Filed 5/9/14 P. v. Smith CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD F. SMITH,

Defendant and Appellant.

 D064142

 (Super. Ct. No. SCD246263)

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia 

Eyherabide, Judge. Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H. 

Chow, Deputy Attorneys General, for Plaintiff and Respondent.
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At the request of defendant Richard Smith, and following his guilty plea, the trial

court in this case conducted two Marsden1 hearings. At both Marsden hearings, Smith

claimed his counsel was ineffective and requested new counsel. At the first Marsden

hearing, the trial court found that Smith had adequate legal representation at the time of 

his plea and there were no other grounds to withdraw his plea. The trial court gave Smith 

leave to retain new counsel. When Smith appeared again, Smith made a second Marsden

motion which the trial court also denied. Our review of the record shows that Smith was 

adequately represented at all material times.

FACTUAL BACKGROUND:

On the evening of February 12, 2013, Jason Mikell reported a burglary at his 

residence. Police responded and when they arrived, they found Smith leaving Mikell's 

residence and arrested him. The police found a ladder on the side of the building and a 

pick ax in a hot tub on the property.

A window was smashed on the balcony of Mikell's residence. On the balcony

police found a backpack containing Smith's drivers' license, a laptop computer, a black 

tablet case, a stethoscope, a blood pressure cuff and a second silver and black case. 

Mikell reported that the laptop and tablet cases belonged to Allen Mercier, a deceased 

former roommate. According to Mikell, Mikell was the executor of Mercier's estate. 

Mikell further stated that the stethoscope and blood pressure cuff belonged to a friend of 

 

1 People v. Marsden (1970) 2 Cal. 3d 118, 123.
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Mikell and Mercier. Mikell told officers Smith was a former resident of the building who 

had moved out a year earlier.

After waiving his Miranda rights, Smith told the officers: "I was living in the 

house approximately three weeks ago. I got into an argument with Mikell and he 

demanded that I move out. Today, I [was] waiting for Mikell to leave the property and I 

took a ladder, placed it against the rear of the house and climbed onto the second story 

balcony. I used a pick axe to break a glass panel on the door so I could gain entry to the 

home. I placed the pick axe in the hot tube because I didn't want it to be used against me. 

I removed the DVD recorder because I didn't want Mikell to know it was me that entered 

the home. I put the items in my backpack and then got arrested."

PROCEDURAL BACKGROUND

On February 15, 2013, a complaint was filed against Smith alleging first degree 

burglary. (Pen. Code, §§ 459, 460.) Following a preliminary hearing, on

April 5, 2013, Smith entered a guilty plea to one count of a lesser charge of second 

degree burglary. (Pen. Code, § 459.) At a sentencing hearing on May 7, 2013, Smith 

indicated that he wanted to withdraw his guilty plea. The court conducted a Marsden

hearing in response to Smith's request.

 During the hearing, Smith alleged his trial counsel had not conducted a thorough 

investigation and did not present evidence that would serve to exculpate Smith. 

Specifically, Smith argued that he actually lived at the residence, and the items that were 

apparently stolen actually belonged to him. Smith argued that if his counsel had 
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reviewed surveillance recordings at the residence or interviewed his mother or brother, 

counsel would have discovered that Smith was a resident of the building.

Smith's counsel stated that he had investigated Smith's claims that he was a 

resident of the building, and his investigator interviewed Smith's mother and brother. 

Counsel determined that there was no evidence which would support Smith's contention 

that he lived in the residence. Smith's counsel stated he advised Smith that if Mikell was 

illegally retaining property that belonged to Smith that the proper course of action was to 

file a report with the police, not break into the residence.

The trial court found that Smith had been adequately represented and denied his 

motion for new counsel. Smith requested a continuance to find another lawyer and to 

withdraw his plea.

At the June 12, 2013 continued hearing, Smith renewed his request for new 

counsel and the trial court conducted a second Marsden hearing. At the second Marsden

hearing Smith stated he was actually innocent of the burglary. In particular, Smith stated

that his court appointed counsel, Douglas Miller, had refused to communicate with him 

and did not investigate Smith's contention that the items the police recovered actually 

belonged to Smith. Because Smith believed the property belonged to him, he argued that 

he had no burglarious or felonious intent when he broke into Mikell's house. Smith also 

complained that a second public defender, Mignon Hilts, had been assigned to take over 

his case for purposes of trial. Smith stated that Hilts had ordered him to plead guilty.
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In response, Miller stated that the issues Smith raised had been addressed at the 

first Marsden hearing. Miller repeated that there was no evidence that Smith was a

resident of Mikell's house. With respect to Hilts's representation, Miller responded that 

Hilts wanted more trial experience and that if Smith's case went to trial she would 

represent him at trial. Miller reiterated that the decision to plead guilty to second degree 

burglary was Smith's own decision.

The trial court denied Smith's second Marsden motion.

DISCUSSION

The principles governing a Marsden motion made on the grounds counsel was 

ineffective in providing assistance with respect to a plea were fully considered by the 

court in People v. Smith (1993) 6 Cal.4th 684, 690-697 (Smith). In recapitulating a 

defendant's rights to new counsel, the court stated:

"The seminal case regarding the appointment of substitute counsel is Marsden, 

supra, 2 Cal.3d 118, which gave birth to the term of art, a 'Marsden motion.' We there 

held that 'the decision whether to permit a defendant to discharge his appointed counsel 

and substitute another attorney during the trial is within the discretion of the trial court, 

and a defendant has no absolute right to more than one appointed attorney.' " (Smith,

supra, 6 Cal.4th at p. 690.)

"We also established in Marsden that the trial court must give the defendant the 

opportunity to explain the reasons for desiring a new attorney. (Marsden, supra, 2 Cal.3d 

at pp. 123-125.) '[T]he trial court cannot thoughtfully exercise its discretion in this matter 

without listening to [the defendant's] reasons for requesting a change of attorneys.' (Id. at 
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p. 123.) Accordingly, 'When a defendant moves for substitution of appointed counsel, the 

court must consider any specific examples of counsel's inadequate representation that the 

defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. 

Denial of the motion is not an abuse of discretion unless the defendant has shown that a 

failure to replace the appointed attorney would "substantially impair" the defendant's 

right to assistance of counsel.' " (Smith, supra, 6 Cal.4th at pp. 690-691.)

The focus of a Marsden motion is on the representation the defendant has been 

provided: "It is the very nature of a Marsden motion, at whatever stage it is made, that 

the trial court must determine whether counsel has been providing competent 

representation. Whenever the motion is made, the inquiry is forward-looking in the sense 

that counsel would be substituted in order to provide effective assistance in the future. 

But the decision must always be based on what has happened in the past." (Smith, supra,

6 Cal.4th at p. 695.)

Like the defendant herein, the defendant in Smith entered a plea and then asked to 

have new counsel appointed for the purpose of making a motion to withdraw his plea on 

the grounds his trial counsel had not been effective in representing him prior to and at the 

time of the plea. The trial court, after listening to the defendant's complaints about 

counsel and counsel's explanation, denied the motion for new counsel. On appeal, the 

Court of Appeal reversed, holding new counsel should be appointed if the trial court 

determined on remand that the defendant had a "colorable" claim of ineffective assistance 

of counsel. The Court of Appeal reasoned that a defendant's burden in making a posttrial 

Marsden motion based on conduct that did not occur at trial is not as high as when a 
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Marsden motion is based on conduct that did occur at trial or had an impact on the trial. 

(Smith, supra, 6 Cal.4th at p. 691.) On review, the Supreme Court disagreed and 

reversed the judgment of the Court of Appeal. (Id. at p. 697.) The Supreme Court found 

that a defendant's burden under Marsden is the same at all stages of a criminal 

proceeding: "[T]he trial court should appoint substitute counsel when a proper showing 

has been made at any stage. A defendant is entitled to competent representation at all 

times, including presentation of a new trial motion or motion to withdraw a plea. . . . In 

those cases in which counsel was ineffective, this is best determined early. Thus, when a 

defendant satisfies the trial court that adequate grounds exist, substitute counsel should be 

appointed. Substitute counsel could then investigate a possible motion to withdraw the 

plea or a motion for new trial based upon alleged ineffective assistance of counsel. 

Whether, after such appointment, any particular motion should actually be made will, of 

course, be determined by the new attorney.

"We stress equally, however, that new counsel should not be appointed without a 

proper showing. A series of attorneys presenting groundless claims of incompetence at 

public expense, often causing delays to allow substitute counsel to become acquainted 

with the case, benefits no one. The court should deny a request for new counsel at any 

stage unless it is satisfied that the defendant has made the required showing. This lies 

within the exercise of the trial court's discretion, which will not be overturned on appeal 

absent a clear abuse of that discretion. [Italics added.]
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"We thus hold that substitute counsel should be appointed when, and only when, 

necessary under the Marsden standard, that is whenever, in the exercise of its discretion, 

the court finds that the defendant has shown that a failure to replace the appointed 

attorney would substantially impair the right to assistance of counsel. . . ." (Smith, supra,

Cal.4th at pp. 695-696.)

In Smith, the court went on to determine that the trial court did not abuse its 

discretion in denying the defendant's Marsden motion. (Smith, supra, 6 Cal.4th at p. 

696.)

II

As Smith makes clear, where the reasons stated by a defendant at a Marsden

hearing do not, in light of any explanation offered by counsel, show any inadequacy of 

counsel or irreconcilable differences, a Marsden motion should be denied. (Smith, supra,

6 Cal.4th at p. 696.) Here, the record the fully supports the trial court's determination that 

counsel's representation was adequate.

At the outset it bears noting that Smith was initially charged with burglary in the 

first degree, a strike. (See Pen. Code, § 667.5 subd. (c)(21)). Smith's counsel advised 

him to take the prosecution's offer of a plea to second degree burglary which is not a 

strike. Thus, the plea provided Smith with a substantial benefit.

Importantly, the record shows that Smith's original counsel, Miller, fully 

investigated Smith's claim of being a resident of the home. After his investigator 

interviewed the witnesses Smith suggested, Miller found that there was no evidence to 

support Smith's claim that he was a resident of the home. Miller properly advised Smith 
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that if the property in question was in fact his, Smith should have filed a police report. 

The record with respect to the plea Smith entered establishes that both Miller and Hilts

informed Smith of his rights during all relevant stages of the proceedings. Given this 

record, the trial court could reasonably conclude Miller and Hilts performed their duties 

to Smith adequately, and that Smith had no claim for ineffective assistance of counsel.

Smith nevertheless argues that trial counsel did not conduct a proper investigation

because counsel did not review the surveillance recordings of the residence. Appellant 

argues that if Smith were given new counsel, new counsel would retrieve the recordings

and present evidence which would prove Smith lived at the residence. Smith additionally 

argues that the communication breakdown between Smith and counsel was so severe that 

ineffective assistance of counsel resulted.

The surveillance recordings would not have provided Smith with any defense. By 

his own admission, Smith took the recording device from Mikell's residence so that he 

could not be identified as the intruder. Thus, even if the recordings showed that Smith 

had previously been in the home, the circumstances under which the police recovered the 

recordings show fairly conclusively that Smith understood he had no right to enter 

Mikell's residence on the evening of February 12, 2013, by use, no less, of a pick axe.

Counsel's full explanation of his conduct of the case shows that there was no 

substantial breakdown in communication.

Because the record shows that Smith received adequate representation, the trial 

court properly denied his Marsden motions.
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DISPOSITION

The judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.