How have courts treated a motion for a new trial on the basis of incompetent representation of counsel?

Similarly, in People v. Mendez (2008) 161 Cal.App.4th 1362, a defendant who was convicted of battery on a fellow inmate appealed on the ground the trial court had failed to conduct a Marsden inquiry into his claims of ineffective assistance of counsel. His trial attorney informed the court at the sentencing hearing that the defendant was making a new trial motion on the basis of incompetent representation of counsel. (Mendez, supra, at p. 1365.) The court inquired of the defendant, who stated there had been eight witnesses but none had been called in his defense, and other exculpatory evidence, including recordings of telephone calls, was never introduced. (Id. at pp. 1365-1366.) The trial court asked what the witnesses would have testified to, and the defendant started to explain (id. at p. 1366), but the trial court cut off the explanation and appointed new counsel to represent him for the sole purpose of investigating whether there was a basis for a motion for new trial based on incompetency of counsel. The new counsel "later reported his opinion after a 'review of the file' that 'those issues' were not 'appropriate at this time for a motion... on that basis.'" (Ibid.) The trial court then terminated the appointment of the new attorney, and the defendant's original trial attorney continued to represent him at sentencing. (Ibid.) On appeal, the court held that the trial court had failed to comply with the requirements of Marsden to permit the defendant to articulate the causes of his dissatisfaction with counsel; to allow the attorney to respond and to question the attorney as necessary to determine his or her veracity; and to make a record sufficient to show the nature of the defendant's complaints and the court's response. (Mendez, supra, at pp. 1367-1368.)

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