As we explain, we find that the judge's warning was erroneous and that on this
record we cannot conclude beyond a reasonable doubt that the error was harmless. We
reverse and remand to the trial court for the limited purpose of conducting a Marsden
hearing free of error.
FACTUAL BACKGROUND
Around 2:00 a.m., on June 13, 2012, a fast-food restaurant shift manager, Edgar
Velasquez, and a coworker, Maria Escobar, were closing the restaurant. While the two
employees were cleaning the restaurant, Velasquez opened the door to a restroom to
begin cleaning it. Velasquez noticed the lights were off and saw a figure standing three
to four feet away from him, already in the restroom. This figure raised his arm toward
Velasquez in an attacking motion and shoved Velasquez to the floor, where Velasquez hit
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 People v. Marsden (1970) 2 Cal.3d 118, 124-126 (Marsden). 2
his head and blacked out. Velasquez regained consciousness when he heard the sound of
his own screaming; the unknown figure told Velasquez to take him to the store's safe.
Velasquez led his assailant to the store's safe, opened it, and the assailant took
between $100 and $200 in one and five dollar bills. After taking the money, the assailant
left the store. Immediately, however, the assailant rushed back into the store and exited
through the drive-through window.
When Escobar heard Velasquez's screaming, she left the store and flagged down a
police officer. While the officer was speaking to Escobar, Velasquez hobbled out of the
store, described what had just happened and gave the officer a description of his attacker.
The officer immediately radioed the information Velasquez provided to other officers in
the area.
Another law enforcement officer spotted defendant and detained him. Velasquez
was transported to a nearby apartment complex where defendant was detained and
Velasquez identified him as his attacker. Defendant was arrested and charged with
robbery; the complaint alleged that defendant inflicted great bodily injury and further
alleged that defendant suffered two prior robbery convictions in 1998 and 1999 and that
they were serious or violent felonies within the meaning of section 667, subdivisions (b)-
(i).
On July 3, 2013, a jury found defendant guilty of robbery
Following the jury's verdict, defendant made a Marsden motion, which was heard
on July 8, 2013. During the hearing, defendant expressed dissatisfaction that his attorney
3
had failed to take any steps to preserve evidence and that his attorney let the prosecutor
lead witnesses during trial. During the course of the hearing, the following colloquy took
place:
"The Defendant: . . . The police transmissions of the night of the event, I don't
believe that Mr. Brown had the -- all of them because the police were -- I was in the
apartments across the street and the police were racing over there.
"The Court: Before you start telling me about the case, I'm your judge. One of the
things that you did is you exercised your right to remain silent and to not testify, and I'm
still your judge. I still got decisions to make in the case.
"The Defendant: Okay.
"The Court: I want to caution you not to say anything because if you do that,
you'll be waiving your right to remain silent. The rights that you have and the right
you've already exercised.
"The Defendant: Okay.
"The Court: Not that I don't want to listen to you.
"The Defendant: Right.
"The Court: But I think you need to be mindful and careful of your circumstance.
You may not want to say much more to me about the substance of the case.
"The Defendant: Okay.
"The Court: That's your mama, I take it, right?
"The Defendant: Yes, sir.
4
"The Court: Listen to your mama.
"The Mother: I told him to 'shh shh shh.' " (Italics added.)
The trial court then asked defendant if there was any other basis for relieving his
attorney, and defendant repeated complaints about counsel he had made in earlier
Marsden motions. The trial court stated that counsel had done a good job during the trial
and denied the Marsden motion.
Thereafter, the trial court considered defendant's Romero3 motion and denied it.
In light of his two prior strike convictions, the trial court sentenced defendant to a term of
25 years to life.
DISCUSSION
We agree with defendant that the trial court's statement to him with respect to
waiver of his right not to incriminate himself was erroneous. As defendant notes,
statements a defendant makes in the course of a Marsden hearing are, at the very least,
subject to so-called use immunity. (See People v. Dennis (1986) 177 Cal.App.3d 863,
874-875 (Dennis).)
A. Marsden
Criminal defendants are entitled the assistance of counsel in their defense. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15.) A court must appoint counsel to represent
an indigent defendant. (Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.) A
defendant also has a right to seek substitute counsel under Marsden if the defendant can
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 5
show that continued representation by present counsel would substantially impair or deny
his or her right to effective assistance of counsel. (People v Cole (2004) 33 Cal.4th 1158,
1190; Marsden, supra, 2 Cal.3d at p. 123.) The trial court must appoint new counsel
when failure to do so would substantially impair the defendant's right to assistance of
counsel. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.)
During a Marsden hearing, the court must allow the defendant an opportunity to
explain the grounds for the motion and to relate specific instances of his or her attorney's
inadequate performance. (Marsden, supra, 2 Cal.3d at p. 124.) The trial court must
afford the defendant every opportunity to express the specific reasons of dissatisfaction
with counsel. (Ibid.; People v. Ivans (1992) 2 Cal.App.4th 1654, 1665.) Thus, a trial
court abuses its discretion when it refuses to listen to the defendant's reasons for
requesting substitute counsel. (People v. Vera (2004) 122 Cal.App.4th 970, 980; Ivans,
supra, at 1666; People v. Moore (1988) 47 Cal.3d 63, 76; People v. Lewis (1978) 20
Cal.3d 496, 498–499.)
The right to effective assistance of counsel continues throughout proceedings in
the trial court and on appeal. (See Douglas v. California (1963) 372 U.S. 353, 356-358;
Dennis, supra, 177 Cal.App.3d at pp. 874-875.) As here, it may arise after a verdict and
before judgment is entered in the trial court. (See Dennis, at pp. 874-875; People v. Reed
(2010) 183 Cal.App.4th 1137, 1148 (Reed).) When new counsel is appointed at that
stage of the proceedings, new counsel may, if counsel believes it is appropriate, move for
a new trial on the grounds former counsel was ineffective. (See Dennis, at p. 868; Reed,
6
at pp. 1149-1150.)
Typically, when conducting a Marsden hearing, trial courts exclude the district
attorney upon defendant's request and "whenever information would be presented during
the hearing to which the district attorney is not entitled, or which could conceivably
lighten the prosecution's burden of proving its case." (People v. Madrid (1985) 168
Cal.App.3d 14, 19.)
B. Dennis
In Dennis, after the defendants were convicted of kidnapping and rape, they made
Marsden motions, which the trial court granted. The defendants' new counsel then
moved for a new trial, arguing that by granting the Marsden motion, the trial court
necessarily determined the defendants had not been effectively represented. The trial
court agreed and granted the defendants' a new trial. The People appealed and argued the
trial court had failed to provide them with a fair opportunity to contest the motion for a
new trial and had unfairly removed from the defendants' their burden on a motion for a
new trial.
The defendants' in Dennis argued that in seeking a motion for a new trial they
could not be required to demonstrate how their respective trial counsel were ineffective,
because doing so would improperly burden their ability to obtain new counsel. They
argued that such a showing might disclose incriminating or otherwise damaging evidence
and conceivably lighten the prosecution's burden in any new trial. (Dennis, supra, 177
Cal.App.3d at p. 874.)
7
The Court of Appeal agreed with the People and reversed. It found that on a
motion for new trial the defendants had the burden of showing both the ineffectiveness of
counsel and the prejudice it caused. (Dennis, supra, 177 Cal.App.3d at p. 872.) Of
pertinence here, in responding to the defendants' concern that in making such a showing
they might be compelled to disclose privileged information that would assist the
prosecution, the Court of Appeal found that any information the defendants disclosed in
asserting their right to effective counsel was subject to use immunity. (Id. at p. 874.)
"Use immunity rules apply where there is a compulsive sanction against exercise of the
privilege against self-incrimination and where the policy of law favors full disclosure or
discussion by the accused. [Citation.] Those factors are present here. As we have noted,
on motion for a new trial the defendant bears the burden of establishing ineffectiveness of
counsel and this burden cannot be met by a silent record; consequently the defendant will
feel compelled to make disclosure of information. The law clearly favors such
disclosure. Trial courts have the duty to ensure that defendants are accorded due process
of law, and they are particularly well suited to rule on the adequacy of counsel in cases
tried before them. [Citation.] And justice will be expedited by presenting the issue of
counsel's effectiveness to the trial court on motion for a new trial. [Citation.] These
factors compel the conclusion that defendant must be granted use immunity for
disclosures he may make in support of a motion for a new trial on grounds of
ineffectiveness of trial counsel." (Id. at pp. 875-876, fn. omitted.)
The considerations that require use immunity with respect to privileged
8
information disclosed in support of a motion for a new trial based on ineffective
assistance of counsel apply with equal force to disclosures made in support of a Marsden
motion. As the circumstances on this record demonstrate, in order to exercise the right to
effective assistance embodied in Marsden, a defendant faces the same constitutional
dilemma a defendant moving for a new trial based on asserted ineffective assistance of
counsel confronts: The need to fully disclose information in order to obtain effective
counsel, as guaranteed by the Sixth Amendment, may require the defendant to waive the
right against self-incrimination, as guaranteed by the Fifth Amendment. The need for use
immunity in the context of a Marsden hearing is of course especially acute because at a
Marsden hearing a defendant is acting, in many material respects, on his or her own and
without the benefit of counsel. Thus, as in Dennis, statements made in a Marsden
hearing are subject to use immunity; that is, statements made by the defendant may not be
used in further related proceedings, save for the purposes of impeachment and rebuttal in
such proceedings.4 (See Dennis, supra, 177 Cal.App.3d at p. 874.)
4 The use immunity the court adopted in Dennis and we find applicable here, is based on the remedy fashioned by the Supreme Court in People v. Coleman (1975) 13 Cal.3d 867, 889 (Coleman). "In Coleman the defendant was subject to probation revocation proceedings on grounds which were also the basis for criminal charges. He declined to testify at his revocation hearing to avoid incriminating himself at his subsequent criminal trial. In order to alleviate the harsh testimonial choice such a person must make, the Supreme Court fashioned 'a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer's revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial 9
C. Analysis
Here, the record shows the trial court did not accurately describe for defendant the
permissible uses of statements defendant made at the Marsden hearing. Contrary to the
statement of the trial court, statements defendant made about the offense would not waive
his Fifth Amendment rights and could not be used against him in further proceedings,
including his pending Romero motion and at sentencing. (See Dennis, supra, 177
Cal.App.3d at pp. 874-875.)
In response to the trial court's statement, the record suggests defendant abbreviated
his Marsden presentation. Because the trial court's statement was plainly erroneous and
the record suggests defendant limited his remarks in response to it, we will presume that
the trial court's statement substantially and erroneously interfered with defendant's rights
under Marsden.
However, Marsden does not establish a rule of per se reversible error. (People v.
Chavez (1980) 26 Cal.3d 334, 348-349; Reed, supra, 183 Cal.App.4th at p. 1148; People
v. Washington (1994) 27 Cal.App.4th 940, 944.) Where there is Marsden error, we must
reverse, unless the record shows beyond a reasonable doubt that the defendant was not
prejudiced. (Reed, at p. 1148.) In People v. Washington, the court was able to find that
no prejudice occurred because the defendant's Marsden motion was made in conjunction
with his motion for a new trial based on ineffective assistance of counsel, which the trial
court's admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing.' [Citation.]" (Dennis, supra, 177 Cal.App.3d at p. 874.) 10
court denied and which the defendant did not challenge on appeal. In light of the trial
court's ruling on the motion for a new trial, the Court of Appeal was able to determine
that although the trial court erred in not hearing the companion Marsden motion, the
record on the new trial motion showed that, in any event, no relief from the verdict would
have been achieved. (Washington, at p. 944.)
Here, we do not have the benefit of any trial court ruling on a motion for new trial
or any other means of determining what, in the absence of the trial court's statement,
defendant would have offered in the way of grounds for appointing new counsel. The
record is silent on these issues. In this regard, our record is similar to the one considered
in Reed, where, at sentencing, the defendant complained about the effectiveness of his
counsel and the trial court failed to make appropriate inquiries as to the basis for the
defendant's complaints and failed to consider appointing counsel for the purpose of
preparing a motion for a new trial. The Court of Appeal determined that the silent record
with respect to what the defendant may have offered, had the required inquiries been
made, made it impossible to conclude beyond a reasonable doubt that the trial court's
error was harmless. (Reed, supra, 183 Cal.App.4th at pp. 1144-1145.) The Court of
Appeal remanded for the limited purpose of determining whether the Marsden motion
should have been granted, and, if it should have been granted, hearing any new trial
motion made by new counsel. (Reed, at pp. 1149-1150.)
The silent record here leaves us in the same position as the Court of Appeal in
Reed: we cannot conclude beyond a reasonable doubt that defendant's fully articulated
11
Marsden motion would have been unsuccessful or that, if it was successful, new counsel
would have failed in prosecuting a motion for a new trial. Thus, we must reverse for
further proceedings.
DISPOSITION
Defendant's judgment is reversed and the case is remanded with directions to the
trial court to conduct a Marsden hearing with respect to the representation defendant
received at trial. The hearing shall be conducted consistent with the views we have
expressed with respect to the use of defendant's statements in further proceedings. If the
court determines that defendant's representation by trial counsel gave rise to the right to
new counsel, the court shall appoint new counsel and conduct further proceedings as
necessary in light of that appointment. If, on the other hand, the trial court determines
that defendant's representation at trial did not require appointment of new counsel, the
trial court shall reinstate the judgment.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
12
AI Brief
AI-generated · verify before citing
Holding. The trial court committed reversible error during a Marsden hearing by incorrectly warning the defendant that discussing the circumstances of his case would waive his right to remain silent, as such statements are protected by use immunity. Because the record does not show beyond a reasonable doubt that this error was harmless, the case must be remanded for a new Marsden hearing.
Issues
Whether a trial court errs by warning a defendant that statements made during a Marsden hearing regarding the offense would waive the defendant's Fifth Amendment rights.
Whether statements made by a defendant during a Marsden hearing are subject to use immunity.
Whether the trial court's erroneous warning during a Marsden hearing constitutes reversible error when the record is silent on what the defendant would have otherwise presented.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“statements a defendant makes in the course of a Marsden hearing are, at the very least, subject to so-called use immunity.”
“the trial court's statement was plainly erroneous and the record suggests defendant limited his remarks in response to it, we will presume that the trial court's statement substantially and erroneously interfered with defendant's rights”