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Name: People v. Reed
Case #: A123967
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 04/13/2010

When a defendant moves for a new trial based on ineffective assistance of counsel (IAC), the trial court has a duty to inquire into the basis for the allegations. After a jury convicted appellant, counsel moved for a new trial based on insufficient evidence. When that was denied, appellant indicated through his attorney that he wanted a new trial based on “incompetence” of counsel. Defense counsel then stated he could not make that motion on behalf of appellant. The court responded that it could not consider the request, and that this would be a matter for appellate counsel. The appeal alleged the trial court erred when it did not inquire about the reasons behind appellant’s new trial motion based on IAC. The Court of Appeal agreed. Even though IAC is not one of the statutory grounds for a new trial motion, such a motion can based on IAC. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) In this situation, the court “must initially elicit and fully consider the defendant’s reasons for believing he was ineffectively assisted at trial.” (People v. Stewart (1985) 171 Cal.App.3d 388, 396; People v. Mejia (2008) 159 Cal.App.4th 1081, and People v. Mendez (2008) 161 Cal.App.4th 1362.) Because the trial court made no inquiry at all, reversal is required. The Third District’s decision in People v. Richardson (2009) 171 Cal.App.4th 479 is distinguishable because in that case the allegations were set forth in the record. Here the record is silent as to the reasons and that is why remand for a hearing is required.