People v. Rahman CA3 ( 2021 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C092672
v. (Super. Ct. No. CR61397)
MOHAMMAD EASA RAHMAN,
Defendant and Appellant.
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.
1
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.
2
“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.
3
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.
4