Filed 4/20/16 P. v. Zapien CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

 Plaintiff and Respondent,

 v.

JOSE ZAPIEN,

 Defendant and Appellant.

F069304

(Super. Ct. No. BF143567A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David R. 

Lampe, Michael G. Bush and Brian M. McNamara, Judges.

Campbell Whitten and Jesse Whitten for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. 

White, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOooAppellant Jose Zapien was convicted of multiple felonies and sentenced to 41 

years to life in prison. He contends on appeal that the trial judge improperly denied his 

new trial motion, in which he alleged various pretrial and trial errors and ineffective 
2.

assistance of counsel. We find that the judge presiding at the trial readiness proceeding

failed to properly address Zapien’s request to discharge his privately retained counsel

before trial and therefore reverse his convictions. 

STATEMENT OF THE CASE

On May 16, 2013, Zapien, age 18, was charged by amended information with two 

counts of kidnapping (Pen. Code, § 207, subd. (a);1 counts 1 and 2); two counts of assault 

with a firearm (§ 245, subd. (a)(2); counts 3 and 4); two counts of making criminal threats 

(§ 422; counts 5 and 6); two counts of false imprisonment (§ 236; counts 7 and 8); one 

count of grand theft (§ 487, subd. (a); count 9); one count of carjacking (§ 215, subd. (a); 

count 10); two counts of second degree robbery (§ 212.5, subd. (c); counts 11 and 12); 

and two counts of kidnapping with the intent to commit a robbery (§ 209, subd. (b)(1); 

counts 13 and 14). It was further alleged Zapien personally used a firearm pursuant to 

section 12022.5, subdivision (a) in the commission of counts 1 through 12, and personally 

used a firearm pursuant to section 12022.53, subdivision (b) in the commission of counts 

1, 2, and 10 through 12. 

At the trial readiness hearing on June 21, 2013, Zapien orally asked to discharge 

his privately retained counsel. The court did not respond to the request except by 

instructing trial counsel to file a motion to discharge and set a hearing date of June 27 in 

another department. Instead of filing a motion to discharge, trial counsel filed a motion 

to withdraw due to an actual conflict of interest pursuant to California Code of Civil 

Procedure section 284 and California Rules of Professional Conduct 3-700, rule (B)(2). 

After holding an in-camera hearing with retained trial counsel (without Zapien present), 

the motion was denied by another judge on June 27, without addressing the earlier 

request to discharge trial counsel or making any inquiry of Zapien. Zapien’s request to 

discharge retained counsel was never addressed or ruled on. 

 

1 All further statutory references are to the Penal Code unless otherwise stated.
3.

Jury trial began July 29, 2013, and on August 1, 2013, a jury found Zapien guilty 

on all counts and enhancements except counts 3 and 4. As to counts 3 and 4, the jury 

found Zapien guilty of the lesser included offense of assault (§ 240). 

On October 11, 2013, the trial court granted Zapien’s motion for new counsel to 

address issues of ineffective assistance of counsel. 

On February 21, 2014, Zapien, through new counsel, filed a motion for new trial 

(§ 1181), arguing he received ineffective assistance of counsel; that he made a timely 

request to discharge retained counsel which was improperly denied; and that original

counsel’s motion to withdraw was improperly denied. The People filed opposition to the 

motion and, after a hearing, the motion was denied on March 28, 2014. 

Zapien was sentenced to state prison for 41 years to life. 

STATEMENT OF THE FACTS

On April 15, 2012, Juan Fierros and his nephew Oscar Arreola made plans to go to 

the home of Ricardo Alvarez to have Alvarez install stereo equipment in Fierros’s

Cadillac Escalade. When the two arrived at Alvarez’s home, Alvarez was not there. 

Fierros and Arreola left, but returned later that day to find Alvarez and another man in 

front of the house. 

Fierros observed Alvarez and the other man go around the side of the house 

toward the backyard, so Fierros pulled his vehicle into the driveway. With Arreola still 

in the vehicle, Fierros went to the side door of the home, which provided access to the 

backyard. The side door was locked, but Alvarez “peeked out” and told Fierros to park 

his vehicle in reverse and wait for him in front of the house. 

Alvarez then came out to the driveway and asked for the keys to the Cadillac. 

While Fierros and Arreola stood on the driveway, Fierros heard something breaking 

inside the car. When he looked in, he saw Alvarez on the telephone, the center console 

was broken off, and Alvarez was clipping wires. 
4.

Fierros and Alvarez then saw two vehicles approach the house; one vehicle was a 

gold 1990’s Toyota Camry and the other a dark blue sedan. Nine or 10 men, about five 

of whom had guns, exited the vehicles with their faces mostly covered with their shirts. 

One of the men, later identified by Fierros as Zapien, had a nylon over his face. The men 

told Fierros they liked his vehicle and were “going to take it.” The men pointed guns at 

Fierros and Arreola, threatened them, and told them to get on the ground. 

When Fierros told the men to take the Cadillac, they responded that he was going 

to come with them. The men hit Fierros and Arreola with their guns, zip tied them, 

socked and kicked them, and threw them in the back seat of the Cadillac. Fierros 

believed it was Zapien who zip tied him. The men put a shirt over Fierros’s face, but it 

was loose enough that he was still able to see; his eyes were not covered. The men 

searched Arreola’s pockets and took his cell phone. Zapien took Arreola’s wallet. 

While Fierros and Arreola were in the back seat of the Cadillac, Zapien was in the 

front passenger seat. Zapien turned around in his seat with his gun pointing at Fierros 

and Arreola and threatened to “smoke” them. The entire time, Zapien was holding a 

chrome gun with an extended clip. Although Zapien had the nylon on his face, both 

Fierros and Arreola were able to see through it clearly. Fierros still had the shirt around 

his head, but there was nothing over his eyes to obstruct his view of Zapien. 

The man driving the Cadillac referred to Zapien as “Tinman” and asked him for 

directions. The other two vehicles that had approached Alvarez’s house were behind the 

Cadillac and were carrying the other men. 

Fierros asked Zapien to drop him and Arreola off and take the Cadillac. Zapien 

told Fierros that if they did everything right, they would go free. 

After driving for 10 to 15 minutes, the vehicle stopped in an orchard. Fierros 

asked Zapien what had happened to Alvarez and Zapien said “we already threw that fool 

in the lake.” The men then forcibly removed Fierros and Arreola from the vehicle, 

punching and kicking them in the process. 
5.

Zapien subsequently removed the nylon from his head and asked Fierros if he had 

seen his face. When Fierros replied that he had, Zapien said, “Well, that’s the last time 

you’re going to see my face.” Zapien was only six or seven inches from Fierros, who 

observed that Zapien had “little piercings” on the left side of his face. Zapien then 

tightened the shirt over Fierros’s face and began walking Fierros and Arreola into the 

orchard and told them to get down on their knees. The men searched Fierros and 

Arreola’s pockets, taking their money, jewelry and cell phones. At trial, Fierros 

reaffirmed he had no doubt Zapien was the man with the nylon on his face who 

threatened to kill him. When asked, Fierros recalled that he did not see any tattoos on 

Zapien’s face. 

Fierros and Arreola were on the ground for about 25 minutes while Zapien 

remained over them with a gun. Zapien again threatened to kill them. Fierros eventually 

heard sirens and heard Zapien and another man say, “It’s the fucking cops.” Fierros and 

Arreola then heard footsteps and people running. 

Fierros was able to get up and get the shirt from his eyes by rubbing his head 

against a tree. Fierros could see officers shining lights into the fields and men running 

and hiding in the trees. Fierros told the officers he and Arreola had been taken hostage at 

Alvarez’s house, driven to the orchard, and that the men wanted to kill them. Other 

officers and a helicopter searched the area for suspects, but none were located that 

evening. 

The officers transported Fierros and Arreola to the police department where they 

were shown a photographic lineup around 3:00 a.m., about six hours after they were 

rescued. Arreola, who “appeared to be tired” and fatigued, identified a Christopher 

Ortiz2in a lineup and said he “looked like the individual that they refer to as Tinman.” 

Fierros was not able to identify anyone in the initial lineup, although both identified

 

2 No further investigation was done on Ortiz. 
6.

Alvarez in a separate lineup. Fierros told Detective Jared Lukehart that the suspect “had 

a spiked eyebrow piercing and an ‘N’ tattoo on his left arm.” 

On August 29, 2012, a little more than four months after the incident, Officer 

Raymond Guerrero met with Fierros to show him a photographic lineup. Following an 

admonishment, Fierros “almost immediately” picked out Zapien’s photograph. In doing 

to, Fierros commented on Zapien’s face and his eyebrow and said he had the same 

features. Fierros told the officer he was “110 percent sure” Zapien was the person 

involved in the kidnapping. At trial, Fierros testified he was able to identify Zapien by 

his eyes, which looked “a little bit stretched out, kind of low.” Fierros testified he told 

the deputies he was “110 percent sure” Zapien was the person involved, and he was still 

certain. 

Officer Michael Strand had seen Zapien about “half a dozen times” in his work as 

a local police officer. On June 23, 2012, Zapien was photographed with an eyebrow 

piercing and a “hash mark in both eyebrows” where the hair was missing. According to 

Officer Strand, Zapien had a tattoo of a “D” and two skulls on his forearm, but he did not 

recall him having an “N” on his arm. When Officer Strand contacted Zapien in June of 

2012, he did not recall Zapien having any tattoos on his face. At trial, however, Zapien 

had new tattoos under his right eye and on the back of his head. Officer Strand believed 

Zapien’s moniker was “Triste.” 

Defense

Amanda Aguilar, who is married to Zapien’s uncle, testified that Zapien was at her 

house on the date in question for a family barbeque celebrating Easter from 4:00 to 9:00 

p.m. Aguilar acknowledged Zapien had been incarcerated for an entire year before she 

came forward to say Zapien had been at her house. Aguilar claimed this was due to the 

fact that she had not been aware of the date of the crimes Zapien had been accused of. 

Zapien’s girlfriend, Jaclyn Lopez, also testified she and Zapien went to a family 

barbeque on the date on question. They arrived between 4:00 and 5:00 p.m. and left 
7.

between 9:00 and 9:30 p.m. She also claimed she did not come forward earlier because 

she was not aware of the date of the crimes Zapien had been accused of committing. 

Zapien’s sister, Connie Lozano, testified Zapien was at a barbeque from 4:00 p.m. 

to about 9:00 p.m. on the date in question, and Zapien was there the entire time. She 

claimed not to have known the date of the alleged incidents until “a few days ago.” 

DISCUSSION

On appeal, Zapien contends the trial court improperly denied his motion for a new 

trial, which claimed “improper pretrial rulings and prejudicial legal assistance during the 

trial,” (capitalization omitted) including improperly denying his pretrial request to 

discharge his retained attorney. 

Background on Motion to Discharge Counsel

At the trial readiness hearing on June 21, 2013, Zapien’s privately retained counsel 

Benjamin Greene told the trial court, Judge McNamara3, Zapien “would like to discharge 

[his] services and have a new attorney appointed.” When asked by the court if that was 

correct, Zapien replied, “Yes.” Greene was told to “file the motion to be discharged,” to 

be heard June 27.

4

 

On June 24, Greene instead filed a motion for leave to withdraw5 as attorney of 

record. In the motion, Greene stated there was a “conflict in the present case” he 

 

3 Although the minute order for June 21, 2013, states Judge Bush presided, the 

reporter’s transcript states it was Judge McNamara. 

4 The minute order for June 21, 2013, states “DEFENSE TO FILE A FORMAL 

MOTION TO WITHDRAW.” 

5 Discharge of a retained attorney by a criminal defendant and withdrawing from 

representing a criminal defendant by a retained attorney are two distinct methods of 

terminating an attorney-client relationship. Both can be done by court order upon 

application of the client for discharge of his or her attorney or the attorney for 

withdrawal, after notice to the other. (Code Civ. Proc. § 284, subd. 2; Cal. Rules of 

Court, rule 3.1362). 
8.

believed was a “sufficient basis for a motion to be relieved.” He further noted “[a]n 

attorney has a duty and right to withdraw if the attorney’s representation will violate the 

attorney’s professional responsibility.” In the attached declaration, Greene declared “[a]n 

actual conflict of interest has arisen” which mandated his “withdrawal pursuant to 

California Rules of Professional Conduct 3-700.” No opposition was filed by the 

prosecution. 

On June 27, the motion was heard by Judge Bush off the record in chambers, 

without Zapien present. Back in open court, Judge Bush stated, “I’m not going to put on 

the record what he said, but the grounds are not grounds to relieve him and have a new 

attorney when you’re five days from trial. I’m going to deny the motion to withdraw.” 

On July 29, Zapien went to trial represented by Greene before Judge Lampe and, 

on August 1, 2013, was convicted by jury. 

On October 11, 2013,6the continued date set for sentencing, Zapien provided the 

trial court with a letter noting various pretrial and trial issues focusing on ineffective 

assistance of counsel which was, in essence, a request for new counsel. In response, the 

trial court held a hearing with only defendant and Greene present. The court described 

the hearing as a “posttrial Marsden hearing,” prospective in nature. After reconvening in 

open court and hearing argument from both sides, the trial court stated “the careful and 

appropriate process at this point is to relieve Mr. Greene as counsel” upon “substitution 

of counsel.” After telling the court he could afford to retain new counsel, Zapien then

stated he wished to check with his family about retaining replacement counsel. The court 

stated he had the right to other counsel and, if he could not afford one, he had the right to 

have a public defender appointed. 

 

6 The reporter’s transcript incorrectly lists the date as October 13, instead of 

October 11, 2013.
9.

On November 8, 2013, the trial court specifically appointed private attorney Jesse 

Whitten for the purpose of evaluating Zapien’s claims of ineffective legal representation. 

On November 22, 2013, Whitten was substituted in as retained counsel and Greene was 

relieved. There is no evidence in the record that Zapien ever changed his mind on 

discharging Greene, since his original request on June 21, 2013. 

Motion for New Trial

On February 21, 2014, Zapien, now represented by Whitten, filed a motion for 

new trial pursuant to section 1181. The motion alleged four grounds for granting a new 

trial. We set out the basic points of each.

First, Zapien argued he received ineffective assistance of counsel because Greene 

failed to file a motion to discharge counsel as directed. Zapien also alleged Greene was 

ineffective because he failed to challenge the photo lineup that was the basis for Zapien’s 

identification and failed to challenge subsequent identifications during cross-examination 

of Fierros, Arreola, and Detective Guerrero. 

Second, Zapien alleged he was denied his right to counsel of his choice because 

his request to discharge his retained attorney was timely made before trial and wrongfully 

denied. 

Third, Zapien alleged that, even if the request to discharge was untimely, the court 

abused its discretion when it did not ask Zapien to explain his request, and it should have 

granted the request to discharge because it was not made in bad faith and it was not an 

attempt to delay trial. 

And fourth, Zapien alleged the trial court’s denial of Greene’s request to withdraw 

due to an actual conflict of interest was improper. 

The motion included a declaration from Zapien stating he retained Greene because 

Greene assured him he would attempt to “either suppress or exclude the photo line-up 

identifications, and ... file any necessary motions to accomplish this ....” When Zapien 

later found no such motions forthcoming, he decided he no longer wished to be 
10.

represented by Greene, and told the court so at the next readiness hearing on June 21, 

2013. Greene was then told by the trial court to file a motion to discharge. Zapien’s 

declaration concluded by stating “I believe the court’s denial of my request to discharge 

Mr. Greene prevented me from being effectively represented, and prevented me from 

getting a fair trial.” 

The People opposed the motion, arguing Zapien did not receive ineffective 

assistance of counsel because the photographic lineup was not unduly suggestive, 

negating any need on Greene’s part to further question the identifications at trial. The 

People argued further that Zapien’s request that the trial court vacate the earlier ruling on 

Zapien’s motion to discharge counsel was improper, as it would be one trial judge 

overruling an order of another trial judge. The People opined such a request was more 

appropriately made in an appeal to the appellate court. 

Hearing on Motion for New Trial

The hearing on the new trial motion was held March 7, 2014. Prior to hearing 

argument on the motion, the trial court stated Zapien’s claim of ineffective assistance of 

counsel raised three issues: that Greene should have challenged the photo lineup either 

pretrial or at trial; that Greene should have cross-examined on issues related to the photo 

lineup; and that Greene should have filed a motion to discharge counsel on Zapien’s 

behalf. The trial court noted that Zapien also challenged the trial court’s earlier 

disposition of the motion to withdraw. The trial court did not directly address Zapien’s 

original request to discharge his retained attorney. However, Zapien’s counsel argued 

that Zapien did make a motion to discharge his retained counsel, that he had a right to 

discharge retained counsel and denying him that right resulted in an “unfair trial,” 

requiring per se reversal. 

The balance of the argument and comments by the court focused on the 

ineffectiveness of counsel in failing to address the photo lineup issues, failing to file a 

motion to discharge and the denial of the motion to withdraw. Finally, when Zapien’s 
11.

counsel was given another chance to respond, he put his client on the stand. Zapien 

testified he asked Greene to file a motion to suppress the photo lineup, but when he said 

no, Zapien asked the trial court that he be able to discharge Greene. Zapien was under 

the impression the trial court denied his motion to discharge Greene, so “I didn’t bother 

with it again.” 

Following argument, the trial court took the matter under submission. On March 

12, 2014, Zapien filed a supplemental brief in support of the motion, arguing he had an 

absolute right to discharge retained counsel, denial of this right was prejudicial per se, 

“and the fact that this right was denied because of ineffective assistance of counsel rather 

than court error is inconsequential.” 

The People did not respond to this issue in its reply to the supplemental brief. 

On March 28, 2014, the trial court stated it was tentatively inclined to deny the 

motion on grounds of ineffective assistance of counsel. According to the trial court, there 

was no record before the court that counsel’s decisions not to contest the photographic 

lineup was anything other than a “tactical decision[] by the trial counsel.” The trial court 

also stated that, having been the trial judge in the case, it could find no reasonable 

probability that, but for counsel’s actions regarding the photo lineup, Zapien would have 

received a more favorable determination. 

The trial court stated it was “a little more troubled” by the basis for the motion 

regarding Zapien’s pretrial effort to discharge retained counsel and counsel’s effort to 

withdraw from the case. The trial court believed Zapien’s efforts to contest the ruling

was “ostensibly a collateral attack upon the decision of another judge of the Court” and 

was a matter for the Court of Appeal. The trial court also stated the issue “[f]or me as the 

trial judge ... in essence turns into the same issue of whether or not the counsel that was 

present performed competently or effectively,” and it tentatively found against Zapien on 

that issue. 
12.

Zapien’s counsel again argued Zapien specifically requested to discharge Greene, 

that Greene was instructed to file a motion to discharge, but filed a motion to withdraw 

instead. As argued by Zapien’s counsel, when Greene’s motion to withdraw was denied, 

Greene should have brought a motion to discharge, and failed to do so. Zapien’s counsel 

argued Zapien was never made aware of the fact that his requested motion to discharge 

had never been heard, and so was never informed that he needed to reraise the issue. 

Zapien’s counsel argued this was “clear ineffective assistance of counsel.” Zapien’s 

counsel argued Zapien wished to discharge Greene for a “specific reason,” that being that 

he failed to file a motion to exclude or suppress the photo lineup. 

Zapien’s counsel, noting the trial court’s reluctance to collaterally attack a 

decision of another judge, instead framed the argument of Zapien’s right to discharge 

counsel as one of ineffective assistance of counsel. As argued by counsel:

“ ... I understand that this is a little unusual in the fact that that came to 

ineffective assistance of [c]ounsel, but I would argue that it makes no 

difference. It’s the same result. And the only difference is you don’t have 

to rule on something another judge has ruled on because in this case it’s 

ineffective assistance of counsel, which would be a determination that 

would be made by the trial judge.” 

The People again argued Zapien was asking the trial court to make a decision 

based on speculation, as Greene was not called to testify. The People argued the trial 

court therefore had no evidence of what occurred outside the courtroom in pretrial 

proceedings in order to grant Zapien’s new trial motion. The People agreed with the trial 

court’s thinking that this was a “collateral attack on Judge Bush’s decision, because when 

Mr. Greene did a motion to withdraw, Judge Bush heard his reasons and found there 

wasn’t good cause for him to withdraw.” 

Zapien’s counsel was given another opportunity to respond and argued Zapien’s 

new trial motion should be granted because he had “an absolute right to make a timely 
13.

discharge of counsel, and that was never heard,” “because of the ineffective assistance of 

his counsel.”

The trial court denied the motion, stating:

“[M]y determination of the matter is that the asserted ineffective assistance 

of counsel at trial, I have determined on the second prong of the test as to 

whether or not it is reasonably probable that a determination would be more 

favorable to the defendant if those things had taken place. I’ve stated I 

don’t think that the motion meets the second prong at a minimum. [¶] As 

to the issue of the pretrial request or motion to discharge and the motion to 

withdraw, that does require me to review the record, the trial record, the 

transcript that was created, and consider that as part of my determination, 

and that was a proceeding that was undertaken and determined by another 

judge. I understand the arguments you’re making, Mr. Whitten, and 

seriously considered them. Whether that evolves into ineffective assistance 

of counsel that I can determine on a motion for a new trial, I have decided 

that it does not. The appellate court may disagree with me, may think that 

it does subsume into a motion for a new trial before the trial judge, but I 

have determined it does not for the reason it requires me to review the 

judgment of another judge of this court, which I think is within the province 

of the Court of Appeal.” 

Essentially, the trial court concluded it could not review the ruling of another 

judge on the motion to withdraw, either directly or through an ineffective assistance of 

counsel claim. The trial court did not address Zapien’s direct oral request to discharge 

his retained counsel made at the trial readiness hearing. 

Motion to Discharge 

One of Zapien’s contentions on appeal, which he addresses within the context of 

the denial of his new trial motion, is that he was prejudicially denied his June 21, 2013, 

oral pretrial request to discharge retained counsel. We agree.

A criminal defendant is entitled to assistance of counsel at all critical stages of the 

proceeding. (U.S. Const., 6th Amend.; Cal. Const., art I, § 15; Pen. Code, §§ 686, 859 & 

987; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.) “The right of a criminal 

defendant to counsel and to present a defense are among the most sacred and sensitive of 
14.

our constitutional rights. (Magee v. Superior Court (1973) 8 Cal.3d 949, 954.)” (People 

v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz).) An element of a defendant’s Sixth 

Amendment right to counsel is the right of the defendant to choose his or her own 

retained counsel. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 148-152 

[Erroneous deprivation of the right to counsel of choice is “structural error” and 

reversible per se]; People v. Leonard (2000) 78 Cal.App.4th 776, 784.) 

While an indigent criminal defendant may discharge or substitute appointed 

counsel, the right to do so is not absolute and is a matter of judicial discretion unless there 

is a sufficient showing that the defendant’s right to the assistance of counsel would be

substantially impaired if his request was denied. (People v. Carr (1972) 8 Cal.3d 287, 

299; People v. Clark (1992) 3 Cal.4th 41, 104, overruled on other grounds in People v. 

Pearson (2013) 56 Cal.4th 393, 462.) The trial court also retains discretion to deny such 

a request if it is untimely. (People v. Whitt (1990) 51 Cal.3d 620, 659; People v. Jackson

(1981) 121 Cal.App.3d 862, 872.) 

But in contrast to situations involving appointed counsel, a criminal defendant has 

the right to discharge his or her retained attorney with or without cause. (Ortiz, supra, 51 

Cal.3d at pp. 983, 987.) While an indigent defendant may discharge appointed counsel 

only if that lawyer is rendering inadequate representation or there exists an irreconcilable 

conflict between counsel and client (see People v. Marsden (1970) 2 Cal.3d 118, 123), an 

indigent or nonindigent criminal defendant may discharge retained counsel for any 

reason. (Ortiz, supra, at p. 984.)

When a defendant makes a request to the court (or at least a clear indication) to 

discharge or substitute his or her appointed counsel, the court has a duty to conduct a 

Marsden hearing to determine if the lawyer is rendering inadequate representation or 

there exists an irreconcilable conflict between counsel and client. The defendant is not 

required to make a formal motion. (People v. Sanchez (2011) 53 Cal.4th 80, 90.)

Because the right to retained counsel of one’s choosing is protected by the Sixth 
15.

Amendment, it follows that a defendant seeking to discharge his or her retained counsel 

possesses these same procedural rights and need not bring a formal motion to discharge 

retained counsel, assuming that defendant has made clear to the court that he or she 

wishes to discharge that retained counsel. 

The right to discharge retained counsel is not, however, absolute. The trial court 

may deny a request to discharge retained counsel “if discharge will result in ‘significant 

prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in 

‘disruption of the orderly processes of justice’ [citations].” (Ortiz, supra, 51 Cal.3d at p. 

983.) “[T]he ‘fair opportunity’ to secure counsel of choice provided by the Sixth 

Amendment ‘is necessarily [limited by] the countervailing state interest against which the 

sixth amendment right provides explicit protection: the interest in proceeding with 

prosecutions on an orderly and expeditious basis, taking into account the practical 

difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the 

same time.”’” (Id. at pp. 983-984, quoting Sampley v. Attorney General of North 

Carolina (4th Cir. 1986) 786 F.2d 610, 613.) 

Because the right to discharge retained counsel is broader than the right to 

discharge appointed counsel, and no cause for discharge need be shown, a Marsden-type 

hearing at which the court determines whether counsel is providing adequate 

representation or is tangled in irreconcilable differences with the defendant is an 

“‘inappropriate vehicle in which to consider [the defendant’s] complaints against his 

retained counsel.’” (People v. Hernandez (2006) 139 Cal.App.4th 101, 108, quoting 

People v. Lara (2001) 86 Cal.App.4th 139, 155 (Lara).) Instead, under the applicable 

test for retained counsel, the court should “balance the defendant’s interest in new 

counsel against the disruption, if any, flowing from the substitution.” (Lara, supra, at p. 

153.) In so doing, the court “must exercise its discretion reasonably: ‘a myopic 

insistence upon expeditiousness in the face of a justifiable request for delay can render 
16.

the right to defend with counsel an empty formality.’” (Ortiz, supra, 51 Cal.3d at p. 984, 

quoting People v. Crovedi (1966) 65 Cal.2d 199, 207.) 

Here, Zapien sought to discharge Greene on the day of the readiness hearing. His 

request to do so was unequivocal. As discussed above, no formal motion need be 

brought and cause for the discharge need not be shown, but the trial court retains 

discretion to deny such a motion if the discharge (1) would cause “‘significant 

prejudice’” to the defendant, e.g., by forcing him to trial without representation, or (2) 

was untimely and would “result in ... ‘disruption of the orderly process of justice 

unreasonable under the circumstances of the particular case.’” (Ortiz, supra, 51 Cal.3d at 

p. 982.) If such factors are not implicated in defendant’s motion to discharge his retained 

counsel, the trial court’s denial of defendant’s motion requires automatic reversal of the 

conviction. (Id. at p. 988.)

However, the trial court at the readiness hearing never addressed the two Ortiz 

factors outlined above. It never inquired of Zapien any reason for his request, whether 

Zapien wished to retain other counsel or have counsel appointed, or whether a 

continuance was required. No inquiry was made of the prosecution on the timeliness of 

the request. Other than set the matter over for a formal motion to discharge, it never 

addressed Zapien’s request to discharge Greene. This was error on the part of the trial 

court at the trial readiness hearing. The question is whether the error requires reversal, 

which we hold is mandated. 

Our reasoning in Lara is helpful. There, on the first day of trial, the defendant 

expressed dissatisfaction with his privately retained counsel, including a complaint that 

counsel was unprepared. The trial court treated the issue as a Marsden motion, which it 

denied. We found the trial court improperly treated the defendant’s request to discharge 

privately retained counsel as a Marsden motion. (Lara, supra, 86 Cal.App.4th at p. 155.) 

We held that, while a defendant moving for substitution of appointed counsel must show 

good cause (id. at p. 151), a defendant may discharge retained counsel at any time, with 
17.

or without cause, as long as he or she has not been unjustifiably dilatory or arbitrarily 

desires to substitute counsel at the time of trial. (Id. at pp. 152-153.) The defendant’s 

day-of-trial implied request to discharge retained counsel was timely because (1) there 

was no evidence to suggest the defendant’s request was made in an effort to delay the 

proceedings; and (2) the attorney had not consulted with the defendant for months and 

thus the defendant was “unaware of the nature of [defense counsel’s] preparation until 

the moment the trial was finally set to begin.” (Id. at pp. 162-163.) In addition, “[t]he 

trial court considered the supposed Marsden motion on its merits and did not make any 

findings as to the motion’s being untimely. We thus lack[ed] any factual findings that 

[the defendant’s] motion was necessarily untimely or that it would have disrupted the 

orderly process of justice.” (Id. at p. 163.) We found the trial court did not properly 

exercise its discretion in the treatment of the defendant’s motion and reversed. (Id. at p. 

166.) 

“‘“To exercise the power of judicial discretion all the material facts in evidence 

must be both known and considered, together also with the legal principles essential to an 

informed, intelligent and just decision.” [Fn. Omitted.]’ [Citation.]” (In re Marriage of 

Martin (1991) 229 Cal.App.3d 1196, 1200.) 

Zapien’s request to discharge his retained attorney was made 10 days before trial 

was scheduled to begin. As in Lara, we are left with an incomplete record upon which to 

conclude that such a motion was necessarily untimely. And, as in Lara, there is no 

indication in the record that Zapien made the request for the purpose of improperly 

delaying the proceedings. We hold the trial court did not properly exercise its discretion 

when it failed to address Zapien’s request to discharge his attorney.

“Reversal is automatic ... when a defendant has been deprived of his 

right to defend with counsel of his choice. (People v. Gzikowski [(1982)]

32 Cal.3d 580, 589.) The right to counsel of choice, including the right to 

discharge retained counsel, furthers the dual goals of due process: (1) 

ensuring the reliability of the guilt-determining process by reducing to a 
18.

minimum the possibility that an innocent person will be punished; and (2) 

protecting the ideal of human individuality by affirming the state's duty to 

refrain from unreasonable interference with a defendant's desire to defend 

himself in whatever manner he deems best. [Citations.] The right to 

counsel of choice is one of the constitutional rights most basic to a fair trial. 

Accordingly, it is clear that a criminal defendant need not demonstrate 

prejudice resulting from a violation of that right in order to have his 

conviction reversed. As stated in the controlling case of Chapman v. 

California (1967) 386 U.S. 18, 23: ‘there are some constitutional rights so 

basic to a fair trial that their infraction can never be treated as harmless 

error ....’ The right here is such a right.” (Ortiz, supra, 51 Cal.3d at p. 

988.)

At the trial readiness hearing, the court was obligated to address Zapien’s motion 

to discharge his retained attorney, including the Ortiz factors, in assessing whether 

Zapien’s request to discharge his retained attorney would cause him prejudice or was 

untimely. Because the court did not do so, Zapien’s request to discharge his retained 

attorney must be considered timely and the court’s error mandates reversal of the later 

trial court denial of his motion for a new trial. For such reason, we find it unnecessary to 

address Zapien’s remaining issues. 

DISPOSITION

The judgment is reversed and remanded for retrial. 

_____________________

FRANSON, J.

WE CONCUR:

_____________________

KANE, Acting P.J.

_____________________

POOCHIGIAN, J.