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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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 judgment 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)). Mercado asserts the trial court erred when it 

failed to hold a Marsden2 hearing on his second request for new counsel due to 

ineffective representation by his trial counsel. The Attorney General 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 PROCEDURAL 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 responded 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 prior 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 represented himself in an earlier proceeding. The trial 

court explained that self-representation in criminal cases generally is a mistake and noted 

that Renetzky is an experienced criminal attorney. Mercado responded that he had an 

issue with his present representation. Interpreting this as a request for a Marsden hearing, 

the court asked the prosecutor to leave the courtroom. Following a Marsden hearing, the 

trial court denied Mercado's request 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 postponed the sentencing hearing. 

 Mercado subsequently sent a handwritten letter to the trial court requesting 

substitute trial counsel and withdrawal of his plea. He stated he was "misadvised by 

counsel/prosecution as to the collateral consequences 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, alternatively, to allow him to represent himself. The 

 3 Mercado was incorrectly charged under section 166, subdivision (a)(9). 

Effective January 1, 2012, the statute was amended to move the contempt provision for 

willful disobedience of a criminal street gang injunction from subdivision (a)(9) to 

subdivision (a)(10). (Stats. 2011, ch. 181, § 4.) 
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trial court appointed a second attorney, Brent 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 grounds to move to withdraw the plea, and no 

such motion was filed. The trial court excused Merritt and proceeded with Renetzky as 

Mercado's counsel. Pursuant to the plea agreement, the court sentenced Mercado to three 

years four months in prison, consisting of the low term of sixteen 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 General 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 conflict 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 court 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 indicates after conviction a desire to withdraw 

his plea on the ground that his current counsel provided ineffective assistance [if] there is 

'at least some clear indication by defendant,' either personally or through his current 

counsel, that defendant 'wants a substitute attorney.' [Citation.]" (Id. at pp. 89-90 & fn. 

3.) "'[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 counsel.' [Citation.]" (Id. at p. 87.) 

 Mercado specifically requested, by letter to the trial court, that the court 

appoint substitute counsel and allow him to withdraw his plea. Among other things, he 
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stated he was misadvised by his current trial counsel 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 remand 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 court shall hold a hearing on Mercado's Marsden

motion concerning his representation by Renetzky; (2) if the court finds Mercado 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 for all 

purposes and shall entertain such applications as newly appointed counsel may make, 

including a motion to withdraw the plea; and (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. 
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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 General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney 

General, for Plaintiff and Respondent.