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Filed 8/21/20 P. v. Springer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE P laintiff and Respondent ,
v. TRAVIS LELAND SPRINGER , Defendant and Appellant. A 1 5 8263
( Del Norte County Super. Ct. No. C RF 19

- 9075 )

Appellant Travis Springer plead ed guilty to sexual abuse of a minor
and was sentenced to 12 years in prison. On appeal he argues that the trial
court erred in failing to hold a hearing under People v. Marsden (1970)
2 Cal.3d 118 ( Marsden ) 1 and in imposing fines and fees without first determining his ability to pay

. We conclude that Springer forfeited his challenge to the imposition of the fines and fees, but we agree that the tr ial court erred in failing to hold a Marsden hearing . We therefore conditionally reverse the judgment and remand for the trial court to hold a such a hearing

.

1 Marsden requires a trial court to give a criminal defendant a hearing when he or she seeks the substitution of appointed counsel on the ground that counsel has provided ineffective assistance. ( Marsden , at p. 120.)2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND Felony charges were brought against Springer for allegedly having sexually abused a minor friend of his 13

- year
- old daughter. In April 2019,
b efore the preliminary hearing took place, Springer asked the trial court to discharge his appointed counsel and substitute another attorney for him

. The court held a brief Marsden hearing and denied the request

. The preliminary hearing ensued, and Springer was subsequently charged by felony information with nine sex crimes

. In June 2019, Springer plead ed guilty to one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)), and the remaining charges were dismissed. When sentencing was to take place, Springer again indicated that he was dissatisfied with his attorney and
wanted substitute counsel appoin t ed

. This time, the trial court did not hold a Marsden hearing , and it proceeded to sentence Springer to the negotiated term of 12 years in prison. It also imposed various fines and fees.
II. D ISCUSSION A. The Trial Court Erred in Failing to Conduct a Marsden Hearing Before Sentencing.
1. Additional background.

a. The trial court holds a Marsden hearing in April 2019. As we have mentioned, the trial court held a Marsden hearing in April
2019 before the preliminary hearing

. The court held the hearing after Springer said that his attorney was “not really fighting” for him and had never said whether he believed Springer was “guilty or innocent

. ” Springer asked for an attorney who was “non

- biased” because he felt his attorney was “against [him].” The court explained the process of a preliminary hearing to3

Springer, and then asked for counsel’s input. Springer’s attorney said he had interviewed witnesses and had told Springer it “look[ed] really bad

. ” Springer then complained about the prosecutor’s withdrawal of a plea offer

an d the way a defense investigator had conducted her research

. The court explained that Springer’s attorney could not control how the prosecutor handled a plea offer, that Springer’s attorney had conducted adequate work on the case, and that it ( the trial court ) didn’t “ think appointing somebody else [was] going to make a diffe rence.”
When the trial court indicated it would deny the Marsden request , Springer asked, “Can we postpone it or something?” He explained , “I was hoping to get some U.S. Codes that I have ordered.” T he trial court denied the postponement request, and the court proceeded with the preliminary hearing

. b. Springer reiterates his dissatisfaction with his attorney

. At his arraignment eight days later, Springer pleaded not guilty. After the court scheduled a trial date, Springer’s attorney , in referring to Springer , said, “ H e wants to fire me. But we just did a Marsden hearing [last week] .” The court denied the request for a second Marsden hearing, ruling that

“ [u] nless there ’s been a change, [it was] not going to hear [the request] because it’s called a repetition, an excessive request.” The court then scheduled a readiness conference for May 15.

c. Springer plead s guilty

. Instead of proceeding to trial, Springer pleaded guilty in June to one count of continuous sexual abuse of a minor. The declaration Spring er signed in connection with his guilty plea stated he was freely and voluntarily entering the plea “[b]ecause [he wa s] guilty” or because he had discussed defenses with his attorney and the possibility of being convicted “on other or4

more serious charges and risking

. . . the possibility of a longer sentence.” Springer indicated on the form that he was aware of the rig hts he was giving up by pleading guilty. At the hearing at which Springer entered his guilty plea, the trial court first confirmed with Springer that he understood the charge against him, had signed the proposed plea agreement, was afforded enough time t o discuss the case with his attorney, and did not have questions about the plea agreement. The prosecutor then offered a factual basis for the plea. T he trial court asked Springer, “ S ir, do you disagree with any of that?” Springer replied, “ Y eah, honestly, yes.” A s his defense attorney began to interject, Springer added ,

“ B ut, I guess the plea

— so I guess I will agree with it. I don’t know, I’m not

sure

. ” He then said, “ A lot of tha t is not true.” Springer’s defense attorney remarked, “ B ut some of it is, you know.” After the prosecutor said that he thought “ the defense counsel would stipulate that those are the allegations,” Springer’s attorney responded, “Yes, those are the allega tions. And from what I understand is maybe this, certain specifics he doesn’t agree with, but generally yes, that’s what I’m u nderstanding.” Springer then plead ed guilty. The court accepted the plea and found
that there was a “factual basis for the plea , ” that Springer was “ fully advised of [ sic ] the constitutional rights and the consequences of the plea and knowingly and intelligently waived those rights ,” and “ the plea wa s freely and voluntarily entered into

. ” After some scheduling issues were discussed, the prosecutor asked whether Springer had been advised of certain implications of his plea form, and Springer’s counsel affirmed that he had . The prosecutor stated ,

“ [T] ypically when we have a plea, even though we have the change of plea form filled out by the defendant, we would go over his rights with him; if the5

Court is not inclined to do that, I would just [ request Springer’s counsel] to represent everything that has been initialed by the defendant. [Springer’s counsel] has been over that with the defendant and he believes that the defendant understands everything that he initialed on [ the ] form.” Springer’s attorney said he had gone over Springer’s trial rights with him and believed Springer understood them. Directing its remarks to Springer, the court then stated, “Okay. Simply put, what everybody said was you have the right to a lawyer. You have the right to a jury trial. You have the right to confront and

cross
- examine witnesses. The lawyer would ask questions of anyone who would testify against you. You have the right to witnesses. You have the right to testify if you chose to do so. You can’t be compelled to testify. Do you have any questions about a ny of your rights?” After Springer said he did not, the court responded, “All right, I’m satisfied.” A sentencing hearing was scheduled for August 12.

d. The trial court holds its first sentencing hearing

. On the day originally scheduled for Spri nger’s sentencing, August 12, the prosecutor argued that Springer should be sentenced to the maximum
term allowed under the plea agreement

. The prosecutor then stated that the victim and her parents were present and wanted to make statements. Before they took the stand, however, Springer’s attorney told the trial court, “The defendant is telling me he wants to make a motion to withdraw his plea.”
The trial court explained t hat Springer had a right to do so, and it then ordered everyone to return to court the following week.

e. Springer indicates a desire for another Marsden hearing.
When the parties reconvened the following week, the trial court asked
about Springer’s interest in withdrawing his plea . His attorney replied that he had “ talked to him about it ,” but “[t] here didn’t appear to be any grounds , ”6

and that Springer was considering alleging that he had been “ misadvised

. ”
When asked, the attorney confirmed that he ( the attorney ) wanted to proceed
but said he was “really questioning whether [Springer] was capable of assisting [him] rationally.” Suggesting a doubt about Springer’s mental competency, the attorney said that “perhaps” an evaluation should be prepared under Penal Code section 1368

. 2 T he court advise d the attorney to explain his request and to provide examples of Springer’s incompetence

. D efense counsel repeatedly asserted that Springer did not appear capable of rationally assisting him in putting on a defense in part because he refused to “wr ite out his side of the story.” The court denied the request a fter noting that Springer had the right to remain silent through the proceedings and
that it had “not heard anything beyond a conclusive statement [Springer] is not able to assist you for whate ver reason

. ” Before proceeding to sentencing, Springer’s attorney said he had “[j]ust one last issue.” After informing the trial court that Springer had “talked
about a Marsden ,” Springer’s attorney first addressed Springer and the
f ollowing exchange took place :

“ [Defense counsel ]: I need to know right now are you going to or not? Do you want a Marsden hearing or not? I need to know before we go to[ o ] far.

“ [Springer] : I don’t know what I want man. It’s true, your Honor, what he says is true, i t’s not that I don’t want to kn ow, I want the truth to come out. [ ¶]

. . . [ ¶] I asked him to help me and I want a Marsden motion because he has directed me the wrong way, like, it was, like, I don’t care about 12

years or six years, I want the truth and it’s wrong with him, to live with that,

2 Under Penal Code section 1368, subdivision (b), if counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall determine the defendant's mental competence in a hearing.7

with that guilt of

— I don’t care

— I know I do care, I mean, I don’t know, I don’t
know what I want , man.

“ THE COURT: Okay.

“ [ S pringer ] : I haven’t from day one, I can’t be around my kids, an d when I first got in here all I wanted was to get out and see my kids, and I didn’t say anything in the beginning. And I admitted I lied to him and he has lied to me. I don’t know if he’s going to admit it or not.

“ [Defense counsel] : Do you want a Mars den hearing?

“ [Springer] : I don’t know what I want. That’s what I’m saying, man. I don’t mean to be upset. And I don’t freaking know what I want. I don’t know what I want to do, man. I tried to be honest, I’m trying to be honest. I pray to God ev ery day to show which direction to take and I haven’t seen it yet.

“ [Defense counsel] : This is what I’m dealing with as far as a [Penal Code section] 1368 motion.

“ [Springer] :

. . . I d on’t know what to do right now. I have no clue. I’m being honest, why can’t everybody be honest? I need to, yes, I need a
Marsden hearing. I don’t know what I need, I really don’t.

“ [Defense counsel] : He wants a Marsden

.

“ [Springer] : I want the tr uth to be said on the table.

“ [Defense counsel] : Do you want a Marsden ? Then say so.

“ THE COURT: All right.

“ [Springer] : I want a conti nuance, please.”
The trial court did not rule on whether there should be a Marsden hearing, and no such hearing was held. Instead, the trial court stated,

“ People, you may submit your side. ” T he prosecut or again detailed factors in aggravation and argued that a 12

- year sentence was appropriate

. The8

victi m, her parents , and the probation department all made statements to the
court. The defense attorney said he believed Springer w anted to “ testify on [ his ] own behalf

. ” Springer took the stan d, and his attorney questioned him about potentially mitigating circumstances

. The trial court agreed with the prosecution that “the circumstances in aggravation far outweigh

. . . the circumstances in mitigation,” and imposed the maximum sentence under the plea agreement, 12 years (the midterm sentence)

. 2. Analysis. Springer argues that the trial court erred in failing to hold a Marsden hearing after he asked for one at his final sentencing hearing. We agree that

a Marsden hearing should have been held. When a defendant asks to replace his appointed attorney , the trial court is required to “ permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.” ( People v. Smith (2003) 30 Cal.4th 581, 604.) “A defendant is entitled to relief if the record clearly shows that the appointed couns el 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.” ( Ibid. ) A defendant’s Sixth Amendment right to effective
assistance d oes not mean that he possesses the right to present a defense of his choosing

. (See People v. Cole (2004) 33 Cal.4th 1158, 1192; People v. Hamilton (1989) 48 Cal.3d 1142, 1162

. ) However, “to compel one charged with [a] grievous crime to undergo a trial with the assistance of any attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.” ( Schell v. Witek (9th Cir. 200 0 ) 218 F.3d 1017, 1025.) The d enial of a Marsden motion is9

reviewed for abuse of discreti on . ( People v. Smith , supra , 30 Cal.4th at

p. 604.) But a trial court’s r efusal “ to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion by the court.” ( People v. Chavez (1980) 26 Cal.3d 334 , 346.)
A trial court is not obligated to initiate a Marsden inquiry sua sponte. ( People v. Lara (2001) 86 Cal.App.4th 139, 150.) Rather, t he court’s duty to conduct an inquiry arises only when the defendant “ ‘asserts directly or by implication that his counsel’ s performance has been so inadequate as to deny
him his constitutional right to effective counsel.’ ” ( People v. Leonard (2000)
78 Cal.App.4th 776, 787 , italics omitted .) A defendant’s “ [ m ] ere grumbling about his counsel’s failure

. . . is insufficient” to constitute a request for new counsel. ( People v. Lee (2002) 95 Cal.App.4th 772, 780.) And a lthough a formal, legal motion is not required , the defendant must “at least [make]
some clear indication

. . . that he wants a substitute att orney.” ( People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 ( Lucky )

. ) Further, a reviewing court “will not find error on the part of the trial court for failure to conduct a
Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court.” ( People v. Richardson (2009) 171 Cal.App.4th 479, 484.) Under Marsden , a defendant can seek the discharge and replacement of counsel at any stage of a criminal proceedings, including before or after a defendant is convicted. ( People v. Smith (1993)
6 Cal.4th 684, 6 94 .) We agree with Springer that he was sufficiently clear in indicating his desire for a Marsden hearing on the day of his sentencing, both when he said , “I want a Marsden ” and when his attorney said, “he wants a Marsden

. ” Respondent all but concedes that the statement by Springer’s counsel that10

Springer “want[ed] a Marsden ” was a sufficiently clear assertion, but argues that Springer “immediately contradicted” this statement by saying he “want[ed] the truth to be said on th e table.” Far from contradicting the Marsden request, however, Springer ’s statement was consistent with his stated desire to withdraw his plea

— which itself was part of his reason for wanting the appointment of substitute counsel. Springer argues that this case is similar to People v. Armijo (2017)
10 Cal.App.5th 1171, 1180. In Armijo , the defendant sent a letter to the trial
court asking for substitute counsel in which he stated, “I am requesting that you assign my case to a state

- appointed attorney

. ” ( Id. at pp. 1176

– 1177.)
The court received this letter, but it did not hold a Marsden hearing , and the defendant went on to accept a plea agreement

. ( Armijo , at p. 1180.) The court of appeal deemed the trial court’s failure to hold the hearing reversible

error. ( Ibid

. ) Although Springer’s statements were more equivocal than the defendant’s statement in Armijo , we cannot say they failed to directly or impl icitly challenge his counsel’s effectiveness or to invoke his right to a Marsden hearing. People v. Sanchez (2011) 53 Cal.4th 80 ( Sanchez ) is instructive

. There, the defendant pleaded guilty. ( I d. at p. 84.) At his initial date for sentencing, a deputy public defender , who was not his appointed counsel, told the trial
court that the defendant wanted to explore having his plea withdrawn. ( Id

. at p. 85. ) The trial court eventually appointed private conflict counsel to evaluate the defendant’s motion to withdraw the plea. ( Ibid. ) The defendant appeared at a subsequent hearing with the private attorney a nd his appointed public defender. ( Ibid. ) The private attorney told the court that the defendant was adamant about withdrawing his plea even though he (the private attorney) had f ound no legal grounds to support such a withdrawal

.11

( Ibid. ) The court then indicated that it would proceed with sentencing at a later date and told the appointed public defender that he would continue to represent the defendant . ( Ibid. ) At the subsequent sentencing hearing, his appointed public defender told the court that the defendant still wanted to withdraw his plea. ( Id . at p p . 85

– 86.) The court denied the plea withdrawal and sentenced the defendant to the negotiated term. ( I d . at p. 86

. ) The Supreme Court held that the trial court’s duty to conduct a
Marsden hearing was triggered when the defendant’s attorney requested the appointment of substitute counsel to investigate the defendant’s desire to withdraw his plea. ( Sanchez , supra , 53 Cal.4th

. at p p

. 86, 92.) The Supreme Court concluded that “when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance,” the “ trial court is obligated to conduct a Marsden hearing

. . . only when there is ‘ at least some clear indication by defendant, ’ either personally or through his current counsel, that defendant ‘ wants a substitute attorney. ’ ” ( Sanchez, at pp. 89

- 90 , citing Lucky , supra , 45 Cal.3d at p. 281.) Here, Springer gave “ ‘ at least some clear indication ’ ” that he wanted a substitute attorney when he discussed wanting to explore withdrawing his plea on the basis that he had been inadequately represented. ( Sanchez , supra , 53 Cal.4th at pp. 89

– 90.) R espondent claims that Springer failed to assert or imply that his counsel’s performance was inadequate. We disagree. Springer and his defense counsel we re in conflict throughout the proceedings , and Springer’s comments on the record went be yond mere grumblings about his attorney’s failings. While not perfectly articulated, Springer’s complaints conveyed both a desire to withdraw his plea and a belief that he had been inadequately advised. Springer specifically claimed that his counsel had12

“directed [him] the wrong way” and suggest ed that his desire for the truth to be “said on the table” was more important to him than proceeding under the

nego tiated plea agreement. The California Supreme Court stated in Lucky that “ a trial court’ s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his
current couns el.” ( Lucky , supra , 45 Cal.3d a t p. 281 , italics added .) Here, Springer unquestionably moved in some manner to seek a discharge of his attorney by stating he wanted a Marsden hearing

. Further, as Marsden itself explained, a trial court errs in denying a “a motion for substitution of attorney s solely on the basis of [its] courtroom observations.” ( Marsden , supra , 2 Cal.3d at p. 124.) Here, we must conclude that the trial court denied Springer’s motion for a Marsden hearing at the time of the sentencing hearing on the sole basis of courtroom observations b ecause nothing in the record indicates that he was given the opportunity to expound on his request for substitute counsel outside the presence of the prosecution. Accordingly, we remand the matter because we are unable to conclude beyond a reasonable doubt that Springer’s plea and resulting judgment were not the result of the denial of effective assistance. ( Marsden , supra , 2 Cal

. 3d at p. 126.) In doing so, we take no position on the merit s of Springer’s request. After inquiring into Springer’s desire for new counsel , the trial court shall exercise its discretion in determining whether his claims are credible

. B. Springer Forfeited H is Challenge to the Impositio n of Fines and Fees. Without objection, the trial court ordered Springer to pay $300 in
restitution (Pen. Code, § 1202.4 , subd. ( b )) , impo sed and suspended a $300 parole

- revocation fine (Pen. Code, § 1202.4 5 ) , imposed a court security fee of $40 (Pen. Code, § 1465.8 ) and a criminal conviction assessment of $30 ( Gov

. Code, § 70373 )

. Relying on People v. Dueñas , Springer argues that the trial13

court violated his c onstitutional rights when it imposed these assessments and fines totaling $670 without first determining his ability to pay. ( People v. Dueñas (2019) 30 Cal. App.5th 1157, 1168 ( Dueñas ) .) He asks that we vacate the se assessments, and stay the ses fines, or remand the matter for a hearing

o n his ability to pay. We agree with respondent that Springer forfeited t his claim by failing to object in the trial court.
Dueñas held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373.” ( Dueñas , supra , 30 Cal. App.5th at p. 1164

. ) Springer was sentenced eight months after Dueñas was decided. Therefore, a t the time of sentencing he could have raised an ability to pay objection based on Dueñas yet neglected to do so

. Generally, a criminal defendant who fails to challenge “an assertedly erroneous ruling of the trial court in that court has forfeited his or her right
to raise th e claim on appeal.” ( In re Sheena K. (2007) 40 Cal.4th 875, 880.) Further, “ ‘ “a constitutional right,” or a right of any other sort ,’ ” may be forfeited

. ( I

bi d .) Th us, Springer’s failure to express concern about his inability to pay in the trial court forfeits his right to challenge the fines and fees on appeal.
B ecause we decid e this issue on forfeiture grounds, we express no view as to the substantive ruling of Dueñas , and note that our state Supreme Court granted review of its holding in People v. Kopp (2019) 38 Cal.App.5th
47 , rev iew granted Nov. 13, 2019, S 257844

. We further note that , depending on the outcome of the Marsden hearing held on rem a nd, Springer may ha ve the ability to raise this issue at a new sentencing hearing.14 III. D ISPOSITION The judgment is conditionally reversed. The case is remanded to the
trial court with directions to hold a Marsden hearing and to appoint new
counsel if Springer can show that failure to do so would substantially impair his right to assistance of counsel

. ( Sanchez , supra , 53 Cal.4th p. 92.) T he
trial court shall entertain any motions that potential new counsel makes, but
if counsel makes no motions or they are denied , the court shall reinstate the judgment. ( Id . at pp. 92

– 93.) I f Springer’s Marsden motion is denied, the

court is directed to reinstate the judgment. ( Id. at p. 93.)15 _________________________ Humes, P.J.

WE CONCUR:

_________________________ Margulies, J.

_________________________ Sanchez, J.

People v. Springer A158263