Lead Opinion
Opinion
The sole issue on this appeal is whether reversal is appropriate after defense counsel expressly refuses to actively participate in his client’s trial. Counsel here attempted to justify his action on the ground that certain trial rulings made it impossible for him to effectively represent his client. Although we are extremely reluctant to appear to reward such tactics, we nevertheless conclude that reversal is necessary because, on this record, the defendant was unquestionably deprived of the effective assistance of counsel.
Defendant appeared in municipal court for arraignment on charges of burglary, assault with a deadly weapon, rape, forcible oral copulation, and robbery. The complaint also contained allegations of great bodily injury, use of a deadly weapon, and two prior felony convictions. Despite the magistrate’s careful admonition about the dangers of self-representation, defendant elected to waive his right to be represented by an attorney. The record indicates that defendant fully understood the nature of the charges against him and the ramifications of his decision. Reluctantly, the magistrate permitted him to represent himself. (Faretta v. California (1975)
Following this confession, defendant indicated his desire to plead guilty. At a special superior court hearing on the plea, however, defendant asked the court to commit him to a state mental hospital. The judge carefully explained that a guilty plea would not necessarily result in such a commitment.
Two weeks later, the public defender moved to terminate his appointment. He argued that (1) defendant’s right of self-representation, once invoked in municipal court, continued in effect in superior court; (2) there had been no adequate ground to terminate this self-representation; and (3) defendant’s actions indicаted he rejected representation by appointed counsel. When the court asked defendant whether he still wished to represent himself, he made no reply. Expressing solicitude for defendant’s right to the assistance of counsel in the absence of a renewed waiver and doubts concerning defendant’s capacity to represent himself, the court denied the public defender’s motion to withdraw. After reviewing a second psychiatrist’s report, the court ordered another competency trial pursuant to Penal Code section 1368. Because of his disruptive outbursts, defendant had to be removed from the courtroom during that proceeding. Again, he was found competent to stand trial.
At his next court appearance, defendant again refused to respond when asked if he wanted counsel. The public defender was reappointed to represent defendant. In ordering the appointment, the court emphasized its concern for defendant’s right to the effective assistance of counsel and expressed its unwillingness to infer a continuing waiver of the right to counsel merely from defendant’s silence.
The public defender subsequently moved to set aside the information (Pen. Code, § 995) on the ground that defendant was denied the effective assistance of counsel at the preliminary hearing because the witnesses against him were not cross-examined. Alternatively, defense counsel sought a new preliminary hearing on the ground that otherwise he would be unable to effectively prepare for trial. The court denied both motions and ordered
Before voir dire began, the public defender in chambers renewed his motion for a continuance. He thoughtfully articulated for the record the reasons why he was unwilling to proceed to trial. He stated that he had not been able to develop a viable defense theory or trial strategy because of the lack of a thorough preliminary hearing and because of defendant’s failure to cooperate or communicate with him. Citing People v. Locklar (1978)
The judge acknowledged defense counsel’s dilemma and attributed it to defendant’s refusal to cooperate in his own defense, but declined to further delay the trial. He remarked: “[I]t seems to me that all of your problems, which are understandable, are created by the defendant who understands and is able to cooperate and, in effect, he is waiving a lot of rights that the Constitution affords him. But it’s his right to waive those protections. And I find that that is what he is doing. [1] So we will proceed as best we can.”
As jury selection was about to begin, defendant threw himself on the floor and screamed. He was removed from the courtroom and remained absent throughout the remainder of his trial.
True to his word, the public defender did not participate in the trial of his client. He did not ask questions or exercise challenges during jury selection, nor did he make an opening or closing argument to the jury. He did not cross-examine any of the prosecution’s witnesses or object to the admission of any of the prosecution’s evidence.
The Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee criminal defendants the right to be represented by counsel at trial. (Gideon v. Wainwright (1963)
I
We first examine the obligations of the trial judge to assure that a criminal defendant is afforded a bona fide and fair adversary adjudication. “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.” (Glasser v. United States (1942)
In order to implement this duty, the trial judge is vested with both the statutory and the inherent power to exercise reasonable control over all proceedings conneсted with the litigation before him. (Cooper v. Superior Court (1961)
By allowing this defendant to proceed to trial without the assistance of counsel when he had not affirmatively waived his right to such assistance, the court abrogated both its duty to protect the rights of the accused and its duty to ensure a fair determination of the issues on their merits. Furthermore, the court’s action, rather than promoting, actually hindered the orderly administration of justice. By permitting such a proceeding to go forward, the judge virtually assured an appeal, a reversal and a future retrial, thereby placing an unnecessary additional strain on an already over-burdened judicial system. On the other hand, the court had at its disposal a number of options, any of which would likely have prevented the denial of defendant’s right to assistance of counsel. We suggest some available procedures for handling this type of situation.
As we have noted, it is well established that trial courts have the inherent and statutory power to punish for contempt of court. (In re Buckley (1973)
If counsel persists in his refusal to participate despite the threat of contempt, the court may hold him in contempt, and in any event should relieve him of his duties in the case. The court should then advise the defendant that he may either represent himself or have substitute counsel appointed. Before a defendant is permitted to choose the option of self-representation, however, the court must determine that he is competent to waive his right to counsel and that any such election is knowing, intelligent and understanding. (Faretta v. California (1975)
The choice of self-representation preserves for the defendant the option of conducting his defense by nonparticipation. (People v. Teron (1979)
In the event the defendant chooses to avail himself of the benefits of the assistance of counsel,
Ordinarily, the removal of counsel is occasioned by a request from counsel or the accused (Code Civ. Proc., § 284); the determination whether to allow a substitution is then within the sound discretion of the trial court. (Mandell v. Superior Court (1977)
Counsel may also be relieved on the court’s own motion, even over the objections of defendant or counsel. Although the judge has the discretion to overrule defendant’s choice of counsel in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings, this discretion has been severely limited by California decisions. Thus, “the state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner
While we recognize that courts should exercise their power to remove defense counsel with great circumspection (Smith v. Superior Court, supra,
Defendant here never explicitly requested appointment of counsel nor did he express a preference for any particular counsel. Moreover, defense counsel at one point moved to withdraw; it is therefore unlikely that he would have objected to a substitution of attorneys. Hence, the court was not faced with the problem of involuntary removal of counsel. Had the court been unable to compel defense counsel to participate under the threat of contempt, substitution of counsel under these circumstances would have been justified. Because the goals of the cited cases, i.e., the protection of the defendant’s right to counsel of choice and the preservation of the independence of the bar, would not be frustrated by such a course of action, no inconsistency arises between today’s result and our prior holdings.
II
We proceed to analyze the derelictions of counsel under the bizarre circumstances of this case.
Once an attorney has been assigned to represent a client, he is bound to do so to the best of his abilities under the circumstances despite the not uncommon difficulty of that task, particularly in the context of criminal trials. (See rule 6-101(2), Rules Prof. Conduct of State Bar.) This duty is not affected by the fact that a client may be uncooperative or that, as in this case, a trial court’s ruling on a substantive motion apрears to be arbitrary or incorrect. The existence of these admittedly adverse conditions does not relieve counsel of the duty to act as a vigorous advocate and to provide the client with whatever defense he can muster. Any other course would be contrary to the attorney’s obligation “faithfully to discharge the duties of an attorney at law to the best of his knowledge and ability.” (Bus. & Prof. Code, § 6067.)
Defense counsel here argued that his participation in the trial would have constituted a violation of another ethical canon: the prohibition against representing a client without adequate preparation. (CPR of ABA, DR 6-101(A)(2).) This rule cannot, however, be employed to permit an attorney’s abandonment of his client by unjustifiably refusing to provide him with any assistance whatsoever. The guideline is designed to caution attorneys against presenting cases that have not been adequately prepared because of lack of time or even lack of competence.
When, as here, claimed “inadequate preparation” results from this kind of adverse ruling of the court, together with an obstreperous client, counsel is nonetheless obligated to proceed with the case. In the view of the public defender, no attorney in the present case could ever have been adequately prepared without a new preliminary hearing; thus, unless his motion were granted, the case could never proceed to trial. Such result completely frustrates the concept of orderly administration of justice underlying our judicial system.
“It is the imperative duty of an attorney to respectfully yield to the rulings of the court, whether right or wrong. (In re Grossman (1930)
In short, counsel cannot attempt to coerce trial courts to rule in a particular manner by threatening to inject reversible error into the proceedings through an unwarranted refusal to provide effective assistance. The judicial system provides remedies for potential abuses or errors in rulings by the trial courts. Except perhaps in the most extreme circumstances (see, e.g., fn. 10, ante), counsel cannot be permitted to bypass these established procedures regardless of how firmly he believes his client has been wronged or abused by the trial court; to do so would be to invite the collapse of our system of judicial administration. “Attorneys, by reason of their position
In refusing to participate at trial, the public defender relied on a recent Court of Appeal decision, People v. Locklar, supra,
In a later decision the court relied on Locklar to issue a writ preventing a case from proceeding to trial under somewhat similar circumstances. (Little v. Superior Court (1980)
The Court of Appeal prohibited further proceedings against the defendant unless he was first afforded a new preliminary hearing. It held that “a defendant’s right to counsel in a preliminary hearing, as at trial, is not satisfied by the mere physical presence of an attorney who remains silent and does
Several foreign authorities have grappled with somewhat similar situations. In People v. Aiken (1978)
Despite this conclusion, the court proceeded to examine the record to determine whether counsel’s inaction actually resulted in prejudice to the defendant. With respect to the failure of defense counsel to object to the introduction of any evidence, the court eventually concluded that “our examination of the record discloses [no evidence] which was inadmissible and should have been objected to by defense counsel.” (Id. at p. 276.)
Even if we were to adopt the rationale of Aiken, its result is not justified by the facts in the present case. By contrast, the failure of defense counsel here to object to the introduction оf certain evidence resulted in the admission of arguably prejudicial material. Defendant was never given the opportunity to litigate the propriety of admitting these items into evidence.
In Lahmann v. State (Mo. 1974) [
In State v. Lamoreaux (1974)
We agree with the Arizona court’s premise that a defendant may not lawfully be convicted of an offense unless he is afforded the meaningful assistance of counsel in his defense. Counsel’s action and inaction here can in no way be characterized as constituting effective assistance of counsel.
III
Finally, we turn to the assertion of the People that defendant waived his right to effective assistance of counsel. The People concede that defendant’s waiver of the right to counsel in municipal court did not continue in effect in superior court. (Pen. Code, §§ 859, 987.) As noted above, the right to counsel can be waived only if such waiver is knowing, intelligent and voluntary. (Faretta v. California, supra,
The People contend, however, that although there was no waiver of the right to counsel, defendant impliedly waived his right to effective assistance of counsel. They argue that such a waiver can be inferred from defendant’s actions in failing to object to counsel’s announced course of conduct and his persistent refusal to cooperate with counsel.
United States v. Dujanovic (9th Cir. 1973)
Although a defendant’s right to self-representation may be curtailed if his conduct and the circumstances so warrant (United States v. Dujanovic, supra,
In a recent decision an appellate court held there had been no valid waiver of the right to counsel despite thе fact that the defendant had agreed to his counsel’s absence during major portions of the proceedings. (People v. McGraw (1981)
In a related argument, the People contend that counsel’s nonparticipation was a trial tactic employed as a result of defendant’s own uncooperative conduct. There is no indication whatever that defendant was in collusion with his attorney. Moreover, as discussed above, defendant’s conduct in no way constituted a waiver of his right to effective assistance of counsel.
IV
A conclusion is inescapable that counsel’s nonparticipation was neither “effective” nor “assistance” in any sense of those terms. Under these circumstances counsel’s actions deprived defendant of his constitutional right to counsel.
“The constitutional right to the assistance of counsel in a criminal case [citations] includes the guarantee that such assistance be ‘effective.’ [Citations.] That ‘effective’ counsel required by due process ... is counsel ‘reasonably likely to render, and rendering reasonably effective assistance.’” (In re Saunders (1970)
The judgment is reversed.
Bird, C. J., Broussard, J., and Reynoso, J., concurred.
While I, too, am deeply offended by the spectacle of a defendant being led off to prison after an ex parte trial, I cannot bring myself to agree
It is obvious that the only reason why this appeal poses such a difficult problem is defendant’s courtroom conduct—his silence, followed by disruptive behavior which compelled his exclusion from the proceedings.
I can think of only two reasons for defendant’s conduct: first, he may have hoped that by creating a sufficiently grotesque situation, he could trick the trial court into committing error. Second, his behavior may simply have been his way of saying “I am guilty.”
There can be no question as to thе trial court’s view. It found that defendant was “acting as he is wilfully, based on what appears to be an enormous quantity of evidence against him, and his only chance of beating the case, if it is a chance, is to try and get some error into the case, . . .’’If the trial court was correct, we should hold that defendant is estopped to rely on errors provoked by his own bizarre conduct. The outcome of an appeal from a conviction should not depend on how well the court passes a practical bar examination, necessitated by defendant’s misconduct which has no purpose other than to test the court’s ability to field novel problems created by that very misconduct.
I frankly do not know to what extent we are bound by the trial court’s finding on the issue of defendant’s motive. If my view mattered, I find it far more likely that defendant’s conduct was just his way of trying to achieve what he had wanted to do in the first place: to plead guilty and receive treatment for a perceived mental problem. Rebuffed when he attempted to do so in orthodox fashion, he then chose total, bizarre, seemingly
There is sound precedent for a forthright recognition of the fact that the official ritual—a hygienically boykinized defendant standing contritely before the court and pleading guilty because he is, in fact, guilty—is not the only way to confess guilt. In People v. Teron (1979)
The Supreme Court said in Faretta v. California (1975)
Since I agree that the trial court did not err in denying defendant’s motion to set aside the information and to continue the trial (see maj. opn., fn. 6), I would affirm the judgment.
Richardson, J., concurred.
Notes
The judge detailed the possible ways in which defendant might be sent to a state hospital: i.e., on a finding of incompetency, a finding of not guilty by reason of insanity, or a determination that he was a mentally disordered sex offender. The court also explained the procеdures involved in a plea of not guilty by reason of insanity and noted that if the defendant so chose, such a plea could be entered in a subsequent superior court proceeding.
Apparently, defense counsel made no effort to pursue this option.
DR 6-101 (A) (2) provides that a lawyer shall not “handle a legal matter without preparation adequate in the circumstances.” (ABA Code of Prof. Responsibility [hereafter CPR of ABA], DR 6-101 (A) (2).)
Counsel’s participation was limited to the submission of proposed jury instructions on behalf of the defendant. Apparently these had been submitted prior to counsel’s announcement of his refusal to participate.
The court may also consider warning counsel that the matter may be referred to the State Bar for investigation into whether disciplinary measures are appropriate. (Bus. & Prof. Code, § 6103.)
It should be noted in this respect that the trial court correctly denied defense counsel’s motion to set aside the information. Having chosen to represent himself at the preliminary hearing, defendant waived his right to claim that errors resulting from his own ineffectiveness rendered the commitment defective. (Ibid.)
Similarly, the court’s denial of the continuance motion, when no good cause for a continuance was demonstrated, was not an abuse of discretion. (Pen. Code, § 1050.) As noted, defense counsel was free to seek a stay of the proceedings from an appellate court, but apparently failed to do so.
Should the defendant remain silent when presented with this option, as defendant in the present case might have done had he been offered such a choice, the court may not consider this to be a waiver of the right to counsel but must instead assume the defendant desires the assistance of counsel. (Carnley v. Cochran (1961)
It is unquestionable that these circumstances would constitute good cause for a continuance under Penal Code section 1050. Similarly, the circumstances outlined above seem to be sufficient to meet the good cause requirement for any delay of the trial date beyond the 60-day requirement of Penal Code section 1382. (See People v. Wilson (1974)
Of course, substantive decisions as to what plea td enter, whether to waive jury trial, and whether to testily are ultimately to be made by the defendant after consultation with counsel. (People v. Robles (1970)
Examples of such situations are presented in Little and Locklar, discussed post, in which public defenders were forced to proceed with cases not assigned to them and with which they were unfamiliar. (People v. Locklar (1980)
It does not, however, follow that counsel acted in bad faith; as stated at oral argument, while counsel’s actions were misguided and unjustified, they appear to have been undertaken in good faith.
For example, the admissibility of both a confession and a photographic lineup could have been tested in a hearing outside the presence of the jury. (Evid. Code, § 402.) Further, certain highly prejudicial and possibly inadmissible portions of the confession might have been excluded as being more prejudicial than probative had a proper motion been made under Evidence Code section 352.
The dissent of Justice Kaus, using the cold record, conjures up a theory regarding defendant’s conduct not perceived by anyone at the trial and not urged by anyone on this appeal. If the defеndant were trying to plead guilty, failure of the trial court to give the admonitions of Boykin v. Alabama (1969)
Nor do I find myself able to join Justice Haning’s dissent which is based on the theory that in spite of his silence defendant waived the right to counsel. While I agree that a “waiver by silence” is theoretically possible, the fact is that the trial court insisted that the deputy public defender continue as defendant’s lawyer. Thus when defendant was removed from the courtroom for disruptive conduct, he had no reason to believe that his waiver had been accepted. Further, the trial court was not obligated to accept it. By strong dictum in Ferrell v. Superior Court (1978)
Defendant had, of course, been found mentally competent to be tried. (See Pen. Code, § 1367 et seq.)
This does not mean that I disagree with аll of the majority’s criticism of the trial court and counsel, though some of it strikes me as a trifle unfair. Just for example: the majority suggests that, as long as the trial court acted “with great circumspection,” it could have removed counsel from the case. For this it cites Smith v. Superior Court (1968)
A few days before the preliminary hearing defendant appeared before a superior court judge and made the abortive attempt to plead guilty, related in the majority opinion. In the course of the proceedings the court patiently explained to defendant the various types of commitments for mental problems which might be available to him, depending on his plea or conviction. Although at the end of a particularly tricky passage, defendant had said “I’m afraid you lost me,” it sufficiently appears that defendant could easily have thought that somewhere there was a mental health facility which would аccept him after a conviction accompanied by apparently irrational conduct.
The sole exception to defendant’s total lack of participation was that when his confession was offered, he suggested that the court admit a transcript, rather than a tape.
McKenzie’s method of conveying the same information is, of course, just a variant of Teron’s: instead of remaining mute in the courtroom, he absented himself, leaving behind an attorney who had already announced that he would remain mute.
Dissenting Opinion
I respectfully dissent.
While I strongly agree with the principles recited by the majority, I arrive at a different conclusion in this unique factual situation.
The foundation cases of Johnson v. Zerbst (1937)
The defendant is no stranger to the criminal courts. Prior to the instant case he was convicted of felonies in Texas and California. He was found capable of representing himself at the preliminary examination, following a thorough voir dire by the magistrate, and he had previously represented himself at various stages of criminal proceedings in Santa Barbara.
Before the preliminary examination the defendant appeаred in propria persona before the superior court judge who later presided over his trial.
Although he appeared in propria persona at the preliminary examination and did not cross-examine the witnesses, he did make motions to the court for a continuance, for discovery, for access to the law library, for a legal runner and for legal writing paper and envelopes. The record demonstrаtes that he had made similar motions on a prior occasion when he represented himself in Santa Barbara.
When he next appeared in superior court after being held to answer, he became uncommunicative and refused to speak or respond to the court’s inquiries. The public defender was then appointed to represent him, but when the deputy defender assigned to his case went to the jail to <see him, the defendant refused to come out and meet with him. When this method of contact failed, the defense attorney was taken back to the defendant’s cell, where he again attempted to speak with him and gain his cooperation. The defendant wouldn’t even reveal his name, rank and serial number, let alone cooperate; he simply remained mute and refused to acknowledge counsel’s presence. His conduct toward the public defender never changed throughout the proceedings. Although questions concerning his competency were raised, he was, as noted by the majority, twice found competent to cooperate with counsel and stand trial—on one occasion by the court and on another as the result of a jury trial on the competency issue.
The trial judge concluded that defendant heard and understood everything being said and was able to cooperate with his counsel. In response to the public defender’s explanation of why he was unable to prepare himself for trial or represent defendant, the court stated:
“. . .it seems to me that all of your problems, which are understandable, are created by the Defendant who understands and is able to cooperate and, in effect, he is waiving a lot of rights that the constitution affords him. But it’s his right to waive those protections. And I find that is what he is doing.
“. . . The record should also indicate a couple of things briefly. ... I have before me a transcript of the proceedings had in this courtroom with*642 the Defendant at a time when his case was still in the Municipal Court, where he came up here to talk about settlement of his case on November 16th of this year. The transcript is some eighteen pages long. And I am even more satisfiеd than I was before, if that is at all possible, that the Defendant is acting as he is wilfully, based on what appears to be an enormous quantity of evidence against him, and his only chance of beating the case, if it is a chance, is to try to get some kind of error into this case, and because he is a very articulate fellow—he was in November—and very bright, and he’s playing the ‘I’m crazy’ game with the Court. Because we talked about that at some length during those Court proceedings.
“Just so that those who look over our shoulders after the case is concluded from on high will understand, that this is the ultimate situation which has been brought to us or visited upon us by Faretta, and we have to deal with it either this way, or the Defendant, this type of a Defendant would never get to trial.”
The court’s observation of the strength of the prosecution’s case is borne out by the record. The victims were alone in their fourth floor apartment at approximately 6:30 a.m. when they were assaulted by an assailant armed with a knife. One victim was stabbed with the knife, the other was raped and both were robbed. The assailant gained entry to the apartment through a bathroom window which opened into an air shaft in the apartment building. The bathroom window was approximately 10 inches from a window to an adjoining apartment. When the police visited the adjoining apartment they discovered that defendant’s brother lived there, but defendant was not present at that time. Upon receiving permission to search the apartment, a set of knives, contained in a case and each in their original wrapping and bearing the distinctive legend “Pierre Santini” were found, with one knife missing from the case. A neighbor located a “Pierre Santini” knife under a vehicle next to her home, near which she noticed a person matching defendant’s description to be loitering suspiciously around the time of the crime. This knife matched the set in the brother’s apartment, and fit into the slot in the knife case for the missing knife. The victims both selected defendant’s picture from a photographic line-up, in addition to identifying him at the trial. During the period when the defendant was communicative and representing himself, and in response to his request for discovery, the investigating оfficer delivered the discovery items to him. At that time defendant advised the officer that the items were not needed because it was his intention to confess his guilt. The defendant asked the officer to return the following day to obtain the confession and gave him permission to record it. The officer returned as requested, gave a Miranda warning, and obtained and tape-recorded the confession.
“Waiver is the intentional relinquishment of a known right after knowledge of the facts.” (Roesch v. DeMota (1944)
I would affirm the judgment.
On October 6, 1983, the dissenting opinion of Kaus, J., and the concurrence in that opinion by Richardson, J., were modified to read as printed above.
Assigned by the Chairperson of the Judicial Council.