Olivencia

Benny Olivencia and his brother, Paul Olivencia, were tried together before a jury and were each convicted of one count of false imprisonment, a felony (Pen. Code, §§ 236, 237) 1 with the use of a knife (§ 12022, subd. (b)). Both were acquitted of first degree burglary (§§ 459, *1395 460). Benny was sentenced to three years in state prison and Paul was sentenced to two years. Appellants contend the trial court erred in failing to instruct the jury that felony false imprisonment is a specific intent crime. Paul contends the trial court failed to hold a requested Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ]), and improperly admitted a hearsay statement of Benny as the statement of a coconspirator (Evid. Code, § 1223). Benny contends the prosecutor improperly questioned him concerning his prior arrests, and the court erroneously allowed the prosecution to impeach him with a prior felony conviction for burglary.

Facts

Benny and Paul were “burned” in a drug transaction after Paul arranged to purchase cocaine from Mark Frates and George Walker at Frates’s San Jose apartment. Paul gave Walker $380 for a package which allegedly…

Concurring and Dissenting.—I dissent from the remand for a Marsden hearing. I concur in the remainder of the opinion.

The record shows that the defendant filed a one-page handwritten Mars-den motion on September 16, 1986. It did not name the attorney with whose *1405 services the defendant was dissatisfied. Presumably it was his assigned counsel, Mr. Seiff. The motion recited “Defendant hereby request that the Mars-den hearing be held before any other pretrial hearing.”

It is undisputed that the motion was simply lost in the shuffle.

The record shows further that defendant appeared in court on September 16, September 23, September 30 and October 2. In all of those appearances he was represented by Mr. Pennypacker on behalf of assigned counsel, Mr. Seiff. Then on October 6, 1986, defendant appeared with Mr. Seiff on a number of pretrial motions.

At no time did the defendant call the court’s attention to the Marsden motion. Had he done so, it would unquestionably have been considered. He should not be heard to cry “tilt” at this late hour.

I would hold that the motion was abandoned as a matter of law. In the alternative, I would direct the trial court to determine whether the…