Filed 4/19/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RAMON ARMIJO,

Defendant and Appellant.

 B266687

 (Los Angeles County

 Super. Ct. No. TA132994)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Laura R. Walton, Judge. Reversed conditionally

and remanded with directions.

James Koester, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, 

Gerald A. Engler, Chief Assistant Attorney General, Lance E. 

Winters, Assistant Attorney General, Steven D. Matthews,

Analee J. Brodie and Lindsay Boyd, Deputy Attorneys General,

for Plaintiff and Respondent.
2

Ramon Armijo appeals from a judgment of conviction 

entered following his negotiated plea of no contest to attempted 

murder and admission to sentencing enhancement allegations. 

Prior to his plea, Armijo sent two letters to the trial court

expressing concern that the public defenders assigned to 

represent him had provided ineffective assistance. Armijo 

requested in the letters that the court discharge those attorneys

and appoint replacement counsel. Armijo contends that his plea 

and conviction should be vacated because the trial court 

committed reversible error under People v. Marsden (1970) 2 

Cal.3d 118 (Marsden) by failing to hold a hearing on his requests.

We agree with Armijo that Marsden error occurred here. 

Armijo’s request in his first letter became moot when, through no 

action of the trial court itself, the attorneys about whom Armijo 

complained in that letter were replaced by another courtappointed counsel. However, the trial court later erred in failing 

to hold a Marsden hearing on Armijo’s second letter, which 

requested the discharge of the replacement counsel and the 

substitution of another counsel. On the record before us, this 

error was not harmless beyond a reasonable doubt. Accordingly, 

we conditionally reverse the judgment and remand with

directions to the trial court to hold a Marsden hearing and to 

appoint new counsel for Armijo if the court concludes that the 

assistance rendered by his previous attorney was inadequate.

We direct the court to reinstate the judgment, however, if it 

concludes otherwise following the Marsden hearing and thus 

declines to appoint new counsel, or if it appoints new counsel and 

that counsel either declines to file a motion to vacate Armijo’s 

plea or the court denies any such motion that is filed.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Charge and Special Allegations Against Armijo

This case arises out of an April 11, 2014 incident in which 

Armijo allegedly stabbed a man with a “bayonet type knife.” 

Following a preliminary hearing on July 29 and 30, 2014, the 

People filed an information charging Armijo with attempted 

willful, deliberate and premeditated murder (Pen. Code,

1 §§ 187,

subd. (a), 664), and specially alleging he had personally used a 

deadly weapon (§ 12022, subd. (b)(2)). The information also 

specially alleged Armijo had suffered one prior serious or violent 

felony conviction within the meaning of the three strikes law 

(§§ 667, subds. (b)-(j), 1170.12) and section 667, subdivision (a)(1). 

Armijo pleaded not guilty and denied the special allegations at 

his August 13, 2014 arraignment.

Deputy Public Defender Delia Metoyer represented Armijo 

at his preliminary hearing and arraignment, and then at nine 

pretrial conferences from September 4, 2014 through January 13, 

2015. On January 5, 2015, Metoyer filed on Armijo’s behalf a 

motion to set aside the information under section 995. A 

different deputy public defender, however, Diana Alexander, 

represented Armijo at a January 22, 2015 pretrial conference; 

Alexander informed the trial court that the case had been 

reassigned to her. The court granted Alexander’s oral motion

made on Armijo’s behalf to continue the case to March 9, 2015.

 

1 Unless otherwise stated, all further statutory references 

herein are to the Penal Code.
4

B. Armijo’s Letter to the Trial Court Regarding Metoyer and

Alexander

After Alexander replaced Metoyer, Armijo sent a letter 

dated February 2, 2015 to the trial court. In the letter, Armijo 

expressed concerns about Metoyer’s past handling of his defense

and the prospect of being represented going forward by 

Alexander.

To begin with, Armijo stated that following the preliminary 

hearing, he asked Metoyer “several questions about the direction 

of my case,” but that Metoyer “seemed to have difficulty making 

time to answer my questions or provide reasonable explanations 

in person or over the phone if she accepted my collect calls.” 

Armijo further stated that during one phone conversation he 

asked Metoyer “about the progress being made by her 

investigator and she admitted she had not been in contact with 

him.” Armijo described Metoyer as “inexperienced and 

overwhelmed by her caseload and schedule demands.” He also 

said that Metoyer had told him that she “had a family emergency 

involving her grandparents” and, as a result, she did not have 

time in December 2014 to file his section 995 motion. Armijo 

additionally complained that, after the motion was filed, Metoyer 

“never bothered to discuss it with me.”

Armijo also said in the letter that he learned on 

January 22, 2015 that “Metoyer was no longer able to represent 

me and that my case would be continued for another 45 days” to 

March 9, 2015. Referring to Alexander, Armijo stated that he 

was concerned that his case had been reassigned from Metoyer to 

“another overwhelmed and inexperienced public defender.” He 

thus requested that the court order a different state-appointed 
5

attorney to be assigned to his case to replace Metoyer and 

Alexander.

The clerk’s office in the trial court received Armijo’s letter 

and file stamped it on February 17, 2015.

Armijo’s next court date following the court’s receipt of his 

letter was the March 9, 2015 pretrial conference that the court 

had set at Alexander’s request. But at that conference, Deputy 

Public Defender Francine Logan, not Alexander, appeared on 

Armijo’s behalf. Logan informed the court that she “ha[d] just 

been assigned [to the] case.” She described the discovery as 

“voluminous” and moved to continue the case to April 9, 2015. In 

granting that motion, the trial court told Armijo that he had been 

“extremely patient,” but that because Logan was newly assigned 

to the case, she “need[ed] additional time . . . to prepare for [the] 

trial.” There is no indication in the record that Logan was 

assigned to the case to replace Metoyer and/or Alexander as a 

result of any action that the trial court took in response to 

Armijo’s February 2, 2015 letter requesting appointment of new 

counsel. The court did not a hold a hearing on the request or 

make any mention of it at the March 9, 2015 conference.

C. Armijo’s Letter to the Trial Court Regarding Logan

On April 9, 2015, a different deputy public defender stood 

in for Logan to represent Armijo that day and requested that the 

case be trailed to April 15, 2015; the trial court granted that 

request. On April 15, yet another deputy public defender stood in 

for Logan and requested that the case be trailed to April 21, 

2015; the court granted that request as well. It is not clear from 

the record precisely why Logan was absent at the April 9 and 15 

pretrial conferences.
6

On the heels of the April 15 pretrial conference, Armijo 

sent a second letter, dated April 16, 2015, to the trial court. In 

this letter, Armijo expressed concerns about Logan’s handling of 

his defense.

Armijo began by voicing his frustration over Logan’s 

absences at the April 9 and 15 pretrial conferences and the 

resulting rescheduling of the conference.2 Next, Armijo 

catalogued complaints about Logan’s representation of him 

dating back to the March 9, 2015 conference at which she first 

appeared on his behalf. In particular, Armijo stated that Logan 

had “assured” him on that date that “she had 17 years [of] 

experience and that she would remain in contact with me before 

my next court date. In fact, she indicated she would visit me in 

the county jail so that we could review my case. She never 

visited me, nor did she accept the numerous collect calls I made 

to the number on her business card. I also wrote her a letter 

reminding her that I was still waiting to meet with her at her 

convenience.” Armijo added that he was concerned that the 

pending section 995 motion was deficient because it “focus[ed] on 

technicalities never mentioning the actual [preliminary hearing] 

testimony,” and that he wanted to discuss the motion with Logan, 

but she was unavailable for that.

Armijo further noted that, since the inception of the case,

he had been assigned “[three] different public defenders”; he 

opined that “not one of them has been reliable, dependable, or 

able to provide the quality legal representation required to be 

 

2 Armijo indicated in the letter that he was told that Logan 

missed the April 9 conference due to illness. The letter offered no 

explanation for her absence from the April 15 conference.
7

successful in my case.” Armijo also stated that he was frustrated 

by the “pattern of unwanted continuances” that he thought would 

stop after Logan was assigned to his case, but that had persisted. 

Armijo concluded the letter by stating, “It is rather obvious that 

the public defender’s [sic], for whatever reasons, has not been 

able to adequately represent me, and for these reasons I am 

requesting that you assign my case to a state-appointed 

attorney.”

The clerk’s office in the trial court received Armijo’s second 

letter and file stamped it on April 24, 2015. The court did not 

hold a hearing on Armijo’s request in the letter for the discharge 

and replacement of Logan. The court made no mention of the 

letter in any of the subsequent proceedings in the case.

D. Proceedings Subsequent to the Second Letter

1. The Denial of Armijo’s Section 995 Motion and

the Filing of an Amended Information

On April 21, 2015, which was in between the date of 

Armijo’s second letter and the date the clerk’s office received it, 

the trial court held a pretrial conference. Logan represented

Armijo. At the conference, the court set May 7, 2015 as the 

hearing date on Armijo’s section 995 motion. Armijo failed to 

appear in court on May 7, however, and so the hearing was 

trailed to May 12.

Armijo appeared at the hearing on May 12. Logan 

represented him and argued the section 995 motion, which the 

trial court denied.

On June 3, 2015, the People filed an amended information, 

which was identical in all respects to the initial information, 

except that it added an allegation that Armijo had inflicted great 
8

bodily injury in committing the offense with which he was 

charged. (§ 12022.7, subd. (a).) Armijo again pleaded not guilty 

to the charge and denied the special allegations.

2. Armijo’s Negotiated Plea and Resulting Conviction

On June 23, 2015, Armijo appeared in the trial court with 

Logan. He entered a negotiated plea of no contest to attempted 

murder and admitted the great bodily injury and prior strike 

allegations. In accordance with the plea agreement that Armijo

reached with the People, the court sentenced him to 13 years in 

state prison and dismissed the remaining special allegations. 

The court awarded Armijo presentence custody credits of 514 

days and imposed statutory fines, fees, and assessments.

3. Armijo’s Notice of Appeal and Request for a

Certificate of Probable Cause To Appeal

On August 5, 2015, Armijo filed a timely notice of appeal in

which he stated that he intended to challenge the validity of his 

plea. Armijo also filed a request for a certificate of probable 

cause allowing him to make that challenge. In his request, he

referred to the two letters he sent to the trial court complaining 

about the assistance he received from his public defenders and 

seeking the appointment of substitute counsel. Citing Marsden, 

Armijo indicated that the trial court had not afforded him the 

opportunity to explain the reasons for his request. He also listed 

numerous grievances against Logan. Among other things, he 

stated that she failed to discuss the section 995 motion with him; 

improperly induced him to accept the plea deal rather than 

considering possible trial strategies; and “failed to clearly and 
9

thoroughly explain [the] guilty plea.” The trial court granted 

Armijo’s request for a certificate of probable cause.

DISCUSSION

Armijo’s sole contention on appeal is that the trial court 

committed reversible error under Marsden by failing to hold a 

hearing in response to his letters requesting the discharge of his 

public defenders and the appointment of replacement counsel. 

For the reasons set forth below, we conclude that Armijo is 

correct as to the second letter and therefore reverse the judgment

of conviction.

A. Governing Law

In Marsden, the California Supreme Court held that the 

constitutional right of criminal defendants to the assistance of 

court-appointed counsel if they cannot afford private counsel 

encompasses the right to have their court-appointed counsel 

discharged and replaced by another one when the “‘“failure to do 

so would substantially impair or deny the right”’” to assistance of 

counsel. (Marsden, supra, 2 Cal.3d at p. 123.) “‘A defendant is 

entitled to [this] relief if the record clearly shows that the first 

appointed attorney is not providing adequate representation 

[citation] or that defendant and counsel have become embroiled 

in such an irreconcilable conflict that ineffective representation is 

likely to result [citations].’ [Citations.]” (People v. Fierro (1991) 1 

Cal.4th 173, 204.)

“[A] proper and formal” Marsden motion is not required—

the defendant need only clearly indicate to the trial court “in 

some manner” that he or she is requesting the discharge and 
10

replacement of the appointed counsel. (People v. Lucky (1988) 45 

Cal.3d 259, 281 & fn. 8; see People v. Reed (2010) 183 Cal.App.4th 

1137, 1146 [defendant must “put the trial court on notice” of a 

desire to replace appointed counsel].) Direct correspondence with 

the trial court is an acceptable manner for the defendant to make 

the request. (See, e.g., People v. Lloyd (1992) 4 Cal.App.4th 724, 

729-730.)

The defendant’s right under Marsden to seek the discharge 

and replacement of court-appointed counsel applies at all stages 

of a criminal proceeding. The request thus may be made before 

or after a defendant is convicted. (People v. Smith (1993) 6 

Cal.4th 684, 694.)

Most critically for purposes of Armijo’s case, once the 

defendant clearly indicates to the trial court a request for the 

discharge and replacement of appointed counsel, the court must 

hold a hearing to allow the defendant to explain the basis for the 

request. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90

(Sanchez); People v. Mendoza (2000) 24 Cal.4th 130, 156-157;

People v. Lloyd, supra, 4 Cal.App.4th at p. 731.) This hearing 

requirement stems from Marsden itself, which gave rise to the 

term of art “‘Marsden hearing’” to describe the proceeding at 

which such requests are to be resolved. (See Sanchez, at pp. 89-

90.)

In elucidating the hearing requirement, the Supreme Court 

in Marsden began by noting that “the decision whether to permit 

a defendant to discharge his appointed counsel and substitute 

another attorney . . . is within the discretion of the trial court, 

and a defendant has no absolute right to more than one 

appointed attorney.” (Marsden, supra, 2 Cal.3d at p. 123.) The 

court admonished, however, “that the trial court cannot 
11

thoughtfully exercise its discretion . . . without listening to [the 

defendant’s] reasons for requesting a change of attorneys. A trial 

judge is unable to intelligently deal with a defendant’s request for 

substitution of attorneys unless he is cognizant of the grounds 

which prompted the request. The defendant may have 

knowledge of conduct and events relevant to the diligence and 

competence of his attorney which are not apparent to the trial 

judge from observations within the four corners of the 

courtroom.” (Ibid.) The court stated that to ensure that the right 

to discharge and replace appointed counsel is meaningful, the 

defendant must “be given ample opportunity to explain and if 

possible to document the basis of his contention [beyond the] bare 

complaint[s]” that counsel is not providing adequate assistance. 

(Id. at p. 125.) Denial of that opportunity, the court held, is legal 

error that compels reversal of the defendant’s conviction unless 

the record shows beyond a reasonable doubt that the error was 

harmless. (Id. at p. 126; see Sanchez, supra, 53 Cal.4th at p. 92.)

B. The Trial Court Erred by Failing To Hold a Marsden

Hearing in Response to Armijo’s Request in His Second 

Letter for the Discharge and Replacement of His Courtappointed Attorney

Armijo’s two letters to the trial court triggered his right to 

a Marsden hearing. Although his letters were not formal 

Marsden motions, Armijo clearly indicated in them that he 

sought the discharge of the public defenders who were 

representing him and their replacement by another courtappointed counsel.

Technically, Armijo’s request in his first letter was 

rendered moot when Logan replaced Metoyer and Alexander as 
12

Armijo’s attorney. Although the record does not indicate that

this switch came about as the result of any action by the trial 

court, Armijo got what he wanted in the first letter: a new

lawyer. That still leaves the second letter, however. And in it, 

Armijo asked the trial court to replace Logan with another courtappointed counsel. The trial court failed to hold a hearing on 

that request. Perhaps Armijo would have been unable to show 

(as Marsden requires) that Logan had provided inadequate 

representation or that he had become embroiled in such an

irreconcilable conflict with Logan that ineffective representation 

was likely to result. But Armijo was entitled to the opportunity 

to try to make that showing at a Marsden hearing. The trial 

court erred in denying Armijo that opportunity.

3

The People’s counter-arguments are unavailing. First, 

citing People v. Lovings (2004) 118 Cal.App.4th 1305 and People 

v. Lobaugh (1987) 188 Cal.App.3d 780, the People assert that 

Armijo forfeited his Marsden rights by entering a no contest plea.

Lovings and Lobaugh are inapposite. In both of those cases, the 

defendants were given the opportunity to present Marsden 

motions at Marsden hearings. Following the hearings, the trial 

courts denied the motions; subsequently, the defendants entered 

guilty pleas and were convicted. (Lovings, at pp. 1307-1309; 

Lobaugh, at p. 783.) The appellate courts held that the 

 

3 It is unclear from the record whether the trial court judge 

personally saw Armijo’s letters. Even if the judge did not see 

them, this would “not justify the court’s failure to conduct [a 

Marsden] hearing” because it was incumbent on the clerk’s office, 

which file-stamped the letters, to bring them to the judge’s 

attention. (People v. Lloyd, supra, 4 Cal.App.4th at p. 731 & 

fn. 7.)
13

defendants’ pleas waived their right to challenge the denial of 

their Marsden motions. (Lovings, at p. 1311; Lobaugh, at p. 786.)

Here, by contrast, Armijo had no Marsden hearing in the 

first place. Unlike the defendants in Lovings and Lobaugh, 

Armijo is not challenging a pre-plea denial of a Marsden motion;

he is challenging a pre-plea denial of a Marsden hearing. 

Armijo’s case is thus akin to Sanchez, supra, 53 Cal.4th 80. The 

defendant there entered a guilty plea. At his sentencing hearing 

a month later, however, the defendant sought to vacate his plea 

and requested, through an informal Marsden motion, the 

discharge of his court-appointed attorney and replacement by 

another on the ground that the attorney had provided ineffective 

assistance in connection with the plea. (Sanchez, at pp. 84-85.) 

The trial court declined to conduct a Marsden hearing. The 

Supreme Court held that the failure to do so was reversible error. 

(Sanchez, at pp. 84, 92.) There was no suggestion in Sanchez

that the defendant’s plea forfeited his right to a Marsden hearing. 

Armijo’s plea did not forfeit his right to a Marsden hearing 

either.4

Second, the People contend that Armijo’s second letter “did 

not make a clear request for substitute counsel” and thus “no 

Marsden inquiry by the trial court was required.” This is 

 

4 People v. Eastman (2007) 146 Cal.App.4th 688 is in the 

same vein as Sanchez. The Court of Appeal in Eastman held the 

trial court erred in failing to hold a Marsden hearing upon receipt 

at the sentencing hearing of the defendant’s request to withdraw 

his plea and discharge and replace his court-appointed attorney 

who had advised him to enter the plea. (Eastman, at pp. 695-

696.) As in Sanchez, there was no hint in Eastman that the 

defendant’s plea forfeited his right to a Marsden hearing.
14

incorrect. Armijo stated unequivocally in the second letter, “I am 

requesting that you assign my case to a state-appointed 

attorney.” We are not sure what more the People believe Armijo 

should have said to trigger his right to a Marsden hearing.5

Third, citing People v. Freeman (1994) 8 Cal.4th 450 and 

People v. Wharton (1991) 53 Cal.3d 522, the People contend that 

if Armijo’s second letter is deemed a request for substitute 

counsel, it obviated the need for a Marsden hearing because the 

letter set forth the basis of his dissatisfaction with Logan in 

“‘sufficient detail.’” Freeman and Wharton have no bearing here. 

In both of those cases, the trial courts duly considered the 

defendants’ detailed recitation of complaints about their courtappointed attorneys and, based on that review, denied the 

defendants’ requests for the appointment of substitute counsel 

without holding a “‘full-blown [Marsden] hearing.’” (Freeman, at 

p. 481; Wharton, at p. 580.) Here, by contrast, there is no 

 

5 Seizing on Armijo’s statement in the second letter that he 

was “still without an attorney,” the People assert that Armijo 

apparently was of the view that Logan no longer was 

representing him as of the date of the letter and, therefore, the 

letter did not trigger a right to a Marsden hearing on the 

replacement of an existing court-appointed attorney with 

another. The People read too much into Armijo’s statement. 

Taken as a whole, the letter indicates that Armijo was aware that 

Logan still was representing him and that the new attorney 

whose appointment he was seeking would replace Logan. 

Armijo’s statement that he was “still without an attorney” may 

simply have been a rhetorical device to call the court’s attention 

to his frustration stemming from Logan’s absences at the April 9, 

2015 hearing, and then again at the April 15, 2015 hearing, 

which was the day before he transmitted the second letter.
15

evidence in the record that the trial court ever considered 

Armijo’s complaints about Logan in the second letter or that the 

court even looked at the letter. Thus, whether Armijo’s letter

was sufficiently detailed within the meaning of Freeman and 

Wharton to excuse the need for a Marsden hearing is irrelevant.

Equally misplaced is the People’s assertion that Armijo’s 

tactical disagreements with Logan that he outlined in the second 

letter are not grounds for replacement of court-appointed counsel 

under Marsden. In cases that so hold, the trial courts held 

Marsden hearings and considered the defendants’ complaints 

about their counsel. (E.g., People v. Streeter (2012) 54 Cal.4th 

205, 228-231.) That did not happen here. In any event, Armijo’s 

objections went beyond tactical disagreements with Logan; he 

also charged that Logan was unavailable and failed to keep in 

touch with him.

Finally, we are not persuaded by the People’s argument 

that Armijo abandoned his Marsden request because he failed to 

assert it at the April 21, 2015 pretrial conference, five days after 

he transmitted the second letter. Abandonment of a Marsden 

request has been found where the defendant affirmatively 

withdrew it (People v. Padilla (1995) 11 Cal.4th 891, 927, 

overruled on other grounds in People v. Hill (1998) 17 Cal.4th 

800, 823, fn. 1), and where the defendant failed to take advantage 

of the opportunity to present additional reasons for his request 

for new counsel at a second Marsden hearing after being afforded 

the opportunity to explain his request at an initial Marsden

hearing (People v. Vera (2004) 122 Cal.App.4th 970, 976-977, 981-

982). Nothing like that happened here: Armijo never withdrew 

his Marsden request, and he never had the opportunity to explain 

the request at a second Marsden hearing, let alone a first.
16

In People v. Jones (2012) 210 Cal.App.4th 355, 362, the 

Fourth District Court of Appeal held that the defendant 

abandoned his Marsden request after he sought or stipulated to 

several continuances for a Marsden hearing but then proceeded

to trial without reminding the trial court of the pending Marsden

request. Nothing like that happened here either; no Marsden 

hearing ever was scheduled and then continued.

In finding abandonment in Jones, the Court of Appeal 

invoked the principle that a criminal defendant may be deemed 

to have abandoned a right by failing to press for a hearing on 

that right or by acquiescing in the trial court’s inadvertent failure 

to hold a hearing. (People v. Jones, supra, 210 Cal.App.4th at 

p. 361, citing People v. Braxton (2004) 34 Cal.4th 798, 813-814.) 

Here, Armijo did not press for a Marsden hearing at the April 21 

pretrial conference (or at subsequent proceedings) and, from the 

record, it appears that the trial court’s failure to hold the hearing 

was inadvertent. Nevertheless, for two reasons, we decline to 

apply the principle on which Jones relied. For one, in Jones, the 

defendant’s counsel was fully aware of the Marsden request. 

Indeed, counsel sought a number of the continuances of the 

Marsden hearing that the trial court granted. The failure to 

press for the Marsden hearing or remind the court about it thus 

lies largely with the defendant’s counsel. Here, by contrast, there 

is no indication from the record that Logan knew that Armijo had 

written to the trial court about her and was seeking substitute 

counsel. Additionally, it seems quite possible that Armijo did not

raise the Marsden issue at the April 21, 2015 pretrial conference 

out of a mistaken belief that the court already had received his 

second letter (it was not received until April 24) and denied the 

request he made therein to discharge Logan, which may have 
17

suggested to Armijo that it would have been futile to ask the 

court at that point to appoint new counsel. (See People v. 

Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [discussing futility 

exception to abandonment rule].) Under these circumstances, we 

do not believe that the fault for the trial court’s failure to hold a 

Marsden hearing should rest with Armijo. Therefore, we decline

to find that Armijo abandoned his Marsden request through a 

failure to press for a hearing on the request or acquiescence to 

the court’s failure to hold a hearing.

C. The Trial Court’s Error in Failing To Hold a Marsden

Hearing Was Not Harmless Beyond a Reasonable Doubt

Based on our review of the record, it is possible that Armijo 

may not have been able to show at a Marsden hearing either the 

inadequacy of representation by Logan or an irreconcilable 

conflict with her. However, because the record largely is limited

to Armijo’s complaint letters, we do not know what other 

evidence Armijo could have offered had he been afforded a 

Marsden hearing. It is conceivable that he could have provided 

at the hearing “knowledge of conduct and events relevant to the 

diligence and competence of his attorney[s] which are not 

apparent” from the “bare complaint[s]” and that would have 

tipped the balance in favor of appointment of substitute counsel.

(Marsden, supra, 2 Cal.3d at pp. 123, 125.) Under these 

circumstances, we “cannot speculate upon the basis of a silent 

record that the trial court, after listening to defendant’s reasons, 

would decide the appointment of new counsel was unnecessary.” 

(People v. Winbush (1988) 205 Cal.App.3d 987, 991.) Thus, the 

trial court’s error in failing to hold a Marsden hearing in response 
18

to Armijo’s letter about Logan cannot be treated as harmless 

beyond a reasonable doubt.

Because of the potential that Armijo could demonstrate 

inadequate representation or an irreconcilable conflict at a 

Marsden hearing, we conditionally reverse the judgment and

remand to the trial court with instructions to hold a Marsden 

hearing. If the trial court finds after the hearing that Armijo 

demonstrated ineffective assistance or an irreconcilable conflict, 

the court shall appoint new counsel to assist Armijo in filing a 

motion to withdraw his plea or any other such motions newly 

appointed counsel may deem appropriate. However, the trial 

court shall reinstate the judgment if (1) the court finds after the 

Marsden hearing that Armijo failed to demonstrate ineffective 

assistance or an irreconcilable conflict; or (2) the court grants 

Armijo’s request for substitute appointed counsel, but either 

substitute counsel declines to file a motion to withdraw the plea 

or other appropriate motion, or the court denies any such 

motion.6

 

6 Our instructions to the trial court on remand are drawn 

from Sanchez, supra, 53 Cal.4th at page 92. That case delineates

what is to happen on remand following a reversal of a plea-based 

conviction on account of the trial court’s failure to hold a Marsden

hearing. Consistent with Sanchez, our instructions reflect a 

“conditional reversal” that contemplates the possible 

reinstatement of the judgment and conviction. (People v. 

Eastman, supra, 146 Cal.App.4th at p. 691.)
19

DISPOSITION

The judgment is conditionally reversed and the case is

remanded with directions to the trial court to hold a Marsden

hearing, and, if Armijo’s request for substitute appointed counsel 

is granted, to appoint new counsel to assist Armijo and to 

entertain such motions as newly appointed counsel may file. The 

court shall reinstate the judgment if: (1) Armijo’s request is 

denied, or (2) the request is granted but substitute counsel 

declines to file a motion to withdraw the plea or other 

appropriate motion, or the court denies any such motion.

SMALL, J.*

We concur:

ZELON, Acting P. J.

SEGAL, J.

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.