Permit Defendant to Discharge His Appointed Counsel
"The decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial 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)".
When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, 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.
A defendant is entitled to 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.' " ( People v. Fierro (1991) 1 Cal. 4th 173, 204 3 Cal. Rptr. 2d 426, 821 P.2d 1302, quoting People v. Crandell (1988) 46 Cal. 3d 833, 854 251 Cal. Rptr. 227, 760 P.2d 423;
see also Marsden, supra, 2 Cal. 3d at pp.124-125.) However, "a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict." (People v. Smith (1993) 6 Cal. 4th 684, 696 25 Cal. Rptr. 2d 122, 863 P.2d 192.)
Marsden explains that "the trial court judge cannot thoughtfully exercise its discretion in this matter without listening to 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. . . . Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention 'is lacking in all the attributes of a judicial determination.'" (Marsden, supra, 2 Cal. 3d at pp. 123-124).
"Failure to inquire adequately into a defendant's complaints results 'in a silent record making intelligent appellate review of defendant's charges impossible." ( People v. Hill (1983) 148 Cal. App. 3d 744, 755 196 Cal. Rptr. 382).
At the same time, there is no obligation to initiate the Marsden inquiry sua sponte.
A trial court's duty to conduct the inquiry arises "only when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel." (People v. Molina (1977) 74 Cal. App. 3d 544, 549 141 Cal. Rptr. 533).