People v. Mercado CA2/6

Filed 10/17/13 P. v. Mercado CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246129 (Super. Ct. No. PA073781) Plaintiff and Respondent, (Los Angeles County)

v.

RICHARD MERCADO,

Defendant and Appellant.

Richard Mercado appeals from a judgment of conviction upon a plea of no contest to carrying a dirk or dagger (Pen. Code, § 21310)1 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Mercado asserts the trial court erred when it failed to hold a Marsden2 hearing on his second request for new counsel due to ineffective representation by his trial counsel. The Attorney General concedes the error based on People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez). We conditionally reverse and remand with directions to the trial court to conduct a Marsden hearing.

FACTS AND PROCEDURAL BACKGROUND

1 All statutory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118.

1

On May 25, 2012, police officers responded to complaints of gang members selling narcotics at an intersection in Los Angeles. Mercado and a codefendant saw the officers and started walking away. Mercado took a knife from his pocket, threw it on the ground and began to run. Officers arrested him. Mercado was charged with carrying a dirk or dagger (§ 21310) and violating a criminal street gang injunction (§ 166, subd. (a)(9)).3 It was alleged that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(A), (d)), and that Mercado had four prior convictions (§ 667.5, subd. (b)). Before his arraignment, Mercado's appointed counsel, Craig Renetzky, informed the trial court that Mercado wished to represent himself. Mercado confirmed that request and stated that he had represented himself in an earlier proceeding. The trial court explained that self-representation in criminal cases generally is a mistake and noted that Renetzky is an experienced criminal attorney. Mercado responded that he had an issue with his present representation. Interpreting this as a request for a Marsden hearing, the court asked the prosecutor to leave the courtroom. Following a Marsden hearing, the trial court denied Mercado's request for substitute counsel. When the arraignment continued, the trial court discussed settlement options with the parties. Under a negotiated plea agreement, Mercado pled no contest to carrying a dirk or dagger and admitted one of the criminal street gang allegations. At Mercado's request, the trial court postponed the sentencing hearing. Mercado subsequently sent a handwritten letter to the trial court requesting substitute trial counsel and withdrawal of his plea. He stated he was "misadvised by counsel/prosecution as to the collateral consequences of the plea," and did not fully understand that he was pleading to a strike and gang enhancement. Mercado asked the court to appoint new counsel or, alternatively, to allow him to represent himself. The