People v. Nguyen

Filed 1/8/14 unmodified opinion attached
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, A133591
Plaintiff and Respondent,
(San Francisco City & County
v. Super. Ct. No. 00214256)
HOANG V. NGUYEN,
ORDER MODIFYING OPINION
Defendant and Appellant. AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT:
It is ordered that the opinion filed herein on December 17, 2013, be modified as
follows:
1. On page 11, immediately after the first partial paragraph at the top of the page,
insert the following two paragraphs and footnote 10:
Defendant argues that this distinction cannot be maintained because the
statement of facts in Williams does not make clear whether the defendant
purchased gift cards that were already at the counter, and therefore did not
need to be transported prior to purchase, or whether he picked up gift cards
located elsewhere in the store and carried them to the counter. Rather, the
decision states only that the defendant “bought” the gift cards at the cash
register. (Williams, supra, 57 Cal.4th at p. 780.) We acknowledge the
ambiguity of the court’s characterization. However, it is not unusual for gift
cards in retail stores to be maintained at the cash register. Further, Justice
Baxter, in his dissenting opinion in Williams, states “the defrauded cashiers
handed defendant the fraudulently purchased (i.e., stolen) [gift] cards,”

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.C. and II.D.
 suggesting the cards did not come into the defendant’s possession until after
the transaction was completed.10 (Id. at p. 800.)

While acknowledging the ambiguity in the Williams account of events, we
nonetheless reject defendant’s reasoning. The absence of this distinction
would appear to place Davis and Williams into irreconcilable conflict;
defendant, at least, proposes no other way of distinguishing them. Yet
Williams gives no indication of an intent to overrule Davis on this point, and,
in the absence of such an intent, our duty is to attempt to apply both decisions
in good faith. For the reasons discussed, the nature of defendant’s conduct is
closer to that of the defendant in Davis than that of the Williams defendant.
Because the factual distinction we propose is consistent with the language of
the Williams court, we find it a meaningful way to reconcile the two decisions.
10
Even Justice Baxter’s statement is not free of ambiguity, however, because,
as defendant points out, “[i]f the defendant in Williams had brought a gift card
to the counter from a display rack and handed it to the cashier for purchase and
activation, there would be a moment when the cashier handed it back.”

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

Dated:

________________________________
Margulies, Acting P.J.

2
Filed 12/17/13 (opn. following transfer from Supreme Ct.) unmodified opinion
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A133591
v.
HOANG V. NGUYEN, (San Francisco City & County
Super. Ct. No. 00214256)
Defendant and Appellant.

Defendant Hoang V. Nguyen was convicted of burglary after he was found by an
electronics store security guard to have exchanged more expensive laptop computers for a
less expensive printer in the printer’s box. In instructing the jury on theft, the trial court
instructed only on the elements of theft by larceny. Defendant argues his intended crime
was not larceny but, if anything, theft by false pretenses. Because the jury was not
instructed on the elements of theft by false pretenses, he contends, his convictions must
be reversed. He also contends the trial court erred in denying a purported Marsden1
motion and in calculating custody credits. Because we find substantial evidence to
support a conviction for attempted theft by larceny and reject defendant’s other
contentions, we affirm.2

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.C. and II.D.
1
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
This is our second decision in this matter. Two months after the filing of our
initial decision on June 18, 2013, the Supreme Court rendered its decision in People v.
Williams (2013) 57 Cal.4th 776 (Williams). The court thereafter granted a petition for
review of our June decision and simultaneously transferred the matter to us “with
 I. BACKGROUND
Defendant was charged in an amended information, filed May 20, 2011, with
second degree burglary (Pen. Code, § 459) and attempted grand theft (Pen. Code, §§ 487,
subd. (a), 664). Defendant was alleged to have served one prior prison term. (Pen. Code,
§ 667.5, subd. (b).)
Defendant entered an electronics store and walked to the computer department.
One of the store’s loss prevention officers, Angel Gonzalez, watched as defendant opened
a box, placed something under it, and left the store. When Gonzalez checked the aisle
where defendant had been, he found a printer that had been removed from its box and
placed on a bottom shelf behind other items, but he was unable to locate a corresponding
empty printer box. Gonzalez took the printer, which retailed for about $100, to the front
of the store.
Soon after, defendant reentered the store. Gonzalez again watched on a security
camera as defendant returned to the computer department. He saw defendant pick up an
opened box and bring out a roll of tape from inside his jacket. At this Gonzalez left his
station to confront defendant. When he arrived, Gonzalez found defendant in the process
of sealing a printer box. Looking inside, Gonzalez found two laptop computers, which
retailed for $450 each. Because of the positioning of the computers in the box, it would
have been difficult to tell from the outside that they had been substituted for the cheaper
printer. Defendant was detained and arrested.
The trial court instructed the jury on burglary and attempted grand theft by larceny
pursuant to CALCRIM Nos. 460, 1800, and 1801. As given by the court, the elements of
theft by larceny were (1) defendant took possession of property owned by someone else,
(2) defendant took that property without the owner’s consent, (3) when defendant took
the property he intended to deprive the owner of it permanently, and (4) defendant moved
the property and kept it for a period of time.

directions to reconsider [our] decision in light of [Williams].” (People v. Nguyen, review
granted Oct. 2, 2013, S212319.)

2
 During deliberations, the jury sent a note asking, “Are theft and defraud the same?
Meaning, because his intent to pay for a lesser item, is that the definition of theft?” The
court responded, “Members of the jury, please refer to instruction number 1800. The
owner’s consent cannot be obtained by fraud or deceit.” The court explained to counsel,
“The Court extrapolated that language from the theft-by-trick instruction. I declined to
give the entire theft-by-trick instruction, but I thought that portion was appropriate in the
context of this case.”
Defendant was found guilty of burglary and the lesser included offense of
attempted petty theft, and the court later found the prior prison term allegation to be true.
At sentencing, the court dismissed the attempted petty theft conviction and sentenced
defendant to a term of four years on the burglary charge.
On the evening after his conviction, defendant sent a letter to the judge, penned by
another inmate, complaining his counsel “did little, if anything whatsoever to defend me
in my trial” and did not advise him about the risks of trial, instead telling defendant to
fight the case because he had a strong defense. Construing the letter as a request for new
counsel under Marsden, supra, 2 Cal.3d 118, the trial court held a hearing and asked
defense counsel for a response. Counsel essentially denied the claims, explaining he
always advises his clients about the risks of going forward to trial. Defense counsel also
denied defendant’s charge, made during the hearing, that he did not convey the
prosecution’s plea offer. During his explanation, counsel noted that all of his
conversations with defendant had occurred in English, rather than defendant’s native
Vietnamese, and speculated this might have resulted in a miscommunication. Somewhat
in contradiction, counsel explained defendant’s English skills were sufficiently good that
“it never occurred” to him defendant might need an interpreter. Based on its observations
during trial, the court agreed defendant “has quite a lot of skill in English.” It then denied
appointment of new counsel, concluding, “I don’t find that there is anything that counsel
has done that would warrant his being removed or replaced as counsel.”

3
 Two weeks later, defendant caused another, similar letter to be written to the court,
insisting he was never told of a plea offer. Finding the charges identical to those resolved
earlier, the court denied relief without a hearing.
II. DISCUSSION
A. Substantial Evidence to Support the Burglary Conviction
Defendant contends the evidence did not support a burglary conviction based on
intent to commit larceny, the theory of theft on which the jury was instructed.3 He argues
the evidence supports a conclusion he intended to commit, if anything, theft by false
pretenses by disguising the laptop computers in the printer box, paying the stated price
for the printer at the sales counter, and, contrary to the theory of larceny, “tak[ing] the
laptops from the store with consent.” We review defendant’s conviction for substantial
evidence to support each of the elements of intent to commit theft by larceny. (People v.
Livingston (2012) 53 Cal.4th 1145, 1172.)
The statutory crime of theft is comprised of several different common law crimes,
including embezzlement, theft by larceny, theft by trick or device, and theft by false
pretenses. (People v. Nazary (2010) 191 Cal.App.4th 727, 740 (Nazary); People v.
Cuellar (2008) 165 Cal.App.4th 833, 837.) In 1927, these common law crimes were
consolidated in Penal Code section 484 into a single statutory crime. (People v. Gomez
(2008) 43 Cal.4th 249, 255, fn. 4.) “The purpose of the consolidation was to remove the
technicalities that existed in the pleading and proof of these crimes at common law.
Indictments and informations charging the crime of ‘theft’ can now simply allege an
‘unlawful taking.’ [Citations.] Juries need no longer be concerned with the technical
differences between the several types of theft, and can return a general verdict of guilty if
they find that an ‘unlawful taking’ has been proved.” (People v. Ashley (1954) 42 Cal.2d
246, 258 (Ashley).)

3
A person who enters a building with the intent to commit theft is guilty of
burglary. (See People v. Parson (2008) 44 Cal.4th 332, 354.)

4
 The simplification envisioned by the Legislature has not been realized. Rather
than following the lead of the Legislature and collapsing the disparate theories of theft
into a single crime, the courts have maintained their separate existence. As noted in
Nazary, “ ‘[a]lthough the offense of theft has been substituted for the offenses of larceny,
embezzlement and obtaining money or property by false pretenses, no elements of the
former crimes have been changed. The elements of the former offenses of embezzlement
and larceny and the distinction between them’ continue to exist.” (Nazary, supra,
191 Cal.App.4th at p. 741.) As a result, Ashley’s anticipated general jury verdict of
“unlawful taking” has not materialized.4 Reported decisions suggest juries continue to be
instructed on the elements of the individual theories, rather than being asked to render a
general verdict of theft. Further complicating matters, the trial judge must instruct on the
proper theory of theft, since “the [theft] offense shown by the evidence must be one on
which the jury was instructed and thus could have reached its verdict.” 5 (People v.
Curtin (1994) 22 Cal.App.4th 528, 531.) Because California courts have chosen, in the
words of Ashley, to retain “[t]he elements of the several types of theft included within
[Penal Code] section 484” (Ashley, supra, 42 Cal.2d at p. 258), the technicalities of
pleading and proof that the Legislature hoped to eliminate in enacting section 484 remain.
The separate theories of theft are largely “aimed at different criminal acquisitive
techniques.” (Ashley, supra, 42 Cal.2d at p. 258.) Theft by larceny, the theory on which
the trial court instructed the jury, “is committed by every person who (1) takes possession
(2) of personal property (3) owned or possessed by another, (4) by means of trespass and
(5) with intent to steal the property, and (6) carries the property away. [Citations.] The
act of taking personal property from the possession of another is always a trespass unless
the owner consents to the taking freely and unconditionally or the taker has a legal right
4
Judging from both Ashley and People v. Nor Woods (1951) 37 Cal.2d 584, a
general theft instruction and verdict was used by some trial courts in the past, but the
practice has not survived.
5
This principle has been the subject of recent controversy. (Compare People v.
Fenderson (2010) 188 Cal.App.4th 625, 637; People v. Beaver (2010) 186 Cal.App.4th
107, 125.)

5
to take the property.” (People v. Davis (1998) 19 Cal.4th 301, 305, fn. omitted (Davis).)
Because possession of the stolen item must be gained without the owner’s consent,
larceny is classically a crime of stealth. Given the “carrying away” requirement, known
as “asportation,” it necessarily applies to the theft of tangible items. Embezzlement is
characterized by the wrongful taking of property voluntarily entrusted. It therefore
features acquisition by breach of trust. (People v. Sisuphan (2010) 181 Cal.App.4th 800,
813–814.)
The two remaining theories, theft by trick or device and theft by false pretenses,
are crimes of deception, involving the taking of property of another after consent to its
possession has been obtained by fraud or deceit. The two are similar in substance, except
that with theft by trick, the property owner transfers only possession of property, whereas
with theft by false pretenses the owner transfers both possession and ownership. (People
v. Traster (2003) 111 Cal.App.4th 1377, 1387.) In addition, a conviction for theft by
false pretenses is generally held to have “a special corroboration requirement” not
applicable to theft by trick or device. (People v. Curtin, supra, 22 Cal.App.4th at p. 531;
see People v. Beaver, supra, 186 Cal.App.4th at p. 123; People v. North (1982)
131 Cal.App.3d 112, 118 [“The necessity of corroboration distinguishes false pretenses
from trick and device . . . .”].) Although theft by trick or device and false pretenses are
often applied to the taking of money or intangibles, which are less susceptible of
asportation,6 the elements of the two offenses do not limit their application to intangibles.
(See Perry v. Superior Court (1962) 57 Cal.2d 276, 283 [elements of theft by false
pretenses not restricted to any particular type of property].)
In Williams, supra, 57 Cal.4th 776, the Supreme Court explained the evolution of
the distinction between larceny by trick and theft by false pretenses. Larceny by trick,
the first to evolve, was recognized in English courts in the late 18th century. As noted

6
See, e.g., Ashley, supra, 42 Cal.2d at pages 258–259 (theft by false pretenses of
cash); People v. Bell (2011) 197 Cal.App.4th 822, 827–828 (theft by false pretenses of a
leasehold interest); People v. Beaver, supra, 186 Cal.App.4th at page 121 (theft of
medical services).

6
above, larceny requires a trespassory taking, i.e., one without the victim’s consent.
Although, as Williams observed, “a trespassory taking is not immediately evident when
larceny occurs ‘by trick’ because of the crime’s fraudulent nature,” the common law
courts brought the new crime within larceny by holding “that a property owner who is
fraudulently induced to transfer possession of the property to another does not do so with
free and genuine consent, so ‘the one who thus fraudulently obtains possession commits a
trespass . . . .’ ” (Id. at p. 783.) The same legal presumption was not indulged if the
crime involved the fraudulently induced transfer of title as well as possession. According
to Williams, “[u]nder the common law, if title was transferred, there was no trespass and
hence no larceny. [Citations.] The theory was that once title to property was voluntarily
transferred by its owner to another, the recipient owned the property and therefore could
not be said to be trespassing upon it.” (Id. at p. 784.) Hence the differentiation of the
crime of theft by false pretenses. If a defendant fraudulently obtains title to property as
well as possession, he or she is not deemed to have obtained the property without the
owner’s consent, thereby precluding a finding of larceny. Yet he or she might still have
committed theft as defined by false pretenses, since that form of theft is defined not to
require a taking without consent. (Ibid.)
Despite their different theoretical underpinnings, the only substantive difference
between these two crimes is their result. If the defendant used fraud to gain possession of
stolen property without gaining title, the crime is larceny by trick; if the defendant gained
both possession and title, or perhaps only title, the crime is theft by false pretenses. (See
3 LaFave, Substantive Criminal Law (2d ed. 2003) §§ 19.2(e), 19.7(d), pp. 68–69, 123.)
Yet because of those different theoretical underpinnings, it cannot be determined
whether, in the view of the law, the taking involved in a particular theft by deception
occurred with or without the victim’s consent until it is known whether the defendant
gained actual ownership of the property or merely possession.
The distinctions between these crimes have, over time, become blurred. An
illustrative example, particularly relevant to our particular situation, is Davis, supra,
19 Cal.4th 301. In that decision, the defendant took a shirt from its hanger in a

7
department store, carried it to the sales counter, falsely claimed to have purchased it
earlier, requested a refund, and was issued a voucher for credit in the store. By the time
the defendant approached the cashier, however, the store’s security guards had
discovered his activities. While the cashier issued the voucher, she did so at the guards’
instruction and with their awareness of the intended crime. (Id. at p. 303.) Because the
defendant had intended to use deception to obtain both possession and ownership of the
credit voucher, his crime would appear to have been theft by false pretenses, but he was
convicted of larceny.
Before the Supreme Court, in an effort to demonstrate he lacked the intent to steal,
the defendant sought to divide his crime into two acts: (1) his removal of the shirt from
its hanger and taking it to the cashier and (2) his false representation to the cashier and
acceptance of the voucher. He then argued that the element of trespass was absent
because the store issued the voucher while aware of his fraud. In affirming the larceny
conviction, the court held that the defendant’s argument “focuses on the wrong issue of
consent . . . . [¶] . . . The question is whether [the store] consented to defendant’s taking
the shirt in the first instance.” (Davis, supra, 19 Cal.4th at p. 306.) Disregarding the
latter portion of the transaction, the court found trespass merely in the defendant’s taking
the shirt from a hanger with the intent to steal it. Although recognizing department stores
are ordinarily presumed to consent to customers’ carrying items for sale within the store,
Davis found no consent to such transport if committed with a larcenous intent: “[A] self-
service store . . . impliedly consents to a customer’s picking up and handling an item
displayed for sale and carrying it from the display area to a sales counter with the intent
of purchasing it; the store manifestly does not consent, however, to a customer’s
removing an item from a shelf or hanger if the customer’s intent in taking possession of
the item is to steal it.” (Ibid.)
Notwithstanding the similarity of defendant’s intended crime and that in Davis,
defendant argues that Williams requires a conclusion he intended to commit theft by false
pretenses. The defendant in Williams used a credit card that had been “re-encoded with a
third party’s credit card information” to purchase a gift card from a novice Walmart

8
cashier. (Williams, supra, 57 Cal.4th at p. 780.) The defendant was eventually
confronted by security guards, who pointed out to him that the number on his credit card
did not match the credit card number on the sales receipt. When the guards attempted to
detain the defendant, he pushed past them and ran. He was ultimately apprehended and
convicted of robbery, burglary, theft by false pretenses, and other crimes. (Ibid.) In the
Supreme Court, the defendant contended his robbery conviction should be reversed
because robbery requires theft by larceny, not false pretenses. (Id. at p. 781.)
In explaining its acceptance of the defendant’s position, Williams relied in part on
robbery’s requirement of a trespassory taking, which is absent, as discussed above, in a
theft by false pretenses. “[T]heft by false pretenses involves the consensual transfer of
possession as well as title of property; therefore, it cannot be committed by trespass. . . .
[¶] . . . [D]efendant did not commit larceny. Walmart, through its store employees,
consented to transferring title to the gift cards to defendant. Defendant acquired
ownership of the gift cards through his false representation, on which Walmart relied,
that he was using valid payment cards to purchase the gift cards. . . . Because a
‘felonious taking,’ as required in California’s robbery statute [citation], must be without
the consent of the property owner, . . . and Walmart consented to the sale of the gift
cards, defendant did not commit a trespassory (nonconsensual) taking, and hence did not
commit robbery. Moreover, unlike the offense of larceny by trick, in which a defendant’s
fraud vitiates the consent of the victim as a matter of law, the acquisition of title involved
in the crime of theft by false pretenses precludes a trespass from occurring.” (Williams,
supra, 57 Cal.4th at pp. 788–789.)
Defendant argues the crime he attempted to commit was theft by false pretenses,
rather than larceny, because it would have resulted in his obtaining title to the laptop
computers, just as the defendant in Williams was held to have gained title to the
fraudulently obtained gift card.7 We recognize that, as defendant contends, he could be

7
Williams provided no explanation for its conclusion the defendant had gained
both title and possession to the gift card, but we assume an ordinary retail sale constitutes

9
viewed as having committed theft by false pretenses had he managed to consummate the
crime he intended to commit. Nonetheless, we are constrained by Davis to find a larceny
in these circumstances.8 Like the defendant in Davis, defendant here contemplated a
two-step crime. (Davis, supra, 19 Cal.4th at p. 305.) Initially, he placed the laptops in
the printer box. Then he intended to take the box to the cashier, pay for a printer, and
leave. In arguing for theft by false pretenses, he focuses on the latter portion of the
crime, in which he intended to fool the cashier into thinking he was purchasing a printer.
As Davis held, however, this ignores the wrongful nature of his initial conduct in
removing the laptops. While a retail store ordinarily is deemed to consent to its
customers’ handling of the goods for sale, Davis holds that such consent does not extend
to handling them with the intent of stealing. (Id. at p. 306.) Under this view, defendant’s
crime was ordinary larceny, committed when he picked up the laptops with wrongful
intent.
The same situation did not arise in Williams. In contrast to defendant, the
defendant in Williams did not take possession of the store’s property in the course of the
crime. He carried his own credit card to the cashier’s station, and he was not issued a gift
card until the conclusion of the transaction. By the time he had possession of property of
the store, the crime was complete. Accordingly, there was no opportunity for the theft by
larceny that, under Davis, occurs when a would-be thief first picks up goods for sale with

a transfer of title as well as possession. (See, e.g., Browning v. McNear (1910) 158 Cal.
525, 526.)
8
Williams did not attempt to reconcile its holding, that a defendant who uses a
fraudulent credit card to purchase a gift card has committed theft by false pretenses, with
that of Davis, that a defendant who fraudulently exchanges a shirt for a credit voucher has
committed larceny. Yet Williams cited Davis for the principle that “ ‘consent . . .
procured by fraud . . . is invalid and the resulting offense is commonly called larceny by
trick . . . . ’ ” (Williams, supra, 57 Cal.4th at p. 784), and it did not disapprove Davis in
any way. We therefore assume Davis continues to constitute binding authority.

10
the intent of stealing them. The crime in Williams was therefore unequivocally a theft by
false pretenses, rather than a crime that could be categorized in either way.9
Because defendant’s conduct satisfied the elements of theft by larceny as defined
by the Supreme Court in Davis, the jury’s implicit finding that defendant entered the
store with the intent to commit theft, and therefore his conviction for burglary, was
supported by substantial evidence.
B. Failure to Instruct on Theft by False Pretenses
Defendant contends the trial court erred in instructing the jury on the wrong theory
of theft. We rejected the premise for this argument in the preceding section by holding
that his conduct could have constituted theft by larceny. In any event, any such error was
harmless, since an instruction on theft by false pretenses merely would have added
another theory of theft on which the jury could have convicted him. (People v. Traster,
supra, 111 Cal.App.4th 1377, 1390.) Because his conduct satisfied the elements of
attempted theft by larceny, defendant’s right to have a jury find the elements of his crime
was not violated by the omission of an instruction on theft by false pretenses. (Cf. People
v. Beaver, supra, 186 Cal.App.4th at pp. 124–125 [defendant’s jury trial right denied
when his conduct did not constitute larceny and no instruction was given on false
pretenses].)
Defendant also contends the court’s response to the jury’s question was improper.
For the reasons discussed above, however, the court’s response was a correct statement of
the law. A victim’s valid consent to a taking of his or her property cannot be obtained by
fraud. (People v. Brock, supra, 143 Cal.App.4th at p. 1275.) While the principle was

9
There is no requirement that a particular theft qualify only under a single theory.
On the contrary, several decisions have found the same conduct to constitute theft under
more than one common law theory. (E.g., Nazary, supra, 191 Cal.App.4th at pp. 741–
742 [same conduct constitutes both embezzlement and theft by larceny]; People v.
Fenderson, supra, 188 Cal.App.4th at p. 641 [same]; People v. Cuccia (2002)
97 Cal.App.4th 785, 796–797 [same conduct constitutes both theft by false pretenses and
embezzlement].)

11
taken by the trial court from an instruction on theft by trick or device, the same principle
applies to theft by larceny. (Ibid.)
C. Defendant’s Purported Marsden Motions
Defendant next contends the trial court erred in failing to conduct an adequate
inquiry under Marsden into his claims of ineffective assistance of counsel and in failing
to grant him new counsel.
The need for a Marsden hearing arises “[w]hen a defendant seeks to discharge his
appointed counsel and substitute another attorney, and asserts inadequate representation.”
(People v. Richardson (2009) 171 Cal.App.4th 479, 484.) A request for substitution of
appointed counsel can be made both before and after trial. “[T]he standard expressed in
Marsden and its progeny applies equally preconviction and postconviction.” (People v.
Smith (1993) 6 Cal.4th 684, 694.)
When an appropriate request is made, “ ‘the trial court must permit the defendant
to explain the basis of his contention and to relate specific instances of [the attorney’s]
inadequate performance.’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230.) “ ‘ “A
defendant is entitled to relief if the record clearly shows that the appointed counsel is not
providing adequate representation or that defendant and counsel have become embroiled
in such an irreconcilable conflict that ineffective representation is likely to result.” ’
[Citation.] . . . [¶] ‘We review the denial of a Marsden motion for abuse of discretion.’
[Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel.” ’ ” (Ibid.)
“Although no formal motion is necessary [to trigger the obligation to conduct a
hearing under Marsden], there must be ‘at least some clear indication by defendant that
he wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 157; see
also People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) In People v. Sanchez (2011)
53 Cal.4th 80, the Supreme Court addressed the common practice of appointing
“conflict” counsel when a Marsden request is made. In the course of its decision, the
court reiterated that a Marsden hearing is required only when “there is ‘at least some

12
clear indication by defendant,’ either personally or through his current counsel, that
defendant ‘wants a substitute attorney.’ ” (Sanchez, at pp. 89–90.) In a footnote, the
court expressly disapproved a series of cases decided by the appellate court to the extent
they “incorrectly implied that a Marsden motion can be triggered with something less
than a clear indication by a defendant” or his counsel that the defendant “ ‘wants a
substitute attorney.’ ” (Id. at p. 90, fn. 3.) In these disapproved cases, the court had
implicitly, if not explicitly, held that a defendant’s expressed desire to make a new trial
motion or motion to withdraw a plea on the basis of claimed ineffective assistance of
counsel, without more, should be treated as triggering Marsden hearing requirements.
(E.g., People v. Mejía (2008) 159 Cal.App.4th 1081, 1086.)
With that background, we find several grounds for rejecting defendant’s claim.
First, although the trial court sua sponte inquired into counsel’s performance, it had no
duty to do so under Marsden because defendant never gave “a clear indication” that he
wanted to replace his appointed counsel. On the contrary, defendant never suggested he
wanted a new attorney. In his first letter he merely contended that counsel had rendered
inadequate assistance; he made no request for any specific relief. In the second letter,
defendant asked for leniency in sentencing, not for new counsel. Defendant’s failure to
request substitute counsel, or even to suggest he wanted a new attorney, rendered
Marsden inapposite.
Second, we find no error in the trial court’s conduct of the hearing. Defendant
contends the court should have more carefully explored the possibility that a language
barrier caused him to misunderstand his attorney’s advice. In the letters and at the
hearing, however, defendant never suggested he could not understand his attorney. At
that time, his claim was that counsel failed to inform him of various things, a claim that
presupposes his ability to understand the things he was told. The notion that defendant
might not have understood arose not with defendant but with his counsel, who made clear
he was merely speculating. Further, counsel immediately refuted his own speculation,
telling the court there was no indication in his conversations with defendant that he had
not been understood. The court then noted, based on its own observations, that defendant

13
had skill in the use of English, further undermining any basis for counsel’s speculation.
Because this issue was never asserted by defendant, the necessary evidentiary predicate
was never created, and the trial court did not abuse its discretion in failing to inquire
further on this topic. Nor was there any evidentiary basis for finding counsel failed to
render effective assistance for this reason.
Third, defendant has not demonstrated the failure to appoint substitute counsel
“substantially impair[ed]” his Sixth Amendment right to counsel. (People v. Streeter,
supra, 54 Cal.4th at p. 230.) At the time defendant raised the issue of inadequate
representation, he had already been convicted. Counsel’s only remaining task was to
represent defendant in sentencing proceedings, and there is no indication counsel did not
adequately perform this task. Defendant contends he was prejudiced if he did not
understand counsel’s discussion of the plea offer, but any such prejudice was not a result
of the failure to grant a request for new counsel. It occurred, if at all, well prior to the
purported Marsden hearing. Accordingly, any error under Marsden was harmless.
D. Presentence Custody Credits
Defendant contends he was improperly denied day-for-day custody credits under
Penal Code section 4019 because (1) his conviction for a serious crime, which was the
basis for denying him such credits, was not pleaded and proven by admissible evidence;
and (2) the 2011 amendment of section 4019 granting such credits to all defendants
should be applied retroactively.
Since the filing of defendant’s opening brief, both issues have been resolved
against him as a matter of law by the Supreme Court. (See People v. Lara (2012)
54 Cal.4th 896, 906–907 [pleading and proof unnecessary]; People v. Brown (2012)
54 Cal.4th 314, 325, 330 [retroactivity].) Defendant does not contend otherwise in his
reply brief.

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 III. DISPOSITION
The judgment of the trial court is affirmed.

_________________________
Margulies, Acting P.J.

We concur:

_________________________
Dondero, J.

_________________________
Banke, J.

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Trial Court: San Francisco City and County Superior Court

Trial Judge: Hon. Carol Yaggy

Counsel:

Charles Marson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Assistant Attorney General, Stan Helfman and Christopher J. Wei,
Deputy Attorneys General Plaintiff and Respondent.

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