THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DeSHAWN SMITH, Defendant and Appellant, 6 Cal. 4th 684

Opinion ARABIAN, J. A defendant pleads guilty to felony charges pursuant to a plea bargain. Prior to sentencing, he seeks to withdraw the plea, and claims his court-appointed attorney provided ineffective assistance. Under what circumstances must the trial court substitute new counsel in place of the first attorney for future representation, including investigating and, if appropriate, presenting a claim that the first attorney was ineffective? I. Facts Defendant was charged by information with murder and other offenses.

The information also alleged that defendant used a firearm in the commission of the murder (Pen. Code, § 12022.5, subd. (a)), that the murder was committed for the benefit of a street gang (Pen. Code, § 186.22, subd. (b)), and that defendant had suffered one prior serious felony conviction. (Pen. Code, § 667, subd. (a).) The charges arose out of the gang-related' fatal shooting of Reginald Laird in Fresno in October 1990. On the day set for jury trial, defendant, represented by appointed counsel, agreed to accept a plea offer, then changed his mind, then changed his mind again and accepted a new offer.

He ultimately pleaded guilty to second degree murder, and admitted the firearm and street gang allegations. In return for the plea, the remaining charges and the prior conviction allegation were dismissed, and it was agreed defendant would receive no more than the mitigated term of three years for the firearm-use enhancement. Prior to taking the plea, the court explained to defendant his constitutional rights. Defendant stated he understood and waived each one. At one point, defendant stated that “[i]t seems like I’m being forced” to plead guilty.

After further discussion, and assurance by the court that it was solely his decision, he made clear that he was accepting the plea offer voluntarily. The court explained the consequences of the plea. After some questions and three conferences with his attorney, defendant stated that he understood the consequences, and pleaded guilty in accordance with the plea agreement. Prior to sentencing, defendant, through his attorney, moved to withdraw the plea.

The moving papers stated that defendant told the attorney “he did not realize, when he entered the plea to second degree murder, that he would have to do a hard fifteen before being paroled. Furthermore, [defendant] informs me that he did not understand that he was pleading to murder, because he felt that he was simply defending himself, [¶] [Defendant] feels that both the court and the counsel pressured him into pleading guilty.

If there is any doubt the court should grant a prejudgment motion to withdraw a guilty plea.” In a declaration accompanying the motion, defense counsel denied pressuring defendant to plead guilty, stated that he informed defendant of the consequences of accepting or refusing the plea offer, and concluded that “[t]he decision to plead guilty was strictly that of [defendant].” On the day set for sentencing, defendant filed a motion for substitution of counsel “due to inadequate representation of counsel,” citing People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44], Filed with the motion were five handwritten pages in which defendant stated that his attorney had “fail[ed] to confer with me concerning the preparation of the defense,” had otherwise “failed to communicate with me,” had “failed to perform or have performed investigation critical and necessary to the defense,” had “fail[ed] to impeach prosecution witnesses,” had failed to move to suppress evidence, and had “taken the role of a sorrogate [sic] prosecutor.” The court that took the plea heard the motion to substitute counsel outside the presence of the prosecutor.

Defendant said he had nothing to add to his handwritten statement. Defense counsel responded point by point to defendant’s complaints. He described what he and the two defense investigators had done to prepare for trial. For example, he stated that “numerous witnesses were interviewed. At the time of trial I had issued twenty-one subpoenas for these witnesses.” He admitted that he and defendant had argued on the day set for trial.

Defendant had made accusations indicating “that he thinks I’m a dump truck,[] and I got a little irritated at him because I worked pretty hard on this case.” At the hearing, defendant accused counsel of using “foul language.” Counsel responded that the “foul language came at the point in time when I got fed up with the accusations . . . .” Counsel denied pressuring defendant to accept any plea offer. He stated that, as was his duty, he conveyed to defendant all offers the prosecution made, including the earlier offer that was less favorable than the one finally accepted.

He also fully explained the consequences of either accepting any of the offers or going to trial. He concluded that “I told him I didn’t think the offer to plead to second degree murder . . . was that bad of an offer, and it could get a lot worse if we went to trial. I’m also obligated, I feel, to do that type of thing based on my experience in what I know about the case and what I know about the witnesses that have been subpoenaed and the witnesses that were present.” Defendant replied, “All I can just say, literally, he cussed me out because I didn’t want to take the plea.

I did not want to take it.” The matter was then submitted. The court denied the motion for substitution of counsel in a detailed oral ruling. It was “convinced that [defense counsel] was ready to go” to trial if the offer had not been accepted. It found that counsel’s “belief in the Defendant’s guilt which may have occurred here is not enough” to warrant new counsel (citing People v. Williamson (1985) 172 Cal.App.3d 737, 746 [218 Cal.Rptr. 550]); that the “recommendation that the Defendant accept a plea bargain where Counsel is ready for trial is not enough” (citing People v.

Terrill (1979) 98 Cal.App.3d 291, 300 [159 Cal.Rptr. 360]); that defendant’s “lack of confidence in Counsel, which apparently is present here, although it doesn’t appear as though it is properly founded ... in and of itself is not enough” (citing People v. Bean (1988) 46 Cal.3d 919, 947 [251 Cal.Rptr. 467, 760 P.2d 996]); and that “the fact that Defendant does not relate well to Counsel, and I think that’s really the root of this, with regard to the discussions . . . where there was an argument, that’s not enough” (citing People v. Silva (1988) 45 Cal.3d 604, 622 [247 Cal.Rptr. 573, 754 P.2d 1070]).

The court concluded, “I think that what has happened here is that there was an argument, and that argument did not have to do with the substance of the ability of [defense counsel] to properly represent you .... I think that you’ve heard the statement that is not rebutted concerning the number of witnesses that were subpoenaed and the issue of impeachment of these witnesses as you’ve indicated in your statement.

That is something that you could not tell until trial, because that’s the proper time to impeach a witness is when they get up on the stand and they start testifying ....[¶] Therefore, for all of these reasons and the cases cited ... the Marsden motion is denied.” Thereafter, the court heard and denied defendant’s motion to withdraw the plea, which was argued by counsel. Defendant was sentenced to state prison in this and an unrelated matter for a term consistent with the plea bargain.

The Court of Appeal found that the trial court did not abuse its discretion in denying the motion to withdraw the plea, but that it applied an incorrect test in denying the postconviction motion for substitute counsel. The court ordered the case remanded for the limited purpose of rehearing defendant’s motion for new counsel, “utilizing the appropriate standard of proof . . . .” It instructed that “[i]f the court finds [defendant] has not presented a ‘colorable claim’ of ineffective assistance of counsel, the court shall reinstate the judgment.

Otherwise the court shall appoint substitute counsel to present and argue [defendant’s] motion to withdraw plea. If the renewed motion to withdraw plea is denied, the court shall reinstate the judgment.” We granted the Attorney General’s petition for review on the substitution of counsel issue. II. Discussion Criminal defendants are entitled to competent representation. If a defendant cannot afford to hire an attorney, one must be appointed for the defendant. (Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; People v.

Crandell (1988) 46 Cal.3d 833, 853 [251 Cal.Rptr. 227, 760 P.2d 423]; People v. Marsden, supra, 2 Cal.3d at p. 123 [Marsden].) The question here is: When is a defendant entitled to the substitution of new counsel after conviction for future representation, including arguing, if appropriate, that the previous attorney was ineffective?

The question is complicated by the obvious conflicts defense attorneys have in defending themselves from claims of incompetence by the very clients they are supposed to represent, and in arguing that their clients are entitled to some sort of relief—such as a new trial or withdrawal of a guilty plea— because of their own ineffectiveness.

The seminal case regarding the appointment of substitute counsel is Marsden, supra, 2 Cal.3d 118, which gave birth to the term of art, a “Marsden motion.” We there held that “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.” (Id. at p. 123.) We also established in Marsden that the trial court must give the defendant the opportunity to explain the reasons for desiring a new attorney. (Marsden, supra, 2 Cal.3d at pp. 123-125.) “[T]he trial court cannot thoughtfully exercise its discretion in this matter without listening to [the defendant’s] reasons for requesting a change of attorneys.” (Id. at p. 123.) Accordingly, “When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate.

Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 435 [285 Cal.Rptr. 31, 814 P.2d 1273].) Marsden and the early cases interpreting it arose in the context of a pretrial motion for substitute counsel. The first case applying Marsden posttrial was People v. Stewart (1985) 171 Cal.App.3d 388 [217 Cal.Rptr. 306] (Stewart).

There, the defendant was convicted of escape from the county jail following a jury trial. The defendant moved for a new trial on the grounds of incompetence of counsel. Arguing that trial counsel could not argue his own incompetence, he sought appointment of a new attorney to present the motion. The trial court did not appoint new counsel and ultimately denied the new trial motion.

Applying Marsden to that procedural posture, the Court of Appeal “concludefd] that in hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendant’s reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent.

If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence.

New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.” (Stewart, supra, 171 Cal.App.3d at pp. 396-397; accord, People v. Winbush (1988) 205 Cal.App.3d 987, 989-990 [252 Cal.Rptr. 722]; People v. Dennis (1986) 177 Cal.App.3d 863, 871 [223 Cal.Rptr. 236].) In People v.

Garcia (1991) 227 Cal.App.3d 1369 [278 Cal.Rptr. 421], the court applied Marsden and Stewart to a case in which the defendant, like defendant here, sought to withdraw a guilty plea. “[W]here ... a defendant seeks to withdraw a plea on the ground that his attorney of record has not provided adequate representation, we believe that the trial court should follow a procedure comparable to that specified in People v.

Stewart (1985) 171 Cal.App.3d 388, 395-397 [217 Cal.Rptr. 306].” (Garcia, supra, at p. 1377.) The Garcia court perceived a difference between the pretrial Marsden rule and the posttrial Stewart rule: “[T]he Marsden and Stewart inquiries do not stand on equal footing. In a Marsden inquiry, the trial court is required to order a substitution of attorney where the defendant makes ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.’ (People v.

Crandell (1988) 46 Cal.Sd 833, 859 [251 Cal.Rptr. 227, 760 P.2d 423].) As noted above, however, a defendant need only make a colorable claim to be entitled to relief under the standard mandated by Stewart. (People v. Stewart, supra, 171 Cal.App.3d at pp. 397-398.)” (Id. at p. 1378, italics added.) The italicized word “only” in the previous quotation suggests that the defendant has a reduced burden to obtain appointment of substitute counsel posttrial (or, as in Garcia and here, post-guilty plea) than pretrial.

The Court of Appeal here stated this explicitly: “A defendant seeking to attack his conviction in the trial court (by motion for new trial, or in the event of a guilty plea, by motion to withdraw that plea) on the basis that his attorney’s ineffective assistance led to the conviction, is in a far different position than a defendant seeking appointment of new counsel before he has been convicted. If there was any deficiency in his attorney’s performance, the defendant needs effective assistance in demonstrating that deficiency and its bearing on the conviction or plea.

If the attorney was ineffective in the preconviction stage, counsel’s ability to effectively pursue the postconviction motion is suspect. And, one can hardly expect the attorney whose performance is being directly challenged to assist the defendant in making the challenge.

In such a case the attorney has an inherent conflict.” (Italics in original.) “Because of the differences between preconviction and postconviction claims of ineffective assistance,” the Court of Appeal held, “the Stewart/ Garcia line of authority employs a much reduced standard of proof from that used in preconviction Marsden motions.” This holding necessarily implies that the trial court has less discretion to deny substitute counsel postconviction than preconviction. Herein lies the precise issue of this case.

The Attorney General does not deny that a defendant is entitled to appointment of substitute counsel upon a proper showing posttrial or post-conviction as well as pretrial. We have ourselves so held: “When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. (People v. Stewart (1985) 171 Cal.App.3d 388, 395 [217 Cal.Rptr. 306]; see People v.

Marsden, supra, 2 Cal.3d 118, 123.) If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. (People v. Stewart, supra, 171 Cal.App.3d at p. 396.) If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a ‘colorable claim’ of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. (Ibid.; see People v.

Marsden (1970) 2 Cal.3d at p. 123 [84 Cal.Rptr. 156, 465 P.2d 44].)” (People v. Diaz (1992) 3 Cal.4th 495, 573-574 [11 Cal.Rptr.2d 353, 834 P.2d 1171].) The disagreement between the Attorney General and defendant centers not on the ability of defendant to seek and obtain (upon a proper showing) substitute counsel at any stage of the proceeding in the trial court, but, more specifically, on whether there is a different and lesser standard postconviction than preconviction.

Although the court in Stewart, supra, 171 Cal.App.3d 388, which applied Marsden to the postconviction stage, used slightly different language in describing the test (i.e., referring to a “color-able claim” and defendant showing the “possibility” of ineffective representation), it did not claim to be establishing a lesser standard than that stated in Marsden. We have not addressed the question. In People v.

Fosselman (1983) 33 Cal.3d 572 [189 Cal.Rptr. 855, 659 P.2d 1144], we held that ineffectiveness of counsel may be argued in a new trial motion. “[I]n appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial.

If the court is able to determine the effectiveness issue on such motion, it should do so.” (Id. at pp. 582-583.) But by this holding we sought to expedite justice; we did not create a greater right to substitute counsel for a defendant already convicted than one awaiting trial. We did not suggest that a motion for new trial will always be the perfect vehicle to argue ineffectiveness of counsel, only that it is available. As stated in Fosselman, there are advantages to raising ineffective assistance in a new trial motion.

There are also no doubt disadvantages which sometimes make the appellate or habeas corpus remedy more practical. Defendant and the Court of Appeal stress the perceived differences between a preconviction and a postconviction request for substitute counsel. As explained more fully below, however, the differences between the two situations are more illusory than real. On balance, we see no reason to have two standards.

When the court in Stewart, supra, 171 Cal.App.3d at pages 396-397, referred to the defendant making a “colorable claim,” it did not state a lesser standard than in Marsden, or create a new and different right than that stated in Marsden-, it merely applied the Marsden rule to a particular factual situation, and employed somewhat different language. Therefore, contrary to the implication of People v. Garcia, supra, 227 Cal.App.3d at page 1378, and the holding of the Court of Appeal in this case, we conclude that the standard expressed in Marsden and its progeny applies equally preconviction and postconviction.

Any suggestion that the use of different language in Stewart, supra, 171 Cal.App.3d 388, implies a different rule than that of Marsden is disapproved. A defendant has no greater right to substitute counsel at the later stage than the earlier. It is true that when a defendant claims after trial or guilty plea that defense counsel was ineffective, and seeks substitute counsel to pursue the claim, the original attorney is placed in an awkward position. The attorney must defend against charges from the very client he or she is supposed to be representing. The potential for conflict is obvious.

But the same potential for conflict exists before trial as well. And the conflict is unavoidable. Unless we hold that a defendant may never obtain substitute trial counsel, and must instead await whatever appellate or habeas corpus remedy may be available, or that a defendant may obtain substitute counsel on demand— both of which extremes were rejected in Marsden—then it is inevitable that counsel will be placed in a conflict position when a defendant requests substitute counsel, whether the request is before or after conviction.

The court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly. This is one of the reasons that Marsden motions are often, as here, heard outside the presence of the prosecutor, where counsel and client may speak more freely. Similarly, it is difficult for counsel to argue his or her own incompetence. However, the possibility that the defense might benefit from such an argument can arise at any stage of the proceedings. Critical defenses may be forfeited even before trial begins as a result of ineffective assistance.

For example, before trial a defendant might seek new counsel, claiming that current counsel was ineffective in presenting a motion to dismiss the charges on speedy trial grounds, in arguing an in limine motion to suppress a confession, in failing to investigate properly, or because of any of a host of other grounds. If the claim has merit, the trial court might well grant defendant a remedy, such as allowing substitute counsel the opportunity to relitigate a motion that had been ineffectively presented, or granting a continuance for further investigation.

It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind.

Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences. In People v. Makabali (1993) 14 Cal.App.4th 847 [18 Cal.Rptr.2d 72], the trial court appointed second counsel to investigate a possible motion to withdraw a guilty plea on the basis of ineffective assistance of counsel. New counsel did not make the motion. On appeal, appointed appellate counsel, i.e., the third attorney, claimed (unsuccessfully) that the second was incompetent for not claiming the first was incompetent.

The spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant’s legitimate interests. We note also that in People v. Makabali, supra, 14 Cal.App.4th 847, the original attorney was apparently not relieved of further representation of the defendant.

He represented the defendant at sentencing, after the second attorney did not move to withdraw the plea. (Id. at p. 850.) We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.

We stress, therefore, that the trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea. For the reasons identified in People v. Fosselman, supra, 33 Cal.3d at pages 582-583, justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early.

Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney. We stress equally, however, that new counsel should not be appointed without a proper showing.

A series of attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute counsel to become acquainted with the case, benefits no one. The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.

We thus hold that substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel (People v.

Webster, supra, 54 Cal.3d at p. 435), or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result (People v. Crandell, supra, 46 Cal.3d at p. 854). This is true whenever the motion for substitute counsel is made. There is no shifting standard for the trial court to apply, depending upon when the motion is made. We disapprove any suggestion in Stewart, supra, 171 Cal.App.3d 388, and any

interpretation of that decision such as that of People v. Garcia, supra, 227 Cal.App.3d at pages 1377-1378, that is contrary to the views expressed herein. Applying the Marsden test to this case, we find no error in denying the motion for substitute counsel. The court fully allowed defendant to state his complaints, then carefully inquired into them. Defense counsel responded point by point.

He correctly understood his duty in the plea negotiation process to present and evaluate all plea offers. (See In re Alvernaz (1992) 2 Cal.4th 924 [8 Cal.Rptr.2d 713, 830 P.2d 747].) To the extent there was a credibility question between defendant and counsel at the hearing, the court was “entitled to accept counsel’s explanation.” (People v. Webster, supra, 54 Cal.3d at p. 436.) Although clearly some heated words were spoken between client and attorney during the events preceding the guilty plea, that alone does not require a substitution of counsel absent an irreconcilable conflict. (People v.

Fierro (1991) 1 Cal.4th 173, 205-206 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) Moreover, a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Hardy (1992) 2 Cal.4th 86, 138 [5 Cal.Rptr.2d 796, 825 P.2d 781].) “Accordingly, we find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in declining to substitute counsel." (People v. Fierro, supra, at pp. 206-207.) III. Conclusion The judgment of the Court of Appeal is reversed. Lucas, C. J., Mosk, J., Kennard, J., and George, J., concurred.

We understand “dump truck” to refer to a defense attorney who, in the view of the defendant, “is simply trying to dump him rather than afford him a vigorous defense.” (See People v. Huffman (1977) 71 Cal.App.3d 63, 70, fn. 2 [139 Cal.Rptr. 264].) Although the Marsden motion may be heard outside the presence of the prosecutor, any actual motion to withdraw the plea or for a new trial must, of course, be part of a fully adversarial proceeding. (See People v. Dennis, supra, 177 Cal.App.3d 863.) Defendant also argues that the trial court erred in denying his motion to withdraw the guilty plea.

The Court of Appeal rejected the contention. We did not grant review on that issue, and therefore do not consider it. (Cal. Rules of Court, rule 28(e)(2).)