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self-study / Criminal Practice

Aug. 28, 2017

Learn the basics of Marsden motions

Harbor Justice Center / Newport Beach Facility

Gregory L. Prickett

Judge, Orange County Superior Court

Harbor Panel

The objective of this article and accompanying self-study test is to review how a court handles a criminal defendant’s motion under People v. Marsden, 2 Cal. 3d 118 (1970), to have appointed counsel replaced by a different counsel. Readers will learn about the nature of a Marsden motion; what is required to trigger a hearing on the issue; what must be considered at such a hearing; and the showing which must be made to warrant granting the motion.

Nature of Motion

Under Gideon v. Wainwright, 372 U.S. 335 (1963), a defendant charged with a crime who cannot afford to pay for counsel is entitled to have one appointed to represent him or her. But that does not mean the defendant has an absolute right to have the court appoint counsel of his or her choice. See People v. Chavez, 26 Cal. 3d 334 (1980).

Under the California Supreme Court’s Marsden opinion, “[a] defendant is entitled to substitute another appointed attorney if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” People v. Valdez, 32 Cal. 4th 73 (2004). “It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation.” People v. Smith, 6 Cal. 4th 684 (1993) (emphasis in original).

It is important to keep in mind that Marsden only applies when counsel has been appointed for a defendant, whether a public defender, alternate public defender, or bar panel counsel. A trial court may deny a defendant’s request to discharge privately retained counsel only “if discharge will result in ‘significant prejudice’ to the defendant ..., or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice.’” People v. Ortiz, 51 Cal. 3d 975 (1990) (citations omitted); see also People v. Lara, 86 Cal. App. 4th 139 (2001) (defendant may even discharge retained counsel on trial date if it does not cause significant prejudice and the request is timely).

When a Hearing Must Be Conducted

To require that a Marsden hearing be conducted, “no formal motion is necessary, [but] there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” Valdez, citing People v. Lucky, 45 Cal. 3d 259 (1988). A court has a duty to conduct a hearing when a defendant “asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.” People v. Leonard, 78 Cal. App. 4th 776 (2000). The Supreme Court has determined “a trial court must conduct such a Marsden hearing only when there is at least some clear indication by the defendant, either personally or through counsel, that defendant wants a substitute attorney.” People v. Sanchez, 53 Cal. 4th 80 (2011). “The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” Valdez.

The court in People v. Martinez, 47 Cal. 4th 399 (2009), considered whether third-party requests can trigger the duty to conduct a hearing. In the case, the defendant’s sister wrote letters to the court complaining that appointed counsel had failed to communicate adequately with defendant (in person or by phone). At the next court hearing in which the defendant waived his presence, defense counsel noted that “[defendant] and I are in communication, your honor, contrary to what concerned members of his family have said.” Martinez rejected the defendant’s contention that the court erred in failing to conduct a hearing, noting the absence of a request to substitute counsel: “Because defendant made no assertion whatsoever regarding dissatisfaction with counsel, the trial court’s duty under Marsden was not triggered.” Martinez further found the letters did not provide a “clear indication” from defendant that he desired substitution of counsel on the ground of counsel’s deficiencies. Invocation of a defendant’s rights under Marsden cannot be asserted by a third party (Martinez) and “there is no necessity to impose a duty upon the court to entertain Marsden motions made by third parties, because even incarcerated defendants can speak for themselves in various ways.”

Scope of Hearing

If the court determines a defendant is requesting that new counsel be appointed, a hearing must be conducted. However, “[a] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” Valdez, citing People v. Hines, 15 Cal. 4th 997 (1997).

A trial court should generally honor a timely request to exclude the prosecutor from a Marsden hearing. People v. Dennis, 177 Cal. App. 3d 863 (1986); People v. Madrid, 168 Cal. App. 3d 14 (1985). Nonetheless, although a prosecutor should be excluded from a hearing, it has been held a court did not err in considering a prosecutor’s request to not to be swayed by extraneous factors in considering the defendant’s Marsden motion, but instead follow the law. Hines. Also, “[a]lthough the Marsden motion may be heard outside the presence of the prosecutor, any actual motion to withdraw the plea or for a new trial must, of course, be part of a fully adversarial proceeding.” Smith.

The defendant does not have the right to have counsel appointed to help him litigate a Marsden motion. “Appointment of independent counsel to assist a defendant in making a Marsden motion is likely to cause unnecessary delay, and may damage the attorney-client relationship in those cases in which the trial court ultimately concludes that the motion should be denied. We see no need for trial courts to appoint independent counsel to assist defendants making such motions.” Hines; see also Sanchez (disapproving “the procedure of appointing substitute or ‘conflict’ counsel solely to evaluate a defendant’s complaint that his attorney acted incompetently”).

At the hearing, “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.” People v. Memro, 11 Cal. 4th 786 (1995). The court must give the defendant an opportunity to present argument or evidence in support of his or her contention, and must consider input from appointed counsel. See Marsden; People v. Earp, 20 Cal. 4th 826 (1999).

Showing Required

To warrant substituting appointed counsel, a court must find either, (1) appointed counsel is not providing adequate representation; or (2) “defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” Valdez. The standard for substitution of appointed counsel is the same post-conviction as for pre-conviction. Smith.

A showing that counsel has not provided adequate representation requires demonstrating “the representation fell below an objective standard of reasonableness under prevailing professional norms.” People v. Cummings, 4 Cal. 4th 1233 (1993). “The number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.” Valdez. In evaluating whether a defendant has demonstrated inadequate performance, a court will “accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy.’” In re Fields, 51 Cal. 3d 1063 (1990) (citation omitted).

Most of the time, a defendant’s Marsden motion will be based on purported “irreconcilable conflicts” with his or her counsel. Most such claims fail because counsel is allowed to make most of the tactical decisions in a case. See Valdez (“When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant”).

“A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’” Valdez, citing People v. Welch, 20 Cal. 4th 701 (1999). For example, People v. Rodriguez, 58 Cal. 4th 587 (2014) held that a Marsden motion was properly denied despite claims that counsel failed to use defendant’s preferred expert, and held disagreements over tactics did not warrant replacement of counsel. See also People v. Crandell, 46 Cal. 3d 833 (1988) (“a defendant represented by counsel cannot ... dictate what motions counsel will bring on his behalf.”).

Further, “[t]he mere lack of trust in, or inability to get along with, counsel is not sufficient grounds for substitution.” People v. Taylor, 48 Cal. 4th 574 (2010) (citation omitted). Also, pursuant to Taylor, “heated words alone do not require substitution of counsel without a showing of an irreconcilable conflict.”

Finally, a defendant cannot unilaterally create his own “irreconcilable conflicts.” “[T]he trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. ... ‘[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.’” People v. Smith, 30 Cal. 4th 581 (2003) (emphasis in original).


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