1 Filed 5/8/13 P. v. Kent CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL LAMONT KENT, Defendant and Appellant. E055711 (Super.Ct.No . SWF10001553) OPINION

APPEAL from the Superior Court of Rive rside County. Mark E. Petersen, Judge. Reversed. Patrick DuNah, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, A. Natasha Cortina and Kimberley A. Donohue, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 I NTRODUCTION Defendant Michael Lamont Kent seeks re mand to allow the tria l court to hold a
Marsden 1 hearing. The People agree that the matter should be remanded.
F ACTS AND PROCEDURAL HISTORY On February 16, 2011, defendant was charged with robbery (Pen. Code § 211, count 1) 2 and burglary of an inhabited dwelling ( §§ 459, 667.5, subd. (c)(21), count 2). A jury convicted him of both o ffenses on November 4, 2011. As his sentencing hearing opened on January 13, 2012, defendant told the court that he wished to make “A Motion of Ine ffective Assistance of Counsel.” Defendant’s attorney asked the court to respond to defe ndant as he (counsel) had never faced this situation before and was unclear about exac tly what his client wanted. The court explained to defendant that a “Motion for In effective Assistance of Counsel” was an issue to be brought up on appeal, not taken up in the trial court. And a Marsden motion “ . . . is you no longer want this gentleman to be your attorney.” To this, defendant responded, “Correct, Your H onor. Exactly.” The court th en went on: “On the other hand, if you don’t do that [ Marsden ] motion, and just go through with sentencing today, you can always raise your appe al on grounds of ineffective assistance of counsel if you think that’s one of the grounds you have. . . . You can raise any and all issues on appeal that you think are appropriate.”

1 People v. Marsden (1970) 2 Cal.3d 118.
2 All further statutory references are to the Penal Code.3 After conferring with his attorney, defendant elected to be sentenced that day. The court sentenced him to the low te rm of three years in state prison. On February 22, 2012, defendant filed a notice of appeal.
D ISCUSSION Defendant contends that the trial c ourt should have provided him with a Marsden hearing to investigate his request to discharg e his attorney. The People reply that because defendant was represented by retained counsel, Marsden does not apply. Nevertheless, pursuant to the rule of People v. Ortiz (1990) 51 Cal.3d 975 ( Ortiz ), the matter should be remanded to allow the trial court to hear defe ndant’s request to discharge his attorney. The People are correct. In exercising his constitutional rights to counsel and to present a defense, a defendant is entitled to discharg e his attorney at any point so long as it will not interfere with the “‘orderly processes of ju stice . . . .’ [Citation.]” ( Ortiz , supra , 51 Cal.3d 975, 982.) When counsel is retained, as oppos ed to appointed, the defendant seeking to discharge his attorney is not re quired to prove that counsel is incompetent or that he and his attorney are embroiled in an irreconcilable conflict. ( Id. at pp. 983-984.) “The right of a nonindigent criminal defendant to discharge his retained attorney, with or without

cause, has long been recogn ized in this state [citations] . . . .” ( Id. at p. 983, italics added.) Accordingly, although the court mu st exercise its discretion as to whether substitution of counsel will interrupt the orderly processes of justice, the formalities of a Marsden hearing are not required.4 In People v. Munoz (2006) 138 Cal.App.4th 860 ( Munoz ), the Attorney General argued that, after conviction, this broad righ t to discharge appointe d counsel should be limited. ( Id. at p. 867.) But as the Munoz court pointed out, Ortiz made no distinction between motions to dismiss counsel brought before trial, during trial, or after conviction. ( Ibid. ) In Ortiz , our state Supreme Court was concerned with the “‘evil engendered by friction or distrust between an indigent crim inal defendant and his attorney’ [citation].” ( Munoz at p. 867.) “To our way of thinking, it is every bit as important to guard against these undesirable consequences after trial as it is before trial.” ( Ibid. ) We agree. Accordingly, we will remand the matter with instructions for the trial court to grant defendant’s motion to discha rge his retain ed attorney. Defendant also argues that his request to discharge his attorney amounts to a motion for a new trial and that the court erre d by not explaining the latter alternative to him. However, as the People point out, defe ndant did not make a motion for a new trial, and we decline to construe his request to di scharge his attorney as such a motion.
D ISPOSITION The judgment is reversed and the ma tter remanded to the trial court with instructions to allow defendant to discharge his retained attorney. Once new counsel is appointed, the case is to proceed from the point at which defendant sought to discharge his attorney. If, after reviewing the record, defendant’s new attorney moves for a new trial, the court is to exercise its discretion to grant or deny the motion. If newly appointed counsel5 makes no motions, or any motions made are de nied, the trial court is to reinstate the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.

We concur: KING Acting P. J.
MILLER J.