P. v. Rankin

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Filed 3/30/11 P. v. Rankin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE DAVID RANKIN,
Defendant and Appellant.
C065011
(Super. Ct. No.
CM031684)
Defendant George David Rankin pleaded no contest to
possession for sale of methamphetamine and possession for sale
of marijuana. He contends on appeal that the trial court erred
by not holding a third Marsden1 hearing when he sought to
1 People v. Marsden (1970) 2 Cal.3d 118, 123-126 (Marsden), held
that when a criminal defendant seeks a new attorney based upon a
claim that his appointed counsel has not provided competent
representation, the trial court must inquire into the reasons
for the defendant‟s dissatisfaction with counsel.

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withdraw his plea. We conclude the trial court did not err in
declining to hold a third Marsden hearing after previously
investigating defendant‟s similar complaints about his attorney
in two prior hearings. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Two police officers observed defendant shortly before
1:00 a.m. driving a pickup truck that appeared to have been in a
recent traffic collision. According to one of the officers, the
truck “was barely running, there was smoke coming from it, [and]
there was [sic] shrubs hanging from the front of it.” On closer
examination, the officer also noticed “huge gashes in the hood,”
“transmission and radiator fluid leaking onto the ground,” and
other dents on the truck. Defendant told the officer he had not
been in an accident and that “the damage to the vehicle was
probably done before he borrowed it from the owner.”
Another officer smelled a strong odor of marijuana coming
from the cab of the truck, and a search of a backpack found on
the passenger floorboard uncovered several baggies of
methamphetamine and marijuana, as well as “indicia of sales.”
Defendant denied that the backpack belonged to him. However,
the registered owner of the truck, who was called to the scene,
denied any knowledge of the backpack. The owner also stated he
had loaned the vehicle to defendant about an hour earlier and
there had been no damage to it at that time. Another witness
said defendant had a backpack when he borrowed the truck.

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Defendant was charged with possession for sale of
methamphetamine and marijuana, with enhancements for two prior
prison terms.
Prior to the preliminary examination, defendant‟s trial
attorney filed a motion to suppress evidence. At the conclusion
of the preliminary hearing, the trial court denied the motion,
ruling that defendant did not have a reasonable expectation of
privacy in the backpack and that, in any event, “the totality of
the circumstances supports the reasonableness of the search.”
At the next hearing, defendant made a motion to relieve his
court-appointed attorney. During an in camera hearing,
defendant complained that he did not feel his attorney was
prepared for the preliminary hearing and that, as a result, the
suppression motion was denied. In addition, defendant raised a
number of other complaints: he had not received a copy of the
discovery; audio and video tapes of the incident had not been
viewed; they did not have a “private investigator”; and his
attorney did not call “the other witness citizen” to testify at
the preliminary hearing on the issue of consent to search the
truck. Defendant informed the court that he wanted to file
several motions, including a motion for a private investigator,
a discovery motion, and a Pitchess2 motion. After the defense
attorney responded to each of defendant‟s complaints, defendant
2 A Pitchess motion seeks discovery of peace officer personnel
records and is required to set forth the materiality of such
records to the subject matter of the pending litigation. (Evid.
Code, § 1043; Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

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stated that his only disagreement was regarding the decision
whether to file a Pitchess motion. The trial court denied
defendant‟s request for new counsel.
At a subsequent hearing, defendant pleaded no contest to
possession for sale of methamphetamine (Health & Saf. Code,
§ 11378) and possession for sale of marijuana (Health & Saf.
Code, § 11359), and admitted having served a prior prison term.
(Pen. Code, § 667.5, subd. (b).) Prior to entering his plea,
defendant told the trial court that he had received some
threatening letters while in jail but that this had not affected
his decision to enter his plea.
Defendant‟s sentencing hearing was continued several times,
in part to allow him to make a motion to withdraw his plea.
In the meantime, defendant requested another Marsden
hearing. During the second Marsden hearing, defendant revisited
his complaints about his attorney‟s alleged lack of preparation
for the preliminary examination and his failure to file a
Pitchess motion, and also objected to the fact that he had not
been provided an opportunity to view the evidence until
“recently.” In addition, defendant complained that his attorney
had not investigated his disabilities or his receipt of
threatening letters while in jail. Defendant also objected to
his attorney “openly discuss[ing] [his] case” in the presence
of another inmate when they were last in court, stating that
his attorney “went back and forth” to the point that defendant
was “confused . . . and in fear of not taking th[e] deal.”

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Defendant‟s attorney responded to defendant‟s complaints and
defendant‟s second Marsden motion was denied.
At the sentencing hearing one month later, defendant made
a motion to withdraw his plea. As explained by his attorney,
defendant‟s motion was based on complaints raised during his
prior Marsden motions, including: his attorney‟s “failure” to
file a suppression motion; the fact that defendant had not seen
the discovery or the recording of the encounter with police
officers that led to his arrest; and his attorney‟s failure to
file a motion to withdraw his plea. Defendant was asked whether
there was any other basis for his request to withdraw his plea.
He responded that he wanted to “get [his] day in court to try to
exonerate” himself and that he believed if his case had been
properly investigated and prepared, he would have received a
more favorable outcome. He also suggested that his attorney
should have sought a rehearing of the suppression motion
pursuant to Penal Code section 995. The trial court denied
defendant‟s motion to withdraw his plea, denied probation and
sentenced him to state prison for a term of four years.
Defendant obtained a certificate of probable cause.
DISCUSSION
Defendant argues that the trial court erred by failing to
hold a third Marsden hearing when he moved to withdraw his plea
based on ineffective assistance of counsel. He is mistaken.
“[A] trial court‟s duty to permit a defendant to state his
reasons for dissatisfaction with his attorney arises when the
defendant in some manner moves to discharge his current

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counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281.) A
defendant may raise a claim of ineffectiveness of counsel in a
motion to withdraw the plea. (People v. Smith (1993) 6 Cal.4th
684, 693.) A defendant‟s complaints regarding counsel in this
context may be sufficient to trigger an inquiry into the
adequacy of representation, despite the absence of an express
request for the appointment of new counsel. (See People v.
Kelley (1997) 52 Cal.App.4th 568, 580; but see People v.
Gay (1990) 221 Cal.App.3d 1065, 1070.)
Defendant‟s motion to withdraw his plea was based, in part,
on assertions regarding his trial attorney‟s representation.
But the complaints already had been aired at length during two
prior Marsden hearings, one of which occurred after defendant
entered his plea. Contrary to defendant‟s claim on appeal, he
was not “required to raise the motion [to withdraw his plea]” on
his own nor was the motion “simply . . . ignored” by the trial
court. Rather, defense counsel informed the court of the basis
for the motion, and defendant was afforded the opportunity to
set forth any additional grounds. When defendant failed to set
forth any new issues concerning the performance of his attorney,
the court was not required to hold another Marsden hearing.
Defendant maintains that any time a defendant expresses
“post-conviction . . . dissatisfaction with counsel,” this
“triggers a duty by the trial court to hold a closed hearing
under People v. Marsden to determine whether substitute counsel
should be appointed to bring a motion to withdraw the plea.”
The cases cited by defendant to support this proposition require

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only that the trial court itself make inquiry of the defendant
as to complaints about counsel rather than relying on newly
appointed counsel‟s assessment of the merits of a defendant‟s
claims. (See People v. Mendez (2008) 161 Cal.App.4th 1362,
1367-1368; People v. Mejía (2008) 159 Cal.App.4th 1081, 1086;
People v. Eastman (2007) 146 Cal.App.4th 688, 695.) In fact,
one of the cases cited by defendant noted that the trial court‟s
duty was “to elicit from „defendant, in open court or, when
appropriate, at an in camera hearing, the reasons he believes he
was inadequately represented at trial.‟” (People v. Mejía,
supra, 159 Cal.App.4th at p. 1086.)
Defendant maintains he was prejudiced by the trial court‟s
failure to hold a third Marsden hearing because it is unknown
whether the grounds he stated for wanting to withdraw his plea
“constituted the entirety of [his] complaint” or if he might
have “articulated these issues in more detail.” After
defendant‟s attorney informed the trial court of the bases upon
which defendant sought to withdraw his plea, the trial court
asked defendant whether there were any other grounds for his
request. Defendant offered several complaints about his
attorney‟s representation, none of which differed in any
significant respect from his previous complaints. There is no
basis to suspect that defendant had additional, undisclosed
complaints. And as the court previously conducted two Marsden
hearings on these issues, there is no reason to believe
defendant had additional details about his complaints that had
not already been disclosed.

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In sum, absent some indication that defendant was raising
new complaints or had new information to present, the trial
court was not required to hold a third Marsden hearing.
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
RAYE , P. J.
ROBIE , J.

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