*1 No. 20359. Feb. [Crim. 1979.] PEOPLE,
THE Plaintiff and Respondent, POPE,
JOSEPH GLENN Defendant and Appellant.
Counsel Halvonik, Paul N. Defender, Jeffers, State Clifton R. Public Chief Hendon, Defender, Assistant State Public and Ezra State Public Deputy Defender, for Defendant and Appellant. General, Winkler,
Evelle J. Jack R. Chief Assistant Younger, Attorney General, O’Brien, General, Edward P. Assistant W. Attorney Attorney Mihara, General, Eric Collins and Nathan D. Attorneys Deputy Plaintiff and Respondent.
Opinion
BIRD, C. J. Glenn from his conviction Appellant, Joseph Pope, appeals for second that His sole contention is he was denied his degree robbery. to the constitutional assistance of counsel at trial. effective right
I 24, 1976, Late in the Herman E. Brower was February evening bar in a lot outside a in Brower had left the robbed Cotati. parking just where he been Trade Winds bar had Brower testified that he drinking. man, $20 for a drink with a bill and a black had that with whom paid Brower had been had it and in his chatting, picked change up put This man that dinner started out for suggested they go pocket. Brower leave. followed. bar,
Once heard behind him. The black outside Brower footsteps Brower, man said to “He’s with us.” The next Brower coming thing man, remembered was shoved to the the black who then being ground by man, held Brower’s for a white who removed Brower’s wallet. legs intoxicated at the time of the Brower later identified Although robbery, from a as his black assailant. Brower could appellant photographic lineup at trial. identify appellant The after the Cotati arrested and seized a day robbery, police appellant stationhouse, $56.1 wallet which contained At the was advised appellant of his Miranda with an additional admonition rights, by police: “Further, have the to make statement wish which you right you or in this matter.” stated position might clarify explain your Appellant that a he understood his waiver form. rights signed he at the Trade
After had even Brower initially denying spoken bar, times, Winds his several each time appellant changed story admitting a him involvement as confronted with degree greater police additional of information. after to “make a pieces Ultimately, tying deal,” told he had witnessed the which he said appellant police robbery was committed two a the two white white men and black. Although men, Stoker, Harbin became in the it police suspects robbeiy, with the crime. appears only appellant charged trial, Two and one-half months before the Sonoma Public County However, Defender was was not until it appointed represent appellant. four before trial that the ofiice working days assigned deputy public defender to the case.2 try trial,
Before court to assist appointed psychiatrist appellant’s defense. record on does not include the Although augmented appeal two record does contain psychiatrist’s report, previous psychological evaluations which showed that mental were appellant’s capabilities limited. These written in 1973 and reports, placed appellant’s in the “borderline defective” of retardation.3 intelligence category who could not it. The showed the wallet to Brower identify 1The later police at trial without the wallet and its contents into evidence objection. introduced prosecution from the office to represent was at least the fourth attorney appellant 2Trial counsel *7 was assisted the head of the office. case. At trial she by related to the proceedings after trial and the trial before he judge were read and considered by evaluations 3These to Penal Code section 1203.03. The for committed diagnosis pursuant ordered appellant who examined before of another psychiatrist appellant and the report report diagnostic 1973 and 1975 evaluations. of the with the conclusions were consistent sentencing of the 1973 and 1975 counsel obtained copies whether trial not show The record does doctors who examined stated that he intellectual appellant “function[ed] child”; car; like a he that could not make or drive a that he was ly change and that instructions to him must in be couched gullible suggestible; terms”; concrete that he a and had tolerance for “simple, “poor ambiguity.” No to evidence as limited was introduced appellant’s intelligence or trial used before trial to the challenge admissibility appellant’s out-of-court statements to sole defense by police. presented appel- lant’s counsel was that the was the other committed two robbery by Harbin and Stoker. There was that the two men were suspects, testimony troublemakers and that followed had the victim out of they appellant bar the on the of the counsel seek did not to night robbery. Appellant’s Harbin Stoker trial. before subpoena officer, a counsel to elicit cross-examining police appellant’s sought statements made one other.
extrajudicial to the The officer had by suspect overheard Harbin tell Stoker that “we were seen the Trade Winds leaving the haven’t evidence and we don’t have to police] got [but any anything about.” The on the worry that such prosecutor objected grounds hearsay could not be admitted unless counsel made a that the declarant showing was unavailable.5 Trial was defense counsel an adjourned give Harbin Stoker. opportunity subpoena
On the the defender Harbin following day, deputy public produced and called him as a On witness. advice of a newly appointed private counsel, Stoker, Harbin invoked his Fifth Amendment on the privilege.6 hand, not other located and whether the prosecution questioned office defender’s had exercised “reasonable in public diligence” seeking trial, However, before or evaluations whether she knew of their existence at that time. limitations, was aware mental as indicated appellant’s her by opening in which she asserted statement that “Mr. has a Pope borderline intelligence.” 4The record not does establish that suffered from emotional illness or appellant he could not tell from Before the trial right characterized wrong. judge sentencing, sense, a “who as man to be actions in a his appears responsible legal appellant but purely that’s about all.” 5Evidence Code section 1230 “Evidence of a a statement provides pertinent part: by sufficient made declarant inadmissible having knowledge subject statement, made, rule if the declarant is unavailable as a witness and when hearsay so far him to the risk of civil or . . . ... criminal reasonable subjected liability in his would not have made statement he believed it be true.” man unless position 6Exercise of this rendered Harbin as a privilege “unavailable witness” within of Evidence Code meaning “(a) section which otherwise as provides part: Except (b), in subdivision ‘unavailable as witness’ means that the declarant is: provided or on the [exempted from matter precluded ground privilege testifying concerning which his statement is relevant. . . .” *8 Defense counsel that the Stoker’s attendance.7
to acknowledged procure to Stoker’s at trial had been made efforts obtain by presence only Stoker, When the court asked if counsel had reached counsel telephone. “No, Honor, were We did to we unable to. attempt responded: your on him last week. This case was an contact attorney actually assigned was on That in Tuesday. particular being myself, hearing attorney, the calls made in the and so were Thursday Tuesday, Wednesday, Friday, afternoon, work, but when he was still at those late messages apparently not returned.”8 were not an as to the calls were
Counsel also offered explanation why ours, see, of and he Harbin’s client returned: “Unfortunately, you the are and he is knows we answering Pope, phone representing calls.” and held the defender’s
The court explanation deputy public accepted Stoker’s due to secure had been that there presence. diligence seeking was into statement to Stoker admitted Later, Harbin’s extrajudicial evidence. defense that the direct counsel only closing argument, argued in the was the identification
evidence of robbery appellant’s participation victim, on the incident. At one who had been night drinking by inconsist- to minimize the counsel significance appellant’s point, sought resulted that to the statements inconsistency ent suggesting police, However, the court ordered her from limited mental appellant’s capacity. had no evidence been that line of since argument discontinue introduced on that issue. found second Following appellant guilty degree robbery. jury Corrections, and recommendation study by Department
diagnostic sentenced state prison. appellant (a)(5) a declarant is “unavailable provides 7Evidence Code section subdivision has of his statement “[ajbsent and the if he is from hearing proponent a witness” as his attendance has unable to by but been procure reasonable diligence exercised arose added.) because (Italics The issue of Stoker’s unavailability process.” court’s be introduced. made Stoker might indicated statements hearsay defense trial, office, added: “I also might defender’s who was present of the public 8The head comment, defender], she was I public although if may, by deputy [the
state and worked the case mornings that she I from knowledge know hearings, personal Mr. that were involved in of all the other lawyers then had the benefit evenings we, others, case, were completely prepared hopefully, myself including Pope’s proceed.”
421 II
This court must determine whether legal appellant’s representation trial was Two basic are advanced (1) inadequate. grounds by appellant: failure counsel to make use of the record of limited by appellant’s and her (2) failure to interview or the two other intelligence; subpoena Stoker, Harbin and before trial commenced. In order to assess suspects, received, of the assistance this court must adequacy legal appellant determine the which standard trial counsel’s is to proper performance by be measured.9 v. 460, 863, Ibarra 60 Cal.2d (1963) 464 386 P.2d People Cal.Rptr. [34
487], this court articulated a strict standard to measure the constitutional “to aid ‘effective in the and trial of the case.’ v. (Powell right preparation Alabama, 45, 287 55, 157, 171-172, State U.S. 71 S.Ct. 77 L.Ed. 84 [53 527, A.L.R. In order to obtain relief on 541].)” must appeal, appear “[i]t that counsel’s lack of or reduced the trial a ‘farce diligence competence Ibarra, or a sham.’ v. 60 Cal.2d at (People [Citations.]” supra, p.
In several cases, this court has moved
from the
sham”
“farce or
away
standard. For
some decisions of
court have
this
held that a
example,
“
defendant
is entitled to
render,
and
‘reasonably likely
effective
(In
assistance.’
re Saunders
rendering reasonably
[Citations.]”
2
1033,
(1970) Cal.3d
1041
633,
Insofar as
it
or sham”
alter
(or
“farce
standard
its
ego,
“farce
has
criticized
standard)
been
mockery”.
by legal
widely
Thus,
9AppeIlant
indigent
counsel at
represented
trial.
appointed
case does not involve the
standard
present
appropriate
adequate representation by
criminal
This
attorney.
retained
court need not decide
whether
standard would differ
the one described herein.
from
10These decisions
this test
with the “farce or sham” standard. Still
apply
conjunctively
have
this court
“farce or sham” standard exclusively.
other opinions-of
applied
(E.g.,
749,
705,
v. Jenkins
(1975)
857];
13 Cal.3d
753
532 P.2d
People
People
Cal.Rptr.
[119
843].)
McDaniel
16 Cal.3d
545 P.2d
Cal.Rptr.
Bazelon, Assistance Counsel
scholars. (See generally, e.g.,
Defective
Finer,
1, 28;
Assistance
Counsel
42 U.Cin. L.Rev.
Ineffective
*10
1077, 1078-1081; Note,
58
L.Rev.
Cornell
(1973)
Representa-
Ineffective
Conviction:
Review
tion as a Basis
Principles
Appellate
for Relieffrom
for
1,
13 Colum. J. L. & Soc. Prob.
A
(1977)
32-37.)
number of
growing
have
it
Moore v. United
other jurisdictions
repudiated
outright. (E.g.,
730,
Cir.
432 F.2d
737
United States ex rel.
banc);
States (3d
1970)
(en
634, 641;
510
v.
Williams v.
Cir.
F.2d
State
(7th
1975)
Harper
Twomey
1, 6,
543, 552,
57
557
N.W.2d
v. Garcia
9];
Wis.2d
(1973)
People
[205
250,
547,
398 Mich.
266
N.W.2d
these
553].)
(1976)
Significant among
[247
Columbia,
is the federal Court of
for the District of
jurisdictions
Appeals
“farce and
rule in the first
court which enunciated the
mockery”
very
1197,
487 F.2d
instance.
United States v. DeCoster
Cir.
(D.C.
1973)
(See
687,
1201-1202;
Cir.
491 F.2d
693-694.)
v. United States (6th
1974)
Beasley
for
set forth
these courts and commentators
The reasons
replacing
by
in
standard are
The standard
the “farce or sham”
originated
compelling.
derived
held that the
to
decisions which
right
competent representation
and not from the
the due
clause of the Constitution
from
process
solely
v.
the assistance of counsel.
to
(Diggs
provision guaranteeing
right
667, 668-669;
v.
Cir.
(D.C.
Cir.
148 F.2d
Jones
1945)
Welch (D.C.
Huff
14,
been
discredit
152 F.2d
This view has
1945)
15.)11
thoroughly
ed, for
now
that the
to
courts
right
competent representation
recognize
counsel.
in the constitutional
to the assistance of
trial is grounded
right
759, 771,
14
L.Ed.2d
McMann v. Richardson
397 U.S.
fn.
(See
[25
assist
773,
763,
1443].)
90 S.Ct.
Accordingly, constitutionally adequate
Ibarra,
the due
standard of
be measured
can no
ance
by
process
longer
a standard bottomed on the Sixth
but instead must be determined I,
and article
section 15 of
Amendment of the United States Constitution
Comment, The
the California Constitution.12 (See generally,
Right
a Sixth Amendment Standard
Counsel:
Competent
Emergence of
Defense
“Sham and Farce” Rule in
Review on
and the Persistence
Appeal
of
of
15 Santa Clara Law. 355.)
California, supra,
Welch,
back
v.
sham” rule announced in Ibarra
be traced
11The “farce or
may
Diggs
Comment,
(See
Further,
the Ibarra standard is
As described
vague
subjective.
by
one federal court of
“The
‘farce and
has no
appeals,
phrase
mockery’
obvious intrinsic
What
a ‘farce’ to one court
meaning.
may appear
may
a
seem humdrum
to another. The
of the Sixth
proceeding
meaning
not,
course,
Amendment does
of
with the sensibilities and
vary
subjective
of various courts. The law demands
so
judgments
objective explanation,
as
the
States,
to ensure
even
of
v. United
justice.”
dispensation
(Beasley
In McMann v.
The DeCoster
duty
expresses
738,
386 U.S.
of his client”
v.
(Anders
(1967)
advocate
behalf
California
493, 498,
actions
87 S.Ct.
while
counsel’s
1396]),
L.Ed.2d
testing
[18
the familiar and
standard of
ordinarily prudent
lawyer.
by
objective
349,
621, 530
v. Lewis
13 Cal.3d
358-359
Smith
(Cf.
(1975)
Cal.Rptr.
[118
589,
P.2d
78 A.L.R.3d
civil
for
[attorney’s
liability
malpractice
231]
of this
measured
standard of
The chief virtue
reasonableness].)
standard lies in its
of the Sixth
ability
uphold
guarantees
I,
and article
section 15. Since the state is
Amendment
constitutionally
with counsel
defendants
Wain-
(Gideon
provide indigent
required
792,
799, 83
affords a measurable of trial counsel’s guide evaluating quality *12 “Defense and tactics which decisionmaking. lawyers strategy criminal skill in the law would not consider training ordinary counsel, a criminal defendant the effective assistance of competent deny if action would have a defendant and was some other better protected foreseeable as such before trial. v. United reasonably (Beasley [Citation.]” States, 491 F.2d at courts should avoid 696.) supra, p. Reviewing alternatives, tactical counsel’s informed choice among second-guessing but a freedom make such is not without defense to decisions attorney’s criminal limits. accused of a offense is entitled to Every person Saunders, 2 assistance. In re constitutionally legal (E.g., supra, adequate Cal.3d at That is denied if trial counsel makes a critical 1041.) p. right tactical decision which would not be made by diligent, ordinarily prudent in criminal This is true even if the decision were not made cases. lawyers law a from of the or fact. ignorance assistance, an in a
To render attorney reasonably competent criminal must certain basic duties.14 ABA (See case perform generally, Justice, on Standards for Criminal Stds. to Prosecution Project Relating Function, 141 et Function and the Defense Generally, supra, p. seq.) I, Sixth Amendment and article section 15 counsel’s “diligence require and active in the full and effective of his client’s preparation participation as an exhaustive list of a described herein are not meant lawyer’s 14The duties in a criminal case. constitutional obligations
425 84].) 736 v. Vest 43 case.” Cal.Rptr. Cal.App.3d [118 (People “ all have Criminal defense investigate carefully ‘duty attorneys to the defendant be available fact of law that defenses of Williams, at This 175.) 1 Cal.3d (In re obligation ....’” supra, p. and as often as undue the client “without with delay includes conferring Cir. v. (4th . . . .” elicit matters of defense (Coles ... Peyton necessary advise his client should F.2d “Counsel 226.) 389 1968) promptly . . them. . Counsel all actions and take his necessary preserve rights, be released from with the accused’s also be concerned should right to make trial, and where be prepared, appropriate, custody pending or examination motions for suppression pretrial psychiatric DeCoster, v. 487 F.2d at States (United evidence. supra, omitted.]” [Fns. 806, 818-819, 6 fn. 1203; v. Cal.App.3d Whittington p. People If counsel’s failure to these 742].) obliga perform Cal.Rptr. a crucial or meritorious withdrawal of tions results in the potentially “ had the assistance to which he is defense,15 defendant has not ‘the ” Saunders, 2 Cal.3d at re 1042.) entitled.’ (In p. supra, course, Of the burden of a claim of trial proving inadequate Camden, is on the Cal.3d assistance supra, appellant. (People Thus, failed to act that trial counsel must show appellant p. as a manner to be attorneys acting reasonably competent expected addition, advocates. In must establish that counsel’s diligent appellant of a meritorious acts or omissions resulted in the withdrawal potentially defense. burdens,
Once an has met these court must appellant appellate *13 look to see if the record contains for the any explanation challenged does, of If it must whether the court aspect inquire representation. demonstrates that counsel explanation reasonably competent conscientious, where the as a advocate. For example, acting diligent record shows that resulted from an informed tactical counsel’s omissions be choice within the of reasonable conviction must range competence, 588, 600 affirmed. v. Fain 70 Cal.2d (1969) (E.g., People Cal.Rptr. [95 contrast, where the record shows that counsel has failed to 562].) the law or the facts in the manner of a research investigate diligent advocate, reversed since the conscientious conviction should .be which, 15Acrucial defense is not one if “would result necessarily presented, inexorably 1023, (1977) in a defendant’s v. 73 1028 acquittal.” Rodriguez Cal.App.3d (People [141 626, 275, (1971) 118]; accord v. Shells 4 Cal.3d 631 483 Cal.Rptr. People Cal.Rptr. [94 1227].) P.2d Ibarra itself teaches that to obtain an of the adjudication by failing stronger defenses, client of of two trial counsel his potential deprived constitutionally adequate (60 465-466.) assistance. Cal.2d at pp. 426
defendant has been
assistance of counsel.
deprived
adequate
(E.g.,
v.
1,
McDowell
Where the does not record illuminate basis for the challenged omissions, acts or a claim ineffective assistance is more appropriately made in a for habeas In habeas there petition corpus. corpus proceedings, an in an to have trial counsel opportunity evidentiary hearing fully describe his or her reasons for or to act in the manner acting failing Code, 1484; of. Pen. (See Williams, 1483 and In re complained §§ e.g., 1 Cal.3d For supra, certain example, may explain why defenses were or were not afforded the trial presented. Having attorney an courts are in a opportunity evaluate explain, position intelligently whether or counsel’s acts omissions were within the of reasonable range competence.17 16It has been an said that must as “a assistance appellant prove inadequate
demonstrable and not a matter.” reality speculative (People Stephenson Cal.3d 820].) 517 P.2d This formulation of the burden Cal.Rptr. heavy summarize, fashion, aon assistance was intended to party in concise alleging inadequate described; record, the rules the absence in the just of an courts explanation appellate should that trial counsel’s failure to speculate particular defense resulted present relief, from must able to To be in the incompetence. justify appellant point something record had for what that counsel no rationale was done done. showing satisfactory or not concise, the *14 formulation is to The Although Stephenson subject misinterpretation. of as “a demonstrable and not a language demanding incompetence proof reality matter” misunderstood to be assistance speculative require inadequate throughout fact, a error which the when in inexcusable withdraws a proceeding, single potentially Shells, meritorious defense v. 4 Cal.3d To is sufficient. avoid (E.g., People supra, confusion, be such the formulation should with the of replaced Stephenson analysis burden in this set forth opinion. appellant’s 17To in direct where the promote judicial economy record contains no appeals who wish explanation, counsel to raise the issue of trial appellate inadequate representa-
III whether mind, court determine With this must these principles of a assistance to be received the kind of expected legal appellant conscientious, advo as a diligent acting reasonably competent attorney his trial counsel’s cate. contends that was representation Appellant of his mental because she failed to use evidence significant inadequate evidence, that a He asserts this given reasonably competent deficiency. have taken one or more of the a (1) counsel would sought following steps: to determine trial (see to stand competence pretrial hearing appellant’s Code, Pen. moved to state 1368); (2) § suppress appellant’s postarrest ments to on the that ground appellant mentally incapable police his Miranda voluntarily waiving rights; knowingly, intelligently mental trial—once introduced evidence appellant’s deficiency lost motion—in order to having argue pretrial suppression statements; of the inconsistent and (4) insignificance developed a defense of diminished presented capacity. defender took none
It is understand difficult to public why deputy record mental Given the of these substantial appellant’s steps. retardation, crucial in the sense these defenses were they certainly is failure seek had merit. troublesome counsel’s potential Particularly to the inconsistent statements police. Following suppression appellant’s that he a Miranda the officer standard warning, appellant suggested . . . in this matter.” This a or clarify position right explain “ha[d] [his] (See, tion should a verified for habeas join petition e.g., corpus. People Apodaca 479,489, 830].) fn. 3 Cal.App.3d Cal.Rptr. The dissent that resolution argues of claims of ineffective representation preferable on direct rather than in habeas the latter are because both appeal corpus proceedings (Dis. harmful to the convicted defendant’s claim. potentially duplicative potentially above, however, 440.) As indicated where does not illuminate record opn., post, p. actions, retrials, reasons for counsel’s reversal on often in unwarranted result appeal may a result neither nor serving justice economy. rationale, As for dissent’s second the fact that habeas “is not without proceeding its for convicted defendants not lead conclusion that does to the such potential pitfalls” be avoided. claim of assistance not exist as a should ineffective does tool proceedings convictions, obtained but as a means of criminal reversing validly assuring receive the assistance to which are legal defendants entitled. they constitutionally reversed should not be because it be discovered in habeas might Convictions appeal that, to use dissent’s the reason did not call certain proceeding examples, witnesses was either to avoid false or to his client. testimony producing protect claims of will be to the extent incompetent Nonmeritorious representation discouraged actual, that there is an to determine the as reasons opportunity opposed hypothesized, for counsel’s acts or omissions. That habeas be “a sword” is double-edged no corpus may reason should as a direct be made available shield for defendants with appeal why claims of nonmeritorious inadequate representation. *15 invitation to formed a basis speak appellant’s “suggestibility” strong for exclusion of the A statements. urging damaging reasonably competent counsel would be to make such a diligent ordinarily expected motion.
Nonetheless, claim of assistance cannot be appellant’s inadequate resolved on The record includes neither an as to appeal. explanation why counsel did not raise of the mental defenses nor an potential indication that she was asked for an This is not a case explanation.18 where court can this conceive of no for counsel’s satisfactory explanation omissions. For defense example, report appointed psychiatrist, which is not of the record on have included information part appeal, may which conscientious and upon diligent, reasonably competent attorney would have chosen to addition, mental defense. In forego any appellant have instructed trial counsel that he did not want records of his mental retardation introduced into evidence.
In view of the silence of the record on the reasons
no mental
why
defense was
claim would be more
presented, appellant’s
appropriately
made in a
for
Indeed,
habeas
if
in a
petition
verified
corpus.
presented
the substantial mental
petition,
appellant’s
allegations
concerning
defenses which were not offered would
a colorable
undoubtedly present
claim
Code,
to an
Pen.
(See
entitling appellant
evidentiary hearing.
1484;
1483 and
870, 873-874,
§§
In re
2 Cal.3d
2fn.
Hochberg
681, 471 P.2d
At such a
would be able
1].)
Cal.Rptr.
hearing, appellant
evidence on matters
before this court.
produce
merely alleged
next
that he was denied
contends
Appellant
competent represen
tation because counsel did not interview or
before trial the two
subpoena
other
Harbin and Stoker.
out that the
suspects,
Appellant points
question
18This conclusion does not make “obiter dictum” of
that an
today’s holding
indigent
criminal defendant
is entitled to the assistance of a reasonably competent attorney acting
above,
(Dis.
431.)
advocate.
as his
conscientious
As set
Opn.,
p.
forth
diligent,
post,
an
aof
claim of
trial
analysis
counsel’s
inadequate
representation necessarily begins by measuring
standard.
where
performance against
applicable
Only
identifies
appellant
omissions
that standard
acts or
below
does an
court
falling
examine whether the
appellate
Thus,
an
record includes
for the
explanation
apparently inadequate representation.
the standard
definition of
element of
decision.
necessary
today’s
Moreover, Justice Mosk
of the standard which
apparently approves
this
has
opinion
DeCoster,
(Dis.
There is no doubt hastily appellant’s intense time Trial counsel was to the under pressure. assigned prepared before trial. each of those she four case working days During days, only in other cases. was with hearings occupied defense was less than
While it is clear that preparation exemplary, has not demonstrated constitutionally inadequate preparation appellant this court. The trial found that the the limited facts available to judge exercised due in to defender’s office had diligence seeking produce public the office had indicates that been to Stoker at trial. The record also tiying of the trial. contact Harbin until the time up
Further, about Harbin defense counsel’s statements trying telephone her were made efforts to Stoker concerning questions response statements in this do not secure the two men as witnesses. Her regard member of the office made the that she or some other preclude possibility more substantial efforts them as to interview pretrial part investiga Indeed, it tion. that another or investigator actually possible attorney interviewed one or both of the other before trial and found that suspects their would not be favorable to testimony appellant. issue,
Since record is on this court cannot appellate ambiguous has counsel conducted conclude established that defense appellant an investigation.19 inadequate record reveals one other regarding disturbing suggestion public her lack of success in this case. To
defender’s representation explain told trial to reach Harbin by telephone, judge, tiying ours, he we are a client of knows “Harbin’s representing Pope, this statement an inference our calls.” From he is not answering phone $56 asserts that counsel should have wallet and also sought suppress 19Appellant He at time of his arrest. contends that the wallet which were seized from appellant the victim an search and irrelevant since could not the fruit of illegal identify However, trial, the wallet at to object it. since the victim could identify “[failure have been ... that the items judgment admission of the items seized may strategic 16 Cal.3d p. were not damaging.” (People Steger, supra, particularly have undertaken simultaneous *17 office defender’s arises that the may public interests. with of clients conflicting representation this for not reasons Nonetheless, there are two resolving compelling has who First, counsel on appeal, issue appointed appellant’s present. trial counsel’s of the other representation, aspects challenged vigorously conflict of interest. based on no claim of has made a. any inadequacy an Second, as evidentiary hearing highly appro- already suggested, habeas is filed. (See a verified in this case if corpus petition priate ante, and the absence of such a view of the likelihood petition p. this court is of at trial or on of claim conflict persuaded appeal, an issue should await of this resolution evidentiary hearing potential in a be claims of assistance which all may fully explored inadequate single proceeding. is affirmed.
The judgment J., Richardson, J., Manuel,
Tobriner, J., concurred. the court in the of CLARK, J.I concur in the opinion judgment not that a of conviction as it reaffirms insofar judgment principle of the claim and that of the basis set aside on be speculation, when, as in this must be trial counsel rejected appeal incompetence or reasons for does not reveal counsel’s case, failing the record acting of. I concur in dissenting opinion act in the manner complained as to the in the it contends that the discussion opinion insofar as majority of trial claims standard for incompetence resolving appropriate nor Therefore, neither I it consider necessary is dictum. that issue at this time. to address appropriate MOSK, J.I dissent. have to believe obvious
The appear they misgivings, majority, despite affirm the of conviction. but to record no choice on the judgment present choice is to declare that our rational conclude, I only contrary, of denial of counsel was the of counsel equivalent patent inadequacy borderline defective of this the conviction and to reverse mentally defendant. of counsel with I no analysis
While have majority quarrel effect. have no their views binding unfortunately problems, incompetency to this second found degree robbery, appeals Defendant guilty Pope, the record his conviction. declaring a reversal of majority, court for counsel, affirm the conviction. of trial reveal incompetency inadequate of tests discussion case. additional law in this rule of That is Any only had been does record of counsel adequate competency weigh if dictum.1 above mere obiter rise the record demonstrates the I am convinced that legal inadequacy test, that the lack of constitution- under known trial counsel virtually any *18 conviction reversal of defendant’s requires ally representation adequate a standard can devise and in the case before us revised and that we apply value. have that will precedential
I the crime and the arrest contained the facts surrounding Repetition in the record, which are recited in the some of majority opinion, reveal to alert counsel any potential unnecessary, although they limited mental and defendant’s defenses of Miranda violations capacity. defendant received that this At the threshold the record discloses only counsel, a fact that attention from his explains superficial pretrial defense, failure to casual attempt subpoena obviously including under witnesses until after the trial was way. prime time for before Two and one-half months prepara- trial—ample was Sonoma Public Defender tion—the represent appointed County trial, defendant was defendant. before the multiple proceedings office, one of whom from that four only separate attorneys represented Four with him in two different working days proceedings. appeared defender, trial, a fifth a before assigned try attorney, deputy public On each of was involved other the case. those four days deputy hearings. the defense. trial, to assist
Before the court appointed psychiatrist include this record on does not appeal Although augmented does the record contain opinions expert psychiatrist’s report, in four embodied several reports separate psychologists psychiatrists reports These 1973, 1976, post all received trial. made in 1975 and being time, 1Dictum, treatment receives imperious at the however well-motivated frequently See, in Hollister an earlier opinion references to decisions. e.g., disparaging in subsequent 542 P.2d (1975) 15 Cal.3d 671-674 Cal.Rptr. Inc. Rico Hosp. Convalescent dicta,” dicta,” “ill-considered “erroneous 1349], as such expressions “panoramic using dicta,” dicta.” dicta” and overbroad “unnecessary “persistent characterize defendant as a borderline mental defective with a uniformly fourth or fifth intellectual achievement level. His grade probation report 15, 1976, filed on June him 72; indicates he has an I.Q. of this places the third when I.Q. test standardization percentile range compared norms. available to us on this note defendant last reports, appeal,
attended school at the of 17 he when was in the 9th He was age grade. enrolled in Education Classes for the retarded “Special mentally through- out most of the of his school and school period junior high high attendance.” The state that he “functioned like a reports intellectually child”; car; that he could not make drive a he or that was change gullible finances; that he could not his own suggestible; manage communication with him had to be couched in the “most . . . elementary and sentence structure ... if there is to be vocabulary any expectation understand”; that he and that he had a tolerance for poor [will] Defendant was also characterized as ambiguity. having “penchant *19 fabrications,” naive and “a blanket denial mechanism”—a psychological, defense he used to himself. The evaluations also note technique justify his sense, disoriented and limited attention impaired memory, temporal In state he is his span. they easily manipulated by age group addition/ and that he the peers, displays impaired judgment, immaturity, aof child. impulsivity
The trial read and considered these evaluations judge after trial but before he ordered defendant committed for The record does diagnosis. not reveal whether the defender, Ms. obtained public Young, copies the 1973 and 1975 trial, evaluations before or whether she knew of their existence at that time. doubt, however, There can no be that she was aware of the defendant’s mental limitations in because her opening statement at trial she described him as borderline having intelligence. Nevertheless no evidence of defendant’s limited was intro- intelligence duced at trial or used before trial to the of his challenge admissibility out-of-court statements to or for other police purpose. trial, the the defense was the was
During only presented robbery committed the two other Harbin and Stoker. There was suspects, evidence that one of these two or both of them have been involved might in the or that were witnesses with robbery they percipient testimony enormous to the case: were both in the bar at potentially significance they Brower, victim; the same time as the Harbin have been next may sitting to Brower in the bar and have talked with him for 30 to minutes might to notice have had to the Harbin ample opportunity prior robbery; wallet; followed Brower both-Harbin and Stoker Brower’s money bar; officer that both an testified and defendant out investigating a Harbin from Brower and defendant had identified lineup; photographic in the had made an admission Harbin presence inadvertently inculpatory officer; of them were listed of another both police investigating knew, or should have as additional Defendant’s counsel report suspects. known, to trial she failed of the evidence. Nevertheless prior foregoing either Harbin Stoker. or subpoena officer who had talked trial, in cross-examining police
During state- Stoker, counsel asked about defense Harbin and inculpatory to make. When the Harbin was heard ment successfully prosecution not be admitted unless that such could hearsay objected ground unavailable, then, at declarant was that the counsel made only showing date, Ms. the trial recess to an late did ask that her Young give The Harbin and Stoker. next subpoena day, opportunity witness, his Fifth Harbin and called him as a but he invoked produced was located on notice. Amendment and Stoker such short privilege made, offered evidence a statement defendant into prosecution his Miranda certain he had waived after rights, containing purportedly statements. No made to the inconsistent objection inculpatory fact, trial, defense counsel of these statements. during admissibility no witness on his no substantial called made objections, significant *20 before, or behalf, no motions for him either and made helpful during what role defense counsel at the It is difficult to detect after trial. played than that of a casual observer. trial other statement, “. . . Mr. has a Ms. declared
In her Pope Young opening does not understand a what he borderline large percentage intelligence, with and he’s are tell him go along just very agreeable you going Thus the record added.) tell . . .” (Italics the him. about anything police mental of defendant’s discloses defense counsel’s knowledge capacity the the trial. In from argument, existed closing very beginning defendant that the direct evidence that participated only argued Brower, had been who before was the identification drinking by robbery to minimize inconsistent occurred. She the crime attempted Pope’s resulted from defendant’s to the statements by suggesting they police Thus, record, the trial it is clear that counsel limited mental capacity. limitations, she failed to had aware of her client’s mental although a the court the trial. As result evidence on subject during present any curtailed when the on the closing argument prosecution objected that no evidence had been introduced as to defendant’s ground mental capacity.
The found' defendant of second jury guilty degree robbery. Upon the trial ordered defendant commit- receiving probation report, judge ted for to Penal Code The section 1203.03. court diagnosis wrote pursuant the Director of Corrections in order to relate his concern for a defendant with a mental “who to be for his marginal capacity appears responsible sense, actions in but that’s about all.” purely legal Following receipt recommendation of Correc- diagnostic study by Department tions, defendant was sentenced to state prison.
After the court wrote the Director Corrections this sentencing, again, time concern over the conclusion of the express diagnostic report defendant’s incarceration would be only “temporary expedient” that there was no reason to believe he would be more after it. adaptive
Thus it is clear that the defendant’s mental condition was apparent even the trial Yet defense counsel made no motion in judge. opposition verdict, to the sentence or the and made no comment on defendant’s behalf at the time of sentencing.
To that the in the record before us—does not suggest foregoing—all reveal of trial counsel is to trifle with inadequacy reality. majority term the defense “less than I it, deem preparation exemplary.” beyond doubt, less than adequate.
II The record reveals another over ground, glossed majority, defense counsel’s but finding representation only inadequate reasons for Harbin’s improper. explaining difficulty obtaining *21 see, Ms. told the court: Harbin’s Young appearance, “Unfortunately, you ours, a and client he knows we are and ishe not representing Pope, of the calls.” (Italics added.) answering phone did, to, Since the defendant intended to blame Harbin and attempt Stoker for the it should have been clear to members of the robbery, that, defender’s office a conflict interest of existed. the public Manifestly defenders could not a client who was public effectively represent another of client their office in a serious (Rule implicating felony.
435 ulti- the court Indeed Conduct.) Professional Rules of 5-102(B), After the conflict. the public late—recognized perforce mately—though automobile, in an office Harbin into court defender’s brought investigator Mr. Harbin and “to counsel represent the court independent appointed his him advise testifying.” regarding result,
As a client, Harbin, when defense their counsel called to the stand, the advice of his new upon court-designated attorney temporary Harbin, asserted his Fifth Amendment rights. difficult, record, could
It this to how defense counsel is on see Harbin, when defendant, who to desired represent implicate adequately to Harbin court he was the the moment in represented by up appeared resulted same office. The conflict necessarily inadequate patent 60, 315 U.S. 76 Glasser v. United States (See (1942) [86 representation. 680, 702, counsel L.Ed. 62 S.Ct. to have the assistance of right 457] [“The to in nice too fundamental and absolute allow courts is indulge its denial.”].)2 from as to the amount of calculations prejudice arising 426, 435 U.S. 489 L.Ed.2d v. Arkansas Also see Holloway interests is S.Ct. of conflicting suspect representation [“Joint 1173] the from of what it tends because doing.”]. prevent attorney
Ill record, as no we are alternative from the that permitted Assuming, limitations, well of defense counsel was aware defendant’s mental we must consider whether some could have induced strategic purpose of the It testimony forego subject. presentation difficult—indeed, I it find for the conjure any theory impossible—to up to be a abandonment of what defense: the appears ready-made did the mental to form the intent to defendant not have commit capacity the of the offense with which he was or to understand nature charged, acts he admitted to the or to understand the which police, potential interest, defender’s office must be of it is clear that public 2With conflicts respect observed, Thus, “The reason for as firm. as one commentator has treated the same a law ethical is a as firm for regulation office defender purposes viewing public . of the defender’s office . . close association attorneys public sound one. [T]he be confidential information will circulated. The inadvertently makes it possible the inevitable discussions the services of the same investigator, necessity utilizing sources of information in the office among attorneys, overlapping occurring Furthermore, to this confidence public identical witnesses all contribute possibility. from this, and the Bar as a whole must be maintained. order to do in the defender public evil, ... but also the of evil.’ must ‘not avoid appearance By appointing lawyers only conflict, the defendants where there is courts alleged for individual attorneys separate constitutional but also the the individual’s only rights protections, uphold omitted.) (Comment, (Fns. criminal system.” entire justice integrity *22 492, 504-505). Fla.St.L.Rev. 436 Arenella, see The (But of his admissions. Diminished
consequence
Children
Two
and Diminished Responsibility
Capacity
Defenses:
Colum.L.Rev. 827.)
77
Doomed
(1977)
Marriage
Nevertheless, if
shrewd,
we assume
that counsel had some
if
arguendo
well-concealed,
mind,
tactical
in
still another
purpose
problem emerges.
Should counsel alone be
to abandon her client’s
permitted
clearly
available and
defense,
effective
or should defendant be
potentially
record,
on the
to waive
defense
A
that
trial
required,
personally?
jury
may
be waived
consent
in
court
only
defendant”
by
“expressed
open
Const.,
I,
and his counsel
art.
To
(Cal.
enter a
16).
§
we
plea
guilty
recitation
aof
of,
demonstrate
is
defendant
aware
require
litany
waives, his several constitutional
Even in the less
personally
rights.
civil context we have held that an
bind his
exacting
in
attorney
client
may
“but
matters
he
the client’s substantial
procedural
impair
rights
272,
. . . .”
v. Linsk
70
(1969)
544,
Cal.2d
276
(Linsk
449
Cal.Rptr.
[74
P.2d
He
not eliminate an essential
760].)
defense. (Fresno
clearly may
Dist. v.
School
Dillon
34
P.2d
644
City High
Cal.App.2d
[94
in
86].)
Justice
v. Ibarra
60 Cal.2d
464
Traynor
People
863,
I hand, in the circumstances at if had suggest legitimate limitations, in defenses based on defendant’s mental she purpose waiving had a on the record her abandonment of defenses and duty spread obtain defendant’s in the waiver. Failure do personal acquiescence so is further indication of counsel’s of the representation inadequate defendant.
IV farce, test, The sham or intact, if it still exists is due for mockeiy The revision. two of the three terms are only expression—usually uncertain, one case—is and results in employed vague, enigmatic, of defendants’ in all but the most denial circum- grievances egregious stances, as, Corona (1978) As den.). e.g., People Cal.App.3d (hg. 609, 610, in Scott v. United States 427 F.2d (D.C.Cir. stated “That 1970) no as but standard is valid such exists in the law as a longer only has a burden the defendant to show heavy metaphor requisite an unfairness.” alternative test. difficulty devising we not decide in this case whether need different Parenthetically, counsel, to defendants who have retained as distin- standards apply
437
has
counsel.
those for
the state
from
(Compare
provided
whom
guished
th
The United States has never sham or Court relied on a farce Supreme test, nor of v. on In McMann Richardson 397 U.S. (1970) any genre. 763, 759 S.Ct. L.Ed.2d 90 a case effective assistance 1441], of involving [25 counsel a the court of “the of guilty plea, spoke range competence (id., L.Ed.2d, demanded of criminal cases” 771 attorneys p. [25 it did not define more 773]), but p. precisely acceptable range demanded. Other federal Bruce v. United States competence courts—e.g., 113, 379 F.2d that “It (D.C.Cir. 1967) would not be 117—recognized fruitful further delineation of the standard attempt applicable . . reference to .” The standard in Bruce generalities, applicable applied counsel and that this has in effect blotted out “gross incompetence the essence of substantial defense either Court or on [trial] 116-117.) (Id., appeal.” at pp. reveals that most to define a standard of cases with
Analysis
attempts
For
in a
so-called
result
tautology.
precision
frustrating
example,
when,
received
an accused has
counsel
rule holds
Maryland
incompetent
case, the
not been
under
circumstances of the
accused has
afforded
all the
Warden,
effective
v.
(Slater
genuine
representation.
Maryland
344,
Given the standards, a serious proliferation can be raised as question to whether standard is any precise No test pragmatically helpful. yet self-determinative; is all are proposed and deliberately vague dependent It is inevitable upon subjective that each will be interpretation. in applied manner, an ad hoc with ad hoc results.
The American Bar Association has defined the lawyer’s obligation this manner: “The basic for the accused owes to the duty lawyer administration of is to serve as the accused’s counselor and justice advocate, with devotion and to the utmost of his and courage, learning and to law.” (ABA Standards ability, the Prosecu- according Relating tion Function and the Defense Function (1971) The flaw in that p. definition is that the utmost of the still attorney’s learning ability may fall short of the defendant with the defense he needs and providing deserves.
In the final
standard for
an
analysis,
readily adaptable
determining
in a
case should be stated in
unacceptable performance
terms
particular
of reasonable
competence.
rejecting
requirement
showing “gross
the court in United States v. DeCoster
incompetence,”
(D.C.Cir. 1973)
1197, 1202,
F.2d
remanded the
court,
case to the trial
appeal
holding
that “a defendant is entitled to the
assistance of an
reasonably competent
as his
conscientious advocate.”
attorney acting
diligent
sufficient for
foregoing, though
imprecise,
probably
guidance
the courts. Professor Strazzella
the result: “The courts continue
explains
to reach for
standards. There is a transition from the older
appropriate
standards
articulation of stricter but
standards of
equally vague
However,
...
the standards articulated for
performance.
measuring
This is
ineffective counsel
be
necessarily
intentionally vague.
law,
variables,
those areas of the
so rich in
in which
one of
probably
could not devise a
courts wish to avoid
rules
probably
imposing rigid
if
to do so. The result leaves
room
list
maneuvering
rigid
they attempted
standards,
seek, to assess each claim
for the courts as they
applying
Assistance
in the
of the circumstances.” (Strazzella,
totality
Ineffective
*25
Uses,
443,
Counsel Claims: New
New Problems
19 Ariz.L.Rev.
(1977)
hand,
at
need
With
to
case
we
to turn to
application
only
People
1,
McDowell
“It is settled in this state that on the trial of the issues
by plea
a crime which
of a
not
to
charge
requires proof
specific
guilty
state,
evidence is admissible to show that because of
mental
competent
the defendant did
mental
not
insanity
abnormality
amounting
legal
the act. As we said
that mental state at the time he committed
possess
involved in
v. Ibarra
the search and seizure
(1963) supra,
principle
People
460, 465,
60 Cal.2d
‘This rule should be
commonplace
any attorney
almost two decades
in criminal trials.’ It
established
ago:
engaged
defense,
has been well
since
v. Wells
‘the
generally,
recognized
People
824,
67
Cal.2d 330
P.2d
re
Cal.2d
33
(In
Hawley
[202
53].’
831, 433 P.2d
It was further
in
fn. 4
919].)
829
developed
Cal.Rptr.
[63
492],
of mental is a illness not issue” amounting insanity “significant legal ” (Id., case in which it is raised substantial evidence. . . .’ effect see States v. Browner To the same United 746-747.) (D.C.Cir. pp. F.2d 998. 1972)471
V trial The claim of ineffective counsel is to be preferably litigated in all cases in which the record direct includes sufficient appeal Albert, information to do so. & as a (Brody Representation Ineffective Basis Conviction: Review (1977) Principles Appellate for Relief from Colum. J. L. & Soc. Prob. effort should be made deal [“Every with the claim on direct rather in a than collateral appeal proceeding Bines, . . .”]; . Cases: Criminal Remedying Representation Ineffective *26 66; Habeas 59 Va.L.Rev. fn. 939-940 Departures Corpus from Strazzella, Uses, see also Assistance Counsel Claims: New Ineffective of 460.) New Problems 19 Ariz.L.Rev. This avoids the necessity of a second with proceeding, potentially duplicative hearings and with the resultant burden on the appeals, judicial process. There is an additional reason the trial resort to record is why preferred to institution of habeas separate corpus proceedings.
A learn, sorrow, habeas to his petitioner corpus may by the issue of his trial in a new he opening up ability attorney’s proceeding waives much of the A trial whose attorney-client privilege. attorney is his assailed former client must be able to competence by adequately his defend even if relates so he professional reputation, by doing confidences him For revealed to the client. the who example, attorney criticized for to call alibi to the stand be witnesses should failing the client to him he admitted was the scene of explain permitted crime the and that the alibi was fabricated. Counsel should also be allowed that other witnesses not under explain produced might, cross-examination, have in other client criminal implicated uncharged activities. short, exercise those who 20/20 hindsight instigate separate to assail the of trial must realize that performance
proceedings attorneys without is not its The sword be procedure pitfalls. potential them blunt. to such both of Resort should double-edged, proceedings us, not be in cases such as the one before consequently judicially required was that counsel’s reveals because record representation clearly these it to avoid and therefore makes ineffective pitfalls. possible for a I invitation reasons For all of majority’s reject foregoing I would On the record new round of whole present litigation. duplicative which defendant for a trial in and remand new reverse the judgment would have adequate representation.
Newman, J., concurred. 28, 1979, March for a was denied petition rehearing Appellant’s Mosk, J., of the were to read as above. modified printed opinions that the be should petition granted. opinion