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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for 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,

Defendant 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 Respondent.
2

Christopher Carramusa pled guilty to one count of first degree burglary 

(Pen. Code, § 459),1 and admitted 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 Carramusa to an upper-term sentence of 17 

years in prison. 

On March 5, 2019, we issued an opinion in Carramusa’s first appeal in 

this matter. (People v. Carramusa (Mar. 5, 2019, D073484).) Due to the postsentencing change in law enacted by Senate Bill No. 1393 (Stats. 2018, 

ch. 1013, §§ 1-2), we remanded to the trial court to decide whether to exercise 

its discretion to strike the five-year enhancement for Carramusa’s prior 

serious felony (§ 667, subd. (a)(1)). 

On the same day, we issued an 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 December 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 strike 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 

serious 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 

from Carramusa’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, even if defense counsel had sought to 

withdraw Carramusa’s guilty plea so that the People would be required to 

prove the strike and the serious felony, the People would have been able to 

prove those enhancements by relying 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, it denied 

Carramusa’s request, pursuant to People v. Marsden (1970) 2 Cal.3d 118 

(Marsden), to substitute appointed counsel. Second, it declined to exercise its 

discretion to strike the five-year enhancement for Carramusa’s prior serious 

felony. During the proceedings on remand, defense 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 remand, 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 our March 5, 2019 summary denial of 

that petition. We grant the request. (Evid. Code, § 452, subd. (d).)
4

Gallardo, which, if granted, would have required the People to prove that 

Carramusa’s 1994 battery conviction qualified as a strike and prior serious 

felony. Second, Carramusa argues that during the Marsden hearing, the trial 

court improperly denied his request to substitute appointed counsel.3 

We conclude that because the record shows that in conducting the 

Marsden hearing, the trial court was not aware of the items 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 

chooses 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 Carramusa 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 

failing 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 pled guilty, we based our recitation of the facts on 

the probation officer’s report.
5

An amended information charged 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 felony convictions (§ 1203, subd. (e)(4)), four prior prison terms 

(§§ 667.5, subd. (b), 668), a prior serious felony (§§ 667, subd. (a)(1), 668, 

1192.7, subd. (c)), and a prior strike (§§ 667, subds. (b)-(i), 668, 1170.12).

On December 12, 2017, Carramusa pled 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 prison terms (§§ 667.5, subd. (b), 668), a prior serious 

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

subds. (b)-(i), 668, 1170.12). The plea agreement contained no deal regarding 

Carramusa’s sentence. 

According to the 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 

felony 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, subdivision (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 the 
6

only qualify as a “serious felony” for the purpose of the Three Strikes law or 

the five-year enhancement in section 667, subdivision (a)(1), if it was 

“personally inflicted” by Carramusa and the victim was not an accomplice.6

The prosecutor addressed the trial court’s concerns by presenting 

documentation from the 1994 battery prosecution and giving the following 

explanation: 

“The last time that we appeared for the originally scheduled 

sentencing date Your Honor expressed some concern about the 

nature of Mr. Carramusa’s 1994 conviction. As a result I 

contacted the Riverside County records department. 

purpose of the five-year enhancement in section 667, subdivision (a)(1). 

(§ 667, subd. (a)(4).) As relevant here, section 1192.7, subdivision (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 the 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 convicted 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 personally 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 

injury” is sufficient to establish a prior conviction in which the defendant 

inflicted “great bodily injury” as that term is used in section 1192.7, 

subdivision (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 separate 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 of Mr. 

Carramusa’s original plea in 1994. That is now marked as court’s 

Exhibit One. On page five of that document it specifically states 

that he pled to a violation of Penal Code section 243(d) and that 

the factual basis was based on the preliminary hearing 

transcript. After speaking with the Riverside County 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 Exhibit Two. Based

on our review of the transcript, the transcript does clearly 

establish that Mr. Carramusa 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 as court’s Exhibits One and Two.”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 

burglary, 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 and 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, Stats. 2018, 

7 We have reviewed both of the exhibits presented by the 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 premised 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. We reversed the judgment for the purpose 

of remanding to the trial court with directions 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 appeal, 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 ineffective assistance because he did 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 significantly 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, 

“we now hold that a court considering whether to impose an increased 

sentence based on a prior qualifying conviction may not determine the 

‘nature or basis’ of the prior conviction based on its independent conclusions 

about what facts or conduct ‘realistically’ supported the conviction. 

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

to make disputed findings about ‘what a trial showed, or a plea proceeding 

revealed, about the defendant’s underlying conduct.’ [Citation.] The court’s 

role is, rather, limited to identifying those facts that were established by 
9

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.) 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.” (Ibid.) 

In his habeas petition, Carramusa argued that the documentation 

relating to his 1994 conviction that the trial court referenced at the December 

12, 2017 plea 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.” As the 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 

attention 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 petitioner’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 upper term of 

six years for first degree burglary plus an additional year for each of 
10

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 forth 

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 counsel 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 under 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 expressly 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 to 

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 light 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 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 

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 transcript, 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, 2019, and were filestamped 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 states 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 typewritten letter set forth the following grounds for 

conflict with defense counsel: “1. Warren Den failed to withdraw my plea of 
12

“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 respectfully 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 which 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 letter 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 on 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 don’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 because 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 actual 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 handed 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 indicate 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. Den explained, “due 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. Carramusa 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 Marsden transcript” “detailing 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 such 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, “Anytime the attorney gets it wrong, that's always time 

for a reflection and contemplation about your own practice, but I did the best 

that I could at the time.” 

The trial court and Mr. Den then held the following discussion, based 

on their assumption that Carramusa’s dissatisfaction with Mr. Den’s 

representation was based on the fact that Carramusa received a lengthier

sentence than he expected when he entered his guilty plea:

“THE COURT: Yeah. I think one of the big issues here was the 

prosecutor thought 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 that 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 reviewing the plea agreement 

and the transcript from the sentencing hearing, it was satisfied “that I made

it clear 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 attorney 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 well as he should 

have with the Court of Appeal attorney, 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 possible motion 

to withdraw Carramusa’s guilty plea to take advantage of the standards 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 reinstated 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 appeal. 

II.

DISCUSSION

Carramusa presents two arguments in this appeal. First, he contends 

that the trial court improperly denied his Marsden motion. Second, he 

contends that he received ineffective assistance of counsel because Mr. Den 
17

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 the 

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 defendant 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 particularly relevant here, “[w]hen reviewing whether the trial 

court abused its discretion in denying a Marsden motion, we consider 

whether it made an adequate 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 describe 
18

specific instances. Instead, the trial court improperly denied relief based on 

the court’s observation of counsel during the proceedings. (Marsden, supra, 2 

Cal.3d at pp. 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 the 

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 request for substitute counsel is involved, a trial 

court may attempt to assist a defendant in articulating the basis for the 

request. As Marsden noted, “although 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.)

Following 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, “Marsden 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 inquiry 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 question 
19

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. Specifically, 

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 than that Carramusa had an irreconcilable conflict with Mr. Den 

due to the fact that Mr. Den declined to file a motion to withdraw 

Carramusa’s guilty plea. As Carramusa explains, had 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; and (2) the existence of 

Carramusa’s habeas petition. We find no indication in the record that 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 because “[t]he 

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 the 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 ineffective assistance is more 
20

advocates, that the trial court was required to conclude, based on the 

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 review 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. We must also 

review “whether [the trial court] made an adequate inquiry into the 

defendant’s complaints.” (Mungia, supra, 44 Cal.4th at p. 1128.) 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 the trial court proceeded at the outset by asking 

Carramusa to explain the basis for his request to substitute appointed 

counsel. In responding, Carramusa immediately struggled 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 refer to a letter that he 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, no such letter is contained in the superior court file even though, at 

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 affirmatively. We infer from subsequent comments 

made at the hearing that Carramusa wrongly 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 letter

was written by Carramusa to support his request that the trial court strike 

the five-year enhancement for the prior serious felony, and it expressed

Carramusa’s remorse for the burglary and his desire to make restitution to 

the victims. The letter is included in the appellate record and is file stamped 

July 9, 2019, the date of the Marsden hearing. As the letter does not describe 

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 grounds 

that appellate counsel identified for him, a series of circumstances appear to 

have frustrated the ability of the trial court to fully understand the basis for 

Carramusa’s request. First, as we have explained, it appears that 

Carramusa believed the bailiff was handing the trial court a letter explaining 
22

appellate counsel’s reasons for recommending that Carramusa seek 

substitute counsel, but the trial court did not receive that letter. 

Second, the trial court does not appear to have been aware of 

Carramusa’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 trial 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 difficult 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 about 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 failure 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 incompetent 
23

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, based on an alleged conflict with Mr. Den arising from 

Mr. Den’s failure to 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 failing 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, Carramusa 

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 statements 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) Carramusa’s handwritten letter which included the citation to 

Gallardo; and (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 prejudicial 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 Marsden 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 guilty 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. The 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 will be able to 

prove Carramusa’s prior strike and prior serious felony. Thus, as the People 

argue, even if they were put to their proof under Gallardo after Carramusa 

withdrew his plea, Carramusa would receive the same sentence. 

Although we understand the People’s argument, we reject it because it 

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. Superior 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.”].) On 
25

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 grounds for our denial of Carramusa’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 hearing 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 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. (Gallardo, supra, 4 Cal.5th at p. 136 [the trial court 

improperly relied on a preliminary hearing transcript when 

‘[n]othing in the record shows that defendant adopted the 

preliminary hearing testimony as supplying the factual 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 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 transcript, which shows that 

Carramusa personally inflicted the injury and that the victim 

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 from 
26

the 1994 plea hearing that the trial court had before it was a single minute 

order. 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 whether Carramusa 

personally made any factual 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.” 

The minute order’s reference 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 from Carramusa’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 makes on the record

during a plea hearing. (In re Scott (2020) 49 Cal.App.5th 1003, 1019-1021, 

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 transcript from Carramusa’s 1994 plea hearing. 
27

light 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 to opine on whether, if Carramusa was granted leave to 

withdraw his guilty plea, the People would be able to prove that Carramusa 

incurred a strike and a serious felony.

Second, our March 5, 2019 order characterized Gallardo as indicating 

“that when the prior conviction at issue involved a guilty plea in which the 

defendant expressly incorporated 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.” We 

based this statement on Gallardo’s factual observation 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, upon 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 concluded that it 

was improper for the trial court to have relied on the preliminary hearing 

transcript because “at least in the absence of any pertinent admissions, the 
28

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.)

Because the issue was not presented by the 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 

preliminary 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 describe 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 significance 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 doubt that Carramusa would be unsuccessful in obtaining a more 

favorable 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 outcome, Carramusa may file 
29

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) 466 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 we will reverse the judgment and remand for a renewed 

Marsden 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 guilty 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 judgment 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 appointed 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. Den 

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 nature 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 hearing. 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.