Coleman

Aaron Maurice Coleman (appellant) appeals from a judgment of conviction upon a jury verdict finding him guilty of second degree murder (Pen. Code, § 187). The jury also found that appellant was an ex-felon in possession of a firearm and that he had suffered two prior convictions (Pen. Code, §§ 12021, 667, 667.5, subd. (b)). We reverse the judgment because the trial court failed to grant a mistrial on the ground of legal necessity.

Factual Background

Following defense counsel’s opening statement and after one of the People’s witnesses had begun testifying, appellant moved to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 ,465 P.2d 44], Appellant told the court that he wanted new counsel appointed because his defense counsel had misstated the evidence in her opening statement. He also said that if he testified, the jury would perceive him as a liar because of defense counsel’s statement. In a further hearing on the Marsden motion, defense counsel objected to the Marsden motion and urged the court to grant a mistrial arguing that a mistrial was the appropriate remedy given her misstatement of the evidence in the opening statement.…