People v. Lucero, E067000

Lucero was convicted of first-degree burglary and possession of methamphetamine after he repeatedly failed to appear during trial; appointed counsel John Dorr represented him throughout.
Dorr moved for a new trial based on Lucero’s asserted medical unavailability, but at the hearing conceded the motion was untimely; the trial court denied it without reading and sentenced Lucero.
On appeal this court held the motion was timely and that Dorr’s concession constituted ineffective assistance, reversed, and remanded for a hearing on the new-trial motion.
On remand Dorr continued as appointed counsel; Lucero again failed to appear at the new-trial hearing dates despite having been informed of the case status while in ICE custody and having opportunities to learn hearing dates.
The trial court found Lucero’s absence was voluntary, heard the motion on the merits, denied it (finding Lucero’s medical excuse not credible), and reinstated the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by allowing counsel found ineffective on appeal (Dorr) to continue on remand without replacing him sua sponte	Trial: Court not required to relieve counsel on its own motion; replacement only required if defendant requests substitute counsel or makes a Marsden-type showing	Lucero: Prior appellate finding of ineffective assistance required the trial court to replace Dorr on remand	Court: No reversible error—trial court need not relieve appointed counsel on its own motion absent a defendant request or Marsden-type showing
Whether the trial court’s finding that Lucero’s absence at the remand hearing was knowing and voluntary was supported by substantial evidence	Prosecution: Evidence (prior failures to appear, Dorr’s instructions while Lucero in ICE, Lucero’s post-release arrests and arraignment) supports voluntary absence and notice	Lucero: He lacked actual notice of the specific hearing dates and thus absence was not knowing	Court: Substantial evidence supports finding of voluntary absence; Lucero had notice and could have contacted counsel

People v. Marsden, 2 Cal.3d 118 (trial court must consider defendant’s request to replace appointed counsel when Marsden showing made)
People v. Smith, 6 Cal.4th 684 (appointment of substitute counsel postconviction when Marsden standard satisfied; defendant entitled to competent representation for new-trial motion)
People v. Espinoza, 1 Cal.5th 61 (standard for voluntary absence and review for substantial evidence)
People v. Martinez, 47 Cal.4th 399 (trial court not required to conduct Marsden hearing on its own motion)
People v. Disandro, 186 Cal.App.4th 593 (defendant must be given full opportunity to explain absence; mere absence equivocal)