Marsden hearing in California

2025(Marsden, supra, 2 Cal.3d at p. 123 ; People v. Smith (1993) 6 Cal.4th 684, 694 ; see People v. Martinez (2009) 47 Cal.4th 399, 419 [Marsden was intended to provide protection to the right to counsel].) This request may be made at any stage in the criminal proceedings—including during competency proceedings—and the court must promptly conduct a Marsden hearing.

2025(Marsden, supra, 2 Cal.3d at p. 123 ; People v. Smith (1993) 6 Cal.4th 684, 694 ; see People v. Martinez (2009) 47 Cal.4th 399, 419 [Marsden was intended to provide protection to the right to counsel].) This request may be made at any stage in the criminal proceedings—including during competency proceedings—and the court must promptly conduct a Marsden hearing.

2025That Jones stated his dissatisfaction with Mr. Lainez, and stated he wanted to make an oral declaration, does not amount to a “ ‘clear indication’ ” he wanted substitute counsel. ( Sanchez, supra, 53 Cal.4th at pp. 89–90 [although no formal or specific language is necessary to ask for a Marsden hearing, the trial court is not obligated to conduct such a hearing unless there is “ ‘at least some clear indication by defendant’ ” that he or she wants substitute counsel (italics added)].) Indeed, appointing new counsel would not have addressed Jones’s stated reason for wanting to self-represent; ne

2025That Jones stated his dissatisfaction with Mr. Lainez, and stated he wanted to make an oral declaration, does not amount to a “ ‘clear indication’ ” he wanted substitute counsel. ( Sanchez, supra, 53 Cal.4th at pp. 89–90 [although no formal or specific language is necessary to ask for a Marsden hearing, the trial court is not obligated to conduct such a hearing unless there is “ ‘at least some clear indication by defendant’ ” that he or she wants substitute counsel (italics added)].) Indeed, appointing new counsel would not have addressed Jones’s stated reason for wanting to self-represent; ne

2025To trigger such a hearing, there must be “at least some clear indication by defendant that he wants a substitute attorney.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 .) “We will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court.” (People v. Richardson (2009) 171 Cal.App.4th 479, 484 .) No such evidence appears here.

2025To trigger such a hearing, there must be “at least some clear indication by defendant that he wants a substitute attorney.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 .) “We will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court.” (People v. Richardson (2009) 171 Cal.App.4th 479, 484 .) No such evidence appears here.

2026Lastly, “when the evidence establishes a manifest need for restraints, the court should impose the least obtrusive or restrictive restraint that would be effective under the circumstances.” (People v. Poore (2022) 13 Cal.5th 266, 285 .) Here, the trial court ordered defendant restrained to his chair, but noted that “it’s done in a fashion that can’t be seen by the jurors,” and that “the counsel table is skirted all the way around.” During the Marsden motion immediately following the shackling discussion (People v. Marsden (1970) 2 Cal.3d 118 ), the trial court clarified that defendant’s writin

2026Motions for Substitution of Appointed Counsel A defendant is entitled to substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118 “ ‘if the record clearly shows that the appointed counsel 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. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) An appellate court reviews the denial of a Marsden motion for abuse of discretion.

2025A defendant is entitled to relief if the record clearly shows that the appointed counsel 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. Smith (2003) 30 Cal.4th 581, 604 .) A trial court’s refusal “to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion by the court.” (People v. Chavez (1980) 26 Cal.3d 334, 346 .) Further, the denial of a defendan

2025A defendant is entitled to relief if the record clearly shows that the appointed counsel 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. Smith (2003) 30 Cal.4th 581, 604 .) A trial court’s refusal “to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion by the court.” (People v. Chavez (1980) 26 Cal.3d 334, 346 .) Further, the denial of a defendan

2023“A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair 6 opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860 , abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365 , italics omitted.) To the extent there may be a credibility question between defendant and counsel at the Marsden hearing, the court is entitled to accept counsel’s explanation.

2023“A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair 6 opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860 , abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365 , italics omitted.) To the extent there may be a credibility question between defendant and counsel at the Marsden hearing, the court is entitled to accept counsel’s explanation.

2026(See People v. Marshall (1997) 15 Cal.4th 1, 21 ; People v. Scott (2001) 91 Cal.App.4th 1197, 1205 [trial court properly denied Faretta motion as equivocal where defendant’s “comments 5 suggest he made the Faretta motion only because he wanted to rid himself of appointed counsel”]; People v. Valdez (2004) 32 Cal.4th 73, 99 [defendant’s reference to right of self-representation, made immediately following denial of Marsden motion, supports conclusion that defendant did not make an unequivocal Faretta motion]; see also Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529-1530 [Faretta reques

2025(People v. Valdez (2004) 32 Cal.4th 73, 96 [Marsden hearing is “ ‘not a full-blown adversarial proceeding, but an informal hearing’ ”].) What is required is that a court conduct a hearing in which a defendant is able to “ ‘express the specific reasons why he believe[d] he [was] not being adequately represented by his current counsel.’ ” (People v. Vera, supra, 122 Cal.App.4th at p. 979 .) The trial court gave Guan that opportunity, openly asking, “What do you want me to do?” The court then listened and responded to Guan’s comments concerning the evidence presented at trial, the testimony of th

2026The record does 8. credibility determination and accept counsel’s explanation]; People v. Taylor, supra, 48 Cal.4th at p. 600 [same].) In any event, after the issue was raised at the first Marsden hearing, counsel confirmed he would promptly have an investigator contact the proposed witnesses.

2026Motions for Substitution of Appointed Counsel A defendant is entitled to substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118 “ ‘if the record clearly shows that the appointed counsel 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. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) An appellate court reviews the denial of a Marsden motion for abuse of discretion.

2025A defendant is entitled to relief if the record clearly shows that the appointed counsel 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. Taylor (2010) 48 Cal.4th 574, 599 .) “ ‘We review the denial of a Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” ’ ” (People v. St

2024A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that 10 defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ ” (People v. Ng (2022) 13 Cal.5th 448, 500 .) “ ‘A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.” ’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230 .) “ ‘Onc

2024And I believed her . . . and it didn’t happen like that.” (Italics added.) 10 making the requisite showing “ ‘ “ ‘that ineffective representation is likely to result.’ ” ’ ” (People v. Barnett, supra, 17 Cal.4th at p. 1085 .) In sum, the trial court’s Marsden inquiry was sufficient.

2024And I believed her . . . and it didn’t happen like that.” (Italics added.) 10 making the requisite showing “ ‘ “ ‘that ineffective representation is likely to result.’ ” ’ ” (People v. Barnett, supra, 17 Cal.4th at p. 1085 .) In sum, the trial court’s Marsden inquiry was sufficient.

2026Discussing whether a defendant made a motion to discharge retained counsel, which was erroneously treated as a Marsden motion by the trial court (People v. Marsden (1970) 2 Cal.3d 118 ), the court in People v. Lara (2001) 86 Cal.App.4th 139 , on which defendant relies, stated: “It is a close question as to whether appellant wanted to discharge Mr. Roberts.

2025(Burton, supra, 48 Cal.3d at p. 855 ; accord, People v. Lara (2001) 86 Cal.App.4th 139, 150 [trial court does not have a sua sponte duty to initiate a Marsden inquiry]; Leonard, supra, 78 Cal.App.4th at p. 787 .) Like the defendant in Burton, Jones made several, “explicit requests to represent himself.” (Burton, supra, 48 Cal.3d at p. 855 .) Also like the defendant in Burton, Jones explained why he wanted to self-represent (see ibid.), as he alone knew the “true facts” and “exactly what happened.” Jones also told the court he had “thoroughly thought this out,” and felt he could do a better job

2023(See People v. Jones (2003) 29 Cal.4th 1229, 1245 [to the extent there is a credibility question between a defendant and counsel at a Marsden hearing, the trial court is “ ‘ “entitled to accept counsel’s explanation” ’ ”].) 2.

2023(See People v. Jones (2003) 29 Cal.4th 1229, 1245 [to the extent there is a credibility question between a defendant and counsel at a Marsden hearing, the trial court is “ ‘ “entitled to accept counsel’s explanation” ’ ”].) 2.

2026(See People v. Marshall (1997) 15 Cal.4th 1, 21 ; People v. Scott (2001) 91 Cal.App.4th 1197, 1205 [trial court properly denied Faretta motion as equivocal where defendant’s “comments 5 suggest he made the Faretta motion only because he wanted to rid himself of appointed counsel”]; People v. Valdez (2004) 32 Cal.4th 73, 99 [defendant’s reference to right of self-representation, made immediately following denial of Marsden motion, supports conclusion that defendant did not make an unequivocal Faretta motion]; see also Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529-1530 [Faretta reques

2025(See People v. Burton (1989) 48 Cal.3d 843 , 853–854 [court properly concluded motion was untimely where made “after the case had been called for trial, both counsel had answered ready, and the case had been transferred to a trial department for pretrial motions and jury trial”].) Although appellant sought to represent himself at the prior hearing, that request was equivocal—he made it out of apparent frustration, immediately after the court’s denial of both his Marsden motion and his subsequent request for a continuance to hire new counsel.4 (People v. Scott (2001) 91 Cal.App.4th 1197, 1206 (

2025Second, a trial court is required to hold a Marsden hearing only when the defendant requests one — “the trial court is not required to conduct a Marsden hearing on its own motion” (People v. Martinez (2009) 47 Cal.4th 399, 421 (Martinez)) or in response to “criticism of appointed counsel that has been levied by a nonparty” (id. at p. 420).

2025Second, a trial court is required to hold a Marsden hearing only when the defendant requests one — “the trial court is not required to conduct a Marsden hearing on its own motion” (People v. Martinez (2009) 47 Cal.4th 399, 421 (Martinez)) or in response to “criticism of appointed counsel that has been levied by a nonparty” (id. at p. 420).

2024(Chapman v. California, supra, 386 U.S. 18 .) The Attorney General argues that to the extent the trial court erred in failing to inquire into the basis for his Marsden motion at resentencing, the error was harmless.

2024(Chapman v. California, supra, 386 U.S. 18 .) The Attorney General argues that to the extent the trial court erred in failing to inquire into the basis for his Marsden motion at resentencing, the error was harmless.

2023The Marsden court also held that in making this determination, the trial court must allow the defendant to explain the manner in which he believes his counsel is performing inadequately. ( Marsden, supra, at pp. 123–124.) “ ‘[S]ubstitute counsel should be appointed when ... necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the firs

2023The Marsden court also held that in making this determination, the trial court must allow the defendant to explain the manner in which he believes his counsel is performing inadequately. ( Marsden, supra, at pp. 123–124.) “ ‘[S]ubstitute counsel should be appointed when ... necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the firs

2026“A ‘ “ ‘lack of trust in, or inability to get along with, an appointed attorney’ ” ’ is an inadequate basis on which to substitute counsel.” (People v. Clark (2011) 52 Cal.4th 856, 918 .) Considering the totality of the circumstances, we conclude that defendant’s right to the assistance of counsel was not impaired. 17 III Faretta Motion A. Additional Background Immediately after the trial court denied defendant’s Marsden motion, defendant moved to represent himself under Faretta v. California (1975) 422 U.S. 806 .

2025The court does not abuse its discretion in denying a Marsden motion ‘ “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” ’ [Citations.] Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when ‘the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].’ ” (People v. Clark (2011) 52 Cal.4th 856, 912 .) “The trial court’s determination will n

2026Under Marsden, a defendant may seek to have appointed counsel discharged upon a showing that “ ‘counsel is not 16 PEOPLE v. BANKSTON Opinion of the Court by Kruger, J. 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. Taylor (2010) 48 Cal.4th 574, 599 .) When a defendant seeks substitution of appointed counsel under Marsden, “ ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate perf

2026Under Marsden, a defendant may seek to have appointed counsel discharged upon a showing that “ ‘counsel is not 16 PEOPLE v. BANKSTON Opinion of the Court by Kruger, J. 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. Taylor (2010) 48 Cal.4th 574, 599 .) When a defendant seeks substitution of appointed counsel under Marsden, “ ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate perf

2025(People v. Leonard (2000) 78 Cal.App.4th 776 , 787 8 (Leonard).) A defendant’s Faretta motion for self-representation differs from a Marsden motion for substitution of counsel, “one raising the question of defendant’s competency to waive his right to counsel, and the other raising the question of existing counsel’s competency.” (People v. Burton (1989) 48 Cal.3d 843, 855 (Burton).) A criminal defendant has a constitutional right to choose self-representation instead of representation by counsel. ( Faretta, supra, 422 U.S. at pp. 807, 819–821.) However, a request for self- representation does n

2025(People v. Leonard (2000) 78 Cal.App.4th 776 , 787 8 (Leonard).) A defendant’s Faretta motion for self-representation differs from a Marsden motion for substitution of counsel, “one raising the question of defendant’s competency to waive his right to counsel, and the other raising the question of existing counsel’s competency.” (People v. Burton (1989) 48 Cal.3d 843, 855 (Burton).) A criminal defendant has a constitutional right to choose self-representation instead of representation by counsel. ( Faretta, supra, 422 U.S. at pp. 807, 819–821.) However, a request for self- representation does n

2025“Marsden does not establish a rule of per se reversible error.” (People v. Washington (1994) 27 Cal.App.4th 940, 944 .) Reversal is not required if the record shows beyond a reasonable doubt that the defendant was not prejudiced by the trial court’s failure to hold a Marsden hearing.

2025“Marsden does not establish a rule of per se reversible error.” (People v. Washington (1994) 27 Cal.App.4th 940, 944 .) Reversal is not required if the record shows beyond a reasonable doubt that the defendant was not prejudiced by the trial court’s failure to hold a Marsden hearing.

2024Defendant then points to the trial court’s statement on the record summarizing what defense counsel told the court in chambers.10 (Cf., People v. Hill (1983) 148 Cal.App.3d 744 , 754–755 [denial of Marsden motion was error where trial court expressly relied on “ex parte, off-the-record discussions” with defense counsel to investigate defendant’s complaints].) However, defendant fails to demonstrate error.

2021Although we agree that, in some instances, a failure to hold a Marsden hearing has been treated as prejudicial per se when the appellate court cannot conduct an adequate review on a silent record (see People v. Hill (1983) 148 Cal.App.3d 744, 755 ), this is not one of those cases.

2023Defendant analogizes his case to People v. Reed (2010) 183 Cal.App.4th 1137 , and claims both he and the defendant in Reed were entitled to a Marsden hearing because they clearly told the trial court that they wanted a new trial based on their counsels’ ineffectiveness.

2023Defendant analogizes his case to People v. Reed (2010) 183 Cal.App.4th 1137 , and claims both he and the defendant in Reed were entitled to a Marsden hearing because they clearly told the trial court that they wanted a new trial based on their counsels’ ineffectiveness.

2025(Compare People v. Clark (1992) 3 Cal.4th 41, 103 [defendant’s statement that he’d “ ‘object to everything’ ” his counsel did in the courtroom and that counsel was not representing him did not constitute a Marsden motion] with People v. Armijo (2017) 10 Cal.App.5th 1171, 1179-1180 [letters clearly indicated the defendant sought the discharge of the public defenders who were representing him and their replacement by another court-appointed counsel].) Complaints regarding the adequacy of representation at trial do not constitute a request for substitute counsel at sentencing or for any other pur

2024(Carter, supra, 86 Cal.App.5th at p. 770 (conc. & dis. opn. of Robie, J.).) “Motions and briefs of parties represented by counsel must be filed by such counsel.” (People v. Clark (1992) 3 Cal.4th 41, 173 .) A narrow exception to this rule allows the filing of “pro se motions regarding representation, including requests for new counsel.” (Ibid.) But Carter’s motion to dismiss, which was distinct from his Marsden motion, was not a request for new counsel.

2025A. Marsden, Ineffective Assistance, and Conflicts The law governing a Marsden motion “is well settled. ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, 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. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroile

2023The law governing a Marsden motion “is well settled. ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial 22. court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that inef

2025(See Smith, supra, 30 Cal.4th at pp. 606-608 [no abuse of discretion where the trial court “allowed defendant to express himself fully,” “ ‘listened to defendant’s reasons for desiring new counsel, and found them to be without merit’ ”]; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 [“Only the trial judge as a trier of fact is in a position to separate the truth from the exaggeration, sometimes revealed by things like verbal hesitancy and body language which are not picked up in a reporter’s transcript”].) That the trial court mentioned counsel’s reputation and experience after denying the

2024(See People v. Cole (2004) 33 Cal.4th 1158, 1192 ; People v. Hamilton (1989) 48 Cal.3d 1142, 1162 .) But it does violate the Sixth Amendment for the court to look away where “ ‘to compel one charged with [a] grievous crime to undergo a trial with the assistance of any attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.’ ” (Schell v. Witek (9th Cir. 2000) 9 218 F.3d 1017, 1025 .) The right to a Marsden hearing applies throughout a criminal proceeding, prior to trial, at trial and in post-trial proceedings

2026(See People v. Marshall (1997) 15 Cal.4th 1, 21 ; People v. Scott (2001) 91 Cal.App.4th 1197, 1205 [trial court properly denied Faretta motion as equivocal where defendant’s “comments 5 suggest he made the Faretta motion only because he wanted to rid himself of appointed counsel”]; People v. Valdez (2004) 32 Cal.4th 73, 99 [defendant’s reference to right of self-representation, made immediately following denial of Marsden motion, supports conclusion that defendant did not make an unequivocal Faretta motion]; see also Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529-1530 [Faretta reques

2025I [would] rather represent myself than let him represent me, period.” Defendant’s first appointed counsel noticed this, explaining, “what I’m hearing here is that he feels his only option is either me or represent himself.” The trial court too noted at the second Marsden hearing that defendant “made it abundantly clear that he does not want [appointed counsel] as his attorney.” Defendant’s consistent emphasis on replacing his counsel shows he was not making “an unequivocal request, but rather a spur of the moment decision prompted by the denial of [his] motion for substitute counsel.” (People

2025In People v. Dickey (2005) 35 Cal.4th 884 , the defendant argued that he had attempted to make a motion for the appointment of different counsel for the penalty phase of his death penalty trial and that the court erred when it did not conduct the required Marsden hearing.

2024“Marsden error” does not occur “where complaints of counsel’s inadequacy involve tactical disagreements.” (People v. Dickey (2005) 35 Cal.4th 884, 922 .) A conflict between Guerrero and Rayburn as to whether a continuance was appropriate could be resolved by a ruling of the court as to whether good cause existed.

2023A defendant is entitled to relief if the record clearly shows that the appointed counsel 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. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) “A trial court should grant a defendant’s Marsden motion only when the defendant has made ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1025 .) “A de

2023I understand exactly why you want it, and it’s not going to happen.” We conclude the court did not abuse its discretion as to either the way it conducted the fifth Marsden hearing or its decision not to substitute counsel. “ ‘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.’ ” (People v. Welch (1999) 20 Cal.4th 701, 729 .) “Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ” (Id. at pp. 728–729.) 1