People v. Smith

A defendant pleads guilty to felony charges pursuant to a plea bargain. Prior to sentencing, he seeks to withdraw the plea, and claims his court-appointed attorney provided ineffective assistance. Under what circumstances must the trial court substitute new counsel in place of the first attorney for future representation, including investigating and, if appropriate, presenting a claim that the first attorney was ineffective?

Defendant was charged by information with murder and other offenses. The information also alleged that defendant used a firearm in the commission of the murder (Pen. Code, § 12022.5, subd. (a)), that the murder was committed for the benefit of a street gang (Pen. Code, § 186.22, subd. (b)), and that defendant had suffered one prior serious felony conviction. (Pen. Code, § 667, subd. (a).) The charges arose out of the gang-related fatal shooting of Reginald Laird in Fresno in October 1990.

On the day set for jury trial, defendant, represented by appointed counsel, agreed to accept a plea offer, then changed his mind, then changed his mind again and accepted a new offer. He ultimately pleaded guilty to second degree murder, and admitted…

*687 Opinion

A defendant pleads guilty to felony charges pursuant to a plea bargain. Prior to sentencing, he seeks to withdraw the plea, and claims his court-appointed attorney provided ineffective assistance. Under what circumstances must the trial court substitute new counsel in place of the first attorney for future representation, including investigating and, if appropriate, presenting a claim that the first attorney was ineffective?

I. Facts

Defendant was charged by information with murder and other offenses. The information also alleged that defendant used a firearm in the commission of the murder (Pen. Code, § 12022.5, subd. (a)), that the murder was committed for the benefit of a street gang (Pen. Code, § 186.22, subd. (b)), and that defendant had suffered one prior serious felony conviction. (Pen. Code, § 667, subd. (a).) The charges arose out of the gang-related' fatal shooting of Reginald Laird in Fresno in October 1990.

On the day set for jury trial, defendant, represented by appointed counsel, agreed to accept a plea offer, then changed his mind, then changed his mind again and accepted a new offer. He ultimately pleaded guilty to second degree murder, and…

The majority holds that the test by which a trial court should exercise its discretion to grant a defendant’s motion, made pursuant to People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ], for appointment of substitute counsel includes two elements. The first looks back to determine if counsel has provided constitutionally adequate representation. If so, the motion should be denied. If not, the court must assess the manner in which counsel’s representation falls short and appoint substitute counsel if it appears to the court that failure to do so will substantially impair the defendant’s right to counsel in subsequent proceedings. That test applies to postconviction Marsden motions just as it does to motions made at earlier stages of the proceedings.

I agree with those conclusions and concur in the judgment. However, the majority does not answer, in the context of this case, the question it initially poses. It does not address the circumstances relevant to ruling on the postconviction Marsden motion of a defendant who has pleaded guilty and whose motion to withdraw the plea has been denied—the case in which it appears nothing remains but the imposition of…