the defendant competent to stand trial. (Solorzano, at p. 1068.) The court of appeal remanded the matter for a new trial. (Id. at pp. 1071-1072.) The court reasoned that, "Now, almost two years after . . . the [trial] court found Solórzano competent to stand trial after abruptly refusing to hear his Marsden motion on whether his appointed counsel was rendering effective assistance at his competency hearing, we can but speculate how things might have been different had the court instead safeguarded his constitutional rights to effective assistance and due process by granting him the Marsden hearing to which he was entitled. . . . `Given the inherent difficulties' of `retrospectively determining an accused's competence to stand trial,' due process compels us to reverse the judgment, remand the matter, and order a new trial." (Solorzano, p. 1071.)

The disposition in Solorzano is consistent with the disposition in Marsden itself, where the California Supreme Court simply reversed the judgment due to the trial court's failure to allow the defendant to explain his concerns about the effectiveness of counsel at trial. (Marsden, supra, 2 Cal.3d at p. 126.) However, Solorzano's disposition appears to be inconsistent with the Supreme Court's current approach, as reflected in People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez). In Sanchez, the court affirmed a court of appeal decision holding the trial court erred in failing to hold a Marsden hearing where the defendant complained about the effectiveness of counsel after entry of a plea. (Sanchez, at p. 91.) The court of appeal reversed the trial court's judgment and remanded with directions that the trial court conduct a Marsden hearing; the trial court was further directed to "reinstate the judgment" if the Marsden motion were denied. (Sanchez, at p. 91.) The California Supreme Court stated, "We believe this is the proper disposition." (Ibid.)

The Second District recently followed Sanchez in People v. Armijo, supra, 10 Cal.App.5th 1171, where the court of appeal held the trial court erred in failing to conduct a Marsden hearing prior to taking the defendant's plea. The court "conditionally reverse[d] the judgment and remand[ed] with directions to the trial court to hold a Marsden hearing," but directed the trial court to "reinstate the judgment" if the defendant's prior attorney did not render inadequate assistance. (Armijo, at p. 1174.) Armijo explained, "Consistent with Sanchez, our instructions reflect a `conditional reversal' that contemplates the possible reinstatement of the judgment and conviction." (Armijo, at p. 1184, fn. 6.) Courts of appeal have also employed conditional reversals where the Marsden error occurred before or after trial. (See People v. Knight (2015) 239 Cal.App.4th 1, 3, 9-10 [conditional reversal where trial court failed to conduct Marsden hearing regarding claims of ineffective assistance at trial]; People v. Hill (2013) 219 Cal.App.4th 646, 654 [conditional reversal due to Marsden error before civil commitment trial]; People v. Reed (2010) 183 Cal.App.4th 1137, 1150 [conditional reversal due to Marsden error relating to motion for new trial]; People v. Lopez (2008) 168 Cal.App.4th 801, 816 [conditional reversal due to error in failing to consider midtrial Marsden motion].)

Nothing in Solorzano provides a basis for this court to decline to follow Sanchez and the other cases cited above. In particular, nothing in Solorzano suggests conducting a retroactive Marsden hearing with regard to the effectiveness of counsel in competency proceedings is different than conducting a retroactive Marsden hearing with regard to the effectiveness of counsel at trial or in pre-plea proceedings. Although Solorzano correctly notes there are "`inherent difficulties'" in "`retrospectively determining an accused's competence to stand trial'" (Solorzano, supra, 126 Cal.App.4th at p. 1071), directing the trial court to conduct a retroactive Marsden hearing requires only a determination about counsel's effectiveness at the time of the competency trial, not a determination of appellant's competency at the time.2 Neither does Solorzano explain why it is logical to mandate a new competency trial where on remand a trial court concludes there was no ineffective assistance of counsel. In that situation, there would be no reason to question the result of the original competency trial. Accordingly, we decline to follow Solorzano and will instead conditionally reverse the trial court's commitment order.


The commitment order is vacated and the matter is remanded with the following directions: (1) the trial court shall hold a hearing on appellant's Marsden motion; (2) if appellant prevails on the motion, the court shall appoint new counsel to assist him and shall entertain such applications as newly appointed counsel may make; and (3) if appellant's Marsden motion is denied, the court shall reinstate the commitment order.

NEEDHAM, J. and BRUINIERS, J., concurs.


1. We do not include the facts underlying the offenses and regarding appellant's competency to stand trial because they are not relevant to the issue on appeal.
2. In the present case, defense counsel disagreed with appellant's belief he was competent to stand trial. In People v. Stanley (1995) 10 Cal.4th 764, the California Supreme Court explained the meaning of effective assistance in such a situation: "`[T]he attorney representing the defendant is required to "advocate the position counsel perceives to be in the client's best interests even when that interest conflicts with the client's stated position.' [Citations.] Thus, when counsel believes his client may be incompetent, and the trial court, pursuant to section 1368, has declared a doubt of defendant's competence, defendant is not deprived of effective assistance if defense counsel overrides defendant's desire to present only evidence and argument of competence." (Stanley, at pp. 804-805.) Stanley cited with approval a court of appeal decision holding that a trial court "erred in relieving defense counsel and appointing private counsel to represent defendant at the competency hearing because defendant had indicated he wished to be found competent." (Id. at p. 805.) But Stanley held a trial court has the discretion to appoint additional counsel to present the defendant's point of view. (Id. at pp. 806-807.) In People v. Blacksher (2011) 52 Cal.4th 769, the Supreme Court re-affirmed Stanley and additionally held the trial court did not err in refusing to appoint independent counsel. The court explained, "Stanley permits but does not mandate the appointment of independent counsel when defense counsel and a defendant disagree on the defendant's competency." (Blacksher, at p. 853.)


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