THE PEOPLE v. CURTIS DANIEL PECK

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. CURTIS DANIEL PECK, Defendant and Appellant.

F061314

Decided: October 21, 2011

 * APPEAL from a judgment of the Superior Court of Tulare County.   Kathyrn T. Montejano and James W. Hollman, Judges.   Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONINTRODUCTION

Appellant Curtis Daniel Peck contends his constitutional rights were violated when the trial court failed to conduct a hearing pursuant to People v. Marsden (1970)

2 Cal.2d 118 (Marsden ) after being informed that he was asserting ineffective assistance of counsel.   He relies upon this court's opinions in People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman ) and People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez ) to support his contention.   The People contend our decisions in Eastman and Mendez were “erroneous” and that appointment of “conflict counsel” to investigate Peck's claim was sufficient under People v. Dickey (2005) 35 Cal.4th 884 (Dickey ).

We agree with Peck that the trial court should have conducted a Marsden hearing.   The matter will be remanded with directions to hold a Marsden hearing.

FACTUAL AND PROCEDURAL SUMMARY

Peck was charged in Tulare County Superior Court with five felonies and one misdemeanor.   Each felony count alleged enhancements for one prior serious felony conviction, a strike, and four prior prison terms.

On June 25, 2010, Peck entered a negotiated plea of no contest to five charges, with the understanding he would receive a stipulated nine-year prison term.   As part of the agreement, Peck admitted two prison priors.   The prosecution agreed to dismiss all other enhancements at the time of sentencing, including the prior serious felony strike conviction allegation.

Prior to sentencing on July 28, 2010, Peck's counsel stated, “At this time we would ask that conflict counsel be appointed to consider a motion to withdraw the plea, just for that limited purpose.”   The trial court inquired why conflict counsel needed to be appointed and Peck's counsel responded, “Because Mr. Peck is indicating there might have been ineffective assistance of counsel.”

The trial court responded to this statement by appointing conflict counsel and setting a hearing to establish a briefing schedule.   Peck, who was present at the hearing, stated, “Excuse me, Miss.” It is unclear whether Peck was attempting to get the attention of his female defense attorney, Angela Krueger, or the female judicial officer.

On July 29, 2010, the trial court held a hearing with Antonio Reyes, conflict counsel, and the prosecutor.   Peck also was present for the hearing.   There was a brief discussion about setting a briefing schedule for filing a motion to withdraw the plea and scheduling a hearing date for the motion.   Reyes, however, suggested a status hearing be set, at which time he could inform the trial court whether he would be proceeding with a motion to withdraw the plea.   The trial court set a status hearing for August 18, 2010.

On August 18, 2010, Reyes stated:  “I was appointed to determine whether or not [Mr. Peck] had a basis for setting aside his plea.   I have reviewed the file.   I further have met with Mr. Peck. And I do not feel there is a basis to set aside his plea.”   The trial court relieved Reyes, indicating he was no longer counsel for Peck, and Reyes confirmed that the public defender's office would remain as counsel for Peck.

On August 23, 2010, Peck was sentenced to an aggregate term of nine years, in accordance with the plea bargain.

DISCUSSION

Peck contends his constitutional rights were violated when the trial court failed to conduct a Marsden hearing after being informed he was asserting ineffective assistance of counsel by Krueger.   He relies upon this court's opinions in Eastman and Mendez to support his contention.   The People contend our decisions in Eastman and Mendez were erroneous and that appointment of conflict counsel, as was done in Peck's case, was sufficient under Dickey.   As we explain below, we agree with Peck.

This court and other appellate courts have held that when a defendant seeks a new trial based on his or her trial attorney's alleged incompetence, a trial court's duty to conduct a Marsden inquiry is triggered, even if the defendant does not state that he or she wants another attorney.  (Mendez, supra, 161 Cal.App.4th at pp. 1366–1367;  People v. Mejia (2008) 159 Cal.App.4th 1081, 1084, 1086–1087 (Mejia );  People v. Kelley (1997) 52 Cal.App.4th 568, 579–580;  People v. Stewart (1985) 171 Cal.App.3d 388, 395–396.) 1  Here, the trial court was informed on July 28, 2010, that Peck was claiming ineffective assistance of counsel, yet no Marsden hearing was held at that time or any subsequent time.

A formal motion is not necessary to place a court on notice that it must conduct a Marsden hearing.   There must still be at least some clear indication by the defendant that he or she wants a substitute attorney.  (Dickey, supra, 35 Cal.4th at p. 920.)   Here, Peck indicated that he wanted to move to set aside his plea based on a claim of ineffective assistance by his counsel and asked for appointment of another attorney to handle the preparation and filing of the motion.   This request was adequate to put the trial court on notice that a Marsden hearing needed to be held.  (Mendez, supra, 161 Cal.App.4th at p. 1367.)

Marsden imposes four requirements on a trial court, which in Peck's case were ignored.  (Mendez, supra, 161 Cal.App.4th at pp. 1367–1368.)   First, the trial court had a duty to allow Peck to articulate why he was dissatisfied with Krueger's representation.  (Id. at p. 1367.)   This was not done;  the trial court did not ask or permit Peck to articulate his reasons why he felt he had received ineffective assistance from Krueger.   It is unclear from the July 28, 2010, transcript whether Peck may have been attempting to obtain an opportunity to articulate reasons why he felt counsel was ineffective when he stated, “Excuse me, Miss.”

Second, if the defendant states facts sufficient to raise a question about defense counsel's effectiveness, the trial court has a duty to make inquiries of counsel.  (Mendez, supra, 161 Cal.App.4th at p. 1368.)   In Peck's case, the trial court failed to make any inquiry of Krueger.

Third, the trial court had a duty to make a record of Peck's grievances against Krueger and the trial court's response to those grievances.   (Mendez, supra, 161 Cal.App.4th at p. 1368.)   Here, rather than making inquiries of Peck and Krueger and establishing a record of the grievances, the trial court simply appointed a second attorney, Reyes, and charged Reyes with investigating and determining if a motion to set aside the plea based on ineffective assistance was warranted.   Krueger, however, was not relieved as counsel for Peck.

In People v. Smith (1993) 6 Cal.4th 684 (Smith ), the California Supreme Court criticized the practice of appointing substitute counsel to represent the defendant in one matter while retaining original counsel to represent the defendant for all other purposes.   In so holding, the court stated, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant.   When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation.   If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.”  (Smith, at p. 695.)

Fourth, the trial court was required to make a record of Krueger's response to any complaints raised by Peck about her representation.  (Mendez, supra, 161 Cal.App.4th at p. 1368.)   There is no record of Krueger's response to any of Peck's grievances, just as there is no record of Peck's complaints against Krueger.

Contrary to the People's assertion, we conclude Dickey, supra, 35 Cal.4th 884 is inapposite.   In Dickey, the defendant made a posttrial motion for appointment of separate counsel to represent him in the preparation of a motion for a new trial.   Defense counsel advised the trial court that the defendant's new trial motion would raise several issues, including ineffective assistance issues.  (Id. at p. 918.)   The trial court appointed separate counsel, who prepared and filed a new trial motion.   The motion partially was based on a claim that defense counsel was ineffective during the guilt phase and that the court committed error because it failed to conduct a Marsden hearing.   (Dickey, at p. 920.)   The trial court heard and denied the new trial motion and found it was not required to conduct a Marsden hearing because the defendant did not request one.  (Dickey, at p. 920.)

Dickey stated, “To the extent he made his wishes known, he wanted to use counsel's assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion.   As his expressed wishes were honored, he has no grounds for complaint now.”   (Dickey, supra, 35 Cal.4th at pp. 920–921.)

In Dickey, the new trial motion actually was filed, setting forth all the reasons why the defendant felt entitled to a new trial, including the specific complaints about defense counsel's representation, which the trial court could then assess in the context of the motion.  (Dickey, supra, 35 Cal.4th at pp. 921–922.)   The motion made it clear that the disagreements were over tactical issues, and the California Supreme Court held it was not Marsden error to fail to hold a Marsden hearing after the new trial motion was denied, as defendant had requested.  (Dickey, at pp. 921–922.)   In Peck's case, however, no motion to set aside his plea on the basis of ineffective assistance of counsel was ever filed with the trial court and no specific grievances about Krueger's representation were ever presented to the trial court.

In Eastman, the defendant entered a negotiated plea of no contest to two counts of lewd acts on a child.   At sentencing, defense counsel informed the trial court that the defendant wanted to withdraw his plea and asked the trial court to appoint substitute counsel to investigate whether a factual or legal basis existed for the defendant to do so.  (Eastman, supra, 146 Cal.App.4th at p. 690.)   The trial court also received a letter written by the defendant's mother stating defense counsel had lied to the defendant in getting him to agree to the plea.  (Id. at p. 691.)   New counsel was appointed and he subsequently stated he would not file a motion to withdraw the plea because his investigation did not disclose any grounds to do so.   Original counsel then resumed his representation of the defendant.  (Id. at pp. 692–693.)

On appeal, the defendant claimed that the trial court erred in failing to hold a Marsden hearing instead of appointing substitute counsel to determine whether to file the motion to withdraw the plea and, in delegating the determination of that motion, to substitute counsel.  (Eastman, supra, 146 Cal.App.4th at p. 691.)   We agreed.   By not holding a Marsden hearing, the trial court denied the defendant the opportunity to state his complaints about defense counsel on the record and failed to discharge its duty of inquiry under Marsden.  (Eastman, at pp. 696–697.)   We held that the failure to hold a Marsden hearing required a conditional reversal.  (Eastman, at pp. 691, 697–698.)

“Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance.  [Citations.]  If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity.  [Citations.]”  (Eastman, supra, 146 Cal.App.4th at p. 695.)   In Mendez, supra, 161 Cal.App.4th at page 1367, we concluded the defendant's request to make a new trial motion based on “ ‘competency of counsel’ ” was sufficient to trigger the trial court's duty to conduct a Marsden hearing.

We conclude the trial court in Peck's case erred by (1) failing to conduct a Marsden hearing, (2) appointing substitute counsel without a proper showing, and (3) reappointing the public defender's office to represent Peck after substitute counsel announced his conclusion that there was no basis for filing a motion to withdraw the plea.   In so concluding, we rely on this court's opinions in Eastman, supra, 146 Cal.App.4th 688, Mejia, supra, 159 Cal.App.4th 1081, and Mendez, supra, 161 Cal.App.4th 1362.

The proper procedure for trial courts to follow in the circumstances presented includes (1) making an adequate inquiry of the defendant and his or her defense counsel to learn the general basis for the defendant's motion, (2) conducting a Marsden hearing, if the general basis for the motion is the alleged incompetence of defense counsel, and (3) relieving defense counsel and appointing a new attorney for the defendant if, and only if, “a failure to replace the appointed attorney would substantially impair the [defendant's] right to assistance of counsel.  [Citation.]”  (Smith, supra, 6 Cal.4th at p. 696.)   The proper procedure does not include the appointment of conflict or substitute counsel to investigate or evaluate the defendant's new trial or plea withdrawal motion.

Trial courts should abandon their reliance on counsel specially appointed to do the trial court's job of evaluating the defendant's assertions of incompetence of counsel and deciding the defendant's new trial or plea withdrawal motion.  (See Eastman, supra, 146 Cal.App.4th at p. 697 [“the court cannot abandon its own constitutional and statutory obligations to make the ultimate determination itself based upon the relevant facts and law of which the court is made aware by some legally sanctioned procedure”].)

DISPOSITION

The judgment is reversed and the matter is remanded with the following directions:  (1) the trial court shall hold a hearing on Peck's Marsden motion concerning his representation by the public defender's office;  (2) if the trial court finds that Peck has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the trial court shall appoint new counsel to represent Peck 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 Peck's Marsden motion is denied, the trial court shall reinstate the judgment.

FOOTNOTES

FN1. But see People v. Richardson (2009) 171 Cal.App.4th 479, 484–485..  FN1. But see People v. Richardson (2009) 171 Cal.App.4th 479, 484–485.

THE COURT