Where relief was granted in an earlier appeal based on ineffective assistance of counsel, the trial court on remand was not required to appoint a different attorney because defendant did not request one. Lucero failed to appear for part of his criminal trial and a jury convicted him of felony offenses in his absence. Trial counsel filed a motion for a new trial on the ground that defendant had been unable to appear for legitimate medical reasons. However, counsel conceded that the motion was untimely and the trial court did not read it. In his first appeal, Lucero’s judgment was reversed because trial counsel rendered ineffective assistance by conceding that the motion for new trial was untimely. On remand for consideration of the motion, the same attorney continued to represent the defendant. Once again, the defendant failed to appear. The trial court found that defendant was voluntarily absent, denied the motion for new trial, and reinstated the judgment. On appeal, defendant argued that different counsel should have been appointed following the remand. Held: Affirmed. Noting that this was a question of first impression, the Court of Appeal considered whether it was reversible error that the same attorney continued to represent defendant on remand. Under People v. Marsden (1970) 2 Cal.3d 118, a criminal defendant can move to discharge his or her current appointed counsel and request appointment of a new attorney based on ineffective assistance. After analyzing Marsden and related cases, the Court of Appeal determined that “if defendant had brought a Marsden motion on remand, the trial court would have been required to grant it.” But Lucero did not bring a Marsden motion. The Court of Appeal found no California case holding that a trial court must relieve ineffective appointed counsel on its own motion or that failure to do so is reversible error, and concluded there was no reversible error.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E067000.PDF