1 Filed 10/17/13 P. v. Mercado CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
RICHARD MERCADO,
Defendant and Appellant. 2d Crim. No. B246129 (Super. Ct. No. PA073781) (Los Angeles County)

Richard Mercado appeals from a judg ment of conviction upon a plea of no contest to carrying a dirk or dagger (Pen. Code, § 21310) 1 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Me rcado asserts the trial court erred when it
failed to hold a Marsden 2 hearing on his second request for new counsel due to ineffective representation by his trial counsel . The Attorney Genera l concedes the error
based on People v. Sanchez (2011) 53 Cal.4th 80 ( Sanchez ). We conditionally reverse
and remand with directions to the trial court to conduct a Marsden hearing.

FACTS AND PROCEDUR AL BACKGROUND

1 All statutory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118.2 On May 25, 2012, police officers re sponded to complaints of gang members selling narcotics at an intersection in Los Angeles. Mercado and a codefendant saw the officers and started walking away. Mercado took a knife from his pocket, threw it on the ground and began to run. Officers arrested him. Mercado was charged with carrying a dirk or dagger (§ 21310) and violating a criminal street gang injunction (§ 166, subd. (a)(9)). 3 It was alleged that the
offenses were committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(A), (d)), and that Mercado had four prio r convictions (§ 667. 5, subd. (b)). Before his arraignment, Mercado's appointed counsel, Craig Renetzky,
informed the trial court that Mercado wished to represent himself. Mercado confirmed that request and stated that he had represente d himself in an earlier proceeding. The trial court explained that self-representation in crim inal cases generally is a mistake and noted that Renetzky is an experienced criminal a ttorney. Mercado respon ded that he had an issue with his present representation. Interpreting this as a request for a Marsden hearing, the court asked the prosecutor to l eave the courtroom. Following a Marsden hearing, the trial court denied Mercado's reque st for substitute counsel. When the arraignment continued, the trial court discussed settlement options with the parties. Under a negotiated plea agreement, Mercado pled no contest to carrying a dirk or dagger and admitted one of the criminal street gang allegations. At Mercado's request, the trial court pos tponed the sentencing hearing. Mercado subsequently sent a handwritte n letter to the trial court requesting
substitute trial counsel and with drawal of his plea. He stated he was "misadvised by counsel/prosecution as to the collateral cons equences of the plea," and did not fully understand that he was pleading to a strike and gang enhancement. Mercado asked the court to appoint new counsel or, alternativel y, to allow him to represent himself. The

3 Mercado was incorrectly charged unde r section 166, subdivision (a)(9). Effective January 1, 2012, the statute was am ended to move the contempt provision for willful disobedience of a crim inal street gang injunction from subdivision (a)(9) to subdivision (a)(10). (Sta ts. 2011, ch. 181, § 4.)3 trial court appointed a second attorney, Bren t Merritt, "to investigate and prepare the defendant's motion [to withdraw the plea]." After completing his evaluation of Mercado's case, Merritt informed the trial court that he believed there were no grou nds to move to withdraw the plea, and no
such motion was filed. The trial court ex cused Merritt and procee ded with Renetzky as
Mercado's counsel. Pursuant to the plea agreement, the cour t sentenced Mercado to three years four months in prison, co nsisting of the low term of si xteen months for the violation of section 21310 (§ 1170, subd. (h)), plus two years for the criminal street gang enhancement (§ 186.22, subd . (b)(1)(A)). The remaining count and allegations were
dismissed. Mercado filed a timely notice of appeal . The trial court granted his request for a certificate of probable cause.
DISCUSSION Mercado contends, and the Attorney Ge neral concedes, the trial court erred in failing to conduct a Marsden hearing after he clearly stated his desire to withdraw his plea and to obtain substitute counsel. In Sanchez, the Supreme Court "specifically disapprove[d]" the practice of appointing confli ct counsel to investigate the competence of appointed trial counsel, for purposes of deciding whether to proceed with a motion to withdraw a plea. (53 Cal.4th at p. 90.) The c ourt held that a "trial court is obligated to
conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint
new counsel when a criminal defendant indica tes after conviction a desire to withdraw his plea on the ground that his current counsel pr ovided ineffective assi stance [if] there is 'at least some clear indication by defendant, ' either personally or through his current counsel, that defendant 'wants a subs titute attorney.' [Citation.]" ( Id. at pp. 89-90 & fn. 3.) "'[A] trial court's duty to permit a defe ndant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his
current counsel .' [Citation.]" ( Id. at p. 87.) Mercado specifically requested, by lette r to the trial court, that the court appoint substitute counsel and allow him to withdraw his plea. Among other things, he4 stated he was misadvised by his current trial co unsel as to the consequences of his plea.
Given this clear indication of Mercado's desire for a substitute attorney, the trial court had a duty to conduct a Marsden hearing. ( Sanchez, supra, 53 Cal.4th at p. 84.) Its failure to do so requires us to reverse and rema nd with the directions approved in Sanchez. ( Id. at pp. 92-93.)
DISPOSITION The judgment is conditionally reversed and the matter remanded with the following directions: (1) the trial c ourt shall hold a hearing on Mercado's Marsden motion concerning his represen tation by Renetzky; (2) if the court finds Mercado has shown that a failure to replace his appointed attorney would su bstantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him for all purposes and shall entertain such applicatio ns as newly appointed counsel may make, including a motion to withdraw the plea; an d (3) if newly appointed counsel makes no motions, or any motions made are denied, or Mercado's Marsden motion is denied, the court shall reinstate the judgment.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.5 Daniel B. Feldstern, Judge
Superior Court County of Los Angeles

________________ ______________
Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney Gene ral, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.