*1 Dist., Div. One. Mar. 47919. Second No. 1977.] [Civ. CHALEFF, Petitioner, v.
GERALD L. COUNTY, ANGELES COURT OF LOS THE SUPERIOR Respondent.
Counsel Littlefield, Wilbur F. Defender, Public Moore, John M. Chief Deputy Defender, Shabo, Public Defender, Harold E. Public for Deputy Petitioner.
No for appearance Respondent.
Opinion
THOMPSON, J. This is a for writ of review to test the petition court action defender in adjudicating validity deputy public a defendant had of court refusal act as an adviser to who a criminal been granted permission proceed propria persona It of a raises issue of the obligation deputy public proceeding. in that over objection. accept capacity established that the in the case bench reasons Concluding petitioner *3 rule 2-111 of the the to for his refusal to pursuant accept Conduct, review we our writ of Rules of Professional issued California the trial court. the action of annulling filed in the information with murder an L. Miller was by
John charged Chaleff, a Gerald L. Court. deputy public Los Angeles Superior Miller defender, to him over Miller’s was objection. appointed After series of a to persona. propria sought permission appear the to Miller’s determine during capacity hearings counsel, desire for the of Miller indicated a course which advisory that Miller to himself. court Confirming permission counsel, the court “the Miller still desired public advisory Mattson Cal.2d defender” that (1959) capacity. (People 937].) P.2d have, stated, “I would to He Chaleff decline.” as his respectfully gave the Code reasons: failure of Government section to authorize (1) to act in an (2) the adverse capacity; case of to in court to his other load being required consequences Miller; refusal to schedule dictated Miller’s (3) on a by permit established; and client be to workable relationship would Chaleff to in which Miller was one present permit relationship available; and “severe ethical were which Chaleff believed defenses advisor in that what asked to relation being [was] problems “have come to where he would to him in a could position put [Chaleff]” Miller the conduct . . . to the court that court and [he felt] report reason, fourth “I’m stating: referring wrong.” amplified such as witnesses or than Miller’s decision . . . issues testify] [other about cause me to feel of conduct that come that other may types as an it violates ethical responsibilities attorney.” my with Miller over noted to the court conflict further defense, “I that I’m sort of say adding: might presentation court because of handcuffed this attorney-client explaining and the fact that Mr. Miller has stated that he would like me privilege ... retain confidential he’s told me ... 1 anything Chaleff’s the court insisted in its
Despite objection explanation, order, ordered, and when Chaleff did not to serve as found him in agree then The trial court to advise appointed private contempt. Miller. Chaleff filed the for writ of review which petition brings . to this matter court.
Public their are the Rules defenders and subject deputies Conduct less than other Professional action no governing lawyers *4 the of the of members of State Bar. Rule 2-111 Rules Professional Conduct a to withdraw from of a if client permits lawyer representation the client insists a or is claim defense that not warranted upon presenting under law and cannot be a faith for existing supported by good argument extension, modification, reversal law or of (subd. (C)(1)(a)), existing or if the creates a is situation which it employment unreasonably difficult the the member of State his Bar out cany employment (subd. (C)(1)(d)). effectively
On face and its in its rule is 2-111 to an spirit, applicable to act as an adviser to a defendant his own conducting defense. The of rule the contains no The of the language exception. spirit rule the that the while is to his exemplifies proposition duty attorney’s client, he cannot be in the where that placed position discharging duty his as a ethical member bar. (See impinges upon responsibility Mattson, 51 Cal.2d 793.) Here Chaleff called to the court’s attention the fact that representa- tion of Miller could him in an untenable ethical Here place position. Chaleff went as far as he could in the disclosure without go divulging situation, information. In that rule 2-111 Chaleff to privileged permitted withdraw court, from the of Miller. The representation by holding Miller, 1 Evidence well after the fact shows that a difference between significant Chaleff was Miller’s self-destructive to so conduct the as to urge defense receive the death That evidence before trial court when made its ordér penalty. hence cannot be considered in the trial court’s testing action. burden that allowed beyond contempt, placed upon so The court in exceeded its rule.2 doing authority. of annulled. contempt judgment Lillie, J.,P. concurred. Acting
HANSON, J. I concur that the trial court majority opinion exceeded its that should be authority judgment However, annulled. I have serious reservations arriving conclusion, record, from this based on rule 2-111 of the California Rules Professional Conduct discussed in the majority I arrive at same result what to be by addressing directly perceive the critical issue the record. The issue as I see it is presented by key whether or not the trial court in a case criminal where the defendant has demanded been pursuant Faretta v. U.S. 806 L.Ed.2d S.Ct. (1975) 2525], California in the to serve empowered appoint capacity under counsel” at defendant’s the inherent request of the court. power
A of the more detailed treatment criminal case and the underlying order disclosed the record serve to the as root by sharpen issue. _ Conduct, Rules of Professional we rest our decision 2-111 of the 2 Because upon rule of we neither nor with the holding Ligda Superior indicate disagreement agreement 5 that a Court 811 to the effect deputy public Cal.Rptr. 744] consent, absence with his be as counsel the of may, despite appointed 27706 which defines the for such an in Government Code section authority that the defender without mentioning authority includes service public implying authority as own an adviser to defense. person conducting to standards equally conduct and ethical apply 1 While the rules of clearly professional Ias read the defender or a private practitioner, whether a public all attorneys deputy and of conflict ethical personal Chaleff’s claims Public Defender record Deputy wanted to as guilty Miller plead fact that defendant stem from the basically problems Defender law Public to while Deputy and be sentenced according charged and on a defense. wanted to put proceed as across be construed board that the majority opinion may concern My and expensive lengthy an would result in unnecessary such which sanctioning trials approach, are desire to guilty where defendants who plead in a of criminal cases large percent trial, result, the same as the end was following defenders. Here by public represented desired It the trial court’s of the criminal proceedings. defendant at the outset during taking counsel insure assistance ultimate responsibility murder, constitutional that all the defendant’s to first especially degree plea safeguards defendant did guilty, made, and that and voluntarily that the are intelligently are pleas protected, has guilty. the crime to which he pleaded fact commit Underlying Criminal The Case The record discloses that in the case of (John v. Miller A016192, Los Court No. defendant Miller Lawrence), Angeles Superior was with the murder of his in violation of Penal Code charged parents section 187 on October 1975. 30, 1975,
On October defendant Miller was and court arraigned Public Defender Chaleff (hereinafter appointed Deputy Chaleff) as his defense counsel his statement that he did not need despite also defendant Miller over the attorney. Attorney represented defendant’s at the on November 1975. objection preliminary hearing 1, 5, 22, were conducted on November December Special hearings 23, 1975, to determine whether or not defendant Miller could himself in The court after represent propria persona. fully advising defendant Miller of the pitfalls, dangers consequences acting literate, his own he counsel determining mentally capable, informed and had made and in (both fully orally writing) voluntary, waiver of his intelligent understanding right representation by him the himself in propria after the December persona hearing. would had indicated he
Defendant Miller at the November hearing like counsel” and that be defender would “advisoiy accept- able to serve in that after court at the December capacity. hearing, himself, “Now, defendant Miller the said: granting *6 with what told me it conformance take that you’ve previously,.! you’re the Court to a to act as counsel. Is that lawyer asking appoint advisory [If] take it that correct? [1f] The you still do not have funds to Defendant: Yes, that’s correct. employ [1] your The own And I Court: lawyer this That’s correct. purpose? Very The The Defendant: Court: [If] [1f] well, the defender is counsel to aid the as appointed advisory defendant if and when he to be available to and requests help should the Court it at time to defendant find terminate necessary any of the defendant’s misconduct of the self-representation [due] a, to Penal Code Subdivision Faretta defendant Section pursuant and this Court’s inherent conduct this versus California, power manner.” added.) in an and (Italics orderly expeditious proceedings Chaleff out court and between the attorney brought Colloquy trial, would not be for conduct not be Chaleff would responsible be to render runner, “duties would but Chaleff’s or Miller’s investigator it and in and when the and counsel if advice requested legal terminated to then were defendant’s event that the privileges pro per Chaleff While added.) the case.” the trial of (Italics attorney conduct he could etc.), matters (motions, not initiate on his own would any legal who could volunteer to defendant reject. accept to act as for his refusal of his reasons “advisory a recitation Following Chaleff in the set forth attorney respectfully majority opinion, $50 a and fined him him in the court found and declined contempt act as himself of by agreeing contempt “stay” purge court.2 further unless sentence was counsel” or stayed by higher of contempt order guilty attorney adjudicating Procedure section Code of Civil the technical satisfies requirements counsel” then Chaleff’s refusal to act as “advisory 2 The court following attorney bar, as counsel to aid the “a member of the Jack S. Stanley, private and to be the defendant if when he available and requests help at time to terminate the defendant’s right it any the Court find necessary should added.) (Italics Mr. Stanley accepted self-representation.” counsel.” wanted to plead guilty stated have April the guilt phase. [1] reversible think that the error, “But you The court transcript had Mr. Standby as you yourself the “conflict” Chaleff felt have been concerned error, verdict and sentence in which and don’t I personally there should be between himself stated when Adviser here being your defendant Miller was proceedings want reversible get all along don’t feel that the thing we were going through are both just. held when defendant the line with reversible over with and wanted attorney error, he has done I have no disagreements sentenced to death declares * Defendant Miller also told because don’t assistant, the instructions I insuring against had been that he Miller error. In that regard job want a no defense there I think there is retrial... for the jury sentenced that Miller the court: at all.” reversible but that (Miller) [1] you on on I contains the following colloquy: *The reporter’s transcript and sentence the Court on hearing probation This matter is before “THE COURT: this “THE DEFENDANT: You made time, Miller. We are not here to take evidence. Mr. I will conflict was. Okay. statements as to what the I will state myself. conflict was. Since won’t let him speak, tell what the you you and, over with this get thing conflict was that I wanted to simply plead güilty “The defense, to, he could *7 he felt that ethically I wanted no I wasn’t allowed then since not conflict of interest. no defense. So that was the basis our on no defense was on ultimately. I went and that is why put “That is why pro per by doing this, had have been I did status could pulled, “I will what my pro per say what I was it been realized doing.—” 728
12113which are and contains sufficient facts to jurisdictional constitute a Court (see 252 legal contempt Vaughn Municipal 348, 575]) court was to Cal.Rptr. provided [60 empowered appoint as counsel.” “advisory
Discussion
Does
Miller have a
to
legal right
having
and been
to
requested
right
self-representation pursuant
California,
Faretta v.
In Faretta the trial court had to the latter although vigorously sought without counsel in The United States proceed propria persona. Supreme Court held that the denial of was self-representation impermissible under the Sixth Amendment in the of the stating concluding paragraph Faretta, “In circumstances, under these majority opinion: forcing will defender, accept against California state-appointed public courts him of his constitutional to conduct his own deprived right defense... .”4 U.S. at (422 L.Ed.2d at 582].) p. p. [45
The
in Faretta does not mandate
majority opinion
counsel.” The
Mr. Justice Blackmun in
question
posed by
his dissent where he said:
a defendant has elected to exercise his
“[I]f
se,
does he still have a constitutional
right
proceed pro
right
assistance of
counsel? . . .”
(Italics
standby
(Faretta v.
original.)
806,
U.S.
L.Ed.2d
California,
592].) [45
majority
did not address this
of a
opinion
question
standby
it
Instead
directly.
expressed permissive approval only
footnote 46
U.S. at
834-835
(422
L.Ed.2d at
when
581])
pp.
said:
[45
p.
course, a State
over
may—even
“[0]f
objection by
accused—appoint
3 Codeof Civil Procedure section 1211
“When a
provides
pertinent part:
court,
chambers,
committed in the immediate view and
it
or of the
presence
judge
made,
be
for which
facts
punished
an order must be
summarily;
reciting
in such immediate view and
occurring
against
that the
presence, adjudging
person proceeded
of a
thereby
that he be
as therein
guilty
contempt,
punished
prescribed.”
4 In
843],
v. McDaniel
729 counsel’ to aid the accused if and when the accused ‘standby requests and to be available to in accused the event that help, termination of the defendant’s necessary. [Cita- (Italics added.) tion.]”
The word renders as to each “may” state and merely discretionary McDaniel, mandated law. In 156, v. 162, 16 Cal.3d by People supra, 6, 168 footnote the California Court noted that United Supreme States v. 805, Swinton 400 (S.D.N.Y. 1975) 807, held that Faretta did not F.Supp. a constitutional to co-counsel. give right
Under
the California rule was that a defendant
pre-Faretta authority,
is not entitled as a matter of
to have his case
in court
right
presented
by
himself and
counsel
v.
7
by
(See
simultaneously.
(1972)
People
Sharp
448,
Cal.3d
233,
459
499 P.2d
v.
489];
Hill
70
[103 Cal.Rptr.
People
678,
225,
Cal.2d
692
The above rule Mattson, discussed in where the extensively supra, court at 789 I, said: the constitutional page (art. 13) “[D]espite § Code, (Pen. 686) that defendant statutory § has the provisions right and defend in counsel, and with defendant is not entitled person to have his case in court both presented counsel by by acting himself the same time or at defendant’s alternating pleasure. original.] [Italics (People v. Northcott (1930), supra, 209 Cal. 639, 648-650 [6] 651; People Mims (1958), 160 Cal.App.2d 595 [2] P.2d 234].) So trial, counsel at the he has no to be long represented by heard v. McKinney (1957), (People himself 336 [6]; v. Glenn 859, 868; (1950), supra, Cal.App.2d conversely, when has declined the aid he no has intelligently the trial with a demand re assistance Connor interrupt (In legal (1940), Cal.2d P.2d (Italics 10]).” added.) [8] [108
In our Court the California Sharp, supra, Supreme construing I, constitutional amendment art. (Const., and modified 13) § statutory to Mattson concluded neither conferred language subsequent any right decision did not undercut self-representation. Sharp validity of Mattson in counsel.” The court in in fact respect Sharp stated in the of its specifically body opinion holding “[T]he *9 730 his case is not entitled to have an accused is . . . that
Mattson . . . in court both himself and counsel at the same time. presented by acting ...” Cal.3d (7 459.) at p. case law which or
I find no California authority statutory post-Faretta elected to a criminal case who has authorizes a defendant counsel.” to himself at have “advisory court-appointed 978, Harris 65 987 In v. Cal.Rptr. People [135 668] 3, den. Cal. Ct. on Mar. we held that 1977), (petn. by Supreme “[t]he law, California case was that a defendant is not entitled to pre-Faretta have his case in court himself and cocounsel simulta- presented by by . . .” and that “Neither Faretta nor California case neously. subsequent law ...” that rule. changes
Moreover, other state which have considered those federal and courts have held that there is no federal constitutional the issue since Faretta to counsel or hybrid representation.5 advisory right Here, himself after defendant Miller elected intelligently the aid of counsel and then the aid of “advisory requested declining that Mattson which court conclude which the granted. Faretta control defen- which Faretta and Harris posdates predates constitutional, have a case did not statutory Miller in the instant dant in that counsel” and his decisional California request right denied. should have been was improperly granted respect between the defendant must make a choice courts have held that general 5 Several (8th (See, v. Williams Cir. counsel and se. U.S. proceeding e.g., proceeding pro 164, 166; 123; 119, 1976) v. 1976) (Del. Gibbs v. 359 A.2d 534 F.2d State 1975) 69]; (2d v. Cir. (1975) 33 N.E.2d U.S. Heidelberg Ill.App.3d 574 [338 Wolfish 457,462-463.) 525 F.2d Constitution as one has construed the United States Kentucky, Only jurisdiction, counsel, and that holding predates right giving pro per 692, 696.) courts have 1974) Barker 514 S.W.2d Several (See Faretta. Wake v. (Ky. involves decided that there is no to “hybrid” representation. Hybrid representation than counsel counsel, rather a defendant who has the defendant assisting advising considered the elected to se. Without those courts which have proceed pro exception, (See have held that a defendant has no such U.S. question hybrid representation. 1975) 1024-1025; Williams, 119; (10th 534 F.2d U.S. v. Hill Cir. 526 F.2d supra, State, 750, 753; 164; (Okla. 1975) A.2d 539 P.2d Gibbs v. Stiner v. State supra, Swinton, 194-195]; A.2d U.S. v. Callahan v. State 30 Md.App. need; also, 805, 806, U. absent some indication of see S. v. especially special F.Supp. 1264, 1265.) 1975) 527 (4th Cir. F.2d Lang exercise its “inherent court Did the trial appointing power” properly Miller? act as counsel”for defendant *10 noted, reflects that the trial court Here, the record as previously the Miller take it that of defendant as follows: you’re asking inquired “[I] Is that correct?” [f| to act as counsel. Court to lawyer advisory appoint “Yes, the court that’s correct.” Thereafter The defendant responded: well, the is as counsel to stated: “Very public and when he to be available to aid the requests help defendant if the should the Court it at time to necessary any represent find the the misconduct terminate defendant’s this . . . and this Court’s inherent to conduct the power ” added.) in an manner. (Italics orderly proceedings expeditious Thus court below in addition to defendant Miller’s granting for counsel” and Chaleff as “advisory request appointing attorney counsel” added duties (in “and”) “advisory conjunctive to serve as counsel.” The court relied for “standby authority obligation on its “inherent to conduct this in án power proceedings orderly manner.” expeditious
I conclude that while the trial court have exercised its properly nherent in it as counsel” power appointing attorney “standby exercised that court) (the improperly power by ordering attorney to serve as counsel.” “advisory between the duties
The distinctions “advisory”6 performed by counsel are real and could have a on “standby”7 long range impact administration of in and efficient orderly justice, especially light Faretta. Pandora’s box opened have, here, view to has an in defendant who
In.my propria persona declined the aid of counsel. . . the trial” “intelligently interrupt (People Mattson, 789) Cal.2d “advisory by whispering mean an who is in the 6 I construe the term counsel” to attorney present side, him, for and does not in the courtroom at the defendant’s does not speak participate of the trial but him advice. conduct only gives legal in the 7 I the term counsel” to mean an who construe “standby present advice to and follows the evidence and but does not give legal courtroom proceedings the trial court to revoke the defendant. He “stands in the event it is for necessary by” or even remove the defendant from courtroom defendant’s status propria persona verdict. in an manner to the case may orderly because of tactics so disruptive proceed could, run, counsel” in the result unwise throughout long in that it would tend to rather than insure an policy impede orderly, and efficient administration of A defendant expeditious, justice. appear has elected to himself. He his own ing propria persona He counsel. should be allowed to have both To hold ways. otherwise would tend to circumvent Mattson as hereinbefore discussed.
Furthermore, should an defendant who has elected to why indigent himself be furnished at public expense?8 am aware of no defendants in argument affording persuasive indigent criminal cases than rights, greater expense, nonindigent *11 defendants who have to for their own counsel. pay a defendant can hire counsel who controls
Clearly, nonindigent private the case the trial and an afforded during indigent counsel a defender or counsel in the event of a (usually public private conflict) at Also, him the trial. a public expense during defendant has the in as does nonindigent appear propria persona defendant under Faretta. While a indigent nonindigent may also could retain persona appear propria theoretically private to serve in an sit beside him at the “advisory” capacity counsel table with the court’s such situation has been so permission, rare as to be nonexistent. practically
Moreover, the court itself should need to additional expend funds for court) to avoid appointing “advisory (the merely error as insinuated defendant Miller.9 That is committing court’s job.
Conclusion since have concluded that no the defendant has Accordingly, counsel” and the court improperly appointed 8 Here the record reflects defendant Miller had his own reasons for wishing However, and was the court to achieve those ends. persona propria manipulating defendants, i.e., afforded in special jail library privileges propria persona privileges, calls, etc., motions status generate seeking persona by indigent telephone propria defendants while in trial. counsel” .could custody supplying awaiting well increase to the efficient administration justice. such motions work adversely 2, ante,
9 Seefootnote 727. page Chaleff) held in cannot be he in that (attorney to serve capacity, which the court was unautho- duty refusing perform contempt rized to order. order of void the minute declare null and therefore
I would December of court imposing guilty petitioner adjudging punishment.10 *12 (1970) 5 Court v. Superior extent that the case Ligda 10 Tothe herein, I views disagree. to the expressed be construed to be 744], contrary may Cal.Rptr. Taking overview, result Ligda what have been sound may pre-Faretta a broad in Los result in a sound in 1970 is not necessarily post-Faretta County Solano any in 1975. Angeles or Moreover, Paul at bench. Ligda from the case is factually distinguishable Ligda Defender Public (Solano and the superior Deputy County)
the county public in the case the defendant R. Camden who initially represented Stephen the court for Defendant Johnson requested permission Washington). Johnson (George defender, Camden, told the court: Attorney deputy public in propria persona. I would at is allowed to per, motion is and he proceed pro Mr. Johnson’s “[I]f advice, he him the information I would be to give he asked me for legal glad time any (5 his trial.” need in that he may preparing or any my legal knowledge requests 818.) defendant Johnson’s motion The trial court granted Cal.App.3d himself and said: p. “ ‘Furthermore, make a date with wish assistance may if you legal you continuing willingness any At this time he has indicated provide Mr. Camden. ” trial, have that.’ to be you wish his assistance during present, counsel if you counsel” and 818.) ordered to serve as “advisory Camden was Later (Id, Attorney at p. trial court from forbidding order restraining a temporary Mr. obtained Ligda discharged court reviewing to remain in court. Camden Attorney compelling writ. and denied peremptory writ of prohibition alternative to serve as never volunteered at bench attorney In the case addition, In the court. ordered by when to act in that declined capacity respectfully and in advice to legal continuing the court offer provide Camden’s Ligda Attorney considered granting factor an important have been Johnson may defendant in propria persona status.