People v. Dever CA3

Opinion

Filed 9/15/26 P. v. Dever CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)

THE PEOPLE, C104058 Plaintiff and Respondent, (Super. Ct. No. 24CF01512) v. ELIZABETH MILDRED DEVER, Defendant and Appellant.

Defendant Elizabeth Mildred Dever pled no contest to possession for sale of a controlled substance. Before sentencing, defense counsel told the trial court that Dever believed she had been misadvised in entering the plea. Dever now argues the court erred by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 in response. Finding no merit to this contention, we affirm. BACKGROUND In 2024, police conducted a search of a trailer where Dever had been staying and found, among other things, methamphetamine. A later search of Dever’s cell phone revealed text messages discussing the sale of controlled substances. Dever was charged with possession for sale of a controlled substance (Health & Saf. Code, § 11378), and ultimately pled no contest to the offense.

1 Before sentencing, defense counsel told the trial court: “Your Honor, the client has indicated that she had been misadvised, so she would like to withdraw her plea. I don’t really believe she has, but I’m really not in the best position to attest to that. So she is making that request. But I just want to let the Court know, and I defer to the Court as far as how to proceed.” The court responded: “All right. I’ll appoint counsel to assess the motion to withdraw plea and advise her on that.” At a subsequent hearing, appointed counsel reported that she did not believe there was a basis to withdraw the plea. The court sentenced Dever to two years of probation. Dever timely appealed in June 2025, and the trial court granted her request for a certificate of probable cause. Her opening brief was filed in April 2026, and this case was fully briefed on July 6, 2026. DISCUSSION Dever contends the trial court erred by failing to conduct a Marsden hearing after the court was advised that she believed she had been misadvised in entering her no contest plea. We disagree. A criminal defendant has the right to assistance of counsel. (Cal. Const., art. I, § 15; U.S. Const., 6th Amend.; People v. Marsden, supra, 2 Cal.3d at p. 123.) This right may include the right to have appointed counsel discharged if it is shown that failure to do so would substantially impair or deny the right to assistance of counsel. (Marsden, at p. 123.) “When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation … the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.” (People v. Smith (2003) 30 Cal.4th 581, 604.) In People v. Sanchez (2011) 53 Cal.4th 80, our Supreme Court considered the issue presented here. There, defense counsel told the trial court that the defendant wished to explore withdrawing his plea and that conflict counsel needed to be appointed. (Id. at p. 85.) The trial court appointed conflict counsel, who did not find a basis to withdraw 2 the plea. (Id. at pp. 85-86.) The trial court then proceeded to sentence the defendant. (Ibid.) Our Supreme Court concluded that “a trial court is obligated to conduct a Marsden hearing … when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance only when there is ‘at least some clear indication by defendant,’ either personally or through his current counsel, that defendant ‘wants a substitute attorney.’ ” (Id. at pp. 89- 90, italics added.) Because the defendant, through counsel, requested the appointment of substitute counsel, the trial court erred by failing to conduct a Marsden hearing. (Id. at pp. 91-92.) In the present case, unlike in Sanchez, there was no “clear indication” that Dever wanted to relieve her counsel and have a new attorney appointed. Rather, defense counsel indicated Dever “would like to withdraw her plea” and then deferred to the trial court on how to proceed. Accordingly, the trial court was not required to hold a Marsden hearing in response to defense counsel’s statement. (See People v. Parker (2022) 13 Cal.5th 1, 86 [rejecting claim of Sanchez error because the defendant “merely asserted ineffective assistance” but did not “request to substitute counsel”].) DISPOSITION The judgment is affirmed.

/s/ BOULWARE EURIE, J.

We concur:

/s/ MAURO, Acting P. J.

/s/ KRAUSE, J.