P. v. Shaw

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Filed 3/28/19 P. v. Shaw CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LAMAR SHAW,
Defendant and Appellant.
A148318
(Alameda County
Super. Ct. No. 175413A)
Lamar Shaw was tried and convicted of first degree murder after he admittedly
shot and killed Xzavier Johnson outside Shaw’s home on High Street in Oakland. His
personal use of a semi-automatic pistol in the killing resulted in a true finding under a
section of the Penal Code1 imposing a sentencing enhancement for personal use of a
firearm. The sole issue Shaw raised initially on appeal is claimed error by the trial court
in denying Shaw’s post-conviction motion under People v. Marsden (1970) 2 Cal.3d 118
(Marsden) to discharge and replace his trial counsel so he could make a new trial motion
based on ineffective assistance of trial counsel. The trial court heard his reasons for
believing trial counsel was ineffective and denied the motion. We conclude the trial
court did not err in denying the Marsden motion and therefore affirm.
After the appeal was filed Shaw raised two additional issues in supplemental
briefs. First, he seeks a remand so the trial court may exercise its discretion to strike the
enhancement under a statute that was enacted after the trial took place and while this
1 All further statutory references are to the Penal Code.

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appeal was pending. The People concede that such a remand is appropriate, and we agree
and will remand for that limited purpose. Second, Shaw contends that under another new
statute providing for mental health diversion, we should remand for the trial court to
exercise its discretion to grant pre-trial diversion. The People contend Shaw is not
eligible for diversion because, as recently amended, the statute precludes diversion for
defendants charged with murder or voluntary manslaughter. We agree and therefore
reject Shaw’s request for a remand under that statute.
BACKGROUND
I.
Summary of Evidence at Trial
Shaw was charged with murder (§ 187) with enhancements for discharging a
firearm (§ 12022.7, subd. (a)); causing great bodily injury and death (§ 12022.53,
subd. (d)); personally discharging a firearm (§ 12022.53, subd. (c)); and personally using
a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (g).) He waived the right to a jury
trial, and his case was tried before Alameda County Superior Court Judge Stuart Hing.
Following a ten-day trial, at which Shaw testified on his own behalf, the court found
Shaw guilty of first degree murder and found all enhancements true.
The evidence at trial showed two cars, one containing two women and two young
children and the other containing a woman and a man, arrived at the house Shaw shared
with his mother and other family members in the morning on July 5, 2014. They had
come to pick up a permit from a friend who lived in the same house as Shaw. The friend
had obtained the permit for them to hold a birthday party, which was planned for later
that day, in a local park. The friend was not there when they arrived, and they remained
outside with their cars parked in front of the house. Ten to fifteen minutes later, Shaw
and two other men arrived in a Buick and parked across the street. One of the women
from the cars parked in front of Shaw’s home, Jamikka Watkins, crossed the street and
“exchanged some words” with Shaw. Not long after she argued with Shaw, his cousin,
Rodney Smith, and Shaw’s younger brother arrived in a truck and parked next to Shaw.
The brother got out of the truck and went in the house. Shaw and Smith walked across

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the street and told the people parked in front of his house to leave. A further argument
ensued. Shaw and Smith then went through a side gate and into the house.
A few minutes later, Shaw and Smith emerged from the house wearing hoodies
and armed with guns. Shaw had a semi-automatic handgun, and Smith was armed with
an AK-47 assault rifle. Smith again told the people parked in front of Shaw’s house to
leave.
One of those people was Xzavier Johnson, Watkins’s boyfriend. When Shaw and
Smith came out with guns, Johnson, who was unarmed, backed up, put his hands in the
air and told Shaw and Smith he and the women would leave. Shaw then raised his gun
and shot at Johnson, who jumped, trying to avoid the bullet. Shaw fired several more
shots at Johnson as Johnson fell and rolled down the hill. The car with the women and
children pulled out and followed him down the hill and he jumped up and got inside their
car. One of the women called 911, but when police arrived Johnson was unresponsive
and they and paramedics were unable to resuscitate him, and he was declared him dead at
the scene. An autopsy showed he had been shot four times: in the right side of his torso,
his right thigh, left lower leg and one of his arms.
The People also proffered evidence that the gun used in the shooting had been
used about two weeks earlier in a shooting in which two houses, both occupied at the
time, were shot at, and multiple bullets were found in the walls and other parts of the
interior of the houses. There was also evidence that the gun used to kill Johnson on
July 5, 2014, had been shot earlier the same morning down the block from Shaw’s house.
The prosecutor argued that these earlier shootings of Shaw’s gun, particularly the
shooting earlier the same day, were relevant to Shaw’s claim of self-defense and to his
testimony (on cross-examination) that he did not have much experience with guns.
Shaw testified and admitted he shot Johnson intending to kill him. Shaw initially
fled from the scene but turned himself in the day after the shooting and was interviewed
by Oakland police. He testified at length about the many shootings he witnessed during
his years growing up in Oakland, including some where he was shot at. He also testified
about relatives and friends, some of whom were injured and others killed in gun violence

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during the same period. For example, from the porch of his house he witnessed a
shootout at a liquor store near his home in which his cousin’s best friend was shot 30
times and killed. Shaw testified that he used Xanax and marijuana to help him sleep. He
had stopped taking the Xanax about two weeks before the shooting incident.
Shaw testified that on the day of the shooting Watkins had threatened him and
suggested he wasn’t the only one who had weapons, and that she said she would have
Johnson “get on him.” This caused Shaw to fear violence and led him to call Smith.
After Smith arrived and unsuccessfully tried to persuade the group to leave, Shaw went to
his house and got his gun. When he came back out with the gun, Watkins said she would
not leave until someone was dead. Johnson was speaking on his cellphone while staring
at Shaw and backing up. Johnson said, “Don’t trip. We ain’t going nowhere,” and then
said, “I got something for all you n—s” and tried to open the car door.
Shaw believed Johnson was trying to get a gun from the car and was going to
shoot him. Shaw believed Johnson must have had a gun in the car because he appeared
to be taking on four men. Shaw did not think Johnson was getting in the car to leave
because Watkins was standing up the hill away from the car. Afraid for his life, Shaw
shot Johnson intending to kill him. Shaw did not retreat into his house because he
thought Johnson would shoot at the house, where his young sister and nephew and his
grandmother were staying.
A psychologist testified that Shaw had Post Traumatic Stress Disorder (PTSD)
from the extreme violence he had witnessed growing up and the continuing violence in
the neighborhood where he lived. He described Shaw also as anxious, paranoid,
hypervigilant and in a dissociative state. These conditions did not ebb and flow for him;
“[g]iven that he was basically living in a situation where, you know, there was no escape
from the possibility of walking into a potentially lethal situation. He’s been shot at
repeatedly. He’s been, you know, caught up in crossfire in a number of occasions.
Where he lives, death, murder and mayhem are—that’s part of the daily fabric of
everyday life.” The psychologist testified further that Shaw’s compromised mental
health, which was longstanding, was made worse by withdrawal from Xanax. He had

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been hospitalized not long before the shooting because he had almost passed out and was
found to have a lot of Xanax in his bloodstream. The withdrawal, which began in late
June and was likely still going on at the time of the shooting, produced “more agitation,
more nervousness, increased depression, problem sleeping and . . . paranoia.”
Shaw’s counsel argued that Shaw had acted out of fear and without the requisite
intent, and that in assessing Shaw’s intent the court could consider mental disorder. This
included the PTSD he suffered, which was the basis for the decisions he made, and his
dissociative mental state, exacerbated by the withdrawal from Xanax. These factors
supported a finding that this was an excused, justifiable homicide, or at worst,
manslaughter.
The prosecutor argued that the murder was premeditated, as evidenced by Shaw
having gone inside the house and put on a sweatshirt before coming out and shooting
Johnson. Shaw made a conscious decision to call his cousin, Smith, for backup and to go
inside and get a loaded gun and put on the hoodie to conceal himself. He could instead
have stayed inside his house or left the scene in his friend’s car. Instead, he and Smith,
both armed, came out. He made a conscious decision to shoot Johnson and shot at him
six times, including after he had fallen and was on the ground.2 There was a minute or
two between when Shaw came out of the house with the gun and when he started
shooting, which is also enough time for premeditation.
As to self-defense, the prosecutor argued Johnson, who was unarmed, had backed
up with his hands in the air and told Shaw they would leave. There was no imminent
danger to Shaw at that point. Shaw was standing outside of his house with his gun and
backed up by Smith for one to two minutes before he shot Johnson. The reasonable
person standard does not mean a reasonable person with PTSD. No one else reacted as
Shaw did, and his use of deadly force was unjustified. There could be no imminent
danger after Johnson started rolling down the hill attempting to get away, yet Johnson
continued to shoot him. Shaw could have shot Johnson once but instead shot him six
2 Shaw testified he shot the gun three times but each pull of the trigger released
two bullets.

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times. Shaw shot Johnson again after he fell and was on the ground trying to get away
and could not have been a threat.
II.
Verdict
Within two weeks of the conclusion of trial, the court rendered its decision on the
record finding defendant guilty of premeditated murder and finding true the special
allegations that he personally and intentionally discharged a firearm causing great bodily
injury and death to Johnson, personally inflicted great bodily injury, personally and
intentionally discharged a firearm and personally used a firearm.
III.
Marsden Motion
After the court’s decision was rendered, Shaw made an oral Marsden motion to
discharge his appointed counsel. (See People v. Marsden, supra, 2 Cal.3d 118.) The
judge to whom it was assigned eventually sent it back to the trial judge noting that the
purpose of the Marsden motion was “to appoint new counsel to pursue motion for new
trial due to ineffective assistance of counsel.”
At the subsequent hearing on the Marsden motion, the court explained that the
process entailed two steps; first, Shaw would explain the reasons he wanted the court to
consider discharging his counsel, and second, his counsel could, if he wished, respond.
Shaw mentioned eight issues, some of which he concedes the trial court “had before it
sufficient detail about the matters” based on what it observed in the courtroom to
“determine whether separate counsel was required to develop a claim of ineffective
assistance of counsel.” However, as to five of the issues, he contends the court failed to
elicit enough detail to assess whether new counsel should be appointed to investigate and
determine whether to make a motion, presumably for a new trial, based on ineffective
assistance. We address only the latter claims below.
First, Shaw stated he had provided his counsel hospital records showing his near
overdose on Xanax and complained that counsel failed to offer that documentation in
evidence. Second, he contended there were additional witnesses who could have testified

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on his behalf but were not called. Third, he complained that counsel had failed to ask
questions on cross-examination that Shaw had suggested he ask. Fourth, his counsel, he
argued, was too forgetful, giving as an example that the preceding week when his auntie
came to court, counsel did not remember who his auntie was. Last, Shaw contended his
counsel failed to show the court certain documents he thought counsel should have
offered.
Shaw’s trial counsel responded to these issues as follows.3 As to the medical
records, counsel did not recall whether he had received them, but Shaw himself had
testified about his problem with Xanax, and the psychologist had testified about the
effects of withdrawal. Regarding uncalled witnesses, counsel had attempted to subpoena
three witnesses through the investigator, who informed him two had moved and he had
been unable to serve them despite efforts to do so, and a third had been injured in a
shooting and could not come to court. One was the woman who had been asked to obtain
the park permit for the birthday party, and she would possibly have testified that she did
not invite Watkins and the others there and that they were there to cause trouble. The
other two witnesses would have testified they had known Shaw for some time and he
wasn’t a violent man or someone who would start trouble.
As to cross-examination, counsel responded that lawyers do not always ask
questions their clients want them to ask, such as questions to which they do not know the
answer. As to his forgetfulness, he had never been diagnosed with Alzheimer’s disease.
He acknowledged that he should have remembered the woman who was Shaw’s auntie
when she came to court to testify, because she had appeared previously in the case.
Finally, as to the documents Shaw thought should have been shown to the court, these
were letters Shaw had written to counsel. Counsel stated while there may have been
some way to have them admitted, he was able to elicit the content of the letters and
Shaw’s attitude through Shaw’s testimony.
3 It appears the motion had initially been argued, at least in part, before another
judge who then referred it back to the trial court; Shaw thus having already raised many
of these arguments, counsel was familiar with them.

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Although it had described the Marsden hearing as a two-step process, the trial
court engaged in a third step, specifically, by allowing Shaw to have the “last word” on
these issues. Shaw proceeded to talk about why he wanted to discharge trial counsel for a
few minutes (two and a half pages of transcript) without interruption. He said when
Byron mentioned something about an appeal in the middle of the trial, defendant believed
he had given up on the case and wanted to fire him then but didn’t know if he could. He
didn’t understand why lawyers would not ask questions they don’t know the answer to,
and this didn’t make any sense. “That’s the point of asking the question to figure out the
answer to.” He was convinced that if Byron had asked the questions Shaw wanted him to
ask, it would have proved the two witnesses who came to testify against him (apparently
referring to two of the three women who had parked in front of Shaw’s house and
witnessed the shooting, Dyanisha McCree and Jacquelyn Watkins)4 were lying. Also,
Byron had never mentioned that Shaw was not the one driving the car when the victim
and the women arrived at his house or that Shaw was already at his house when they
arrived. He was confident trial counsel had received his medical records because counsel
had sent forms to Shaw and Shaw had signed them at trial. The forms directed Kaiser to
release his medical records, and counsel had said he was going to get the records from the
time Shaw almost overdosed on Xanax.
When Shaw finished his rebuttal, the court asked if the matter was submitted, and
Shaw and his counsel responded affirmatively.
Before stating his decision, the trial judge said he would share some of the law
under Marsden and stated there were cases that had refused to discharge counsel for
declining to make motions or assert arguments a defendant wanted, failing to inspire trust
in the defendant, disagreeing with the defendant regarding tactics and other matters. The
court then denied the motion, observing that trial counsel had represented Shaw “better
than I have seen in my 30 years” and finding “that he actually did not fail to investigate
4 The third woman, Jamikka Watkins, did not testify.

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anything in this case” and “at no time” did anything to undermine defendant’s credibility.
In fact, trial counsel had enhanced Shaw’s credibility in the way he presented the case.
DISCUSSION
I.
The Trial Court Did Not Err in Conducting the Marsden Hearing.
Shaw contends the trial court erred in its handling of the Marsden motion.
Relying on this court’s opinion in People v. Stewart (1985) 171 Cal.App.3d 388
(Stewart), he contends the court erred in rejecting his claims that his counsel provided
ineffective assistance without eliciting sufficient information to evaluate those claims.
Specifically, Shaw contends the medical records he arranged for counsel to obtain and
what they would have shown about his mental state “could not be fairly assessed in light
of counsel’s inability to even recollect their existence.” The court did not ask Shaw to
identify the witnesses his counsel failed to call or to explain what testimony they would
have provided. He complains that the trial court erroneously relied on the statements of
counsel to assess the claim. As to Shaw’s complaints about counsel’s cross-
examinations, forgetfulness and failure to offer letters in evidence, the court failed, in his
view, to elicit enough information from Shaw to enable it to evaluate his ineffective
assistance claims.
In arguing that the court was required in effect to investigate Shaw’s ineffective
assistance claims by interrogating him at the hearing, Shaw misconceives the trial court’s
duties in hearing a Marsden motion. The court here generally asked Shaw to explain his
basis for believing his counsel had been ineffective, and after allowing counsel to
respond, gave Shaw the “last word” to explain further. That was all that was required.
In Marsden, our high court “held that ‘a judge who denies a motion for
substitution of attorneys solely on the basis of his courtroom observations, despite a
defendant’s offer to relate specific instances of misconduct, abuses the exercise of his
discretion to determine the competency of the attorney.’ (People v. Marsden, supra,
2 Cal.3d at p. 124.) Thus, ‘[w]hen a defendant moves for substitution of appointed
counsel, the court must consider any specific examples of counsel’s inadequate

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representation that the defendant wishes to enumerate.’ ” (People v. Hines (1997)
15 Cal.4th 997, 1023–1024.) A “ ‘Marsden hearing is not a full-blown adversarial
proceeding, but an informal hearing in which the court ascertains the nature of the
defendant’s allegations regarding the defects in counsel’s representation and decides
whether the allegations have sufficient substance to warrant counsel’s replacement.’ ”
(People v. Alfaro (2007) 41 Cal.4th 1277, 1320.)
“A defendant is entitled to relief if the record clearly shows that the appointed
counsel is not providing adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result. Substitution of counsel lies within the court’s discretion. The court does
not abuse its discretion in denying the motion unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel.” (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith II).)
A defendant is entitled to substitute counsel only if he or she makes an adequate
showing under Marsden, 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 [citation], 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.
Sanchez (2011) 53 Cal.4th 80, 89 (Sanchez).) Only if he or she meets the Marsden
standard is he or she entitled to substitute counsel. (See Sanchez, at pp. 88–89, quoting
People v. Smith (1993) 6 Cal.4th 684, 695 (Smith I) [“ ‘[a]ppointment of counsel for the
purpose of arguing that previous counsel was incompetent, without an adequate showing
by defendant, can have undesirable consequences’ ”]; Sanchez, at p. 92 [holding it was
error to appoint substitute counsel without sufficient showing that failing to do so would
impair defendant’s right to counsel].)
A defendant is not entitled to appointment of “conflict” or “substitute” counsel
“solely to evaluate a defendant’s complaint that his attorney acted incompetently”

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(Sanchez, supra, 53 Cal.4th at p. 84) whether for purposes of a motion to withdraw a plea
(id. at p. 90) or a motion for new trial. (Id. at p. 89 [quoting Court of Appeal opinion in
Sanchez].) Substitute counsel may be appointed only if the defendant has made the
requisite showing under Marsden, in which case new counsel is substituted for all
purposes (see Sanchez, at pp. 84, 90, 92), including to investigate such possible motions.
(Smith I, supra, 6 Cal.4th at p. 696.)
The standard of proof the defendant must meet is the same for both pre- and post-
conviction Marsden motions. (Smith I, supra, 6 Cal.4th at p. 694.) “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.” (Id. at
p. 696.) The court in Smith I disapproved any suggestion in earlier Court of Appeal
decisions, including this court’s decision in People v. Stewart, supra, 171 Cal.App.3d
388, that the showing required to prevail on a post-conviction Marsden motion is less
than the showing required in a pre-conviction motion. (Smith I, supra, at pp. 693–694.)
“A defendant has no greater right to substitute counsel at the later stage than the earlier.”
(Smith I, at p. 694.)
Applying these principles here, we conclude the trial court did not fall short, much
less abuse its discretion, either in conducting the Marsden hearing or in holding Shaw
failed to meet his burden.
Shaw’s arguments here add little to what he argued below. After spending many
pages describing Marsden and case law addressing Marsden, his brief reargues the
claimed deficiencies in his counsel’s performance in three pages. He first contends the
failure to introduce his medical records “could not fairly be assessed in light of counsel’s
inability to even recollect their existence.” Not so. The trial judge, having sat through
the trial and served as the trier of fact, was aware that Shaw had testified at length about
the many incidents of gun and other kinds of violence he had witnessed as a child and
teenager, and the losses of several people with whom he was close due to gun violence.
The judge heard Shaw’s mother testify briefly about the effects the violent incidents had

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on her son and that he had never received counseling to address them. The court also
heard Shaw’s testimony that he used marijuana and Xanax to help him sleep but had
stopped using Xanax two weeks before the shooting. Besides these witnesses, the trial
court heard the testimony of the defense’s expert psychologist, who testified at length
about the effects of such prolonged exposure to gun violence and opined that Shaw
suffered from PTSD, anxiety, paranoia and hypervigilance and was in a constant
dissociative state. The psychologist also testified that Shaw used Xanax, alcohol and
marijuana to calm himself and also took Xanax to address his nightmares and difficulty
sleeping. Having stopped taking Xanax two weeks before the incident, Shaw was in
withdrawal, exacerbating the symptoms Shaw was already experiencing, producing
“more agitation, more nervousness, increased depression, problem sleeping and . . .
paranoia.” He testified about Shaw’s hospitalization after losing consciousness and that
Shaw was told to stop taking Xanax, although the court did not admit the psychologist’s
testimony about the facts on which his opinion was based for their truth.
In short, the judge was plainly in a position to determine whether the failure to
offer Shaw’s medical records regarding his hospitalization was a significant omission,
much less one that could have amounted to ineffective assistance. The primary mental
state defense was not about withdrawal from Xanax. It was that Shaw acted out of self-
defense based on the belief that Johnson had a gun and would shoot him, a belief that was
reasonable given Shaw’s long history of exposure to deadly incidents of violence. It was
not an abuse of discretion for the court to conclude Shaw had not made a prima facie
showing of ineffective assistance based on the failure to offer medical records regarding
his overdose or overmedication with Xanax. Shaw himself testified to his use of that
drug and that he had stopped taking it shortly before the crime, and the psychologist
testified the withdrawal would exacerbate the symptoms of his other mental disorders.
The same is true regarding the witnesses who did not end up testifying for Shaw,
for two reasons. First, defense counsel identified the witnesses he believed Shaw was
referring to and described what he thought their testimony could have been. He also
explained why the witnesses were not called: in two instances the individuals had moved

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and the defense investigator had been unable to locate and serve them with subpoenas,
and in the third instance the witness, after having been interviewed, had been injured in a
shooting and could not participate in the trial for that reason. Shaw complains that the
court “never elicited from Mr. Shaw the identity of the witnesses, the proposed content of
their testimony and their availability to testify at trial” and instead relied “solely on the
statements of counsel to assess the claim.”
Shaw cites Smith I, supra, 6 Cal.4th at p. 692 for the proposition that counsel has
an inherent conflict and cannot be expected to assist the defendant in making his
challenge. That may be so, but that does not mean every defendant who makes a
Marsden motion is automatically entitled to new counsel. Nor does it mean the trial
court’s duty is to act as defendant’s counsel and to ferret out every possible fact or
argument that could conceivably support the defendant’s complaints. Our high court has
repeatedly described the trial court’s obligations in conducting a Marsden motion,
whether one made before, during or after trial: “[T]he trial court must permit the
defendant to explain the basis of his contention and to relate specific instances of
inadequate performance.” (Smith II, supra, 30 Cal.4th at p. 604, italics added; accord,
People v. Taylor (2010) 48 Cal.4th 574, 599; People v. Streeter (2012) 54 Cal.4th 205,
230). The trial court in Smith II did precisely what the Supreme Court has held trial
courts should do: it allowed the defendant to describe his specific complaints about the
attorney’s representation and allowed the attorney to respond. (Smith II, at pp. 604–605.)
The high court found no abuse of discretion and rejected the defendant’s contention that
he was denied the opportunity to develop an adequate record of his complaints. “On the
contrary,” it concluded, “the [trial] court gave defendant full opportunity to air all of his
complaints, and counsel to respond to them.” (Id. at p. 606.)
The same is true here. The trial court’s handling of the Marsden hearing was a
model worthy of being emulated. The trial court gave Shaw a full opportunity to explain
the bases for his complaints about counsel’s performance. It began by explaining the
Marsden process, asking Shaw to “think about any of the reasons that you’d like me to
consider in discharging your attorney” and requesting that Shaw “share with [the court]

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the reason.” The court advised Shaw it would be “taking notes” and “carefully listening.”
After advising Shaw that his counsel would be permitted “to respond to the reasons that
you give me,” the court instructed him to “go ahead” and then allowed him to state all of
his concerns without interruption. Then, before his counsel responded, the court
informed Shaw it would “give [him] another opportunity to speak.” After counsel spoke,
the court did as promised, stating, “As I mentioned, I wanted to give you, Mr. Shaw, an
opportunity to have the last word before I reach a decision.” And again, the court
listened to Shaw’s statements until he had finished, without interruption. This enabled
Shaw, if he believed trial counsel had failed to identify all the witnesses Shaw believed
he should have called, or that counsel had misstated what Shaw hoped or expected their
testimony to be, Shaw could easily have so informed the court. He did not. Indeed, he
did not mention the witness issue at all in his rebuttal.
Shaw similarly complains that as to Byron’s “forgetfulness,” faulty cross-
examination and unoffered documents, the court failed to “elicit the details underlying
the claims.” He contends the court should have “elicit[ed] from [him] the details of the
‘proof’ that showed the witnesses were lying,” “the details . . . of all the ‘stuff’ which
[he] claimed counsel forgot” and confirmation that the letters he wrote to his counsel
were indeed the documents Shaw claimed should have been admitted in evidence. The
premise of all these arguments is that the court was required to disbelieve trial counsel’s
responses to Shaw’s complaints and assume Shaw would be unable to correct any errors
or omissions when the court allowed him to speak a second time after he heard counsel’s
responses. We cannot accept that premise, which would shift the burden to show
ineffective assistance from the defendant to the trial court.
Shaw relies on People v. Stewart, supra, 171 Cal.App.3d 388 and cases citing it
for his failure-to-elicit arguments. Stewart does not support these arguments. In Stewart,
the defendant stated at the Marsden hearing that his personal doctor and “two witnesses
up on the fourth floor” should have been called to testify. (Stewart, at p. 394.) The
defendant explained why he thought the doctor should have been called but provided no
information about the other two witnesses, and the trial court apparently did not hear

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from counsel on the point or further inquire of the defendant. (See id. at pp. 397–398.)
The court was able to determine there was no colorable claim of ineffective assistance
regarding the failure to call the doctor, who could only have competently testified to a
fact that was undisputed. (Id. at p. 397.) But the record did “not disclose what the
testimony of [the other two] witnesses would have been had they been called,” and the
trial court did not question appellant or, apparently, his counsel about them. (Id. at
p. 398.) Our court held this omission prevented the trial court from properly evaluating
the defendant’s Marsden claim. (Ibid.)
Stewart is a far cry from this case, in which the court invited Shaw to explain his
reasons for thinking his trial counsel was ineffective, after he did so invited trial counsel
to respond, and then after trial counsel provided significant responsive information, gave
Shaw the floor a second time to address the issues further after having heard his counsel’s
responses. Nor does Stewart stand for the proposition that the trial court must conduct a
Marsden hearing in a particular way. While the trial court must inquire into the reasons a
defendant contends his counsel has been inadequate and obtain basic information from
him and his counsel to evaluate whether a prima facie showing of ineffectiveness has
been presented, the trial court is neither an investigator nor an advocate. As long as the
trial court permits the defendant to fully express his concerns and gives appropriate
consideration to them in light of what it knows from the trial, this is all Marsden requires.
II.
Defendant Is Entitled to Remand for the Trial Court to Exercise
Its Discretion to Strike the Firearm Enhancements.
In a supplemental brief, Shaw argued he was entitled to the benefit of the 2017
legislation granting trial courts discretion to strike or dismiss prior findings under the
firearm-related enhancements, including those the trial court applied to Shaw under the
mandatory sentencing enhancement provisions extant when he was sentenced.
(§ 12022.5, subd. (c); § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, §§ 1, 2.)
The People concede that a remand for that purpose is appropriate, and we agree. We will

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therefore remand to permit the trial court to exercise its discretion to dismiss one or more
of the firearm enhancements it imposed on Shaw as permitted by Senate Bill No. 620.
III.
Defendant Is Not Entitled to Conditional Reversal or Remand for Diversion.
In a supplemental brief filed after this case was fully briefed, Shaw argued the
newly enacted mental health diversion statute, Assembly Bill No. 1810, sections 1001.35
and 1001.36, providing for the discretionary diversion of persons with qualifying mental
health disorders that contributed to the commission of a crime, is retroactive and should
be applied to him. However, as the People pointed out in their response, shortly after the
enactment of Assembly Bill No. 1810, the Legislature amended section 1001.36 to
exclude defendants charged with murder or voluntary manslaughter. (§ 1001.36,
subd. (b)(2)(A); Stats. 2018, ch. 1005, § 1.) The amendment took effect on January 1 of
this year. Shaw is therefore ineligible for diversion.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated. The matter is
remanded for the limited purpose of allowing the trial court to exercise its discretion
under sections 12022.5, subdivision (c) and 12022.53, subdivision (h).

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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Shaw (A148318)

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