Trial judge assigned to defendant’s upcoming bench trial did not err in transferring Marsden motion to another judge. Defendant was charged with committing multiple sex crimes and possession of child pornography. Judge Rogan, the trial judge, granted defendant’s motion to sever the pornography charge and defendant waived his right to a jury trial on that charge. Following his jury conviction on the sexual misconduct charges, defendant filed a Marsden motion to replace his trial attorney. Counsel requested the Marsden motion be transferred to a different judge in light of the upcoming bench trial before Judge Rogan on the pornography charge. Judge Rogan granted the request and transferred the matter to another judge, who denied the motion. Defendant appealed, arguing that Judge Rogan erred in transferring his Marsden motion. Held: Affirmed. An indigent defendant who requests a new attorney is entitled to an opportunity to explain why he is unhappy with his current counsel. (People v. Marsden (1970) 2 Cal.3d 118, 124.) A hearing is required because the critical factual inquiry often relates to matters outside the trial record that are not apparent to the judge from observations within the courtroom. While the trial judge is generally in the best position to rule on the defendant’s request for a new attorney, there is an increased risk of prejudice to the defendant where he is about to go forward on a bench trial before the trial judge. Unlike in a jury trial, where the judge’s sole task is to administer the proceedings, a judge presiding over a bench trial is the sole trier of fact. In this situation, the potential for prejudice resulting from the judge’s exposure to information outside the record increases substantially. In light of this danger, it was not unreasonable for Judge Rogan to transfer the defendant’s motion to another judge for resolution.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G051606.PDF