Filed 4/22/21 P. v. Carramusa CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. CHRISTOPHER CARRAMUSA,

D efendant and Appellant. D076632

(Super. Ct. No. SCD270824)

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Reversed and remanded with directions

. Alex Coolman, under appointment by the Court of Appeal , for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Resp ondent.2

Christop her Carramusa pled guilty to one count of first degree burglary (Pen. Code, § 459) , 1 and admi tted a prior strike under the Three Strikes law (§§ 667, subd. (b)

- (i), 668, 1170.12) , a prior serious felony (§ § 667, subd. (a)(1), 668, 1192.7 , subd. (c) ) , and four prison priors (§ § 667.5, subd. (b), 668). The plea agreement left the determination of Carramusa ’s sentence to the discretion of the trial court. The trial court declined to strike Carramusa’s prior strike , and it sentenced Carramus a to an upper
- term sentence of 17 years in prison

. O n March 5, 2019, we issued an opini on i n Carramusa’s first appeal in
this matter. ( People v. Carramusa ( Mar. 5, 2019 , D073484).) Due to the post

sentencing change in law enacted by Senate Bill No

. 13 93 (Stats. 2018, ch. 1013, §§ 1

- 2) , w e remanded to the trial court to decide whether to exercise
it s discretion to strike the five

- year enhancement for Carramusa’s prior serious felony (§ 667, subd . (a)(1) )

. On the same day, we issued a n order summarily denying Carramusa’s petition for writ of habeas corpus, which alleged ineffective assistance of counsel. (

In re Carramusa ( Mar. 5, 2019, D074746 ).) Carramusa premised
his habeas petition on the fact that between the date of Carramusa ’ s guilty plea on De cember 12, 2017, and his sentencing on January 23, 2018, our Supreme Court decided People v. Gallardo (2017) 4 Cal.5th 120 ( Gallardo ). The habeas petition argued that defense counsel should have advised Carramusa to withdraw his guilty plea because, under Gallardo , the People would no longer be able to prove that Carramusa incurred a prior st rike and a prior serious felony. Both the prior strike and prior serious felony were

1 All further statutory references are to the Penal Code unless otherwise noted.3

based on Carramusa’s guilty plea, in 1994, to the offense of battery with

s erious bodily injury

. (§ 243, subd. (d)

. ) Our order summarily denying the habeas petition set forth two grounds for our conclusion that Carramusa had not made a prima facie case for relief

. First, we observed that the habeas petition was not ripe because, on remand fr om Carra musa’s appeal, defense counsel “ may, before judgment, attempt to take further action with respect to Carramusa ’ s plea. ” Second, we stated that, as we interpreted Gallardo , e ven if defense counsel had sought to withdraw Carramusa ’ s guilty plea so that the People would be require d to

prove the strike and the serious felo ny, the People would have been able to prove those enhancements by rel ying on the preliminary hearing transcript
from Carramusa’s 1994 battery prosecution

. 2 We premised our conclusion on the documents presented by the People at the sentencing hearing , which we described as showing that “ Carramusa ’ s guilty plea for the 1994 battery conviction expressly incorporated the preliminary hearing transcript.” On remand, the trial court made two rulings. First, i t denied Carramusa’s request, pursuant to People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ) , to substitute appointed counsel

. Second, it decline d to exercise its discretion to strike the five

- year enhancement for Carramusa’s prior serious felony. During the proceedings on remand, d efense counsel did not attempt to withdraw Carramusa’s guilty plea. In this appeal, Carramusa makes two arguments. First, Carramusa contends that defense counsel was ineffective because, on rema nd, he did not advise Carramusa to bring a motion to withdraw his guilty plea in light of

2 Carramusa requests that we take judicial notice of the habeas petition filed in case No. D074746, as well as ou r March 5, 2019 summary denial of that petition. We grant the request. (Evid. Code, § 452, subd. (d).)4

Gallardo , which, if granted, would have require d the People to prove that Carramusa’s 1994 battery conviction qualif ied as a strike and prior serious felony. Second, Carramusa argues that during the Marsden hearing, the trial

court improperly den ied hi s request to substitute appoint ed counsel. 3
We conclude that because the record shows that in conducting the Marsden hearing, the trial court was not aware of the ite ms that Carramusa was attempting to rely upon to support his request for substitute appointed counsel, Carramusa did not receive a full and adequate Marsden hearing

. Accordingly, we reverse the judgment and remand for a renewed Marsden hearing. Following the renewed Marsden hearing, and regardless of its outcome, Carramusa may file a motion to withdraw his guilty plea if he

c hooses to do so . If no such motion is filed, or if the motion is denied, the trial court shall reinstate the judgment.
I.

FACTUAL AND PROCEDURAL BACKGROUND A. Carramusa’s Guilty Plea and Sentencing According to the probation officer ’ s report, a house was burglarized during the afternoon of November 29 , 2016, and over $80,000 in jewelry was
taken. 4 Police eventually identified Carr amusa as a suspect based on security camera footage and telephone records.

3 Carramusa has also filed a petition for a writ of habeas corpus (Case No. D077952 ), in which he argues that defense counsel was ineffective for fail ing to advise him to withdraw his guilty plea in light of Gallardo

. Simultaneously with this opinion, we are issuing an order denying the habeas petition on the ground that it is not ripe in light of our disposition of this appeal.

4 Because Carramusa pl ed guilty, we based our recitation of the facts on the probation officer’s report.5

An amended information charg ed Carramusa with one count of first degree burglary of an inhabited dwelling. ( §§ 459 , 460, subd. (a).) The information also alleged that Carramusa incurred numerous probation

- denial prior felon y convictions (§ 1203, subd

. (e)(4) ) , four prior prison terms (§§ 667.5, subd

. (b), 668 ), a prior serious felony (§§ 667, sub d. (a)(1), 66 8 , 1192.7, subd

. (c) ) , and a prior strike (§§ 667, subd s. (b)

- (i), 668, 1170.12 )

. On December 12, 2017, Carramusa ple d guilty and made admissions to everything that was alleged in the amended information: burglary of an inhabited dwelling , the probation

- denial prior felony convictions (§ 1203, subd

. (e)(4) ), four prior pri son terms (§ § 667.5, subd

. (b) , 668 ), a prior serious felony ( §§ 667, subd

. (a)(1), 668, 1192.7 , subd. (c) ), and a prior strike (§§ 667, subd s

. (b)

- (i), 668, 1170.12 ). The plea agreem ent contained no deal regarding Carramusa’s sentence. According to t he amended information , both the prior strike and the prior serious felony were based on Carramusa’s 1994 conviction for battery
with serious bodily injury. ( § 243, subd. (d)

. ) At the sentencing hearing, the trial court expressed concern over whether there was a factual basis for Carramusa’s admission that he incurred a prior strike and prior serious felony. The trial court’s concern arose because Carramusa’s 1994 conviction for battery with serious bodily injury would qualify as a strike and serious felon y only if it was a “ felony in which the defendant personally inflict[ed] great bodily injury on any person, other than an accomplice

. ” (§ 1192.7,
subd. (c)(8).) 5 Thus, a conviction for battery with serious bodily injury would

5 A strike under the Three Strikes law includes a defendant’s conviction for a “serious felony” as that term is defined in section 1192.7, subd ivision (c)

. ( § 667, subd. ( d)(1).) The same definition of “serious felony” is used to determine whether a defendant has incurred a prior serious felony for the6

only qualify as a “serious f elony” for th e purpose of the Three Strikes l aw or the five

- year enhancement in section 667, subdivision (a) (1) , if i t was “personally inflicted” by Carramusa and the victim was not an accomplice. 6 The prosecutor address ed the trial court’s concerns by p resenting documentation from the 1994 battery prosecution and giving the following explanation : “T he last time that we appeared for the originally scheduled sentencing date Y our H onor expressed so me concern about the nature of M r. Ca r ramusa ’ s 1994 convict ion. As a result I contacted the Riverside C ounty records department.

purpose of the five

- year enhancement in section 667, subdivision (a)(1). ( § 667, subd. (a)(4).) As relevant here, sectio n 1192.7, subd ivision (c) (8) defines a serious felony as “ any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice .” Battery is defined as “ any willful and unlawful use of force or violence upon t he person of another ” ( § 242 ), and section 243, subdivision (d) sets forth the punishment that applies when “ a battery is committed against any person and serious bodily injury is inflicted on the person .” ( § 243 , subd. (d).) As it is possible to be conv icted of battery on a theory of aiding and abetting ( § 31 ), and because it is possible to commit battery on an accomplice, a person could be convicted of battery with serious bodily injury without being convicted of a “ felony in which the defendant persona lly inflicts great bodily injury on any person, other than an accomplice .” (§ 1192.7, subd

. (c) (8).)

6 In arguing that counsel was ineffective, Carramusa has not expressly raised the issue of whether a conviction for a battery causing “serious bodily inj ury” is sufficient to establish a prior conviction in which the defendant inflicted “great bodily injury” as that term is used in section 1192.7, subd ivision (c)(8) . We therefore need not, and do not, consider the issue. (See People v. Santana (2013) 56 Cal.4th 999, 1008

- 1009 [“ We recognize that the terms ‘ serious bodily injury ’ and ‘ great bodily injury ’ have been described

as ‘ “ ‘ essential[ly] equivalent ’ ” ’ . . . and as having ‘ substantially the same meaning ’ . . . However, the terms in fact ‘ have s eparate and distinct statutory definitions. ’ . . . This distinction may make a difference when evaluating jury instructions that provide different definitions for the two terms ,” citations omitted].)7

Unfortunately much of the original record had been purged in light of the age of the conviction; however, they were able to provide a certified copy of the minute order from the time o f M r. Car r amusa ’ s original plea in 1994. That is now marked as court ’ s E xhibit O ne. On page five of that document it specifically states that he pled to a violation of P enal C ode section 243(d) and that the factual basis was based on the preliminary hear ing transcript. After speaking with the Riverside C ounty DA ’ s office they were able to locate a certified copy of the original preliminary hearing transcript. I provided that for defense counsel, and I am now admitting it as court ’ s E xhibit T wo. Based

o n our review of the transcript, the transcript does clearly establish that M r. Ca r ramusa personally inflicted great bodily injury, not on an accomplice, but rather on another and, therefore, it does constitute a strike. I will be admitting both of those a s court ’ s E xhibits O ne and T wo. ” 7
On January 23, 2018, the trial court denied Carramusa’s motion to strike his prior strike, and it sentenced Carramusa to a prison term of 17

years. The 17

- year term was based on the upper term of six years for the burgl ary, doubled to 12 years based on Carramusa’s prior strike, plus five years for the prior serious felony. The trial court exercised its discretion to strike the four one

- year enhancements for Carramusa’s prior prison terms.
B. Carramusa’s First Appeal an d Habeas Petition Carramusa appealed from the judgment

. He argued that the trial court abused its discretion in declining to strike his prior strike and that , due to a change in the law after he was sentenced ( Sen

. Bill No. 1393 , S tats. 2018,

7 We have reviewed both of the exhibits presented by t he prosecutor. The exhibits contain neither Carramusa’s written plea agreement for the 1994 conviction nor the transcript from the 1994 plea hearing. The prosecutor’s representation that “ the factual basis was based on the preliminary hearing ,” is premis ed on court minutes from 1994 stating “Counsel stipulate: FACTUAL BASIS TAKEN FROM PRELIM HRG TRANSCRIPT.”8

ch. 1013, § § 1

- 2) , we should remand this matter for the trial court to decide whether to exercise its discretion to strike the five

- year enhancement for Carramusa’s prior serious felony. W e reversed the judgment for the purpose of remanding to the trial court with d irections that it decide whether to exercise its discretion to strike the five

- year enhancement for Carramusa ’ s prior serious felony conviction. ( People v. Carramusa ( Mar

. 5, 2019 , D073484).) On the same day that we issued our opinion on Carramusa’s appe al, we also issued an order summarily denying Carramusa’s petition for habeas

corpus. ( In re Carramusa ( Mar. 5, 2019, D074746 ).) Carramusa’s habeas petition argued that defense counsel , Deputy Public Defender Warren Den, had provided in effective assistan ce because he d id not advise Carramusa to withdraw his guilty plea prior to sentencing based on our Supreme Court ’s opinion in Gallardo , supra , 4 Cal.5th 120

. Gallardo was issued nine days after Carramusa’s guilty plea. In Gallardo our Supreme Court si gnificantly limited the materials that a trial
court could consult in determining the nature of a prior conviction consistent with the Sixth Amendment to the United States Constitution, as interpreted
in Apprendi v. New Jersey (2000) 530 U.S. 466, 490

. As Gallardo explained,

“ w e now hold that a court considering whether to impose an increased sentence based on a prior qualifying co nviction may not determine the

‘ nature or basis ’ of the prior conviction based on its independent conclusio ns about what facts or conduct ‘ realistically ’ supported the conviction. [Citation

. ] That inquiry invades the jury ’ s province by permitting the court

t o make disputed findings about ‘ what a trial showed, or a plea proceeding revealed, about the defendant ’ s underlying conduc t. ’ [Citation

. ] The court ’ s role is, rather, limited to identifying those facts that were established by9

virtue of the conviction itself

— that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted a s the factual basis for a guilty plea.” ( Gallardo , supra , 4 Cal.5th at p. 136 .) Thus, had the trial court been required to apply Gallardo when deciding whether Carramusa’s 1994 battery conviction qualified as a serious felony, it would have been limited to the “facts . . . [Carramusa] admitted as the factual basis for [the 1994] guilty plea

. ” ( I bid .) In his habeas petition, Carramusa argued that the documentation relating to his 1994 conviction that the trial court referenced at the December 12, 201 7 p lea hearing did not satisfy the strict requirements of Gallardo because Carramusa, in 1994, did not admit the facts that made the battery a serious felony , namely that he personally inflicted great bodily injury and the victim was not an accomplice

. Based on that premise, the habeas petition argued that “[r] easonable counsel would have moved to withdraw petitioner’s admission that his prior conviction for battery was a serious felony after the California Supreme Court issued Gallardo , 4 Cal.5th 120

. ” A s t he petition argued, “ trial counsel did not

. . . explain to [Carramusa] he could move to withdraw his admission based on Gallardo at sentencing.

. . . At petitioner’s sentencing hearing, trial counsel neither brought Gallardo to the trial court’s
attentio n nor moved to withdraw petitioner’s admission.

. . . As such, trial counsel’s assistance was ineffective and subjected appellant to an enhanced sentence no longer valid at law. ” As the petition pointed out, “ Had trial counsel moved to withdraw petitione r’s admission and the trial court properly found the facts petitioner necessarily admitted in 1994 fall short of establishing his battery was serious, the strictest sentence petitioner could have received for this case would have been 10 years (i.e

. , the u pper term of six years for first degree burglary plus an additional year for each of10

appellant’s prison priors), which is a significantly lower sentence than 17 plus years he received below. ” 8 Our order summarily denying Carramusa’s habeas petition set f orth two grounds for the denial. First, we observed that because a motion to withdraw a guilty plea may be made at any time before judgment (§ 1018 ),

“ the habeas corpus petition alleging ineffective assistance of counsel is not yet ripe, as defense counse l may, before judgment, attempt to take further action with respect to Carramusa ’ s plea. ” Second, we explained that Carramusa had not established a prima facie case for relief because it appeared that even un d er Gallardo , the trial court would be able to refer to the 1994 preliminary hearing transcript to determine the factual basis for the 1994 battery conviction. In so doing, we characterized Gallardo as holding that “ when the prior conviction at issue involved a guilty plea in which the defendant expre ssly incorporated the preliminary hearing transcript as the factual basis for the guilty plea, the trial court was permitted to look to that

8 We note the Legislature amended section 667.5, subdivision (b), effective January 1, 2020 , to restrict the category of offenses that give rise t o
a one
- year enhancement for a prior prison term. (Stats. 2019, ch. 590, § 1

. ) Thus, under current law , Carramusa is eligible for a one

- year enhancement only if the prior prison term was based on a “sexually violent offense.” (§ 667.5, subd. (b).) In li ght of Carramusa’s criminal history, as identified in the amended information and the probation officer’s report, it appears that only one of Carramusa’s four prison priors (from a 2001 conviction for violations of §§ 288a , subd. (b )(2) and 288, subd. (c)( 1)) may have been based on a sexually violent offense. (§§ 667.5, subd. (b), 6600, subd. (b).) Accordingly, if Carramusa was granted leave to withdraw his guilty plea and the People were unable to prove that the 1994 battery conviction was a prior strike and a prior serious felony, Carramusa would be eligible for a total prison sentence of no more than seven years. That seven

- year sentence would be based on a six

- year upper
- term sentence for the burglary conviction and a one

- year enhancement for the 2001 prison prior.11

preliminary hearing transcript to establish the nature of the conviction. ” Next, we stated that “ according to docu ments contained in the record and submitted to the trial court, Carramusa ’ s guilty plea for the 1994 battery conviction expressly incorporated the preliminary hearing transcript. ” We therefore concluded that “ under Gallardo , if the People were required to prove that the 1994 battery conviction was a ‘ felony in which the defendant personally inflict[ed] great bodily injury on any person, other than an accomplice ’ (§ 1192.7, subd. (c)(8)), they would be able to do so based on the preliminary hearing transcri pt, which shows that Carramusa personally inflicted the injury and that the victim was not an accomplice. ” 9
C. Proceedings After Remand On March 11, 2019, following our opinion remanding this matter to the superior court, the same deputy public defender , Mr. Den, was reappointed as counsel for Carramusa. Shortly thereafter, Carramusa sent correspondence to the trial court, in
which he asked for substitute appointed counsel. Specifically, Carramusa sent two letters, both of which are dated March 31, 2 019 , and were file

stamped by the superior court on May 14, 2019

. One of the letters is handwritten. The other is typewritten. The typewritten letter reproduces some, but not all, of the content of the
handwritten letter. 10 The handwritten letter state s as follows:

9 Carramusa’s appellate counsel served Mr. Den with Carramusa’s habeas petition when it was filed in 2018. However, this court did not serve Mr. Den with the March 5, 2019 order summarily denying the habeas petition.

10 Carramusa’s typew ritten letter set forth the following grounds for conflict with defense counsel: “ 1. Warren Den failed to withdraw my plea of12 “I would like to respectfully request that the Court assign me new counsel due to a serious conflict with my counsel of record (Mr. Den). “The conflict reasons being:

“ 1) Mr. Den failed to withdraw my plea of ‘guilty’ after it was decided that this Court would not accept the plea deal offered to me by the prosecutor of record, and again after the Calif. Supr. Court issued a decision on Peo. v. G[ * ] (2017) 4 Cal. 5th 120.

“ 2) Because Mr. Den failed to cooperated [ sic ] with my appeal attorney

. . . after successive attempts on her part (calls, letters and emails) to contact him. Under Calif. Bar rule requiring cooperation: State Bar Formal Opinion # 1992

- 127.

“ I would like to thank the court for its consideration of this matter and would re spectfully request a ruling on this issue prior to my appearance before the Court for Appeal Opinion #D073484, so that I may confer with said counsel.” 11

The trial court received our remittitur on May 9, 2019, and held a hearing on May 21, 2019 , at whic h Carramusa was not present. The minute order from that hearing indicates that an order to produce Carramusa from prison would be issued , and it stated “ [d] efendant’s request for new counsel to
be addressed at [ the ] next hearing.”

guilty after it was decided that this court would not accept the plea deal offered to me by the Prosecutor of record. [¶] 2. Mr . Den failed to cooperate with my appeal attorney . . . after numerous attempts on her part (calls, letters and emails) all ignored. ”

11 The bracketed asterisk in the letter indicates where the text appears to have been cut off at the margin when the lett er was copied. Based on the case citation provided, there is no doubt that the letter refers to People v. Gallardo (2017) 4 Cal.5th 120.13

At the next hearing o n July 9, 2019, the trial court conducted a Marsden hearing with Carramusa and Mr. Den in attendance

. The trial

court began the Marsden hearing by asking Carramusa to state “ what you think has gone wrong between you and your attorney that makes you think he can ’ t properly represent you.” The trial court advised Carramusa,
however , that even if counsel “ may not have a bedside manner that you like , ” that “ [ d ] oesn ’ t mean that they ’ re incompetent. ” The following discussion then took place:

“ [CARRAMUSA] : I d on ’ t think he ’ s incompetent, sir. It was just my appellate attorney advised me to ask him to step down because he didn ’ t call her back via e

- mail. Any letters that she sent to him, he never responded to. So she said that if I could get new counsel becau se he was

— if he didn ’ t do his job. This is the reasons that she gave me because I just didn ’ t know right offhand.
“THE COURT: Thanks. Okay. Yes, I have read the Court of Appeal briefs. I don ’ t remember what they said, but I do remember it was the actu al decision by the Court of Appeal. All right.

“ [CARRAMUSA] : I couldn ’ t remember completely either. On top of it, I ’ m already nervous as it is. It ’ s hard to speak by itself.

“ THE COURT: I take it your main complaint against your attorney here is that when this case went up on appeal, he didn ’ t properly communicate with your appellate attorney; is that right?

“ [CARRAMUSA] : Yes, Your Honor.

“ THE COURT: Okay. I ’ m just wondering two things [.] Number one, how that would have affected [appellate counsel]

. Do you have anything from her saying that she thinks that because Mr. Den didn ’ t communicate with her, that caused a problem with the Court of Appeal?14

“ [CARRAMUSA] : It was

— I think it's right there. There ’ s a letter from my wife that the deputies hande d to you. That was the reason being why she suggested for me to seek new counsel.

“ THE COURT: Very good. Let me hear from counsel and see if you know anything about this. ” 12

When the trial court turned to Mr. Den for comment, Mr. Den’s
comments indica te that he believed Carramusa was dissatisfied with him
because he did not receive any leniency from the trial court during sentencing, even though Carramusa pled guilty and admitted all of the allegations in the amended information. Mr

. De n explained, “ d ue to the outcome of the case, it did affect me professionally and personally. I had to sort of step back and sort of wonder and question my own professional judgment in how the ultimate outcome of the case was. ” Mr. Den stated, “I did speak with Mr. Car ramusa yesterday, and I explained to him what

— how I was feeling after the sentencing date. And I explained to him, and I also apologized to him. ” The trial court stated, “ You know, I ’ ve read over the Court of Appeal opinion which was unpublished which sustained the conviction and the

sentence. I didn ’ t see anything in there that indicated to me that there was even a hint of incompetence of counsel. I know it ’ s difficult for everyone to judge their own case. Did you see anything in that opinion, or do you know

12 Appellate counsel made a request to augment the appellate record with the “ letter that is referred to in the Marsd en transcript ” “ detail ing the reasons why new counsel should be appointed .” We granted the motion to augment, directing the superior court to transmit “ the letter referenced during the hearing held pursuant to People v. Marsden (1970) 2 Cal.3d 118 .” No s uch letter was transmitted from the superior court. We accordingly infer that no such document is contained in the superior court file.15

anything that would lead you to think the Court of Appeal was thinking along those lines? ” Mr. Den did not bring the allegation of ineffective assistance of counsel in the habeas petition to the trial court’s attention

. Instead, he replied , “A n ytime the attorney gets it wrong, that's always time for a reflection and contemplation about your own practice, but I d id the best that I could at the time. ”
The trial court and Mr. Den then held the following discussion, b ased

on their assumption that Carramusa’s dissatisfaction with Mr. Den’s representation was based on the fact that Carramusa received a lengthier sentence tha n he expected when he entered his guilty plea:

“ THE COURT: Yeah. I think one of the big issues here was the prosecutor though t this was an 11

- year case.

“ MR. DEN: Correct.

“ THE COURT: After I looked at everything, even though it was a plea, and I give great consideration to an early plea, I made it 17 years.

“ MR. DEN: Usually when I do get it wrong, I really am not wrong by t hat kind of amount. So it was surprising to me, but obviously I respect the Court ’ s decision.

“ THE COURT: Even if it ’ s wrong, I made it. ”
Carramusa interjected to explain that when he entered his guilty plea, he understood based on a “miscommunication ” with Mr. Den that he was

“ signing for 11, no more than 11 ,” that is, a total sentence of no more than 11

years. Carramusa stated, “ When that hit us the way it did, it was a big blow.
I didn ’ t really understand it. So at the time they put the appeal in and everything, I was just hoping to God I could come back and do the best I can with whatever. ”16

The trial court then explained that after review ing the plea agreement and the transcript from the sentencing hearing , it was satisfied “ that I made it clea r there was no promise to you that I was thinking along certain lines. I know that there was just no promise. ” The trial court denied Carramusa’s
Marsden motion with the following statement : “ Mr. Carramusa, I ’ m going to deny the Marsden

. I think your a ttorney has done a good job in representing you both at the sentencing, and the Court of Appeal decision indicates to me
that there was nothing that he did that in any way injured you at the Court of Appeal. The fact that maybe he didn ’ t communicate as we ll as he should have with the Court of Appeal a ttorney, I don ’ t think that ’ s all that important. The reasons why they ’ re not all that important is when a case goes up on appeal, you just look at a written record. The thoughts and

processes aren ’ t part of the Court of Appeal. ” Immediately after denying the Marsden motion, the trial court opened the courtroom to the public and proceeded to consider whether to exercise its discretion to strike the five

- year enhancement for Carramusa’s prior serious felony. (§ 667, subd

. (a)(1) .) Mr. Den made no mention of a possib le motion

to withdraw Carramusa’s guilty plea to take advantage of the s ta ndard s for proving a prior conviction now set forth in Gallardo

. The trial court declined to exercise its discretion to strike the five

- year enhancement for Carramusa’s prior serious felony , and it rei nstated Carramusa’s 17

- year sentence. After Mr. Den inadvertently failed to file a timely notice of appeal, we granted Carramusa’s request for a constructive notice of appea l.
II. DISCUSSION Carramusa presents two arguments in this appeal. First, he contends
that the trial court improperly den ied his Marsden motion. Second, he contends that he received ineffective assistance of counsel because Mr. Den17

did not attempt, on remand, to file a motion to withdraw Carramusa’s guilty plea so that he could take advantage of the new requirements for establishing a prior conviction as set forth in Gallardo , supra , 4 Cal.5th 120. We turn first
to the Marsden motion. A. The Failure to Provide Carramusa With a Full and Adequate Marsden Hearing Requires Reversal
1. Applicable Legal Principles

“ ‘ When a defendant seeks substitution of appointed counsel pursuant

to People v. Marsden, supra, 2 Cal.3d 118 , “ the trial court must permit th e defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defend ant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result

. ” ’ [Citation.] ‘ 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. ” ’ [Citation.] ‘ We review the denial of a Marsden motion for abuse of discretion. ’ ” ( People v. Streeter (2012) 54 Cal.4th 205, 230 .) Further, as part icularly relevant here, “[w] hen reviewing whether the trial court abused its discretion in denying a Marsden motion, we consider whether it made an adeq uate inquiry into the defendant’ s complaints. ” ( People v. Mungia (2008) 44 Cal.4th 1101, 1128 ( Mungia )

. ) The type of inquiry required in a Marsden hearing was first addressed
in Marsden itself. There, the defendant sought a ruling on whether he was receiving competent representation. In considering the issue, the trial court
did not allow the defendant to explain the basis for his dissatisfaction with counsel , even though the defendant asked that he be permitted to describe18

specific instances. Instead, the trial court improperly denied relief based on the court’s observation of counsel during the proce edings. ( Marsden , supra, 2 Cal.3d at p p

. 121

- 122.) In the course of explaining the type of inquiry that a trial court should conduct, our Supreme Court noted that a court should not

“ disregard [ ] the defendant ’ s lay status and his admitted ignorance of t he law

. . . . The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right. ” ( Id . at p. 124 .) Marsden also indicated that because a layperson’s reques t for substitute counsel is involved, a trial court may attempt to assist a defendant in articulat ing the basis for the request

. As Marsden noted, “ a lthough defendant was represented by counsel, he was groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney, and the trial judge would have been well within the bounds of judicial propriety in giving any helpful suggestion which might have aided defendant in the presentation of his complaint. ” ( Id . at

p. 126 .)
Fo llowing Marsden , our Supreme Court has on numerous occasions considered whether a trial court followed adequate procedures during a hearing at which a defendant sought to substitute appointed counsel. As one court has summarized the relevant authority, “ M arsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inqui ry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel ’ s effectiveness, the court must question19

counsel as necessary to ascertain their veracity.” ( People v. Eastman (2007) 146 Cal.App.4th 688, 695 .)
2. Carramusa Did Not Receive a Full and Adequate Marsden Hearing In challenging the trial court’s denial of his Marsden motion, Carramusa focuses on the outcome of the proceeding. Spe cifically, Carramusa contends that based on his handwritten letter and the arguments he presented in his habeas petition, the trial court could come to no other
conclusion tha n that Carramusa had an irreconcilable conflict with Mr. Den due to the fact that Mr. Den declined to fil e a motion to withdraw Carramusa’s guilty plea

. As Carramusa explains, h ad Mr. Den successfully moved to withdraw the guilty plea, Carramusa could then require the People to prove his prior strike and prior serious felony under the standards set forth in Gallardo
, supra , 4 Cal.5th 120

. Carramusa’s argument is misdirected because it assumes that in ruling on the Marsden motion , the trial court had the opportunity to consider both (1) the content of Carramusa’s handwritten letter; an d (2) the existence of Carramusa’s habeas petition. We find no indication in the record th at the trial court was aware of or able to consider either of those items when it ruled
on the Marsden motion. 13 Thus, we cannot conclude, as Carramusa

13 Indeed, in explaining to Carramusa that Mr. Den’s failure to communicate with appellate counsel was unimportant be cause “[t]h e thoughts and processes aren ’ t part of the Court of Appeal ,” the trial court strongly suggested that it had no knowledge that Carramusa had also filed a habeas petition. The trial court would not have made such a statement had it known about t he habeas petition because, in a habeas corpus proceeding, evidence about defense counsel’s tactical reasons for taking a specific action can be submitted and may be relevant to the outcome. (See People v. Wilson (1992) 3 Cal.4th 926, 936 [“[A] claim of i neffective assistance is more20

advocates, th at the trial court was required to conclude , based on th e information it considered at the Marsden hearing , that an irreconcilable conflict existed between Carramusa and Mr. Den. However, that observation does not end our inquiry . An appellate court’s re view of a ruling denying a Marsden motion is not limited to examining whether the trial court reasonably concluded, based on the information presented, that defense counsel provided competent representation and that there was no irreconcilable conflict. W e must also review “ whether [the trial court] made an adequate inquiry into the defendant ’ s complaints. ” ( Mungia , supra , 44 Cal.4th at p. 112 8 .) Here, as we will explain, it appears that through no fault of its own, the trial court did not conduct a full and adequate inquiry into the grounds that Carramusa advanced for his request to substitute appointed counsel. We turn to the transcript of the Marsden hearing for our analysis. The transcript shows that t he trial court proceeded at the outset by aski ng Carramusa to explain the basis for his request to substitute appointed
counsel. In responding, Carramusa immediately struggl ed to articulate the basis for his Marsden motion and indicated that he wanted to rely on the grounds that appellate counsel had identified for asking to substitute appointed counsel

. Among other things, Carramusa stated that he “ couldn ’ t remember completely ,” that he was “ nervous as it is , ” and that it was “ hard to speak by itself. ”

appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct. ‘ Having afforded the trial attorney an opportunity to explain, courts are in a position to intelligently evaluate whether counsel ’ s acts or omissions were within the range of reasonable competence. ’ ” ].)21

Carramusa sought to re fer to a letter that h e believed the bailiff had handed to the trial court , which Carramusa described as showing “ the reason being why [appellate counsel] suggested for me to seek new counsel. ” However, n o such letter is contained in the superior court file even though , a t the end of the Marsden hearing, the trial court stated, “You did give me a letter. Did you want to have this as part of the court record here?” and Carramusa responded affirmativel y. We infer from subsequent comments
made at the hearing that Carramusa wrong ly assumed that the letter the bailiff handed to the trial court described appellate counsel’s reasons for recommending that Carramusa seek substitute appointed counsel. Instead, it appears that the bailiff handed the trial court a different letter. That l etter was written by Carramusa to support his request that the trial court strike the five

- year enhancement for the prior serious fe lony , and it expresse d Carramusa’s remorse for the burglary and his desire to make restitution to
the victims. The l etter is included in the appellate record and is file stamped July 9, 2019, the date of the Marsden hearing . As the letter d oes not d escribe appellate counsel’s advice that Carramusa seek substitute counsel , it cannot be the letter that Carramusa believed the bailiff was handing to the trial

court

. Although the trial court made a diligent attempt to understand the basis on which appellate counsel had advised Carramusa to seek substitute appointed counsel, and Carramusa did his best to try to explain the grou nds that appellate counsel identified for him , a series of circumstances appear to have frustrated the ability of the trial court to fully understand th e basis for Carramusa’s request . First, as we have explained, it appears that Carramusa believed the ba iliff was handing the trial court a letter explaining22

appellate counsel’s reasons for recommending that Carramusa seek
substi t ute counsel, but the trial court did not receive that letter. Second, the trial court does not appear to have been aware of Car ramusa’s handwritten letter dated March 31, 2019. Although the letter was filed on May 14, 2019, we see no indication in the record that the letter

was part of the materials that the trial court reviewed during the July 9,
2019 Marsden hearing. If the tr ial court had consulted Carramusa’s handwritten letter during the Marsden hearing, it could have asked follow

- up questions to both Carramusa and Mr. Den to attempt to ascertain what Carramusa meant when he stated that he had a conflict with defense counsel because “Mr. Den failed to withdraw my plea of ‘guilty’ . . . after the Calif. Supr. Court issued a decision on Peo. v. G (2017) 4 Cal. 5th 120.” (See People
v. Miranda (1987) 44 Cal.3d 57, 77 [“ The failure to ask follow

- up questions may make it more diff icult for a trial court to thoughtfully exercise its discretion in a manner required by Marsden ,” and “[a] dditional questioning may assist the court in assessing the merit or lack thereof of a defendant ’ s motion .”].) The response to follow

- up questions ab out the handwritten letter would likely have caused the trial court to understand that Carramusa’s request for substitute counsel was, in part, based on Mr. Den’s fail ure to advise Carramusa to bring a motion to withdraw his guilty plea after Gallardo was issued. Finally, we see no indication in the record that the trial court was aware of either Carramusa’s 2018 habeas petition or our order summarily denying that petition. The trial court made no mention of having reviewed any materials from the habeas corpus proceeding, and Mr. Den did not bring the habeas corpus proceeding to the trial court’s attention, even when the trial court asked if Mr. Den perceived any “hint” of incompetent23

representation in the materials filed in the Court of Appeal. Had the trial court been made aware of the basis for Carramusa’s habeas petition , the trial court likely would have understood that Carramusa’s request for substitute
counsel was, in part, ba sed on an alleged conflict with Mr. Den arising from Mr. Den’s failure t o file a motion to withdraw Carramusa’s guilty plea in light of Gallardo

. In addition, had the trial court known that Carramusa filed a habeas petition, it would have understood the significance of Carramusa’s complaint that Mr. Den was ineffective by fai l ing to communicate with appellate counsel. In light of the three items that the trial court could have considered during the Marsden hearing, but did not, we conclude that Carramusa did not receive a full and adequate Marsden hearing. As in Marsden , Car ramusa was a layperson “ groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney ” ( Marsden , supra , 2 Cal.3d at

p. 126), and he should have been permitted to rely on his March 31, 2019 handwritten letter and state ments from appellate counsel when seeking to articulate why he wanted a new attorney . The inadvertent omission of (1) the letter that Carramusa believed the bailiff was handing to the trial

court ; (2) C arr a musa’s handwritten letter which included the cita tion to Gallardo ; a nd (3) any awareness of Carramusa’s habeas petition, all combined to deprive Carramusa of his ability , as a layperson, to effectively explain the basis for his request for substitute counsel.
3. The Lack of a Full and Adequate Marsden Hearing Was Prejudicial Having concluded that Carramusa did not obtain a full and adequate Marsden hearing, we must determine whether the error was prejud i cial and requires reversal

.24

“ Marsden does not establish a rule of per se reversible error. [ Citations.] Where there is Marsden error, we must reverse, unless the record shows beyond a reasonable doubt that the defendant was not prejudiced. ” ( People v. Knight (2015) 239 Cal.App.4th 1, 9 .) The People contend that any error arising from the Marsd en hearing was harmless to the extent that Carramusa’s Marsden motion was based on the argument that Mr. Den should have brought a motion to withdraw Carramusa’s gu i l ty plea

. If Mr. Den had successfully moved to allow Carramusa to withdraw his guilty plea , Carramusa could have required the People to prove his prior strike and prior serious felony based on the standards set forth in Gallardo , supra , 4 Cal.5th 120. However, accordingly to the People, success on a motion to withdraw the plea ultimately would not have made any difference for Carramusa’s sentence. T he People point out that in our March 5, 2019 order summarily denying Carramusa ’s habeas petition, we stated that even under Gallardo , the People still w ill be able to prove Carramusa’s prior strike and prior serious felony

. Thus, as the People argue, even if they we re put to their proof under Gallardo after Carr a musa withdrew his plea, Carramusa would receive the same sentence. Although we understand the People’s argument, we reject it because i t depends on the premise that our March 5, 2019 habeas order continues to govern this matter. “[T]he summary denial of a habeas corpus petition does not establish law of the case and does not have a res judicata effect in future proceedings.” ( Gomez v. S uperior Court (2012) 54 Cal.4th 293, 305 , fn. 6; see also Kowis v. Howard (1992) 3 Cal.4th 888, 895 [“A short statement or citation explaining the basis for the summary denial does not transform the denial into a decision of a cause entitled to law of the case effect.”].) O n25

further review , we do not believe that our March 5, 2019 order should be the last word on how Gallardo applies in this matter. Our March 5, 2019 order contained the following explanation as one of
the two ground s for our denial of Ca rramusa’s habeas petition: “[E] ven if defense counsel had moved to withdraw Carramusa ’ s guilty plea so as to require the People to prove that the 1994 battery conviction was a strike and a serious felony, the People could have relied on the preliminary hea ring transcript from the 1994 proceeding under an exception set forth in Gallardo

. Specifically, Gallardo indicated that when the prior conviction at issue involved a guilty plea in which the defendant expressly incorporated the preliminary hearing transc ript as the factual basis for the guilty plea, the trial court was permitted to look to that preliminary hearing transcript to establish the nature of the conviction. ( Gallardo , supra , 4 Cal.5th at p. 136 [the trial court improperly relied on a preliminar y hearing transcript when

‘ [n]othing in the record shows that defendant adopted the preliminary hearing testimony as supplying the fa ctual basis for her guilty plea’ ].) Here, according to documents contained in the record and submitted to the trial court, Carramusa ’ s guilty plea for the 1994 battery conviction expressly incorporated the preliminary hearing transcript. Accordingly, under Gallardo , if the People were required to prove that the 1994 battery conviction was a ‘ felony in which the defendant per sonally inflict[ed] great bodily injury on any person, other than an accomplice ’ (§ 1192.7, subd. (c)(8)), they would be able to do so based on the preliminary hearing transcript, which shows that Carramusa personally inflicted the injury and that the vict im was not an accomplice. ”

We no longer endorse this analysis for two reasons. First, we were inexact in characterizing the documentation from Carramusa’s 1994 plea hearing. We stated that “ according to documents contained in the record and submitted to the trial court, Carramusa ’ s guilty plea for the 1994 battery conviction expressly incorporated the preliminary hearing transcript. ” We failed to highlight that the only documentation from26

the 1994 plea hearing that the trial court had before it was a single minute orde r. The trial court did not review the transcript from the 1994 plea hearing or any other documentation, such as Carramusa’s 1994 written plea agreement. The minute order itself says nothing about wh ether Carr a musa personally made any f actual admissions on the record or in his plea agreement . Instead, in describing the basis for the guilty plea , the minute order makes only a single statement. “ Counsel stipulate: FACTUAL BASIS TAKEN FROM PRELIM HRG TRANSCRIPT. ”
Th e minute order’s re ference to counsel’s stipulation is significant in that the trial court is “ limited to identifying those facts that were established by virtue of the conviction itself

— that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” ( Gallardo , supra , 4 Cal.5th at p. 136 , italics added .) Gallardo states that the defendant must make the admission.
It is unclear from the minute order whether that occurred. 14
We note that on December 12, 2017, when the People submitted the documentation from Carramusa’s 1994 battery conviction, Gallardo had not yet issued. Under then

- existing authority , the trial court was permitted to look to the preliminary hearing transcript fr om C arramusa’s 1994 battery conviction to ascertain whether “ the conviction realistically may have been based on conduct that would not constitute a serious felony under California
law. ” ( People v. McGee (2006) 38 Cal.4th 682, 706 .) It is possible that , in

14 This court has previously held that, under Gallardo , a trial court may consider specific factual admissions that a defendant ma kes on th e record during a plea hearing. ( In re Scott (2020) 49 Cal.App.5th 1003, 10 19

- 1021 , review granted Aug. 12, 2020, S262716.) Here, the record does not permit the type of inquiry conducted in Scott because the trial court was not presented with a transcrip t from Carramusa’s 1994 plea hearing.27

l ight of Gallardo , the People will be able to locate additional documentation from the plea hearing for the 1994 battery conviction

. Therefore, it would be premature for us t o opine on whether , if Carramusa was granted leave to withdraw his guilty plea, th e People would be able to prove that Carr a musa incurred a strike and a serious felony

. Second, our March 5, 2019 order characterized Gallardo as indicat ing

“ that when the prior conviction at issue involved a guilty plea in which the defendant expressly i ncorporated the preliminary hearing transcript as the factual basis for the guilty plea, the trial court was permitted to look to that preliminary hearing transcript to establish the nature of the conviction. ” W e based this statement on Gallardo ’s factual observ ation that “ [n]othing in the record shows that defendant adopted the preliminary hearing testimony as supplying the factual basis for her guilty plea

. ” ( Gallardo , supra , 4 Cal.5th at

p. 136 .) As we will explain, u pon further review, we believe we overstated Gallardo ’s holding.
In Gallardo , the issue was whether the trial court improperly relied on a preliminary hearing transcript to determine that the defendant used a deadly weapon in committing an assault. ( Gallardo , supra , 4 Cal.5th at

p. 123 .) Our Supreme Court explained , “Defendant did not specify that she used a deadly weapon when entering her guilty plea. The trial court ’ s sole basis for concluding that defendant used a deadly weapon was a transcript from a preliminary hearing at which the victim testified that defendant had used a knife during their altercation. Nothing in the record shows that defendant adopted the preliminary hearing testimony as supplying the factual basis for her guilty plea.” ( Id. at p. 136.) Gallardo conclude d tha t it was improper for the trial court to have rel ied on the preliminary hearing transcript because “ at least in the absence of any pertinent admissions , the28

sentencing court can only guess at whether, by pleading guilty to a violation of Penal Code section 245, subd. (a)(1), defendant was also acknowledging the truth of the testimony [in the preliminary hearing transcript] indicating that she had committed the assault with a knife.” ( Id . at p

. 137 , italics added .)
B ecause the issue was not presented by t he facts of the case, Gallardo
did not address the circumstances under which a defendant’s reference to a preliminary hearing transcript during a plea hearing will be sufficient to
establish that the defendant admitted the facts testified to during the

pre liminary hearing

. ( Gallardo , supra , 4 Cal.5th at p. 136 .) Gallardo stated that “ in the absence of any pertinent admissions ” the trial court should not have relied on the preliminary hearing transcript ( id. at p. 137 , italics added ), but it failed to desc ribe the type of “pertinent admissions” that would be sufficient to allow the trial court to do so. In our view, the proper approach to that question remains open pending further guidance from our Supreme Court . Indeed, it is possible that the significan ce of a preliminary hearing transcript will depend, at least in part, on the specific statements that a defendant makes during a plea hearing or in a written plea agreement concerning the preliminary hearing transcript

. In sum, in light of (1) Gallardo ’ s requirements for proving a prior conviction, and (2) the limited documentation from the 1994 plea proceeding that the People have thus far located , we cannot conclude beyond a
reasonable do ubt that Carramusa would be unsuccessful in obtaining a more favo rable outcome were we to remand to permit him to renew his Marsden motion to obtain substitute counsel

. Accordingly, we will reverse the judgment and remand for a renewed Marsden hearing. Following the
renewed Marsden hearing, and regardless of its outco me, Carramusa may file29

a motion to withdraw his guilty plea if he chooses to do so. 15 If no such motion is filed, or if the motion is denied, the trial court shall reinstate the judgment. 16
B. The Issue of Whether Defense Counsel Was Ineffective Is Not Ripe for Review In Light of Our Disposition Remanding for a Renewed Marsden Hearing Carramusa’s second contention on appeal is that he received ineffective assistance of counsel in violation of his constitutional rights. ( Strickland v. Washington (1984) 4 66 U.S. 668, 684

- 686 ; People v. Doolin (2009) 45 Cal.4th 390, 417 .) Specifically, Carramusa contends that Mr. Den should have advised him to withdraw his guilty plea in light of Gallardo

. Because w e will r everse the judgment and remand for a renewed
Ma rsden hearing, Carramusa’s contention that the judgment should be
reversed due to ineffective assistance from counsel is not yet ripe for review.

15 Section 1018 states in relevant part, “On application of the defendant at any time before judgment

. . . the court may

. . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guil ty substituted.

. . . This section shall be liberally construed to effect these objects and to promote justice.” ( § 1018 .)

16 In People v. Sanchez (2011) 53 Cal.4th 80, 92

- 93, our Supreme Court approved the following disposition when it reversed the judg ment based on the trial court’s failure to hold a Marsden hearing for a defendant who wished to withdraw his plea: “ ‘ (1) the court shall hold a hearing on [defendant] ’s Marsden motion concerning his representation by the public defender ’ s office; (2) if the court finds that [defendant] has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly a ppointed counsel may make; and (3) if newly appointed counsel makes no motions, any motions made are denied, or [defendant] ’ s Marsden motion is denied, the court shall reinstate the judgment. ’ ” In this case, our disposition differs somewhat in that Mr. D en may end up filing a motion on remand

.30

Further proceedings on remand may make the issue moot or may provide additional evidence concerning the natur e of defense counsel’s representation. We therefore do not, and need not, reach the issue of whether Mr. Den provided constitutionally ineffective assistance.31 DISPOSITION The judgment is reversed, and the matter is remanded for a renewed
Marsden hearin g. Following the renewed Marsden hearing, and regardless of its outcome, Carramusa may file a motion to withdraw his guilty plea if he chooses to do so. If no such motion is filed, or if the motion is denied, the trial court shall reinstate the judgment.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.