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Filed 9/29/21 P. v. Rahman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Colusa)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MOHAMMAD EASA RAHMAN,

Defendant and Appellant.

C092672

(Super. Ct. No. CR61397)

Defendant Mohammad Easa Rahman pleaded no contest to felony grand theft. 

The trial court suspended imposition of sentence and placed defendant on formal 

probation for three years. At a subsequent contested hearing on a violation of probation, 

the trial court found defendant in violation, revoked probation, and sentenced defendant 

to three years in prison.

Defendant contends he was entitled to a hearing pursuant to People v. Marsden

(1970) 2 Cal.3d 118 when he sought to replace his public defender at the hearing on the 

probation violation. We conditionally reverse the judgment and remand for further 

proceedings.
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FACTUAL AND PROCEDURAL HISTORY

As defendant does not challenge the validity of the plea, we need only briefly state 

the facts leading to the conviction. On three occasions, defendant entered Kohl’s 

department store and took merchandise totaling $1,218.98 in value. As part of a 

conditional plea agreement, defendant pleaded no contest to a single count of felony 

grand theft (Pen. Code, § 487, subd. (a)) for a recommended grant of probation. In 

accordance with the recommendation, the trial court placed defendant on three years of 

formal probation.

On two occasions, defendant admitted violations of probation for drug use. Each 

time, the trial court sentenced defendant to serve time in county jail and reinstated 

probation.

Subsequently, the People filed a new probation violation petition, alleging several 

additional violations. This hearing was contested. The prosecution introduced evidence 

defendant tested positive for methamphetamine on three separate dates and admitted 

using drugs. After the prosecution indicated it had no more witnesses, defense counsel 

requested time to speak with defendant. Defense counsel then stated: “Not having gotten 

an answer to my question, I’m not going to tell the judge we rest our case. Client wishes 

to change his public defender if he can. [¶] This public defender is submitting the 

matter.” The trial court deemed the matter submitted, found defendant in violation of 

probation, and set the matter for sentencing. Defendant’s request to change public 

defenders was never mentioned.

The trial court sentenced defendant to three years in prison and defendant filed a 

timely notice of appeal.

DISCUSSION

Defendant contends the trial court erred in denying him the opportunity to explain 

the basis for his Marsden request. The People concede error and join defendant’s request 

to remand the matter for a Marsden hearing.
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“Marsden holds that the trial court must afford the defendant an opportunity to 

express the specific reasons why he believes he is not being adequately represented by his 

current counsel when he makes a request for the appointment of new counsel.” (People 

v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.) “Although no formal motion is 

necessary, there must be ‘at least some clear indication by defendant that he [or she] 

wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 157, quoting 

People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)

At the hearing on the violation of probation, defense counsel stated defendant 

“wishes to change his public defender if he can.” This was a clear request for a substitute 

attorney. The trial court did not respond to, or inquire into, this request. Defendant was 

entitled to an opportunity to explain the specific reasons he felt his current attorney was 

not adequately representing him. He was not given that opportunity.

“[W]hen the trial is free of prejudicial error and the appeal prevails on a challenge 

which establishes only the existence of an unresolved question which may or may not 

vitiate the judgment,” the appropriate disposition is to reverse the judgment, remand to 

the trial court for a Marsden hearing, and then to reinstate the judgment if the Marsden

motion is denied. (People v. Minor (1980) 104 Cal.App.3d 194, 199.) Since there is no 

evidence in the record of defense counsel’s incompetence, we remand for a hearing 

to determine whether good cause existed for appointment of new counsel by allowing 

defendant an opportunity to state his reasons for wanting new counsel appointed. 

(Id. at p. 200.)

DISPOSITION

The judgment is conditionally reversed with directions to the trial court to conduct 

a hearing at which defendant shall have a full opportunity to state his reasons for 

desiring replacement of counsel. If, at the conclusion of such hearing, the trial court

determines that defendant has shown good cause for appointment of new counsel, new 

counsel shall be appointed and a rehearing on the alleged probation violation conducted. 
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If, on the other hand, the trial court determines defendant has failed to show good cause 

for appointment of new counsel, it shall reinstate the judgment against defendant.

 /S/

MAURO, J.

We concur:

 /S/

RAYE, P. J.

 /S/

KRAUSE, J.