California Court of Appeal Dec 3, 2014 No. E060456Unpublished
Filed 12/3/14 P. v. Hardy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060456
v. (Super.Ct.No. RIF1103524)
TARIUS HARDY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, §6 of the Cal. Const.) Affirmed.
Law Office of Allison H. Ting and Allison H. Ting, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton, and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Tarius Javar Hardy broke a window to get into his girlfriend’s
apartment and, after entering her home, refused to allow her to leave the apartment to get
medical help for cuts she sustained from the broken glass. Defendant was convicted of
“In an appeal following a limited remand, the scope of the issues before the court is
determined by the remand order. [Citations.]” (People v. Murphy (2001) 88 Cal.App.4th
392, 396-397.)
“‘“The lower court cannot reopen the case on the facts, allow the filing of
amended or supplemental pleadings, nor retry the case, and if it should do so, the
judgment rendered thereon would be void.”’ [Citations.]” (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 701; see also Butler v. Superior Court (2002) 104
Cal.App.4th 979, 982 [“Any material variance from the directions is unauthorized and
void. [Citations.]”].)
Here, our remand order was very specific. This case presented a unique set of
circumstances in that defendant had already filed a written motion for new trial and
defense counsel had acquiesced in the filing of the motion. The trial court refused to hear
the motion for new trial because defendant was represented by counsel. Our remand
order made it clear that the trial court was to first consider the new trial motion filed by
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defendant and determine whether he had made a proper showing of ineffective assistance
of counsel based on the claims in the motion. The trial court needed to inquire of
defendant the facts underlying the claims. Only after allowing defendant to explain his
claims in his motion for new trial, could the trial court grant or deny the new trial motion
filed by defendant. We further authorized the trial court to appoint new counsel if it felt
it was necessary to further explore the claims of inadequate representation but only after
an appropriate showing of ineffective assistance of counsel was shown by defendant.
Rather than proceed in this manner, the trial court was advised by defense counsel
that a Marsden hearing had to be conducted. This hearing was unnecessary.3 Citing to
People v. Braxton (2004) 34 Cal.4th 798, 819, we provided to the trial court in our
opinion that an appropriate remedy for the failure to consider a defendant’s motion for
new trial was remand for a hearing on the motion. (Id. a pp. 819-820.) In Braxton, the
court found, “[W]hen, as here, a trial court has refused to hear a defendant’s new trial
motion, and the appellate record is insufficient to permit a reviewing court to determine
as a matter of law whether the proposed motion was meritorious, the reviewing court may
remand the matter to the trial court for a belated hearing of the new trial motion, . . .” (Id.
at p. 819.) In remanding the case, we did not order that a Marsden hearing be conducted;
we ordered a hearing on defendant’s new trial motion. Accordingly, the holding of a
Marsden hearing was unauthorized. (Butler v. Superior Court, supra, 104 Cal.App.4th at
p. 982.)
3 We note that defendant did not make a new request for a Marsden hearing upon remand. Although he later agreed with the trial court that he was seeking substitute counsel, he admitted his main purpose was to gain a new trial.
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Defendant contends here that the trial court erred by failing to inquire into
additional claims of incompetent representation raised by defendant during the Marsden
hearing and remand is required to further explore those issues as grounds to substitute
counsel to file a new trial motion. As we have noted, the remand was specific that the
trial court was to consider the new trial motion filed by defendant; we did not authorize
amendment to the motion to raise additional claims. If such practice were to be allowed,
no judgment would be final as a defendant could raise new issues upon remand of a case
and this would violate the above principles regarding remand of cases. Moreover, it was
clear defendant was aware of these claims when he filed his written motion for new trial
but failed to include them in the motion. The trial court had no duty to inquire into new
issues raised during a Marsden hearing or in considering the new trial motion that was
not ordered upon remand of the case.
Defendant relies upon People v. Reed (2010) 183 Cal.App.4th 1137, 1146 in
support of his claim that the trial court was required to conduct a Marsden hearing to
determine all of defendant’s reasons for ineffective representation upon remand, not just
those set forth in his written new trial motion. Here, defendant filed a new trial motion
setting forth three specific reasons for claiming he was denied ineffective representation.
In Reed, the defendant only requested to file a motion for new trial based on a general
claim of incompetence; no specific instances were provided. Remand for a full Marsden
hearing was ordered by the appellate court. (People v. Reed, supra, 183 Cal.App.4th at
pp. 1141-1143.)
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In this case, when defendant tried to file his new trial motion right after he was
convicted, the trial court refused to hear the motion because defendant was represented
by counsel. On appeal, we remanded the case in order for the trial court to hear the new
trial motion that defendant had filed. “[O]nce the court knows the facts underlying
defendant’s claim, it can intelligently determine whether it can fairly rule on the new trial
motion, or whether it should appoint new counsel to more fully develop the claim of
inadequate representation.” (People v. Gay (1990) 221 Cal.App.3d 1065, 1068-1069.)
Upon remand, the trial court appropriately inquired into the issues that defendant had
raised in the new trial motion and denied the motion after a full hearing. This was the
appropriate procedure upon remand. We cannot find error in the trial court refusing to
consider new claims upon remand that were raised during a Marsden hearing that the trial
court was not required to conduct.4
We also note that even if we could consider that upon remand, a Marsden hearing
was appropriate so that defendant could raise these new claims, we would conclude
remand for another Marsden hearing is not an appropriate remedy. Ineffective assistance
of counsel is not a statutory ground for granting a new trial, but “in appropriate
circumstances justice will be expedited by avoiding appellate review, or habeas corpus
proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court
4 Defendant has briefly argued that his due process rights were violated by the failure to substitute counsel to raise his new claims. However, as noted, no Marsden hearing was required because the trial court was ordered to consider defendant’s new trial motion upon remand. Further, as will be discussed post, defendant has an adequate remedy in that he can file a petition for writ of habeas corpus raising these claims.
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as the basis of a motion for new trial. If the court is able to determine the effectiveness
issue on such motion, it should do so.” (People v. Fosselman (1983) 33 Cal.3d 572, 582-
583.) The new claims raised by defendant (which are all out-of-court ineffective
assistance of counsel claims) would certainly not be expedited by this court once again
remanding this case to the trial court and ordering the trial court to conduct a Marsden
hearing. If counsel was appointed, additional time would certainly be needed to file a
new motion and seek a ruling on the motion.
In People v. Cornwell (2005) 37 Cal.4th 50, disapproved of on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, the court concluded that the trial court did not
error by refusing to consider ineffective assistance of counsel claims raised in a new trial
motion as the claims were not apparent from the record or courtroom observation. The
Supreme Court stated, “It is evident in the present case that, after lengthy deliberation,
the trial court concluded justice would not be expedited by entertaining defendant’s
[ineffective assistance of counsel] claim in a motion for new trial. The basis for this
conclusion is readily apparent; the matter would have been delayed for at least six months
while substitute counsel examined trial counsel’s case records and performed additional
investigation concerning witnesses who did not appear at trial and evidence that was not
in the record, in order to decide whether to make a motion for new trial. This was not a
case in which a motion readily could be resolved because of the circumstance that the
trial judge was ‘particularly well suited to observe courtroom performance and to rule on
the adequacy of counsel. . . .” [Citation.] Rather, in the present case the claim of
ineffective assistance of counsel at the guilt phase of trial rested primarily upon matters
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other than what the trial court could have observed during trial, and the court acted within
its discretion in concluding the claim should be litigated in a habeas corpus proceeding.”
(Id. at p. 101.) Defendant here can file a habeas petition raising these claims. (See
People v. Carrasco (2014) 59 Cal.4th 924, 980-981 [claims that could have been raised
on appeal but were not does not bar an ineffective assistance of counsel claim on habeas
corpus].) This remedy is more appropriate than remand.
Although defendant has not claimed that the trial court improperly ruled on his
written motion for new trial, we briefly address the ruling. We review an order denying a
motion for new trial for abuse of discretion. (See People v. Turner (1994) 8 Cal.4th 137,
212 [““‘The determination of a motion for a new trial rests so completely within the
court’s discretion that its action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.”’”].) Because the new trial motion was partially
based on ineffective assistance of counsel, the applicable standard is whether defendant
“demonstrate[d] (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’
that, but for counsel's failings, defendant would have obtained a more favorable result.
[Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
The trial court did not abuse its discretion by denying defendant’s motion for a
new trial. Defense counsel adequately explained the reasons for not calling witnesses, for
not seeking a mistrial, and discussed the instructional issue. All the decisions were
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reasonable tactical decisions that should not be second guessed by the trial court or this
court.
Based on the foregoing, the trial court properly denied defendant’s motion for new
trial.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
MILLER J.
16
AI Brief
AI-generated · verify before citing
Holding. The trial court did not err in denying the defendant's motion for a new trial or in refusing to consider new claims of ineffective assistance of counsel raised during a quasi-Marsden hearing that exceeded the scope of the appellate remand order.
Issues
Whether the trial court erred by failing to inquire into new claims of ineffective assistance of counsel raised during a quasi-Marsden hearing upon remand.
Whether the trial court's denial of the defendant's Marsden motion violated his due process rights.
Whether the trial court abused its discretion in denying the defendant's motion for a new trial.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court had no duty to inquire into new issues raised during a Marsden hearing or in considering the new trial motion that was not ordered upon remand of the case.”
“The trial court did not abuse its discretion by denying defendant’s motion for a new trial.”