Does counsel waive a defendant's right to move for a motion for a new trial?

Defendant had previously indicated that because counsel had not filed a motion, he had to pursue it on his own without the assistance of counsel. Moreover, defendant said that counsel's failure to file his motion was more evidence of ineffective assistance. Thus, perhaps from counsel's point of view there was no legal cause not to proceed with sentencing. However, defendant was clearly waiting for the court to address his motion, including the lengthier pleading that he had prepared and said he had sent to the court and prosecutor. These circumstances indicate a possible conflict between defendant and counsel concerning the motion for new trial, and, therefore, we do not find that counsel waived defendant's right to move for a new trial. (Cf. People v. Viray (2005) 134 Cal.App.4th 1186 [because of inherent conflict between defendant and defense counsel concerning a possible order requiring defendant to pay for appointed counsel, counsel's failure to object does not waive appellate claim challenging the order].) This is especially so given defendant's comments after the court pronounced sentence, indicating that he wanted the court to address his motion for a new trial on the grounds raised in the 16-page pleading that he thought the court had received. As noted, a motion for new trial is timely anytime before judgment is entered. (See fn. 8, ante.)

Finally, when the defendant requests a new trial based on a claim that his counsel was incompetent at trial, the trial court should hold a Marsden hearing to determine if new counsel should be appointed to address the defendant's concerns. (People v. Smith (1993) 6 Cal.4th 684, 692-693, 695-696.)

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