What Is a Marsden Motion? How to Replace Your Public Defender in California
The short answer: a Marsden motion is a request by a criminal defendant who has a court-appointed attorney, usually a public defender, to have that attorney removed and a different appointed attorney substituted. It takes its name from People v. Marsden (1970) 2 Cal.3d 118, in which the California Supreme Court held that a judge who receives such a request must give the defendant a chance to explain the reasons and must hear the attorney's response. The judge grants the motion only if the attorney is not providing adequate representation or the relationship has broken down so badly that ineffective representation is likely to result. Most Marsden motions are denied, because disagreement over strategy, slow communication, or a plea offer you do not like is not enough. This guide from a Riverside criminal defense attorney explains when the motion works, what the closed hearing looks like at the Riverside Hall of Justice or the San Bernardino Justice Center, and what to do when it fails.
Where the Right to a Marsden Hearing Comes From
The Sixth Amendment guarantees effective counsel, not a particular lawyer. The United States Supreme Court held in Gideon v. Wainwright (1963) 372 U.S. 335 that a defendant who cannot afford a lawyer is entitled to appointed counsel, and in Strickland v. Washington (1984) 466 U.S. 668 that the counsel provided must perform reasonably. California implements the right through Penal Code section 987, which requires the court to appoint counsel for a defendant who cannot afford one. The right is to competent representation; it is not a right to choose which appointed lawyer you get.
Marsden requires the judge to listen. In the Marsden case, the trial judge refused to let the defendant explain why he wanted a new attorney and denied the request without inquiry. The California Supreme Court reversed, holding that a court cannot exercise its discretion on the request without hearing the defendant's specific complaints. Since then, every judge in California who hears "I want a new lawyer" from a defendant with appointed counsel is required to hold a Marsden hearing on the record. The duty is triggered when the defendant clearly asks for substitute counsel, not merely when the defendant complains or expresses frustration, as the court explained in People v. Lucky (1988) 45 Cal.3d 259.
The standard has two prongs. The motion must be granted if (1) the appointed attorney is not providing adequate representation, or (2) the defendant and the attorney have become embroiled in an irreconcilable conflict such that ineffective representation is likely to result. The California Supreme Court restated that standard in People v. Smith (1993) 6 Cal.4th 684 and held that it applies at every stage of the case, including after a guilty plea and before sentencing. The burden is on the defendant to show a specific problem, and the judge's decision is reviewed on appeal for abuse of discretion.
What Happens at a Marsden Hearing
The courtroom is cleared. Because the defendant will have to discuss confidential communications with the attorney, the prosecutor is excluded and the hearing is closed to the public. The transcript is sealed so that nothing said in the hearing can be used by the District Attorney. This is true whether the hearing is at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center in Los Angeles, or the Central Justice Center in Santa Ana. The defendant speaks first, the attorney responds, and the judge may ask questions of both.
The judge wants specifics. A complaint that the public defender "does not care about my case" or "has not visited me" is a starting point, not a reason to grant the motion. The judge will ask what the attorney has failed to do: which witnesses were not contacted, which discovery was not reviewed, which motion was not filed, and what investigation was requested and refused. The attorney then explains the work done and the reasons for the choices made. Judges in the Inland Empire typically deny the motion when the attorney gives a professional explanation for a tactical decision and grant it when the attorney cannot explain a missed deadline or concedes a breakdown in communication.
Tactical disagreements do not qualify. The California Supreme Court has repeatedly held that a defendant who disagrees with counsel about trial tactics has not shown an irreconcilable conflict, including in People v. Welch (1999) 20 Cal.4th 701. An appointed attorney decides which motions to file, which witnesses to call, and how to cross-examine; the client decides whether to plead guilty, whether to testify, and whether to waive a jury. If your complaint is that the attorney will not file a motion that the attorney believes is frivolous, the motion will be denied. If your complaint is that the attorney has not reviewed the body camera footage three weeks before trial, you have something to work with.
Refusing to communicate is not a conflict you can manufacture. Defendants sometimes stop speaking to their attorney in the hope of creating an irreconcilable conflict. Courts have held that a defendant cannot force the substitution of counsel by refusing to cooperate; the breakdown must come from something other than the defendant's own choice. The hearing will usually expose that strategy, and it leaves the defendant with the same attorney and a judge who is less sympathetic.
When a Marsden Motion Is Likely to Be Granted
Failure to investigate. An attorney who has not interviewed the alibi witness you identified, has not subpoenaed the surveillance video before it was overwritten, or has not obtained the records that would prove your defense may be providing inadequate representation. The complaint should name the witness, the video, or the record and describe when you told the attorney about it. Investigation failures are the most common ground on which judges grant these motions, because they cannot be explained as tactics.
Failure to communicate about the plea offer. The attorney is required to convey every plea offer and explain its consequences, including immigration consequences under Penal Code section 1016.3. An attorney who allowed an offer to expire without telling you, or who pressured you to accept a plea without reviewing the discovery, has a problem that the judge will take seriously. The way offers normally work is explained in Should You Take a Plea Deal in California?.
A genuine conflict of interest. If the public defender's office previously represented the complaining witness or a co-defendant, the office will usually declare a conflict on its own and the case moves to the conflict panel or alternate defender. When the office has not done so and you are aware of a conflict, the Marsden hearing is the place to raise it. The structure of appointed counsel differs by county: Riverside and San Bernardino Counties use the Public Defender and then a conflict panel of private attorneys, while Los Angeles County has the Public Defender, the Alternate Public Defender, and a panel of private attorneys. Confirm the current arrangement with the court or the public defender's office.
A complete breakdown that both sides acknowledge. When the attorney tells the judge that communication has broken down and the attorney can no longer effectively represent the client, judges generally grant the motion. The attorney's candor matters, and an attorney who agrees that the relationship is beyond repair is often the fastest route to substitute counsel.
What a Granted Marsden Motion Does and Does Not Do
You get a different appointed lawyer, not the lawyer you want. If the motion is granted, the court relieves the public defender and appoints the next attorney in the county's system, usually from the conflict panel. You do not choose that attorney. The new attorney needs time to review the file, which usually means a continuance, and if you are in custody that means more time waiting for a preliminary hearing or trial. The clocks under Penal Code section 859b and Penal Code section 1382 can be waived by the new attorney over your objection in some circumstances, which is covered in Speedy Trial Rights in California: Penal Code 1382.
A second Marsden motion against the new lawyer is harder. Judges notice when a defendant has gone through two appointed attorneys. The third request will be examined for whether the defendant, not the attorneys, is the source of the conflict. The motion is a tool for a real problem, not a way to delay a case, and judges in Riverside and San Bernardino Counties deny repeat motions that look like delay.
Marsden is not the way to fire a retained lawyer. If you hired a private attorney, you do not need a Marsden motion. The California Supreme Court held in People v. Ortiz (1990) 51 Cal.3d 975 that a defendant may discharge retained counsel with or without cause, as long as the request is timely and does not disrupt the orderly process of justice. The court can deny a last-minute substitution on the eve of trial, so the request should be made as early as possible. The differences between the two kinds of representation are discussed in Public Defender vs. Private Attorney in California.
Alternatives to a Marsden Motion
Hire private counsel. A defendant who qualifies for the public defender can still retain a private attorney at any point, and the public defender is then relieved without a hearing. This is the most common solution when the problem is communication rather than competence, because a private attorney with a smaller caseload can return calls, meet before court, and appear for you at most misdemeanor hearings under Penal Code section 977, subdivision (a). Gramling Law Group offers flat-fee criminal defense for cases at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and the Los Angeles County courthouses, and limited-scope arrangements for a single hearing or motion when a full retainer is out of reach. The High Desert process is described in our Victorville and Barstow pages.
Ask for a supervisor. Public defender offices have supervising attorneys who can reassign a case internally, and a written request to the office explaining the problem sometimes resolves it without a hearing. The letter should be factual and specific, listing the witnesses, discovery, or motions at issue. Keep a copy; if the motion becomes necessary, the letter shows the judge that you tried to solve the problem first.
Represent yourself only as a last resort. Under Faretta v. California (1975) 422 U.S. 806, a defendant has the right to self-representation after a knowing and intelligent waiver of counsel. Judges frequently warn defendants who lose a Marsden motion that the alternative is representing themselves, and some defendants take that path in frustration. A self-represented defendant is held to the same rules of evidence and procedure as a lawyer, receives no special treatment at a preliminary hearing or trial, and is responsible for every deadline described in How Long Does a Criminal Case Take in California?. It is rarely the right choice in a felony case.
Marsden Motions After a Plea or Conviction
The motion is available before sentencing. A defendant who pleaded guilty and now believes the attorney gave bad advice can make a Marsden motion before sentencing, often as the first step toward a motion to withdraw the plea under Penal Code section 1018. The California Supreme Court held in People v. Sanchez (2011) 53 Cal.4th 80 that the court need not appoint separate counsel merely to evaluate a plea withdrawal, but that a clear request for substitute counsel still requires a Marsden hearing under the usual standard. The plea withdrawal process is explained in How to Withdraw a Guilty Plea in California.
Denial can be reviewed on appeal. A judge who refuses to hold a hearing after a clear request, or who denies the motion without allowing the defendant to state the reasons, has committed the error that Marsden itself reversed. A denial after a proper hearing is reviewed for abuse of discretion, which is a difficult standard, and a defendant who was convicted must also show that the denial affected the outcome. Ineffective assistance claims that depend on facts outside the record are raised by a petition for writ of habeas corpus rather than on direct appeal, as discussed in How a Criminal Appeal Works in California.
How to Make a Marsden Motion Properly
Say the words in court. At any hearing, tell the judge, "Your Honor, I would like to make a Marsden motion." The judge will clear the courtroom and hold the hearing, either immediately or at the next date. Do not explain your reasons in open court with the prosecutor present, and do not argue with your attorney at counsel table. The request can be made at arraignment, at a pretrial conference, before a preliminary hearing, before trial, or before sentencing.
Bring a written list. Write down each specific failure with dates: the witness you identified and when, the discovery you asked to see, the motion you requested, the calls that were not returned, and the plea offer you learned about late. Judges hear many Marsden motions that amount to "I do not like him," and a defendant who presents a dated, specific list is taken more seriously. Do not include your own version of the facts of the crime beyond what is needed; the transcript is sealed, but discipline about what you say is still wise.
Be ready for the attorney's response. Your attorney will explain the work done and may state that certain requests were refused for strategic reasons. Listen, because the explanation sometimes reveals that the attorney has done more than you knew. If the judge denies the motion, the case continues with the same attorney, and the realistic next steps are hiring private counsel, requesting a supervisor, or documenting the problems for a later ineffective assistance claim. The strength of the underlying case is a separate question, addressed in What Makes a Criminal Case Weak in California and How Prosecutors Build Criminal Cases in California.
Frequently Asked Questions
Can I just ask the judge for a different public defender?
Yes, but you must give specific reasons at a Marsden hearing. Under People v. Marsden, the judge must hear your reasons in a closed hearing and will grant the request only if the attorney is providing inadequate representation or the relationship has broken down so badly that ineffective representation is likely. General dissatisfaction, slow communication, or disagreement about a plea offer is usually not enough. Specific failures to investigate or to convey offers are the strongest grounds.
Is a Marsden hearing confidential?
Yes. The prosecutor is excluded, the courtroom is closed, and the transcript is sealed. You can discuss confidential communications with your attorney during the hearing without waiving the attorney-client privilege as to the District Attorney. The sealed transcript can later be reviewed by an appellate court if the denial is challenged.
How often are Marsden motions granted?
Rarely, and only on specific showings. Judges deny most motions because the complaints involve tactics, personality, or caseload rather than inadequate representation. Motions supported by documented investigation failures, missed plea offers, acknowledged breakdowns in communication, or genuine conflicts of interest are granted more often. No reliable statewide statistics exist, and the outcome depends on the judge and the facts.
Can I make a Marsden motion after I pleaded guilty?
Yes, before sentencing. The standard from People v. Smith applies at every stage, including after a plea and before sentencing. The motion is often paired with a request to withdraw the plea under Penal Code section 1018, which must be made before judgment and requires good cause. After sentencing, the remedies shift to appeal and habeas corpus.
Do I need a Marsden motion to fire a private attorney?
No. A retained attorney can be discharged with or without cause under People v. Ortiz, as long as the request is timely and does not disrupt the proceedings. The court may deny a substitution requested on the eve of trial, so act early. If you cannot afford new private counsel, the court can then appoint the public defender.
What should I do if my Marsden motion is denied?
Keep working with your attorney, consider private counsel, and document the problems. A denial means the judge found that representation is adequate, and the case continues. Hiring private counsel removes the appointed attorney without any hearing. If the problems continue and affect the outcome, the sealed Marsden transcript and your written record become the foundation for an ineffective assistance claim on appeal or habeas corpus, and Daniel Gramling, Esq. can review the file on a limited-scope basis.
Talk to a Riverside and San Bernardino Criminal Defense Lawyer
Gramling Law Group defends felony and misdemeanor cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Victorville and Barstow courthouses, the Rancho Cucamonga and Fontana courthouses, the Clara Shortridge Foltz Criminal Justice Center, and the Orange County justice centers, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for clients who need to replace appointed counsel or want a second opinion on a pending case. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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