Motion to Change Attorney In the Penalty Phase In California

In People v. Dickey (2005) 35 Cal.4th 884, the defendant contended that, after the guilt phase of his trial, he moved for the appointment of substitute counsel to represent him in the penalty phase, and the court failed to conduct a Marsden hearing and refused to rule on the motion until after the penalty phase. The court found, however, that the defendant's motion, as framed by his trial counsel, was for appointment of separate counsel to prepare a motion for a new trial, based in part on allegations that trial counsel's representation at the guilt phase was incompetent. (Dickey, supra, at p. 918.) When asked by the trial court, defense counsel said he thought the motion for appointment of counsel should be heard after the penalty phase. (Ibid.) The trial court later appointed separate counsel to prepare a motion for new trial. the motion, which was based on claims of ineffective assistance of counsel during the guilt phase and on the court's failure to conduct a Marsden hearing after the guilt phase, was denied. (Dickey, supra, at p. 920.) Regarding the Marsden claim, the trial court noted that its references to Marsden in discussing the request for appointment of counsel were a "'poor choice of words,'" because the request was not actually a Marsden motion. (Dickey, supra, at p. 920.) The appellate court concluded there was no Marsden error. a Marsden motion requires "'"'at least some clear indication by defendant that he wants a substitute attorney.''" The defendant, however, "did not clearly indicate he wanted substitute counsel appointed for the penalty phase. to the extent he made his wishes known, he wanted to use counsel's assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion." (Dickey, supra, at pp. 920-921.)