Marsden hearing

C.C.P. Section 284. Change or substitution; consent; order of court

The attorney in an action or special proceeding may be changed at any time

before or after judgment or final determination, as follows:

1. Upon the consent of both client and attorney, filed with the clerk, or
entered upon the minutes;

2. Upon the order of the court, upon the application of either client or
attorney, after notice from one to the other.

**Counsel of choice, right to

****Reversal is automatic when defendant has been deprived of his right to
defend with counsel of his choice. People v. Ortiz (1990) 275 Cal.Rptr.
191, 51 Cal.3d 975, 800 P.2d 547 . Criminal Law 1166.10(1)

Legislative intent

In California, the right to retained counsel of choice reflects not only a

defendant’s choice of a particular attorney, but also his decision to
discharge an attorney whom he hired but no longer wishes to retain.
People v. Verdugo (2010) 113 Cal.Rptr.3d 803, 50 Cal.4th 263, 236 P.3d
1035 , rehearing denied, certiorari denied 131 S.Ct. 1479, 179 L.Ed.2d
316 . Criminal Law 1820 Criminal Law 1825

C.C.P. section 284 lexis

11. Right to Discharge Attorneys in Criminal Proceedings

**Where a trial court held what was in essence a Marsden hearing on

defendant's request to discharge his retained counsel prior to trial,
requiring defendant to demonstrate that his counsel was providing
inadequate representation or that he and his attorney were embroiled in an
irreconcilable conflict, the Marsden hearing was the inappropriate vehicle
in which to consider defendant's complaints against his retained counsel
because counsel was not appointed but rather retained, and although there
appeared to have been an adequate basis to deny defendant's late request
for appointed counsel because the request was made almost immediately
before jury selection was to begin in a two-defendant case, the trial
court made no inquiry on the point and did not refer to it in its decision
to deny defendant's request. Thus, the trial court's decision appeared to
have been based entirely on application of a Marsden analysis, which did
not suffice because defendant was represented by retained counsel and was
or might be eligible to have appointed counsel, and because the trial
court utilized the wrong standard, it did not adequately address the issue
of delay, resulting in reversal being automatic because defendant had been
deprived of his right to defend with counsel of his choice. People v.
Hernandez (2006, Cal App 2d Dist) 139 Cal App 4th 101, 42 Cal Rptr 3d 513,
2006 Cal App LEXIS 662.

13. Notice
 **A written notice of a motion for substitution of attorneys must be
served upon the attorney of record at least five days before the hearing.
Rundberg v. Belcher (1897) 118 Cal 589, 50 P 670, 1897 Cal LEXIS 814.

**Written notice of substitution of new attorney must be given to

adverse party; until then the attorney of record must be recognized as his
client's exclusive representative. Epley v. Califro (1958) 49 Cal 2d 849,
323 P2d 91, 1958 Cal LEXIS 274.

C.C.P. § 285 Change or substitution; notice

When an attorney is changed, as provided in the last section, written

notice of the change and of the substitution of a new attorney, or of the
appearance of the party in person, must be given to the adverse party.
Until then he must recognize the former attorney.

Criminal cases

**Procedural requirements of § 284 and this section for change of attorney

govern change of attorney in criminal, as well as in civil, proceeding.
People v. Prince (1968) 74 Cal.Rptr. 197, 269 Cal.App.2d 398 ;   People v.
Kerfoot (1960) 7 Cal.Rptr. 674, 184 Cal.App.2d 622

** People v. Ortiz, 51 Cal.3d 975, pp. 983-985, 800 P.2d 547, 275
Cal.Rptr. 191 (Cal., Nov 26, 1990)

****People v. Ortiz, 51 Cal.3d 975, pp. 983-985, 800 P.2d 547, 275
Cal.Rptr. 191 (Cal., Nov 26, 1990)

[7][8] A nonindigent defendant's right to discharge his retained counsel,

however, is not absolute. The trial court, in its discretion, may deny
such a motion if discharge will result in “significant prejudice” to the
defendant (People v. Gzikowski (1982) 32 Cal.3d 580, 587, 186 Cal.Rptr.
339, 651 P.2d 1145), or if it is not timely, i.e., if ***197 **553 it will
result in “disruption of the orderly processes of justice” (ibid.; People
v. Lau (1986) 177 Cal.App.3d 473, 478–479, 223 Cal.Rptr. 48; Crovedi,
supra, 65 Cal.2d at p. 208, 53 Cal.Rptr. 284, 417 P.2d 868). As the court
stated in Sampley v. Attorney General of North Carolina (4th Cir.1986) 786
F.2d 610, 613, the “fair opportunity” to secure counsel of choice provided
by the Sixth Amendment “is necessarily [limited by] the countervailing
*984 state interest against which the sixth amendment right provides
explicit protection: the interest in proceeding with prosecutions on an
orderly and expeditious basis, taking into account the practical
difficulties of ‘assembling the witnesses, lawyers, and jurors at the same
place at the same time.’ ” **The trial court, however, must exercise its
discretion reasonably: ****“a myopic insistence upon expeditiousness in
the face of a justifiable request for delay can render the right to defend
with counsel an empty formality.” (Crovedi, supra, 65 Cal.2d at p. 207, 53
Cal.Rptr. 284, 417 P.2d 868 [defendant was entitled to two-month
continuance so that he could be represented by retained counsel who was
hospitalized at time of trial].)

[9] While we do require an indigent criminal defendant who is seeking to

substitute one appointed attorney for another to demonstrate either that
the first appointed attorney ****is providing inadequate representation
(In re Banks, supra, 4 Cal.3d 337, 342, 93 Cal.Rptr. 591, 482 P.2d 215;
People v. Crandell, supra, 46 Cal.3d 833, 854, 251 Cal.Rptr. 227, 760 P.2d
423), or **that he and the attorney are embroiled in irreconcilable
conflict (People v. Stankewitz, supra, 32 Cal.3d 80, 93–94, 184 Cal.Rptr.
611, 648 P.2d 578), **we have never required a nonindigent criminal
defendant to make such a showing in order to discharge his retained
counsel.

[10][11] With these rules in mind, we reach the issue whether a trial
court may require an indigent criminal defendant to demonstrate inadequate
representation by his retained attorney, or to identify an irreconcilable
conflict between them, before it will approve the defendant's timely
motion to discharge his retained attorney and obtain appointed counsel. We
conclude that the reasons supporting the right of a nonindigent criminal
defendant to discharge his retained counsel favor extension of that right
to all criminal defendants, regardless of their economic status.

The relationship between an indigent criminal defendant and his retained

attorney is no less delicate and confidential than that between a
nonindigent defendant and his retained attorney, nor is **the evil
engendered by friction or distrust between an indigent criminal defendant
and his attorney any less fatal to an effective attorney-client
relationship. Moreover, we must be just as concerned about the
effectiveness of counsel when the client whose life or liberty is at stake
is indigent as when he is not: **an indigent criminal defendant who is
required to undergo a trial with an attorney from whom he believes he is
receiving inadequate representation, or with whom he is locked in an
irreconcilable conflict, is just as certainly deprived of ****the
effective assistance of counsel as his nonindigent counterpart.

In fact, as shown below, it may be even more important for an indigent

defendant to be able to discharge retained counsel: if his motion is
denied, he must choose between proceeding with no legal assistance or
continuing *985 with a retained attorney reluctantly serving on a pro bono
basis. ****We are justifiably concerned about the right to counsel of
choice, and thus the right to effective assistance of counsel (see Maxwell
v. Superior Court (1982) 30 Cal.3d 606, 613, 180 Cal.Rptr. 177, 639 P.2d
248 [right to counsel of choice closely linked with the doctrine of
effective assistance] ), when a defendant is forced to choose between
proceeding to trial without an attorney or continuing to trial with an
attorney originally hired to represent him but whom he no longer is able
to pay.

415 Right of defendant in criminal case to discharge of, or

substitution of other counsel for, attorney appointed by court to
represent him, 157 A.L.R. 1225 (1945) HN: 9,10 (Cal.Rptr.)

**Capital defendant failed to show the trial court abused its discretion
in refusing his requests to substitute counsel ****based on substantial
impairment of the right to counsel when lead defense counsel acknowledged
a recent breakdown in communication with defendant, where defendant’s
primary complaints were his belief that counsel would not fight for him
because she had urged him to plea bargain and that she disapproved of his
plea of not guilty by reason of insanity, and defendant agreed that he was
able to communicate well with cocounsel. U.S.C.A. Const.Amend. 6. People
v. Clark, 52 Cal. 4th 856, 131 Cal. Rptr. 3d 225 (2011).
**Defendant failed to establish a violation of his ****federal
constitutional right to the effective assistance of counsel, in trial
court’s substitution of appointed counsel after public defender had
represented him for thirteen months, where defendant did not attempt to
show that the performance by his replacement counsel was in any way
deficient. U.S.C.A. Const.Amend. 6. People v. Noriega, 48 Cal. 4th 517,
108 Cal. Rptr. 3d 74, 229 P.3d 1 (2010).

**Trial court could remove capital murder defendant’s appointed counsel

prior to trial, although defendant expressed a preference for retaining
counsel, where counsel did not show good cause for lack of readiness at
trial but rather represented that, following a preliminary hearing, he had
done little work on the case and would not be ready for trial for over a
year because of competing capital case assignments, and court removed
counsel to prevent substantial impairment of court proceedings. West’s
Ann.Cal.Penal Code § 987.05. People v. Avila, 94 Cal. Rptr. 3d 699, 208
P.3d 634 (Cal. 2009).

**Marsden standard for determining whether to appoint substitute counsel

due to inadequate assistance of appointed counsel applies equally
preconviction and postconviction. U.S.C.A. Const.Amend. 6. People v.
Bolin, 18 Cal. 4th 297, 75 Cal. Rptr. 2d 412, 956 P.2d 374 (1998).

**Denial of Marsden motion to discharge appointed counsel and substitute

another attorney is not an abuse of discretion unless the defendant has
shown that ****a failure to replace the appointed attorney would
substantially impair the defendant right to assistance of counsel.
U.S.C.A. Const.Amend. 6. People v. Barnett, 17 Cal. 4th 1044, 74 Cal.
Rptr. 2d 121, 954 P.2d 384 (1998).

**When defendant moves for substitution of appointed counsel, court must

consider any specific examples of counsel inadequate representation that
defendant wishes to enumerate. People v. Hines, 15 Cal. 4th 997, 16 Cal.
4th 825b, 64 Cal. Rptr. 2d 594, 938 P.2d 388 (1997).

****It is well settled that distrust with an attorney (at law)

representing an individual that results in a breakdown in communication
between a citizen, person, and individual, accused of a crime and his or
her attorney representing him or her, and a breakdown in the attorney
client relationship and would deprive a person of the constitutional right
to effective assistance of counsel.

**Murder defendant failed to show that any **disagreement with counsel

resulted in complete breakdown in attorney-client relationship
jeopardizing his right to fair trial and, thus, trial court did not abuse
its discretion in denying counsel motions to withdraw, despite counsel
dissatisfaction with defendant failure to heed their advice and not
discuss case with media; trial court found that defendant discussion of
his case with media was not **indication of his distrust or
dissatisfaction with counsel, but indicated his desire to admit
culpability and atone for his crimes, allowing counsel to withdraw would
not have alleviated any prejudice, and record did not indicate that
denying motion to withdraw influenced defendant desire to submit guilt
issue on basis of preliminary hearing transcripts. U.S.C.A. Const.Amend.
6. People v. Sanchez, 12 Cal. 4th 1, 47 Cal. Rptr. 2d 843, 906 P.2d 1129
(1995).
**Trial court did not abuse its discretion in denying defendant motion for
substitute counsel, as absence of substitute counsel would not deny or
substantially impair defendant Sixth Amendment right to assistance of
counsel, despite defendant claimed lack of trust in, or inability to get
along with, appointed counsel; **grounds upon which defendant relied were
either insufficient or unsupported. U.S.C.A. Const.Amend. 6. People v.
Berryman, 6 Cal. 4th 1048, 25 Cal. Rptr. 2d 867, 864 P.2d 40 (1993).

Marsden standard for determining whether to appoint substitute counsel due

to inadequate assistance of appointed counsel applies equally
preconviction and postconviction. U.S.C.A. Const.Amend. 6. People v.
Smith, 6 Cal. 4th 684, 25 Cal. Rptr. 2d 122, 863 P.2d 192 (1993).

**Denial of motion for substitution of appointed counsel is not an abuse

of discretion unless defendant has shown that failure to replace appointed
attorney would substantially impair his right to assistance of counsel.
U.S.C.A. Const.Amend. 6. People v. Webster, 54 Cal. 3d 411, 285 Cal. Rptr.
31, 814 P.2d 1273 (1991).

**Trial court did not err in refusing to grant defendant another appointed
counsel, where defendant never requested different counsel, but sought
self-representation; moreover, his expressions of dissatisfaction with his
attorney were insufficient to require court to inquire whether he wanted
substitute counsel. People v. Frierson, 53 Cal. 3d 730, 280 Cal. Rptr.
440, 808 P.2d 1197 (1991).

**When criminal defendant seeks substitution of appointed counsel on

ground of inadequate representation, trial court must permit defendant to
explain basis of his contention and to relate specific instances of
attorney inadequate performance; defendant is entitled to relief if record
clearly shows that first appointed attorney is not providing adequate
representation or that defendant and counsel have become embroiled in such
irreconcilable conflict that ineffective representation is likely to
result. U.S.C.A. Const.Amend. 6. People v. Crandell, 46 Cal. 3d 833, 251
Cal. Rptr. 227, 760 P.2d 423 (1988).

**Trial court failure to inquire further into defendant complaints about

his appointed counsel to discover whether counsel had communicated with
defendant or **contacted potential witnesses, did not amount to denying
defendant opportunity to enumerate specific examples of inadequate
representation where trial court, in response to defendant motion to
relieve appointed counsel, asked defense counsel about motion, and defense
counsel responded that he disagreed with allegations and that he had
sufficient time to prepare case. People v. Avalos, 37 Cal. 3d 216, 207
Cal. Rptr. 549, 689 P.2d 121 (1984).

**Motions by defendant to represent himself and to relieve counsel are

fundamentally different; whether motion to relieve counsel should be
granted depends not on whether accused possesses capacity to waive
counsel, but rather on whether failure to do so would substantially impair
or deny right to assistance of counsel. U.S.C.A. Const.Amend. 6. People v.
Joseph, 34 Cal. 3d 936, 196 Cal. Rptr. 339, 671 P.2d 843 (1983).

**Trial court erred in denying defendant timely pretrial motion for

substitution of appointed counsel, in absence of giving defendant
opportunity to state specific grounds for his dissatisfaction with
counsel; thus conviction must be reversed. People v. Hidalgo, 22 Cal. 3d
826, 150 Cal. Rptr. 788, 587 P.2d 230 (1978).

**Defendant initial refusal to cooperate with appointed counsel was not by

itself sufficient cause to require substitution of counsel, and there
appeared to be no abuse of the trial court discretion, or impairment of
defendant right to the assistance of effective counsel, in refusing to
permit him to substitute counsel prior to trial. People v. Walker, 18 Cal.
3d 232, 133 Cal. Rptr. 520, 555 P.2d 306 (1976).

**Public defender triggered trial court’s duty to hold a Marsden hearing

to allow defendant to state specific examples of allegedly inadequate
representation, in making a motion for withdrawal of defendant’s no
contest plea, where trial court asked whether “conflict counsel” should be
appointed, public defender stated his understanding that the court first
had to find that the public defender’s office had not provided competent
representation, and public defender requested conflict counsel. U.S.C.A.
Const.Amend. 6. People v. Sanchez, 189 Cal. App. 4th 374, 2010 WL 4070103
(5th Dist. 2010).

For purposes of a Marsden hearing to determine whether defendant appointed

counsel offers constitutionally inadequate representation when defendant
requests substitution of appointed counsel, the defendant is not entitled
to claim that an irreconcilable conflict has arisen merely because of a
disagreement with counsel over reasonable tactical decisions. U.S.C.A.
Const.Amend. 6; West Ann.Cal. Const. Art. 1, § 15. People v. Lara, 86 Cal.
App. 4th 139, 103 Cal. Rptr. 2d 201 (5th Dist. 2001)

**Defense counsel did not engage in conduct wholly unnecessary to proper

performance of his duties that interfered with defendant right to compel
attendance of witnesses when he discussed issue of perjury with potential
witnesses and advised them of need for personal counsel in event their
testimony was self-incriminating, even if his discussions had effect of
dissuading witnesses from testifying, and thus defendant was not entitled
to substitution of appointed counsel under Marsden; counsel had no duty to
call witnesses who would testify untruthfully, and counsel statements were
not legally incorrect. U.S.C.A. Const.Amend. 6. People v. Spirlin, 81 Cal.
App. 4th 119, 97 Cal. Rptr. 2d 1 (4th Dist. 2000).

**Defendant may discharge appointed counsel, and substitute another

attorney by successfully demonstrating inadequate representation. People
v. Leonard, 78 Cal. App. 4th 776, 93 Cal. Rptr. 2d 180 (3d Dist. 2000).

**Public defender disclosure of conflict with defendant was sufficient to

permit withdrawal, where trial court inquired and public defender
responded that conflict was between defendant and public defender, that it
caused complete breakdown of attorney-client relationship, and that
threats to witnesses or third parties was not basis for conflict. Aceves
v. Superior Court, 51 Cal. App. 4th 584, 59 Cal. Rptr. 2d 280 (4th Dist.
1996).

**Marsden motion for disqualification of counsel is addressed to

discretion of trial court, and defendant bears very heavy burden to
prevail on motion; defendant **must show that appointed counsel is not
adequately representing him and that deficiency in representation is so
great as to substantially impair defendant right to effective assistance
of counsel, and defendant cannot rest upon mere failure to get along with
or have confidence in counsel but must give specific examples of counsel
inadequacies. People v. Bills, 38 Cal. App. 4th 953, 45 Cal. Rptr. 2d 364
(2d Dist. 1995).

**Defendant who was being represented by appointed counsel was entitled to

hearing to determine whether he was entitled to new counsel, and if not,
whether his self-representation request was timely and made knowingly and
intelligently, even if trial judge was not personally aware of defendant
letter; letter unequivocally stated defendant dissatisfaction with his
counsel and letter was stamped in the Superior Court clerk office, clearly
identified defendant, his codefendant, and defendant appointed counsel.
People v. Lloyd, 4 Cal. App. 4th 724, 6 Cal. Rptr. 2d 105 (4th Dist.
1992).

**Court is not required to question counsel when a motion to substitute

appointed counsel is made; however, court is required to question counsel
when an explanation of counsel attitude or conduct is necessary to
determine whether counsel can provide adequate representation. People v.
McElrath, 175 Cal. App. 3d 178, 220 Cal. Rptr. 698 (4th Dist. 1985).

**Alleged conflict between defendant, who was charged with first-degree

murder, and appointed defense counsel due to counsel asserted
unwillingness to present defense that case was manufactured in retaliation
for defendant Black Panther Party membership and his earlier involvement
with police in a shootout, did not entitle defendant to have another
attorney appointed. People v. Fitzgerald, 29 Cal. App. 3d 296, 105 Cal.
Rptr. 458 (2d Dist. 1972).

**Where he does not have means to employ private attorney, defendant must
accept services of public defender or court appointed counsel and has no
right to select attorney and request that court compel that individual to
represent him. People v. Tomita, 260 Cal. App. 2d 88, 66 Cal. Rptr. 739
(2d Dist. 1968).

**Indigent defendant must proceed with attorney assigned to him or waive

his right to counsel and represent himself if court does not believe that
indigent defendant is entitled to a change of attorneys. People v.
Shields, 232 Cal. App. 2d 716, 43 Cal. Rptr. 188 (2d Dist. 1965).

**If a court does not believe that an indigent defendant is entitled to a

change of court-appointed attorneys, the defendant must proceed with the
attorney assigned to him, or waive his right to counsel and represent
himself, and even such alternative is subject to court supervision, and
before permission to do so is granted the court is duty bound to determine
whether the defendant is making an intelligent and competent waiver.
People v. Jackson, 186 Cal. App. 2d 307, 8 Cal. Rptr. 849 (4th Dist.
1960).

**A defendant during proceedings before magistrate and trial court has a
matter of absolute right, but two choices in the matter of a court-
appointed attorney; he can accept representation by counsel; or he can
elect to represent himself. People v. Mitchell, 185 Cal. App. 2d 507, 8
Cal. Rptr. 319 (1st Dist. 1960).

**Defendant voluntary dismissal of public defender who had represented

defendant by appointment of court, was a waiver of defendant
constitutional right to be represented by counsel. West Ann.Const. art. 1,
§ 13. People v. O’Neill, 78 Cal. App. 2d 888, 179 P.2d 10 (2d Dist. 1947).

Failed to conduct analysis of evidence

Engaging in violation of the rules of professional conduct

Participating in judge’s violation of fundamental constitutional rights

code of judicial conduct

People v. Stankewitz, (1982) 32 Cal.3d 80; 184 Cal.Rptr. 611

1. Alleged Marsden Error

Defendant contends the trial court failed to conduct a proper inquiry when
defendant asserted a conflict with the public defender and erred in
denying defendant’s request to appoint a private attorney.
[1] [2]
The law governing this area is well settled. “When a defendant seeks
to discharge his appointed counsel and substitute another attorney, and
asserts inadequate representation, the trial court must permit the
defendant to explain the basis of his contention and to relate specific
instances of the attorney’s inadequate performance. [Citation.] A
defendant is entitled to relief if the record clearly shows that the first
appointed attorney is not providing adequate representation [citation] or
**that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result [citations].” (People v. Crandell (1988) 46 Cal.3d 833, 854, 251
Cal.Rptr. 227, 760 P.2d 423; see also People v. Marsden (1970) 2 Cal.3d
118, 124–125, 84 Cal.Rptr. 156, 465 P.2d 44.)

Defendant complained about his representation by the public defender’s

office on three occasions. The first occurred on June 17, 1985, after the
preliminary hearing but prior to arraignment on the information. At an in
camera hearing out of the presence of the prosecutor, defendant expressed
dissatisfaction with the fact that he had been represented by three
different deputy public defenders.5 Defendant requested a new attorney,
preferably one outside of the public defender’s office, apparently in the
hope that this would entitle him to a new preliminary hearing. The trial
court expressed sympathy with defendant’s frustration over the change of
attorneys but explained that it did not provide a legal basis for the
appointment of private counsel; the court further explained that a
substitution of attorneys would not entitle defendant to a new preliminary
hearing. The court also assured defendant that it was familiar with the
three deputies and that each was competent and well qualified. After a
short recess, defendant was arraigned and agreed to waive time for trial.
[3]The record thus discloses that defendant did not assert either
incompetence ***436 **1312 of counsel or irreconcilable differences with
the public defender at the *205 first in-chambers conference. Accordingly,
there was no abuse of discretion in denying the request for substitution
of counsel. (People v. Moore (1988) 47 Cal.3d 63, 76, 252 Cal.Rptr. 494,
762 P.2d 1218.)
[4]The second in camera hearing was convened on April 11, 1986, to inquire
into an earlier statement by defendant that he was not “comfortable” with
his attorney.6 Defendant indicated that he did not “trust” his attorney
because the latter had “lied” to him. When pressed by the court to
elaborate, however, defendant was unable to describe any specific lies by
counsel or any circumstances where he had been misled.

Defendant also indicated that he was dissatisfied with counsel because the
latter wanted him to take a “deal” which he was unwilling to take. Again,
however, defendant was unable or unwilling to elaborate. The court
reminded defendant that one week earlier he had asked both attorneys,
outside of defendant’s presence, if a disposition was possible. Although
counsel indicated that defendant would not plead guilty to first degree
murder and the prosecutor stated that he would not accept anything less
than life without possibility of parole, the court nevertheless directed
counsel to convey the offer to defendant. After a short time, counsel
returned to inform the court that defendant would not accept the plea.

People v. Earp, 20 Cal.4th 826 (1999)

People v. Earp, 20 Cal.4th 826, 876, 85 Cal.Rptr.2d 857 (Cal., Jun 24,
1999)

E. Trial Court's Inquiry Into Defendant's Complaint About His Counsel

[44] On April 26, 1991, the trial court held a hearing to consider
defendant's complaint that he had asked lead counsel Louis Bernstein to
*876 investigate “something,” but that Bernstein had “made himself
unavailable.” Defendant also told the court: “I need to spend a lot of
time with my counsel on this type of case, and some of the things ***889
**47 that has [sic] been done with my witnesses, real important witnesses,
one witness is more important than the other ten witnesses in this case. I
think [Bernstein] recklessly blew my chance of using that witness....” FN4
Attorney Bernstein explained that defendant simply disagreed with
counsel's tactical decisions. He noted that “for the first year of
representing Mr. Earp, Mr. Earp told a particular story,” suggesting that
defendant's disagreement with counsel's decisions stemmed from a recent
change in defendant's version of events. Bernstein added that he had met
with defendant eight to ten times and had discussed the case with him “via
phone on numerous occasions.” The trial court found “no reason” to relieve
attorney Bernstein as defendant's counsel.

FN4. Defendant stated that he had no complaint about defense

attorney Marcia Morrissey, who at the time of the hearing was second
counsel.

Citing People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465

P.2d 44, defendant claims that the trial court at that hearing “failed to
make adequate inquiry into these problems.” We reject this contention.
 In Marsden, we said: “[A] judge who denies a motion for substitution of
attorneys solely on the basis of his courtroom observations, despite a
defendant's offer to relate specific instances of misconduct, abuses the
exercise of his discretion to determine the competency of the attorney. A
judicial decision made without giving a party an opportunity to present
argument or evidence in support of his contention ‘is lacking in all the
attributes of a judicial determination.’ (Spector v. Superior Court (1961)
55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].)” (People v. Marsden,
supra, 2 Cal.3d at p. 124, 84 Cal.Rptr. 156, 465 P.2d 44.)

[45][46] A defendant is entitled to have appointed counsel discharged

upon a showing that counsel “ ‘is not providing adequate representation’ ”
or **that counsel and defendant “ ‘have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result.’ ” (People v. Memro (1995) 11 Cal.4th 786, 857, 47 Cal.Rptr.2d
219, 905 P.2d 1305.) We review a trial court's decision declining to
relieve appointed counsel under the deferential abuse of discretion
standard. (People v. Berryman, supra, 6 Cal.4th 1048, 1070, 25 Cal.Rptr.2d
867, 864 P.2d 40.) We discern no such abuse here.

[47] Defendant apparently disagreed with Bernstein's tactical

decisions, but the record of the hearing on defendant's request to relieve
counsel fails to reveal that the disagreement was irreconcilable or likely
to result in ineffective representation. We therefore reject defendant's
contention that *877 the trial court here abused its discretion in
conducting the inquiry into defendant's complaint about defense attorney
Bernstein that preceded the court's decision not to remove Bernstein as
counsel.FN5

FN5. When considering his contention that the trial court failed to
make adequate inquiry into the complaint about defense counsel
Bernstein, defendant asks that we take into account information from
the following sources developed later in the trial: testimony by the
defense investigators and the comments at a September 10, 1991, in
camera hearing of Attorney Adrienne Dell, who replaced Attorney
Morrissey as second counsel. Defendant contends this information
demonstrates a substantial basis for his concerns about Bernstein.
Because we limit our review of a motion to relieve counsel to
matters developed in the course of the hearing on the motion (People
v. Berryman, supra, 6 Cal.4th at p. 1070, 25 Cal.Rptr.2d 867, 864
P.2d 40), we decline to consider these later developments.

People v. Memro, (1995) 11 Cal.4th 786, 857; 47 Cal.Rptr.2d 219,

A defendant “may be entitled to an order substituting appointed counsel if

he shows that, in its absence, his Sixth Amendment right to the assistance
of counsel would be denied or substantially impaired.” (People v.
Berryman, supra, 6 Cal.4th at p. 1070, 25 Cal.Rptr.2d 867, 864 P.2d 40,
citing Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.) The
law governing a Marsden motion “is well settled. ‘When a defendant seeks
to discharge his appointed counsel and substitute another attorney, and
asserts inadequate representation, the trial court must permit the
defendant to explain the basis of his contention and to relate specific
instances of the attorney’s inadequate performance. [Citation.] **A
defendant is entitled to relief if the record clearly shows that the first
appointed attorney is not providing adequate representation [citation] or
**that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result [citations].’ [Citations.]” (People v. Fierro (1991) 1 Cal.4th 173,
204, 3 Cal.Rptr.2d 426, 821 P.2d 1302.)

People v. Fierro, 1 Cal.4th 173, 204, (1991)

1. Alleged Marsden Error

Defendant contends the trial court failed to conduct a proper inquiry when
defendant asserted a conflict with the public defender and erred in
denying defendant’s request to appoint a private attorney.
[1] [2]
The law governing this area is well settled. “When a defendant seeks
to discharge his appointed counsel and substitute another attorney, and
asserts inadequate representation, the trial court must permit the
defendant to explain the basis of his contention and to relate specific
instances of the attorney’s inadequate performance. [Citation.] A
defendant is entitled to relief if the record clearly shows that the first
appointed attorney is not providing adequate representation [citation] or
**that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result [citations].” (People v. Crandell (1988) 46 Cal.3d 833, 854, 251
Cal.Rptr. 227, 760 P.2d 423; see also People v. Marsden (1970) 2 Cal.3d
118, 124–125, 84 Cal.Rptr. 156, 465 P.2d 44.)

Defendant complained about his representation by the public defender’s

office on three occasions. The first occurred on June 17, 1985, after the
preliminary hearing but prior to arraignment on the information. At an in
camera hearing out of the presence of the prosecutor, defendant expressed
dissatisfaction with the fact that he had been represented by three
different deputy public defenders.5 Defendant requested a new attorney,
preferably one outside of the public defender’s office, apparently in the
hope that this would entitle him to a new preliminary hearing. The trial
court expressed sympathy with defendant’s frustration over the change of
attorneys but explained that it did not provide a legal basis for the
appointment of private counsel; the court further explained that a
substitution of attorneys would not entitle defendant to a new preliminary
hearing. The court also assured defendant that it was familiar with the
three deputies and that each was competent and well qualified. After a
short recess, defendant was arraigned and agreed to waive time for trial.
[3]The record thus discloses that defendant did not assert either
incompetence ***436 **1312 of counsel or irreconcilable differences with
the public defender at the *205 first in-chambers conference. Accordingly,
there was no abuse of discretion in denying the request for substitution
of counsel. (People v. Moore (1988) 47 Cal.3d 63, 76, 252 Cal.Rptr. 494,
762 P.2d 1218.)
[4]The second in camera hearing was convened on April 11, 1986, to inquire
into an earlier statement by defendant that he was not “comfortable” with
his attorney.6 Defendant indicated that he did not “trust” his attorney
because the latter had “lied” to him. When pressed by the court to
elaborate, however, defendant was unable to describe any specific lies by
counsel or any circumstances where he had been misled.

Defendant also indicated that he was dissatisfied with counsel because the
latter wanted him to take a “deal” which he was unwilling to take. Again,
however, defendant was unable or unwilling to elaborate. The court
reminded defendant that one week earlier he had asked both attorneys,
outside of defendant’s presence, if a disposition was possible. Although
counsel indicated that defendant would not plead guilty to first degree
murder and the prosecutor stated that he would not accept anything less
than life without possibility of parole, the court nevertheless directed
counsel to convey the offer to defendant. After a short time, counsel
returned to inform the court that defendant would not accept the plea.

People v. Crandell, (1988) 46 Cal.3d 833, 854, 251 Cal.Rptr. 227

[1]
When a defendant seeks to discharge his appointed counsel and
substitute another attorney, and asserts inadequate representation, the
trial court must permit the defendant to explain the basis of his
contention and to relate specific instances of the attorney’s inadequate
performance. (People v. Marsden (1970) 2 Cal.3d 118, 124, 84 Cal.Rptr.
156, 465 P.2d 44.) A defendant is entitled to relief if the record clearly
shows that the first appointed attorney is not providing adequate
representation (In re Banks (1971) 4 Cal.3d 337, 342, 93 Cal.Rptr. 591,
482 P.2d 215) or **that defendant and counsel have become embroiled in
such an irreconcilable conflict that ineffective representation is likely
to result (People v. Stankewitz (1982) 32 Cal.3d 80, 93–94, 184 Cal.Rptr.
611, 648 P.2d 578; cf. People v. Frierson (1985) **432 39 Cal.3d 803, 812–
814, 218 Cal.Rptr. 73, 705 P.2d 396).

**Both before and during trial, appellant’s relations with his appointed
counsel, a deputy public defender, became a matter of dispute. Appellant’s
trial was initially set for July 5, 1978. On July 3, 1978, appellant’s
public defender informed the court that he had come to doubt appellant’s
mental competency to stand trial. The public defender testified that over
the prior weekend a fundamental dispute had come to a head between himself
and appellant as to how the trial should proceed. It was counsel’s opinion
that no amount of further discussion could resolve that dispute. Counsel
indicated that he believed his client’s position was irrational and, based
on discussions with the psychiatrists who had previously examined
appellant, was the product of a mental condition.

The trial judge appointed Dr. Glenn to examine appellant and to testify
concerning appellant’s competency to stand trial. This testimony was to be
used to resolve the preliminary issue of whether there was reason to doubt
appellant’s competency, so that a full-scale competency examination and
hearing pursuant to section 1368 should be conducted. After examining
appellant, Dr. Glenn testified that appellant had a mental defect which
prevented him from rationally assisting his deputy public defender in the
defense of the case.

In the psychiatrist’s opinion, appellant had alternating feelings of

persecution and grandiosity. Among these were paranoid delusions that his
public defender was in collusion with the prosecutor, that people were
talking about him behind his back, and that he could join the mafia in
jail and have the jury killed if they convicted him. Dr. Glenn indicated
that appellant’s delusional system “interfered with his ability to
cooperate in the conduct of his defense.” Appellant appeared capable of
cooperating with another attorney who was not a public defender, because
he indicated to Dr. Glenn that he would accept a private attorney’s
evaluation that the prosecution had sufficient evidence to convict him of
the killing. During the psychiatrist’s testimony, it became clear that the
dispute between appellant and his public defender was over whether the
defense should contest the issue of whether appellant was the perpetrator
of the charged offenses or whether a psychiatric defense based on
appellant’s mental condition should be presented.

*89 After Dr. Glenn’s testimony, the court agreed that “for certain, it’s
been shown that [appellant] could not cooperate in a rational manner with
the Public Defender.” The court ruled that it had no doubt that “with
other counsel he would be able to cooperate in a rational manner in
preparation and presentation of his defense.” Nevertheless, the court
declined to institute competency hearings. Instead, it indicated that it
felt that a question was raised as to whether there should be a
substitution of counsel, but deferred ruling to give appellant and his
counsel time for discussion.

After this discussion, appellant waived the attorney-client privilege so

that counsel could tell the court the content of the discussion. ***616
**583 Counsel informed the court that appellant wished to defend against
the charges based on lack of evidence to establish his identity as the
perpetrator of the offenses, while counsel wished to present a diminished
capacity defense.

Under questioning by the prosecutor, counsel indicated that appellant

understood that the diminished capacity defense urged by counsel would
involve a concession and confession of an act that imposed some criminal
responsibility.

Appellant had also repudiated his statement to Dr. Glenn that he would
follow the advice of a private attorney, by saying that only if a private
attorney would agree to defend on identity would he follow that attorney’s
advice. The public defender indicated that appellant was convinced that
there was insufficient evidence to prove that he committed the offenses.
Appellant had rejected his counsel’s advice to proceed with a diminished
capacity defense, saying, “Gotta fight it.”

Appellant spoke up at this hearing to say that the only way he would take
another attorney was if that attorney would do it his way, by fighting the
charges. He then asked for a substitution of attorneys. The public
defender did not join in the motion, but reiterated that he and his client
had reached an impasse on whether the defense should be diminished
capacity or identity, and he felt a full competency hearing should be
conducted.

The trial court again refused to order a hearing on the issue of

appellant’s competency to stand trial and denied appellant’s motion for
substitution of counsel.

*90 After the trial had been stayed briefly by appellate courts, and after
a first attempt at jury selection ended in a mistrial, selection of the
jury that decided the case began on August 14. As jury selection proceeded
the following day, the public defender requested a recess, noting for the
record that appellant was leaning back in his chair with his eyes closed.
After the recess, appellant stated that he wanted to represent himself.
The trial court told appellant that such a motion would not then be
considered. The court also indicated that it thought appellant was totally
unable and incompetent to represent himself. The court indicated that it
would permit appellant to speak to the issue again the next morning, after
some time for thought and consultation with his counsel. Appellant stated
he would file a motion for self-representation.

The next morning, the trial judge inquired of appellant if he wished to

make a motion for self-representation. Appellant replied that he had
nothing to say, that the court had “already denied everything.”

On August 31, the fourth of five days of prosecution evidence, appellant

again asked for another attorney, stating, “It’s a big conflict.” The
motion was referred to another judge. Appellant presented a handwritten
statement to the court which stated that the public defender “has
persistently denied me the right to subpoena and produce witnesses helpful
to my defense and continues to proceed on a course of action contrary to
my interests despite my repeated objections.” When the court requested
specific information on what witnesses appellant wanted to call and what
testimony they wanted to provide, counsel invoked the attorney-client
privilege. The court then held an in camera hearing, from which the
prosecutor was excluded.5 The motion for substitution was denied.

On September 12th, Dr. Missett testified on direct examination that

appellant had admitted to him the killing and various details about the
crime which were consistent with Billy Bob Brown’s testimony.6 After the
jury had been excused, appellant told the court that he wanted the
doctor’s testimony stricken. This request was repeated **584 the next
morning before the jury ***617 was brought in. Appellant said that Dr.
Missett “lied up *91 there. I told that doctor I did no crime.” Appellant
again moved to discharge his counsel. The court said that it would not
substitute counsel and questioned whether appellant could himself
adequately argue the diminished capacity defense that had been presented.
Appellant stated that he would not argue that defense, but would call a
different witness. Appellant stated that there was nothing to argue from
the psychiatrist’s testimony, and that the jury did not understand the
psychiatric testimony. The court questioned appellant about his knowledge
of evidence and court procedure. The court then denied appellant’s motion
for self-representation due to untimeliness, the seriousness of the
charges, and appellant’s ignorance of the law.

When appellant asked for a decision on his motion to strike Dr. Missett’s
testimony, the court responded that there was no such motion. The public
defender stated that the motion was procedural, under his control as
counsel and that he was not making such a motion. Appellant then struck
his public defender with his fist. Appellant was restrained, but the
restraints were removed when appellant promised there would be no further
outbursts.

II.
Appellant contends that reversal of the judgment is required by the trial
court’s denial of his request for a competency hearing pursuant to section
1368.

Section 1367 states the fundamental rule that “[a] person cannot be tried
or adjudged to punishment while such person is mentally incompetent.”
Section 1367 further states that mental incompetency to stand trial is
present “if, as a result of mental disorder or developmental disability,
the defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational
manner.” Section 1368 in turn requires that if at any time during the
pendency of a criminal case a doubt arises as to mental competency, all
criminal proceedings must be suspended until a hearing has been conducted
to determine whether the defendant is presently mentally competent.
[1]
This court has previously defined the preliminary showing of
incompetency which is necessary to trigger the mandatory competency
hearing procedure of section 1367 et seq. Section 1368 speaks in terms of
whether a doubt arises in the mind of the judge, and is then confirmed *92
by defense counsel. However, as this court realized 15 years ago in People
v. Pennington (1967) 66 Cal.2d 508, 516–517, 58 Cal.Rptr. 374, 426 P.2d
942 once the accused has come forward with substantial evidence of
incompetence to stand trial, due process requires that a full competency
hearing be held. (See Pate v. Robinson (1966) 383 U.S. 375, 86 S.Ct. 836,
15 L.Ed.2d 815.) Drawing on Pate v. Robinson, Pennington set down
standards regarding what constituted substantial evidence of incompetence
to stand trial: “If a psychiatrist or qualified psychologist [citation
omitted], who has had sufficient opportunity to examine the accused,
states under oath with particularity that in his professional opinion the
accused is, because of mental illness, incapable of understanding the
purpose or nature of the criminal proceedings being taken against him or
is incapable of assisting in his defense or cooperating with counsel, the
substantial-evidence test is satisfied.” (Id., 66 Cal.2d at p. 519, 58
Cal.Rptr. 374, 426 P.2d 942.)
[2]
The testimony of Dr. Glenn, who was a qualified psychiatrist appointed
by the court to examine appellant, satisfied the Pennington-Pate
substantial evidence test. According to that testimony, appellant suffered
from a mental disorder that prevented him from assisting his counsel in
his defense in a rational manner. The psychiatrist’s opinion was somewhat
unusual in that it stated that appellant’s problem was with his particular
appointed counsel, due to a paranoid delusion focused upon the public
defender’s office. The psychiatrist also gave the opinion that due to the
nature of appellant’s mental disorder and the fixation upon the public
defender, appellant **585 might well be able to rationally assist a ***618
counsel appointed by the court from the private bar.

Based upon this aspect of the psychiatrist’s opinion, the trial judge
chose to cast the issue in terms of whether there should be a substitution
of counsel, while agreeing that appellant “could not cooperate in a
rational manner with the Public Defender.” When the trial court denied the
substitution motion, appellant was left with a counsel whom appellant was
unable to rationally assist, according to the court-appointed
psychiatrist. All further proceedings were conducted with appellant
represented by this counsel.

Respondent contends that a full competency hearing was not required

because appellant later stated to the court that he would not accept an
attorney who would not contest the identity issue. According to
respondent, this statement by appellant was in conflict with statements
relied *93 upon by Dr. Glenn in arriving at his opinion that appellant
suffered paranoid delusions about the public defender’s office. Respondent
contends that these comments totally undermined Dr. Glenn’s opinion, and
relieved the court of its duty to conduct a hearing.

This contention, if accepted, would permit the trial court to reject

substantial psychiatric evidence of an accused’s mental incompetence and
credit conflicting evidence to deny a hearing on competency. The
Pennington and Pate decisions rejected this line of argument in holding
that once substantial evidence in the form of a psychiatric opinion of
incompetence was presented, the court was required to hold a competency
hearing. The rejection was explicit: “Once such substantial evidence
appears, a doubt as to the sanity of the accused exists, no matter how
persuasive other evidence—testimony of prosecution witnesses or the
court’s own observations of the accused —may be to the contrary.” (People
v. Pennington, supra, 66 Cal.2d at p. 518, 58 Cal.Rptr. 374, 426 P.2d 942,
emphasis added.)

Additionally, rather than “undermining” Dr. Glenn’s opinion of appellant’s

limited incompetence, appellant’s seemingly increasing resistance to
advice from any counsel might well have indicated an even broader-based
mental disorder than that found by the psychiatrist. Had either the trial
judge or the prosecution believed that appellant’s later statements
negated Dr. Glenn’s opinion, Dr. Glenn could have been recalled to
determine if he still adhered to this opinion.
[3]
The essential point is that substantial evidence indicating appellant’s
inability to rationally assist his public defender had been presented.
Whether that evidence would be sufficiently well-based to result in a
finding of incompetency should have been determined in a full competency
hearing conducted as required by sections 1367 and 1368. The existence of
other evidence, even if deemed to be in conflict with the substantial
evidence of incompetency, does not relieve the court of the duty to
conduct a competency hearing.7

In the particular circumstances of this case, a substitution of counsel

might have avoided altogether the necessity for ordering a full competency
hearing. Dr. Glenn’s testimony concerning appellant’s inability to *94
cooperate in his defense in a rational manner included strong indications
of a breakdown in the relationship between appellant and his state-
appointed trial lawyer.

**Counsel’s own testimony—confirmed by appellant—explicitly indicated the

existence of a “fundamental dispute” between counsel and client which “no
amount of discussion ... could resolve ....” Given Dr. Glenn’s belief that
these problems might not arise with different counsel, it is conceivable
that a substitution of counsel could have alleviated the entire tangle. At
least, this was an alternative which the trial court **586 could have
tried in hopes of avoiding any need for a full competency hearing.

****619 The basis of this disagreement was not over some trivial or
unimportant matter. It went to the very heart of the trial. As was pointed
out in Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1170, “to compel one
charged with [a] grievous crime to undergo a trial with the assistance of
an attorney with whom he has become embroiled in irreconcilable conflict
is to deprive him of the effective assistance of any counsel whatsoever.
[Citations.]”8

In view of the state of the record before it, the trial court had to take
some action to unravel the fundamental dispute presented to it. The court
may not have been required to hold a full competency hearing if the
problem could have been resolved by a substitution of counsel. But the
court should not have chosen to do nothing at all. Since that is how it
responded, this court has no choice but to find this inaction to be error.
[4]
The error requires reversal of the judgment. As Pennington held, an
erroneous pretrial denial of a competency hearing compels reversal of the
judgment, since “the trial court has no power to proceed with the trial
once a doubt arises” as to the competency of the defendant. (People v.
Pennington, supra, 66 Cal.2d at p. 521, 58 Cal.Rptr. 374, 426 P.2d 942.)
“In such cases the error is per se prejudicial. Nor, as the United States
Supreme Court specifically held in Pate v. Robinson ..., may the error be
cured by a retrospective determination of defendant’s mental competence
during his trial.” (Ibid.)

*95 III.
Since the reversal of judgment is necessitated by the errors discussed
above, numerous other contentions of error raised by appellant will not be
reached.

The judgment is reversed. The petition for writ of habeas corpus, raising
issues decided in Hovey v. Superior Court (1980) 28 Cal.3d 1, 168
Cal.Rptr. 128, 616 P.2d 1301, is denied for the reasons stated in the
Hovey opinion.

Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970)

Proceeding on state prisoner’s petition for writ of habeas corpus. The
United States District Court for the Central District of California, Harry
Pregerson, J., denied petition without evidentiary hearing, and petitioner
appealed. The Court of Appeals, Ely, Circuit Judge, held that where
defendant was represented by appointed counsel with whom defendant was
dissatisfied and would not cooperate and moved to have another attorney
appointed, but court did not conduct inquiry to ease defendant’s
dissatisfaction, distrust and concern, and it was not unreasonable to
believe that had defendant been represented by counsel in whom he had
confidence he would have been convicted, if at all, of no more than
manslaughter, defendant was entitled to have petition for writ of habeas
corpus granted unless state authorities granted new trial.

Reversed and remanded with directions.

[2]

Criminal Law
Prejudice and presumptions

**To compel one charged with grievous crime to undergo trial with
assistance of attorney with whom he has become embroiled in irreconcilable
conflict is to deprive him of effective assistance of any counsel
whatsoever.
153 Cases that cite this headnote

We are gravely troubled over another issue presented in Brown’s petition,

an issue involving the question whether he was, in his state court trial,
adequately represented by counsel. Since Brown was an indigent, the state
court originally ordered that he should be represented by the office of
the Public Defender of Los Angeles County, California. Pursuant to that
order, a certain attorney from the Public Defender’s office was assigned
for Brown’s assistance. Almost immediately a dispute arose between Brown
and this particular attorney. There was a long period of delay between the
time when Brown was charged and the time when he was finally brought to
trial, and there is no suggestion that Brown himself was responsible for
any of that delay.1 During that period, Brown himself made four motions
that some other attorney be appointed to represent him.2 **The state court
summarily denied the motions, making no adequate inquiry into the cause of
Brown’s dissatisfaction with his counsel or taking any other steps which
might possibly lead to the appointment of substitute counsel in whom Brown
could repose his confidence. The result was that Brown was forced into a
trial with the assistance of a particular lawyer with whom he was
dissatisfied, with whom he would not cooperate, and with whom he would
not, in any manner whatsoever, communicate. Thus, the attorney was
understandably deprived of the power to present any adequate defense in
Brown’s behalf.
[2] [3] [4] Brown made statements in open court that ‘Y’all are having a

Trial, there is no need for me to take the stand * * * I have no Lawyer

here’ and ‘You are trying a case; but not me * * *’ Accordingly, Brown did
not testify in his own behalf, there was only perfunctory defense, and the
jury found him guilty of murder in the first degree. The trial judge
promptly reduced the offense to murder in the second degree. In his
petition below, Brown alleged that his appointed attorney did not
interview witnesses who were available and who could have testified as to
facts, including his intoxication, *1170 bearing upon the existence of
that malignant intent necessary to support conviction for the crime of
murder. We do not criticize the defense attorney.3 Since Brown would not
communicate with him, it is understandable that the attorney performed his
duty under the gravest handicap. **We think, however, that to compel one
charged with grievous crime to undergo a trial with the assistance of an
attorney with whom he has become embroiled in irreconcilable conflict is
to deprive him of the effective assistance of any counsel whatsoever. See
Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967);
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Of
course, a court is not required to provide an indigent accused with any
particular attorney whom he may desire, and we think that the state court
might very properly have required Brown to accept the assistance of some
other of the great number of competent attorneys associated with the
Public Defender’s office of Los Angeles County. The problem arises because
the state court did not, in our opinion, take the necessary time and
conduct such necessary inquiry as might have eased Brown’s
dissatisfaction, distrust, and concern. And, we think it not unreasonable
to believe that had Brown been represented by counsel in whom he had
confidence he would have been convicted, if at all, of no more than the
offense of manslaughter.

The judgment is reversed. Upon remand, the District Court may temporarily
hold Brown’s petition in abeyance and shall grant the petition unless
California authorities do, within a reasonable period, not exceeding sixty
days, grant Brown a new trial attended with all reasonable assurance that
he be represented by competent counsel, from the Public Defender’s office
or elsewhere, in whom he may, if he does not demonstrate obstinance,
recalcitrance, or unreasonable contumacy, repose his confidence.4
Reversed and Remanded, with directions.

Keywords: irreconciliable embroilment with appointed attorney, showing

proving establishing disagreement reflects a fundamental breakdown in the
attorney-client relationship, that there had been a breakdown in his
relationship with his counsel, substantial impairment of the right to
counsel_

Westnext_search_irrecon_embroilm_w_appointed_atty_show_prov_estab_disagree
m_reflect_fund_breakdown_in_atty_client_relation_breakdown_subs_impairm_ri
ght_to_counsel_fair_trial_ca_ca9_results

show that any disagreement with counsel resulted in complete breakdown in

attorney-client relationship jeopardizing his right to fair trial
indication of his distrust or dissatisfaction with counsel

sufficient reasons grounds were given or made to appear, to warrant

support the request for discharge of the assigned counsel

the defendant has shown that a failure to replace the appointed attorney
would substantially impair the defendant right to assistance of counsel

Breakdown in communications

** 6. Daniels v. Woodford
United States Court of Appeals, Ninth Circuit. November 02, 2005 428 F.3d 1181 2005 WL
2861623 02-99002
CRIMINAL JUSTICE - Counsel. Trial court did not fulfill its duty to inquire
into communication conflict between defendant and counsel.
...Conflict between defendant and counsel appointed for him was serious and gave rise
to presumption under Sixth Amendment that defendant was prejudiced by his inability to
communicate with counsel at both guilt and penalty phases of his capital murder trial,
where defendant’s paranoia led him to particularly distrust counsel who had spent most
of his career as prosecutor and who defendant thought was appointed to see that he was
convicted and sentenced to death; court still had obligation to try to provide counsel
that defendant would have trusted although defendant’s belief may have...
...Holdings: The Court of Appeals, Pregerson, Circuit Judge, held that: (1)defendant
was constructively denied his right to counsel; (2)conflict between defendant and
counsel was serious and gave rise to presumption that defendant was prejudiced by his
inability to communicate with counsel; (3)trial court did not fulfill its duty to
inquire into conflict; (4)defendant’s motion for substitution of counsel was timely;
(5)defendant was prejudiced by counsel’s ineffective assistance at guilt phase of
trial; (6)defendant was prejudiced by counsel’s...
...Defendant was constructively denied his right to counsel in violation of Sixth
Amendment at both guilt and penalty phases of his capital murder trial, where there
was complete breakdown in communication between defendant and counsel appointed for
him due to conflict not of their own making; among other things, trial court refused
to recognize clear conflict between defendant and public defender’s office until more
than nine months had elapsed and court removed defendant’s choice of counsel despite
defendant’s willingness to waive any conflict and to stipulate to facts to which
counsel...
...Defense counsel provided ineffective assistance to capital murder defendant under
Sixth Amendment, where communication breakdown between counsel and defendant, trial
court’s refusal to grant continuance, shortage of time, and repeated problems with
securing state funding, contributed to counsel not following up on information that
suggested that defendant suffered from mental disorder, contributed to counsel not
reviewing defendant’s family and social history of mental illness, and contributed to
counsel not investigating whether medication prescribed for defendant, in combination
with use of illegal substances, impacted his state of mind at time of shootings.
U.S.C.A. Const.Amend. 6...

** 9. People v. Welch
Supreme Court of California June 01, 1999 20 Cal.4th 701 1999 WL 344511 S011323
CRIMINAL JUSTICE - Homicide. Counsel was not ineffective in not arguing
defendant’s claim of actual innocence and instead arguing no premeditation.
...Prosecutor’s remarks that defense counsel had been unable to make the “hard choice”
regarding defendant’s guilt or innocence, which were a play on counsel’s statement
regarding jury’s “hard choice” between first and second degree murder, did not
disparage counsel but legitimately pointed out inconsistencies between defendant’s
contention of actual innocence of capital murder and counsel’s defense based on lack
of premeditation. U.S.C.A. Const.Amend. 6; West’s Ann.Cal. Const. Art. 1, §15....
...When a trial court, after a Wheeler/Batson motion has been made, requests the
prosecution to justify his peremptory challenges, then the question whether defendant
has made a prima facie showing of discrimination is either considered moot or a
finding of a prima facie showing is considered implicit in the request; but when the
trial court states that it does not believe a prima facie case has been made, and then
invites the prosecution to justify its challenges for purposes of completing the
record on appeal, the question whether a prima facie case has...
...Defense counsel did not provide ineffective representation, in prosecution for six
counts of first degree murder, by declining to argue defendant’s claim of actual
innocence and instead asserting lack of premeditation because of mental illness, and
therefore denial of defendant’s Marsden motions before and during trial to have
counsel removed was not abuse of discretion; evidence was overwhelming that defendant
had committed charged acts, and counsel focused efforts on the weakest link in state’s
case. U.S.C.A. Const.Amend. 6....
...” (People v. Valentino (N.Y.Sup.Ct.1974) 78 Misc.2d 678, 356 N.Y.S.2d 962, 968; see
also ABA Standards for Criminal Justice (2d ed. 1980) Mental Health Standards, std. 7–
4.1, commentary, p. 7–174 [stating that competency to stand trial should include a
determination that a defendant possesses “the capacity to maintain the attorney-client
relationship, embracing an ability to discuss the facts of a case with counsel
‘without paranoid distrust’”]....

** 10. U.S. v. Moore

United States Court of Appeals, Ninth Circuit. September 23, 1998 159 F.3d 1154 1998
WL 682173 92-10026, 97-15412
Following jury trial, defendant was convicted in the United States District
Court for the Eastern District of California, William B. Shubb, J., of intent
to distribute cocaine, and defendant’s subsequent motion to vacate sentence
was denied. Defendant appealed, and appeals were consolidated. The Court of
Appeals, Fletcher, Circuit Judge, held that:...
...Irreconcilable conflict existed between defendant and defense counsel, such that
defendant was denied counsel in violation of Sixth Amendment, in view of breakdown in
attorney-client relationship, district court’s inadequate inquiry into differences
between defendant and counsel and willingness to substitute counsel only if counsel or
defendant could arrange new counsel in time for trial, and defendant’s multiple,
timely attempts to substitute counsel...
...Factors to be considered in determining whether irreconcilable conflict between
defendant and counsel amounts to total denial of counsel, in violation of Sixth
Amendment, are the same as those used to determine if the district court erred in
denying a motion to substitute counsel, and these factors are: (1) the extent of the
conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion.
U.S.C.A. Const.Amend. 6....
... In D’Amore, we noted that the district court (1) did not inquire into how long a
continuance would be needed for new counsel; (2) made no attempt to gauge the
inconvenience caused by such a delay; (3) did not question the attorney or defendant
as to the degree that their animosity prevented adequate preparation; and (4) did not
ask why the motion had not been made earlier....
...Once defendant shows actual conflict of interest on part of counsel, prejudice is
presumed, and, to establish Sixth Amendment violation, defendant need demonstrate only
that some effect on counsel’s handling of particular aspects of the trial was likely;
if, however, there is only a possibility of conflict, defendant must meet the
performance and prejudice standard of Strickland. U.S.C.A. Const.Amend. 6....

** 18. Williams v. Taylor

Supreme Court of the United States April 18, 2000 529 U.S. 362 120 S.Ct. 1495 98-8384
CRIMINAL JUSTICE - Counsel. Failure to present mitigating evidence during
sentencing constituted ineffective assistance.
... To establish ineffective assistance of counsel, the defendant must prove: **(1)
that counsel’s performance fell below an objective standard of reasonableness, 466
U.S., at 688, 104 S.Ct. 2052; and (2) that the deficient performance prejudiced the
defense, which requires a showing that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different, id., at 694, 104 S.Ct. 2052....
... For example, speaking only of that evidence concerning Williams’ “nightmarish
childhood,” ante, at 1514, the mitigation evidence that trial counsel failed to
present to the jury showed that “Williams’ parents had been imprisoned for the
criminal neglect of Williams and his siblings, that Williams had been severely and
repeatedly beaten by his father, that he had been committed to the custody of the
social services bureau for two years during his parents’ incarceration (including one
stint in an abusive foster home), and then, after his parents were released from
prison, had...
... Had they done so, the jury would have learned that Williams’ parents had been
imprisoned for the criminal neglect of Williams and his siblings,19 that Williams had
been severely and repeatedly beaten by his father, that he had been committed to the
custody of the social services bureau for two years during his parents’ incarceration
(including one stint in an abusive foster home), and then, after his parents were
released from prison, had been returned to his parents’ custody....
... If a state court were to reject a prisoner’s claim of ineffective assistance of
counsel on the grounds that the prisoner had not established by a preponderance of the
evidence that the result of his criminal proceeding would have been different, that
decision would be “diametrically different,” “opposite in character or nature,” and
“mutually opposed” to our clearly established precedent because we held in Strickland
that the prisoner need only demonstrate a “reasonable probability that ․ the result of
the proceeding would have...

** 19. Plumlee v. Del Papa

United States Court of Appeals, Ninth Circuit. October 18, 2005 465 F.3d 910 2006 WL
2873644 04-15101
CRIMINAL JUSTICE - Counsel. Petitioner was denied his right to counsel when
state court refused to substitute counsel.
...Defendant who was represented by public defender was denied his right to counsel in
state court murder trial when trial court refused to appoint a new counsel for him
despite defendant’s objectively reasonable belief that members of the county public
defender’s office were leaking information about his case to another suspect and to
the district attorney; lack of trust on both sides was so severe that defendant’s
attorney not only corroborated defendant’s claim that the attorney-client
relationship...
... See, e.g., United States v. Moore, 159 F.3d 1154, 1159 (9th Cir.1998) (in a direct
appeal case, holding an “irreconcilable conflict” existed where counsel failed to
communicate important information to the defendant, failed to investigate the case or
prepare for trial, and where the defendant threatened to sue counsel for malpractice
and the defendant felt physically threatened by counsel); United States v. Mullen, 32
F.3d 891, 893, 897 (4th Cir.1994) (in a direct appeal case, holding an “irreconcilable
conflict” existed where counsel would not permit the defendant to see any of the
discovery materials, refused to answer the defendant’s questions, and used...
... Thus, the Court’s holding that a defendant has no right to a “meaningful
relationship” with his attorney in no way suggests a retreat from the principle that
the defendant is entitled to an attorney who acts as his advocate, or a rejection of
the theory that an attorney-client relationship can be so dysfunctional as to render
counsel unable to provide the constitutional minimum of adequate representation in the
role of advocate....
... The petitioner in Morris refused to cooperate with his counsel, stated his counsel
told him he had no defense to the charges, interrupted the proceedings to argue his
right to counsel was being infringed, and attorney-client communication broke down to
such a point that counsel moved to be relieved by the court because he could not
render effective assistance account the conflict....

** 21. U.S. v. Gonzalez-Lopez

Supreme Court of the United States June 26, 2006 548 U.S. 140 126 S.Ct. 2557 05-352
CRIMINAL JUSTICE - Counsel. Erroneous deprivation of right to counsel of
one’s choice is not subject to harmless-error review.
... To determine the effect of wrongful denial of choice of counsel, however, we would
not be looking for mistakes committed by the actual counsel, but for differences in
the defense that would have been made by the rejected counsel—in matters ranging from
questions asked on voir dire and cross-examination to such intangibles as argument
style and relationship with the prosecutors....
... The Court rejects the Government’s contention that the violation is not “complete”
unless the defendant can show that substitute counsel was ineffective within the
meaning of Strickland v. Washington, 466 U.S. 668, 691–696, 104 S.Ct. 2052, 80 L.Ed.2d
674—i.e., that his performance was deficient and the defendant was prejudiced by it—or
the defendant can demonstrate that substitute counsel’s performance, while not
deficient, was not as good as what his counsel of choice would have provided, creating
a “reasonable probability that ․ the result ․ would have...
... This would not require a defendant to show that the second-choice attorney was
constitutionally ineffective within the meaning of Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)Rather, the defendant would be entitled to a
new trial if the defendant could show “an identifiable difference in the quality of
representation between the disqualified counsel and the attorney who represents the
defendant at trial.” ...
...Holdings: The Supreme Court, Justice Scalia, held that: (1)where defendant’s Sixth
Amendment right to counsel of his choice was violated because the disqualification of
his chosen counsel was erroneous, no additional showing of prejudice was required to
make the violation complete, and (2)trial court’s erroneous deprivation of defendant’s
Sixth Amendment right to choice of counsel entitled him to reversal of his conviction,
as error qualified as a “structural error” not subject to review for harmlessness....

** 23. People v. Smith

Supreme Court of California May 08, 2003 30 Cal.4th 581 68 P.3d 302 S028339
CRIMINAL JUSTICE - Homicide. Evidence that defendant owned derringer and
ammunition not used in murder was relevant in capital case.
...A court may not automatically deny a motion for new appointed counsel during trial
no matter what the showing, but it should grant such a motion only when the defendant
demonstrates that counsel is truly providing inadequate representation or that a total
breakdown in the relationship has occurred that the defendant did not cause. U.S.C.A.
Const.Amend. 6....
...Denying motion for new appointed counsel after guilty verdict was not abuse of
discretion in capital murder prosecution; granting the motion would have necessitated
a mistrial and a whole new jury, the court conducted a full inquiry into defendant’s
complaints and allowed defendant to express himself fully, and defendant did not make
such a compelling showing of a conflict between himself and counsel that the court had
to grant the motion. U.S.C.A. Const.Amend. 6....
...On direct review of the refusal to substitute appointed counsel, the following
three factors are considered: (1) timeliness of the motion; (2) adequacy of the
court’s inquiry into the defendant’s complaint; and (3) whether the conflict between
the defendant and his attorney was so great that it resulted in a total lack of
communication preventing an adequate defense....
...[8][9][10][11]When a defendant seeks new counsel on the basis that his appointed
counsel is providing inadequate representation—i.e., makes what is commonly called a
Marsden motion (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44)—
the trial court must permit the defendant to explain the basis of his contention and
to relate specific instances of inadequate performance....

** 26. People v. Hart

Supreme Court of California June 01, 1999 20 Cal.4th 546 976 P.2d 683 S005970
CRIMINAL JUSTICE - Death Penalty. Instruction regarding possibility of
commutation of sentence was not reversible error.
...Second counsel who represented capital murder defendant during penalty phase was
not forced upon defendant or improperly substituted for lead appointed counsel, as
would violate defendant’s Sixth Amendment right to counsel, where defendant clearly
and unequivocally consented during pretrial hearing to appointment of second counsel,
and attorneys shared representation by handling separate phases of trial. U.S.C.A.
Const.Amend. 6....
...Because the record on appeal contains no details of the mental health evidence that
may have been available to trial counsel, and similarly contains no indication of the
potentially damaging aspects of such evidence that might have been rendered admissible
had defendant chosen to proffer his mental health background as a mitigating factor,
we cannot conclude that there was no conceivable, reasonable tactical basis for trial
counsel’s actions....
...At the first Marsden hearing, defendant contended that: (1) he had not seen trial
counsel for approximately seven and one-half months, despite numerous requests, and
counsel had failed to keep appointments with defendant on nine occasions; (2) defense
investigators had not visited him with sufficient frequency and seemed unfamiliar with
certain evidence that interested defendant; (3) he gave a defense investigator
questions for trial counsel three months earlier and had not received a reply; (4) he
told investigators he was “mad,” leading trial counsel to inform him that “he
[counsel...
...Statements in which accused, who had been read Miranda warnings, asked police
officer if he had right to attorney, and what would be done if he couldn’t afford one,
and then asked whether legal officer at naval base could serve as his attorney, were
insufficient to invoke accused’s Fifth Amendment privilege to consult with counsel.
U.S.C.A. Const.Amend. 5....

**** 29. U.S. v. Adelzo-Gonzalez

United States Court of Appeals, Ninth Circuit. September 26, 2001 268 F.3d 772 2001 WL
1131938 99-50152
CRIMINAL JUSTICE - Counsel. Delay in substituting counsel day prior to trial
was outweighed by defendant’s right to counsel.
...District court abused its discretion in denying defendant’s motions to substitute
counsel; court’s open-ended questions were inadequate to probe into nature of
attorney-client relationship after defendant explained his attorney used bad language
and threatened to “sink him for 105 years so that he wouldn’t be able to see his wife
and children,” extent of conflict interfered with attorney’s ability to provide
representation as shown by his calling defendant a liar and defendant stating he would
rather represent himself, and any delay in substituting counsel...
... Adelzo–Gonzalez expressly stated that he and the appointed counsel were not
getting along, that the appointed counsel did not pay attention to him and had used
bad language, and that the appointed counsel had threatened “to sink me for 105 years
so that I wouldn’t be able to see my wife and children.” ...
...Before ruling on a motion to substitute counsel due to an irreconcilable conflict,
the district court may need to evaluate the depth of any conflict between defendant
and counsel, the extent of any ****breakdown in communication, how much time may be
necessary for a new attorney to prepare, and any delay or inconvenience that may
result from substitution....
... See Williams, 594 F.2d at 1260 (sufficient conflict where defendant chose to
proceed pro se because the “client-attorney relationship had been a stormy one with
quarrels, bad language, threats, and counter-threats”); ****Brown 424 F.2d at 1169
(sufficient conflict where defendant “was forced into trial with a particular lawyer
with whom he was dissatisfied, with whom he would not cooperate, and with whom he
would not, in any manner whatsoever, communicate”)....

****Brown 424 F.2d at 1169 (sufficient conflict where defendant “was

forced into trial with a particular lawyer with whom he was dissatisfied,
with whom he would not cooperate, and with whom he would not, in any
manner whatsoever, communicate”

** 36. U.S. v. Mendez-Sanchez

United States Court of Appeals, Ninth Circuit. April 23, 2009 563 F.3d 935 2009 WL
1082288 08-30044
CRIMINAL JUSTICE - Counsel. Defendant did not unequivocally waive right to
counsel and demand self-representation.
...Although there was some conflict between appointed counsel and defendant, who would
leave room or change subject when counsel spoke about something defendant did not want
to discuss, and defendant asserted that he would rather represent himself, conflict
was not so extensive and irreconcilable as to lead to significant breakdown in
communication that substantially interfered with attorney-client relationship and
consequent inability to present defense, as would warrant substitution of counsel...
...Defendant’s Faretta invocation and colloquy did not unequivocally waive his right
to counsel and assert his right of self-representation at his trial on drug charges,
where defendant stated during hearing on his motion to substitute counsel that he
wished to go to trial, but not with his appointed counsel, and when asked if he wished
to represent himself, he stated “that would be better,” but several minutes into
colloquy, after denial of substitute counsel, defendant acknowledged that he thought
it “would be better if a lawyer will help me. But I hope that it would be a good
lawyer, not like these guys.” U.S.C.A. Const.Amend. 6...
...Defendant’s motion to substitute appointed counsel on grounds that defendant was
unhappy with his plea offer for drug offenses was untimely filed, in support of denial
of substitution, where defendant filed motion same day as plea deadline and little
more than two weeks before trial that had been continued twice and involved
significant discovery, and new counsel would have required additional time to prepare
for trial....
...District court’s inquiry in denying defendant’s motion to substitute appointed
counsel was adequate to create sufficient basis for reaching informed decision, in
support of denial of substitution of counsel to represent defendant on drug charges,
where court was able to surmise from defendant’s statements that he refused to accept
consequences of his crimes, and court asked not only open-ended questions but also
questions targeted toward understanding crux of disagreement between defendant and his
attorneys....

** 45. People v. Myles

Supreme Court of California April 26, 2012 53 Cal.4th 1181 274 P.3d 413 S097189
CRIMINAL JUSTICE - Homicide. Presence of victim-witness advocate did not
improperly bias jury.
...In Marsden hearing to allow defendant to state specific examples of appointed
counsel’s assertedly inadequate representation, capital defendant’s complaints of a
difficult, unproductive relationship between him and his counsel did not require trial
court to grant substitution of appointed counsel, where defense counsel informed the
court that he and defendant had discussed defendant’s suggestions “many times” and
that he was pursuing everything he could, and defendant indicated his willingness to
try to “come to some type of understanding” with counsel...
...[14]Defendant contends that the court’s denial of his request for substitution of
counsel was an abuse of discretion because the complaints summarized, ante, were
emblematic of a difficult, unproductive relationship between him and his counsel,
which led to an irretrievable breakdown in their ability to work together that
substantially impaired his constitutional right to the effective assistance of
counsel....
... As we explained in People v. Jones (2003) 29 Cal.4th 1229, 131 Cal.Rptr.2d 468, 64
P.3d 762, “If a defendant’s claimed lack of trust in, or inability to get along with,
an appointed attorney were sufficient to compel appointment of substitute counsel,
defendants effectively would have a veto power over any appointment, and by a process
of elimination could obtain appointment of their preferred attorneys, which is
certainly not the law.” ...
... People v. Black (2007) 41 Cal.4th 799, 62 Cal.Rptr.3d 569, 161 P.3d 1130 held in
relevant part that imposition of the upper term does not violate a defendant’s jury
trial right “so long as one legally sufficient aggravating circumstance has been found
to exist by the jury,” or “has been admitted by the defendant.” ...

** 61. People v. Fierro

Supreme Court of California, In Bank. December 26, 1991 1 Cal.4th 173 821 P.2d 1302
S004726, CRIM 25699
Defendant was convicted in the Superior Court, Riverside County, No. CR–
23664,Gerald F. Schulte, J., of first-degree murder and robbery and he was
sentenced to death. On automatic appeal, the Supreme Court, Arabian, J., held
that: (1) defendant did not show either lack of diligent representation or
break down in attorney-client...
...Record of proceedings at in-chambers hearing which disclosed neither request for
substitution of counsel or any credible evidence of lack of diligent representation or
break down in attorney-client relationship did not support repeated claims by
defendant that lack of trust between him and counsel impaired representation; record
showed that counsel deferred to defendant’s preferred strategy at guilt phase.
U.S.C.A. Const.Amend. 6....
...There was no basis to conclude that counsel was not providing effective assistance
or that break down in attorney-client relationship had occurred which would impair
defendant’s right to effective assistance where, at in camera hearing, defendant
indicated he was not “comfortable” with his attorney, did not trust him, and stated
simply “I just want another attorney.” U.S.C.A. Const.Amend. 6....
... On automatic appeal, the Supreme Court, Arabian, J., held that: (1) defendant did
not show either lack of diligent representation or break down in attorney-client
relationship necessary to be entitled to substitution of counsel; (2) electrophoretic
testing of dried blood stains was sufficiently accepted in scientific community to be
admissible evidence; and (3) death penalty was not disproportionate sentence....
...Evidence Code section 972, subdivision (f) makes the spousal privilege inapplicable
in “A proceeding resulting from a criminal act which occurred prior to legal marriage
of the spouses to each other regarding knowledge acquired prior to that marriage if
prior to the legal marriage the witness spouse was aware that his or her spouse had
been arrested for or had been formally charged with the crime or crimes about which
the spouse is called to testify.” ...

**94. Currie v. Grounds

United States District Court, E.D. California. May 05, 2015 Slip Copy 2015 WL 2113983
2:13-CV-1062-KJM-EFB
Petitioner is a state prisoner proceeding through counsel with a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a
judgment of conviction entered against him on January 20, 2011, in the
Sacramento County Superior Court on charges of first degree robbery, first
degree residential burglary, two counts of...
...Defendant had four main concerns regarding his counsel: (1) defendant had five
witnesses that his attorney refused to call; (2) his counsel did not speak up for him
at the preliminary hearing; (3) his attorney called him a “black-ass monkey,” laughed,
and walked off when defendant confronted him about the name-calling; and (4) his
attorney had a conflict of interest because the public defender’s office had
previously represented K.C. In response to defendant’s allegations, defense counsel
countered that the five witnesses would not be called because they covered issues that
were not in dispute....
...On federal habeas review, the relevant inquiry is whether the state trial court’s
disposition of the Marsden motion violated petitioner’s right to counsel because the
asserted conflict “had become so great that it resulted in a total lack of
communication or other significant impediment that resulted in turn in an attorney-
client relationship that fell short of that required by the Sixth Amendment.”...
...See Stenson v. Lambert, 504 F.3d 873, 887 (9th Cir.2007) (inquiry was adequate when
court determined that the lines of communication were open and counsel was competent);
United States v. Prime, 431 F.3d 1147, 1155 (9th Cir.2005) (inquiry was adequate where
defendant ‘was given the opportunity to express whatever concerns he had, and the
court inquired as to [defense attorney’s] commitment to the case and his perspective
on the degree of communication.”); cf. Schell, 218 F.3d at 1027 (remanding for an
evidentiary hearing where the state court failed to make any inquiry into alleged
deterioration of attorney-client relationship...
...Pursuant to the decision in People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465
P.2d 44 (1970), when a criminal defendant in California asserting inadequate
representation seeks to discharge appointed counsel and substitute another attorney,
the trial court must permit him to explain the basis of his contention and to relate
specific instances of the attorney’s inadequate performance....

** 110. People v. Hernandez

Court of Appeal, First District, Division 2, California. May 08, 2003 Not Reported in
Cal.Rptr.2d 2003 WL 21028354 A095799
Background: Defendant was convicted in the Superior Court, City and County of
San Francisco, No. 175478, of second degree murder, attempted murder, firearm
discharge from a vehicle, firearm assault, carrying a concealable firearm by
a criminal street gang participant, firearm discharge at an occupied vehicle,
grossly negligent firearm discharge,...
...‘ “[I]f a defendant’s claimed lack of trust in, or inability to get along with, an
appointed attorney were sufficient to compel appointment of substitute counsel,
defendants effectively would have a veto power over any appointment and by a process
of elimination could obtain appointment of their preferred attorneys, which is
certainly not the law.”...
...It appears to the Court that with all of the prior appearances by Mr. Hotchkiss in
behalf of this defendant[,] the motions to continue, the bail motions, and Mr.
Hotchkiss’s statement that over this past weekend, this being Monday the 6th of
November, he feels there may be or there is a breakdown of the attorney-client
relationship, and the defendant makes this representation, but the Court is looking
for a factual basis to support the allegations by counsel and the defendant....
...Defendant was not entitled to new counsel to substitute for appointed counsel prior
to gang-related murder trial, despite claims of inadequate representation due to
counsel’s alleged failure to interview witnesses, file requested motions, and provide
defendant with paperwork regarding case; case was over two years old when defendant’s
Marsden motion was made, 40 to 50 witnesses and thousands of pages of discovery were
involved, and counsel testified that the “vast majority” of witnesses had been
interviewed, including “mental defense” witnesses and witnesses identified by
defendant, and that he had given defendant all statements by himself and those
arrested with him. U.S.C.A. Const.Amend. 6...
...[1] On November 6, 2000, with trial set to begin on November 9, Hernandez orally
made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465
P.2d 44) to discharge appointed counsel Bruce Hotchkiss and appoint new counsel, and
the matter was referred to Judge John Conway, who heard the matter that same day....

People v. Lucky, 45 Cal.3d 259 (1988)

(C) Conflict With Appointed Counsel.

Defendant strenuously argues that the trial court committed reversible
error when it continued trial proceedings without giving him the
opportunity to state the specific reasons for his “conflict” with
appointed counsel. Specifically, he contends that when appointed counsel,
Curtis Shaw, informed the court that defendant was considering the idea of
retaining private counsel in lieu of Mr. Shaw, the court had a duty under
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 to
give defendant an opportunity to state fully the grounds for his
dissatisfaction with appointed counsel.
At the outset of the proceedings, prior to the voir dire of the jury, the
court was considering the issue of the continuance of **1065 the trial
date. At this point, Mr. Shaw informed the court that defendant was
seeking to hire a private attorney and that his mother was attempting to
raise the necessary attorney fees. Counsel also indicated that there was a
“difference of opinion” between himself and the defendant with respect to
the trial tactics which would be employed in the defense. During the
ensuing discussion, the court advised defendant that a private attorney
might cost $25,000–$30,000 and that new counsel might choose a similar
approach to that recommended by Mr. Shaw. In response to a question from
the court, defendant indicated that he had spoken to a private attorney, a
Mr. Tarlow, and the court then granted a continuance so that defendant
could further explore the possibility of retaining new counsel.

Two days later, Mr. Shaw informed the court that defendant would not be
hiring new counsel and that he had discussed the “ramifications” of this
with his client. Counsel further explained that the disagreement stemmed
from defendant’s refusal to permit any type of psychological defense,
which would have raised defendant’s history of drug abuse. The court then
asked defendant: “Mr. Lucky, have you got any problems with Mr. Shaw
handling this, other than you think the case should be handled one way or
the other?” Defendant replied, “That’s about all, Your Honor.” The court
then asked defendant whether he had any complaints about starting the
trial in five days, and he replied that he did not. The court subsequently
set the case for trial on the agreed upon date, and defendant never raised
any *281 indications throughout the remainder of the proceedings that he
had any form of disagreement with his appointed counsel.

In Marsden, supra, we held that where a judge denies a motion for the
substitution of attorneys solely on the basis of his courtroom
observations, despite a defendant’s offer to relate specific instances of
misconduct, the judge abuses his or her discretion to determine the
competency of ***14 the attorney. (2 Cal.3d at p. 124, 84 Cal.Rptr. 156,
465 P.2d 44.) We have further held that a defendant must be permitted to
state the reasons why he believes that a court-appointed attorney should
be discharged. (Ibid.; People v. Lewis (1978) 20 Cal.3d 496, 497, 143
Cal.Rptr. 138, 573 P.2d 40.)

The People contend that both Marsden and Lewis are easily distinguishable
from the facts of the instant case. They argue that the trial court here
was not required to make any further inquiry into defendant’s reasons for
attempting to hire a private attorney because defendant never moved, or
even asked for, substitution or discharge of his court-appointed attorney.
They further add that when the court directly asked the defendant whether
he had any conflict with Mr. Shaw, other than a disagreement over trial
tactics, defendant indicated that he had none. In addition, they contend
that the defendant was given several opportunities to address the court
about this matter and never once requested another attorney. The record
fully supports these contentions.
[9] [10]
Our review of the Marsden and Lewis cases as well as this court’s
decision in People v. Hidalgo (1978) 22 Cal.3d 826, 827, 150 Cal.Rptr.
788, 587 P.2d 230 clearly reveals that a trial court’s duty to permit a
defendant to state his reasons for dissatisfaction with his attorney
arises when the defendant in some manner moves to discharge his current
counsel.8 The mere fact that there appears to be a difference of opinion
between a defendant and his attorney over trial tactics does not place a
court under a duty to hold a Marsden hearing.
[11] [12]
There is no constitutional right to an attorney who would conduct
the defense of the case in accord with the whims of an indigent defendant.
(People v. Floyd (1970) 1 Cal.3d 694, 704, 83 Cal.Rptr. 608, 464 P.2d 64;
People v. Rhines (1982) 131 Cal.App.3d 498, 505, 182 Cal.Rptr. 478; People
v. Kaiser (1980) **1066 113 Cal.App.3d 754, 761, 170 Cal.Rptr. 62; People
v. Lindsey (1978) 84 Cal.App.3d 851, 860, 149 Cal.Rptr. 47.) Nor does a
disagreement between defendant and appointed counsel concerning trial
tactics necessarily compel the appointment of another *282 attorney.
(People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d
1008, cert. den. 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821; Rhines,
supra, 131 Cal.App.3d at p. 505, 182 Cal.Rptr. 478.)
[13]Defendant asserts that three specific instances which occurred after
trial commenced reflect a breakdown in the attorney-client relationship,
thereby jeopardizing his right to effective assistance of counsel. The
first instance occurred when Mr. Shaw informed the court that his client
had decided to take the stand in his own behalf, against the advice of
counsel. The People correctly respond that defendant’s decision to testify
in his own behalf does not constitute proof that there had been a
breakdown in his relationship with his counsel, nor does it prove that
defendant was denied his right to effective assistance of counsel. We have
held that the right to testify in one’s own behalf is of such fundamental
importance that a defendant who demands to take the stand, contrary to the
advice of counsel, has the right to do so. (Robles, supra, 2 Cal.3d at p.
215, 85 Cal.Rptr. 166, 466 P.2d 710.) However, we have never held that
such a situation requires that defendant be permitted new counsel, or that
such a disagreement reflects a fundamental breakdown in the attorney-
client relationship.
[14]Defendant’s second example involves the portion of the guilt phase
proceedings, prior to closing argument and jury instructions, where
defendant began to act in a very bizarre manner and was eventually removed
from the courtroom. At the time, the court asked two psychiatrists to
examine defendant and evaluate his competency to stand trial. Both
concluded that he was voluntarily feigning mental illness. The court noted
that when ***15 defendant would determine that things were not “going his
way,” he would choose to become uncooperative, but that when defendant
decided it was in his interests to cooperate, he would cease his bizarre
behavior. The People correctly contend that this was not an example of a
fundamental breakdown in the attorney-client relationship but rather
merely evidence of defendant’s decision to be uncooperative. (Floyd,
supra, 1 Cal.3d at p. 705, 83 Cal.Rptr. 608, 464 P.2d 64.)
[15]The third example cited by defendant seems to further substantiate the
People’s contention that defendant voluntarily elected not to cooperate
with his counsel at various times in the trial. Defendant refers us to a
statement on the record by defense counsel in which he explains that his
client refused to cooperate in any type of psychological defense which
might have involved evidence of prior drug abuse.9 Mr. Shaw’s statement
clearly reflects a *283 disagreement between himself and defendant over
tactics as well as the latter’s uncooperative and perhaps unwise attitude
toward his own defense. It does not, however, reflect any desire on
defendant’s part for a discharge of his attorney nor any duty on the trial
court to conduct a Marsden hearing.
In sum, since defendant never moved for the discharge or substitution of
his court-appointed attorney, and declined several opportunities afforded
him by the court to state any grounds for dissatisfaction with Mr. Shaw,
the trial court was under no duty to make any further inquiries. As such,
no error under Marsden or Lewis resulted, and defendant is not entitled to
a reversal of his conviction on these grounds.

People v. Wright, 72 Cal.App.3d 328, 337, (1977)

The Issue of Substitute Counsel Versus Self-Representation

[1]
Defendant advances the argument that he would have secured a better
result below had he been represented by counsel. It is argued that
inconsistencies in the prosecution’s case could have been exploited to
advantage by an able attorney, with the result of a substantial impairment
of the credibility of the prosecution’s witnesses. It is also urged that
*338 able counsel for defendant would have succeeded in precluding the
introduction into evidence of damaging evidence received against
defendant, and that defendant may have been persuaded by a good attorney
of the lack of wisdom in defendant’s taking the stand and testifying.

The contention being advanced by defendant, through his appellate counsel,

is that, if defendant shows, at the time he makes a motion to relieve his
counsel and represent himself, that his counsel has inadequately and
ineffectively represented him up to that time, the trial court has a duty
and obligation to inquire of defendant whether defendant wouldn’t prefer
the appointment of substitute counsel rather than self-representation. It
is appellate counsel’s thesis that the trial court’s failure to make
adequate inquiry of defendant and a determination that trial counsel was
inadequate and ineffective in his representation of defendant up to the
point of defendant’s request for self-representation renders the trial
court’s order permitting self-representation a violation of Faretta v.
California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
This contention of defendant is lacking in substance. The authorities
relied upon by defendant are distinguishable from the instant case. In
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, the
defendant made a motion for substitution of counsel—not for self-
representation in place of counsel as in the case at bench. The Marsden
defendant first stated to the trial judge that he was not being adequately
represented, and then said he would like to make a motion. Upon inquiry by
the court as to what his motion was, he replied: ‘For proper counsel. I’m
not adequate to give it myself and I don’t feel I’m being adequately
represented.’ (Id. at p. 121, 84 Cal.Rptr. at p. 158, 465 P.2d at p. 46.)

**Marsden posed the issue as one involving a ‘decision whether to permit a

defendant to discharge his appointed counsel and substitute another
attorney during the trial . . ..’ (Id. at p. 123, 84 Cal.Rptr. at p. 159,
465 P.2d at p. 47.) This decision to be made by the trial court was stated
by Marsden to be one that was to be exercised within the discretion of the
trial court. Such a discretion does not impinge upon the proposition set
forth in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799, that a criminal defendant is entitled, constitutionally, to the
assistance of court-appointed counsel if such defendant is unable to
employ private counsel.
*339 In the instant case, defendant stresses the point made by Marsden
‘that the trial court cannot thoughtfully exercise its discretion in this
matter without listening to his (the defendant’s) reasons for requesting a
change of attorneys.’ (Marsden, supra, 2 Cal.3d 118, 123, 84 Cal.Rptr.
156, 159, 465 P.2d 44, 47.) Defendant contends here that it should be held
to be a denial of fundamental fairness for a trial judge to take a
criminal defendant at his Literal word, relying on the statement from
Marsden that ‘(t)he semantics employed by a lay person in asserting a
constitutional right should not be given undue weight in determining the
protection to be accorded that right.’ (Id. at p. 124, 84 Cal.Rptr. at p.
160, 465 P.2d at p. 48.)

**104 But Marsden’s only holding is that when a defendant makes a motion
to have New counsel substituted on the ground that his present counsel is
providing him with inadequate representation, it is error for the trial
court to deny his motion without giving him an opportunity to explain why
he is receiving inadequate representation from his attorney.

People v. Walker (1976) 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306,
relied upon by defendant, is similar to Marsden in that the trial court
refused defendant’s request to substitute different counsel. But the trial
court Listened to the defendant’s reasons and decided they did not
constitute any showing that a continuance of the proceedings with the
initial counsel **would substantially impair his right to counsel.
Defendant uses the Walker case to point out that, as distinguished from
counsel’s activities in the instant case, **Walker’s counsel had conferred
with him on numerous occasions and **had interviewed defense witnesses.
But Walker is of little assistance in the case at bench since, in Walker,
the trial court denied defendant’s request for counsel substitution,
**while here, the trial court granted defendant’s motion for self-
representation. There is nothing in Walker to aid defendant’s position
that the trial court should have construed defendant’s request for self-
representation as a request for appointment of a new lawyer.
In People v. Munoz (1974) 41 Cal.App.3d 62, 115 Cal.Rptr. 726, the trial
court permitted defendant to set forth the reasons he believed he was not
getting too much help from his lawyer and why he desired new counsel.
After hearing defendant’s reasons, the trial court in Munoz denied
defendant’s request for a change in lawyers, but without first asking
defense counsel to respond to defendant’s charges of inadequate
representation. The Munoz court held that it was error for the trial court
to deny defendant’s motion without making a careful inquiry into the
defense attorney’s position and ascertaining whether or not the attorney
*340 was providing defendant with a competent defense. Munoz thus
considered the trial court’s action as ‘tantamount to a refusal on the
part of the court to adjudicate a fundamental issue . . .’ (Munoz, supra,
41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726, 728.) The failure of the trial
judge in Munoz to make careful inquiry into the reasons advanced by
defendant and in simply Listening to the defendant’s complaints made the
trial court’s ruling ‘lacking in all the attributes of a judicial
determination.’ (Spector v. Superior Court (1961) 55 Cal.2d 839, 843, 13
Cal.Rptr. 189, 192, 361 P.2d 909, 912.)

But, **in the instant case, the court accepted defendant’s request for
self-representation. The principles of Marsden and Munoz can have
application only if the trial court rules against a defendant who claims
inadequate representation by his attorney and seeks either a new lawyer or
**to represent himself.

In the case before us, the record demonstrates that defendant exercised
his constitutional right of self-representation—a right enunciated by the
United States Supreme Court in Faretta. The defendant knowingly and
intelligently waived his right of counsel-representation. The colloquy
between trial judge and defendant establishes, without question, that
defendant was warned of the danger and pitfalls he would likely encounter
if he represented himself. To this warning by the trial judge, defendant
replied that he was willing to risk his freedom on his own ability rather
than on the ability of experienced counsel.

Having chosen the constitutional right of self-representation and, Not

having made any effort to change back to counsel representation as the
trial proceedings progressed, defendant cannot be heard on appeal to
assert that, in representing himself, he received ineffective or
inadequate representation. A ‘(d)efendant’s contention that he
inadequately or ineffectively represented himself cannot be urged or
sustained on appeal once he has elected to ‘shoot craps’ in the trial
court and appear in propria persona.’ ( **105 People v. Harris (1977) 65
Cal.App.3d 978, 987—988, 135 Cal.Rptr. 668, 673); see also People v. Owens
(1977) 66 Cal.App.3d 720, 136 Cal.Rptr. 215 (defendant representing
himself calls as a witness an accomplice who gives damaging testimony
against defendant).) At no point in the colloquy between the trial judge
and defendant did defendant suggest or intimate that he desired new
counsel in place of defense counsel then representing him.

*341 Since we find no error in the trial court’s ruling permitting

defendant to represent himself, we do not reach defendant’s contention
that such an error constitutes reversible error Per se (see In re Smiley
(1967) 66 Cal.2d 606, 58 Cal.Rptr. 579, 427 P.2d 179) or that the error is
not harmless beyond a reasonable doubt under Chapman v. California (1967)
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

People v. Marsden, (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156

Defendant was convicted on verdict in the Superior Court, Monterey County,

Gordon Campbell, J., of forgery and he appealed. The Supreme Court, Mosk,
J., **held that trial court’s denial of defendant’s motion to substitute
new counsel without giving defendant opportunity to state specific
examples of allegedly inadequate representation deprived defendant of
constitutional right to effective assistance of counsel.

Reversed.

McComb, J., dissented.

[1]
Criminal Law
Procedure

**Trial court’s denial of defendant’s motion to substitute new counsel without giving defendant opportunity to state
specific examples of allegedly inadequate representation deprived defendant of constitutional right to effective
assistance of counsel.
2514 Cases that cite this headnote
[4]

Criminal Law
Discretion of court
Criminal Law
Procedure

**Judge who denies motion for substitution of attorneys solely on basis of his courtroom observations, despite
defendant’s offer to relate specific instances of misconduct, abuses exercise of discretion to determine competency
of attorney.

1631 Cases that cite this headnote

[5]

Judgment
Nature, rendition, and form of judgment in general

**Judicial decision made without giving party opportunity to present argument or evidence in support of his
contention is lacking in all attributes of judicial determination.

18 Cases that cite this headnote

On August 22, 1968, the District Attorney of Monterey County filed an information charging defendant and Laura
Catheryn Repine with five counts of forgery, a violation of section 476 of the Penal Code. It was asserted that
defendant and Miss Repine fraudulently cashed $100 money orders at five different motels in Monterey County on
August 3 and 4. The money orders had been stolen from a grocery store and were cashed by means of fictitious
identification. Defendant was arraigned on August 30, and the court appointed Michael Antoncich as defense
counsel. Defendant pleaded not guilty, but was convicted on all five counts after a two-day jury trial. He was
sentenced to the state penitentiary.
[1]
Defendant’s only contention on this appeal is that he was deprived of his constitutional right to the effective
assistance of counsel because the trial court denied his motion to substitute new counsel without giving him an
opportunity to state the reasons for his request.

After the People completed the presentation of their case to the jury, the following colloquy occurred in the judge’s
chambers:

‘THE DEFENDANT MARSDEN: I don’t know how to go about making the motion, Your Honor, but I don’t feel
that I am being competently or adequately represented by counsel.

‘THE COURT: All right. Any comment wished to be made by anyone else on this point? All right. Well, the
comment has been made for the court so it’s noted, it’s on the record.

‘THE DEFENDANT MARSDEN: Thank you.

‘THE COURT: All right, that’s all.’

***158 **46 The next day at the instigation of the prosecutor the problem relating to defendant and his counsel was
again raised in the judge’s chambers and this colloquy ensued:

‘THE COURT: The Court doesn’t recall hearing a motion made or asking *121 any relief from the Court on the part
of the defendant Marsden, that’s why when he made his statement, the Court said your statement is noted in the
record, however, in the interests of caution, the Court will consider it a motion that according to the defendant
Marsden he claims his attorney is not representing him properly and therefore the Court will infer that he wishes
another attorney or wishes to represent himself, I don’t know which. What do you say on that, Mr. Marsden?
‘THE DEFENDANT MARSDEN: Yes, sir, I don’t feel that I am getting adequately represented or competently
represented, I’d like to make a motion.

‘THE COURT: For what?

‘THE DEFENDANT MARSDEN: For proper counsel. I’m not adequate to give it myself and I don’t feel I’m being
adequately represented. I think the transcript, court’s transcript prior to this meeting here can reveal that fact.’

The court then questioned Mr. Antoncich and established that he had represented defendant since his arraignment in
municipal court, and that he had also represented Miss Repine until the time of arraignment in the superior court
when separate counsel was appointed for her to avoid a possible conflict of interest between the two defendants. The
judge proceeded to interrogate defendant as to his background and learned that defendant had served time for
burglary and escape in the state prison, that he had never completed high school, that he received a certificate of
completion of a high school equivalency course in the Marine Corps, and that he was working before his arrest as a
mathematician operating and programming digital computers. Then this discussion occurred between the court and
defendant:

‘THE COURT: You seem to be (an) intelligent sort of a person. In the times you have been before the court have
you been represented by an attorney?

‘THE DEFENDANT MARSDEN: Yes, I have.

‘THE COURT: And during these previous occasions when you have been represented by an attorney, have you ever
discharged your attorney?

‘THE DEFENDANT MARSDEN: No, I haven’t.

‘THE COURT: Have you ever represented yourself without an attorney in any of these prior proceedings?

‘THE DEFENDANT MARSDEN: No. I haven’t.

‘THE COURT: Well, the Court denies the defendant’s motion. The Court *122 feels Mr. Antoncich is alert and has
raised questions during the course of this hearing that have been good questions to raise. The Court feels he has
taken good care of his client to the present time, at least.

‘THE DEFENDANT MARSDEN: Your Honor—

‘THE COURT: (Interrupting) And so the Court—yes?

‘THE DEFENDANT MARSDEN: Could I bring up some specific instances?

‘THE COURT: I don’t want you to say anything that might prejudice you before me as to the case, you see.

‘THE DEFENDANT MARSDEN: I don’t think it would.

‘THE COURT: I don’t want to take that chance.

‘There are lots of times when a person—lots of times, and I emphasize that, where a defendant is represented by an
attorney where he has just sufficient knowledge to be ignorant and lots of times people want to tell their attorneys
how to run a case, which they are not qualified to do. I think possibly you are a bright person and who thinks a case
should be conducted in a certain way, which you are not qualified to determine.

***159 **47 ‘THE DEFENDANT MARSDEN: Your Honor.

‘THE COURT: Therefore the Court denies the motion. The Court is not going to have a case that has—where the
prosecution has been completed and then a person raises this sort of thing where the Court doesn’t feel it’s
appropriate. If this were done, and the Court has this type of thing come up from time to time, you never could
complete a case, you’d get in the middle of the case, a defendant, particularly a bright one, raises some question and
you never could come to the completion of a trial.

‘THE DEFENDANT MARSDEN: Your Honor, I believe I can show cause. Would the Court show me how I could
go about doing this?

‘THE COURT: The Court—

‘THE DEFENDANT MARSDEN: (Interrupting) I’m ignorant of the law.

‘THE COURT: That’s right, that’s why you have lawyers, Mr. Marsden, the Court it prohibited from giving legal
advice to people, so I can’t advise you as to legal procedures. I commit a misdemeanor, a criminal offense, if I give
legal advice to anybody, whether defendant or anyone else. That’s all for this matter, the jury is waiting.’

Defendant now contends that the denial of the motion for substitution of attorneys, without giving him an
opportunity to enumerate specific examples of inadequate representation, deprived him of a fair trial.

And the court stated,

A defendant’s right to a court-appointed counsel does not include the right to require the court to appoint more than
one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately
representing the accused. * * * ‘The right of a defendant in a criminal case to have the assistance of counsel for his
defense * * * may include the right to have counsel appointed by the court * * * discharged or other counsel
substituted, if it is shown * * * that failure to do so would substantially impair or deny the right * * *, but the right to
such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a
sufficient showing * * * that the right to the assistance of counsel would be substantially impaired * * * (People
v. Marsden, supra, 2 Cal.3d at p. 123)

And the court stated,

Keywords: California constitution irreconcilable conflict between

defendant and public defender, that it caused complete breakdown of
attorney-client relationship, that appointed counsel is not adequately
representing him and that deficiency in representation is so great as to
substantially impair defendant right to effective assistance of counsel,
that defendant and counsel have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result

westnext_search_ca_const_irrecon_confl_betw_deft_pub_def_cause_compl_break
d_of_atty_client_relat_defic_in_represent_so_great_substan_impair_right_ot
_effective_assist_couns_results

assert either incompetence of counsel or irreconcilable differences

People v. Williams, (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208 the court

Stated,
[12]A disagreement between a defendant and appointed counsel regarding the
defendant’s fundamental right to testify in his own behalf does not
necessarily require the appointment of another attorney. (People v.
Robles, Supra, 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 173, 466 P.2d 710,
716.) Nor does a disagreement between a defendant and appointed counsel
concerning trial tactics necessarily compel the appointment of another
attorney. **Robles also stated that ‘in a few cases the disagreement as to
whether a defendant should testify may signal a breakdown in the attorney-
client relationship of such magnitude as to jeopardize the defendant’s
right to effective assistance of counsel.’ Likewise a disagreement as to
trial tactics could signal such a breakdown.

33 A.L.R. Fed. 2d 1 (Originally published in 2009)

Construction and Application of Sixth Amendment Right to Counsel—Supreme

Court Cases

§ 21. Denial of choice of counsel upheld

**In the following, the U.S. Supreme Court ruled that a defendant’s choice of counsel could be denied due to a
conflict of interest.

In Wheat v. U.S., 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988), the U.S. Supreme Court decided that a
refusal of the petitioner’s request to substitute counsel and to waive his right to counsel without a conflict of
interest did not violate the Sixth Amendment. The petitioner and numerous codefendants were charged with
participating in a far-flung drug distribution conspiracy. Two days before trial, the petitioner asked to be
represented by counsel who also represented two of the codefendants. All three defendants agreed to allow the
attorney to represent the petitioner and to waive any future claims of conflict of interest. The prosecution argued
that a conflict existed because the petitioner could be a witness against one of the codefendants and one of the
codefendants was a likely witness against the petitioner. The trial court decided that there was an irreconcilable
conflict of interest for the one attorney to represent the petitioner and the two other codefendants, which conflict
could not be waived. The petitioner was convicted. On appeal the conviction was upheld. The U.S. Supreme Court
affirmed, concluding that where a court justifiably found an actual conflict of interest, it could decline a proffer of
waiver, and insist that defendants be separately represented. The court observed that one attorney proposed to
defend three conspirators in a complex drug distribution scheme. The government intended to call one codefendant
as a witness for the prosecution at the petitioner’s trial and the prosecution might readily have tied certain deliveries
of marijuana by a codefendant to the petitioner, necessitating vigorous cross-examination of the codefendant by the
petitioner’s counsel, and the attorney, because of his prior representation of that codefendant, would have been
unable ethically to provide that cross-examination. The court concluded that a trial court must recognize a
presumption in favor of a defendant’s counsel of choice, but that presumption could be overcome not only by a
demonstration of actual conflict but by a showing of a serious potential for conflict.

§ 22. Denial of choice of counsel as reversible error

In the following, the U.S. Supreme Court decided that the erroneous denial of choice of counsel to a criminal
defendant was reversible error.

**In U.S. v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409, 33 A.L.R. Fed. 2d 661 (2006), the
U.S. Supreme Court ruled that the erroneous denial of the choice of counsel to a criminal respondent violated the
Sixth Amendment to the Constitution and was a “structural” defect that was not subject to harmless error review.
The respondent was initially represented by counsel hired by his family, in the district court in Missouri, but, after
his arraignment, hired a California attorney to represent him on the federal drug charge. The California attorney
filed an application to appear pro hac vice, but the district court denied the motion repeatedly. Consequently, the
respondent hired local counsel to represent him at the trial, but the district court refused to allow the California
attorney to assist the local counsel or to have contact with the respondent. The respondent was convicted in the
district court, but the Eighth Circuit reversed, finding that the denials of the pro hac vice motions were erroneous
and violated the respondent’s Sixth Amendment right to paid counsel of his choosing, which was not subject to
harmless error review. The Supreme Court affirmed. The Court said that it was not necessary for the respondent to
show that his counsel was ineffective where he had been erroneously denied his choice of counsel. **The Court
said that the Sixth Amendment commanded that the accused be defended by the counsel he believed to be best and
no additional showing of prejudice was required to make the violation “complete.” The court distinguished between
the right to counsel of one’s choice, which involves the right to a particular lawyer regardless of comparative
effectiveness, and the right to effective counsel, which involves competence. The court distinguished between
“trial error” and “structural error.” The court classified the denial of counsel of one’s choice as “structural” because
it affected the framework in which the trial proceeds and not just an error in the trial process itself. The court listed
various unquantifiable and indeterminate consequences flowing from the choice of counsel that made the denial of
that choice to be “structural,” and therefore the error did not require review of the effectiveness of the
representation afforded the respondent. The court noted that it was not casting any doubt or placing any
qualification upon its previous holdings that limited the right to counsel of choice and recognized the authority of
trial courts to establish criteria for admitting lawyers to argue before them.

**See Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954), decided on the basis of the 14th Amendment
Due Process Clause, the U.S. Supreme Court decided that where the petitioner had asked for a continuance of this
trial so that he could obtain his own counsel, that regardless of whether the petitioner would have been entitled to
the appointment of counsel, his right to be heard through his own counsel was unqualified.

9A Cal. Jur. 3d Criminal Law: Rights of the Accused § 123

California Jurisprudence 3d | November 2017 Update
Criminal Law: Rights of the Accused
John Bourdeau, J.D.; Jack K. Levin, J.D.; Eric C. Surette, J.D.; and Mary Ellen West, J.D.
IV. Right to Counsel
D. Withdrawal, Removal, Discharge, and Substitution of Counsel
§ 123. Substitution of appointed counsel

People v. Clark, (2011) 52 Cal.4th 856, 912, 131 Cal.Rptr.3d 225 the court
stated,

**The court does not abuse its discretion in denying a Marsden motion “ ‘unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s ***286 right to assistance of counsel.’ ”
(People v. Taylor, supra, 48 Cal.4th at p. 599, 108 Cal.Rptr.3d 87, 229 P.3d 12; People v. Crandell (1988) 46 Cal.3d
833, 859 [251 Cal.Rptr. 227, 760 P.2d 423].) **Substantial impairment of the right to counsel can occur when the
appointed counsel is providing inadequate representation or when “the defendant and the attorney have become
embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (People v.
Smith (1993) 6 Cal.4th 684, 696 [25 Cal.Rptr.2d 122, 863 P.2d 192]; People v. Crandell, supra, at p. 854, 251
Cal.Rptr. 227, 760 P.2d 423.)

People v. Smith, (1993) 6 Cal.4th 684, 696, 25 Cal.Rptr.2d 122

696 [6] [7] We stress, therefore, that the trial court should appoint substitute counsel when a proper showing has been
made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new
trial motion or motion to withdraw a plea. For the reasons identified in People v. Fosselman, supra, 33 Cal.3d at
pages 582–583, 189 Cal.Rptr. 855, 659 P.2d 1144, justice is expedited when the issue of counsel’s effectiveness can
be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early.
Thus, when a defendant satisfies the trial court that **adequate grounds exist, substitute counsel should be
appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial
based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should
actually be made will, of course, be determined by the new attorney.
[8]
We stress equally, however, that new counsel should not be appointed without a proper showing. A series of
attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute
counsel to become acquainted with the case, benefits no one. The court should deny a request for new counsel at any
stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial
court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.
[9]
**We thus hold that substitute counsel should be appointed when, and only when, necessary under the Marsden
standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure
to replace the appointed attorney would substantially impair the right to assistance of counsel (People v. Webster,
supra, 54 Cal.3d at p. 435, 285 Cal.Rptr. 31, 814 P.2d 1273), or, stated slightly differently, if the record shows that
the first appointed attorney is not providing adequate representation or that the defendant and the attorney have
become embroiled in such an irreconcilable conflict that ineffective representation is likely to result (People v.
Crandell, supra, 46 Cal.3d at p. 854, 251 Cal.Rptr. 227, 760 P.2d 423). This is true whenever the motion for
substitute counsel is made.

In order to receive the right to effective representation there is a need

for the avoid the breakdown of the attorney client relationship and the
establishment of trust

16 18 U.S.C.A. § 242 provides for specified criminal penalties for

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any
person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States, or to different punishments,
pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens. …
Lanier, an elected Chancery Court judge, raped or sexually assaulted five women in his chambers. The women were current or
potential employees or, in one case, a woman with a child custody matter pending before him. Lanier was prosecuted and
convicted for willfully depriving a person of rights and privileges protected and secured by the Constitution and laws of the
United States, in violation of 18 U.S.C.A. § 242. The Court of Appeals for the Sixth Circuit, on rehearing en banc, reversed all
the convictions.

Right to effective assistance of counsel

Cal. Prac. Guide Prof. Resp. Ch. 6-A

California Practice Guide: Professional Responsibility

Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)

Chapter 6. Professional Competence And Professional Liability

Vapnek, Paul W. & Tuft, Mark L. et. al., California Practice Guide: Professional Responsibility, Ch. 6-A
Sources Of Duty Of Competence, states

“b. [6:19] “Competence” defined: To act with “competence” means to apply the:

“1) diligence,

“2) learning and skill, and

“3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” [CRPC 3–
110(B); compare ABA Model Rules 1.1 (competence “requires the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation”) and 1.3 (lawyer must act with reasonable diligence in
representing client)]

(1) [6:20] Communication with clients as part of competence: Adequate communication with clients “is an
integral part of competent professional performance as an attorney.” [Calvert v. State Bar (1991) 54 C3d 765, 782, 1
CR2d 684, 693]”

The CRPC specifically require lawyers to keep clients “reasonably informed about significant developments relating
to employment or representation, including promptly complying with reasonable requests for information and copies
of significant documents when necessary to keep the client so informed.” [CRPC 3–500, discussed at ¶ 6:125 ff.]
(2) [6:20.1] Includes supervision of subordinate attorneys and nonlawyers: Attorney competence also includes
the duty to supervise the work of subordinate attorneys and nonattorney employees or agents. See discussion at ¶
6:150 ff.

c. [6:21] Duty where learning and skill lacking: An attorney lacking sufficient learning and skill for a particular
matter may continue such representation provided the attorney (1) acquires sufficient learning and skill before
performance is required, or (2) associates with or consults competent counsel. [CRPC 3–110(C); see ¶ 6:74 ff.]

….
Cal. Prac. Guide Prof. Resp. Ch. 6-G

California Practice Guide: Professional Responsibility

Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)

Chapter 6. Professional Competence And Professional Liability

****G. Professional Competence In Criminal Cases

Vapnek, Paul W. & Tuft, Mark L. et. al., California Practice Guide Professional. Responsibility, Ch. 6-G
Professional Competence In Criminal Cases, states,

“1. [6:500] Defendant’s Constitutional Right to Competent Counsel: The right to effective assistance of counsel in a
criminal case is guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, § 15 of the California
Constitution. [Strickland v. Washington (1984) 466 US 668, 684–687, 104 S.Ct. 2052, 2063–2064; People v. Diggs
(1986) 177 CA3d 958, 968, 223 CR 361, 367; see also People v. Reed (1998) 62 CA4th 593, 597, 72 CR2d 615,
617–618—fact that attorney incompetence claim is based on federal (as opposed to state) Constitution irrelevant
since incompetence claims evaluated identically under both Constitutions]

The right to assistance of counsel means the accused is entitled to a “reasonably competent attorney acting as a
diligent, conscientious advocate.” [People v. Diggs, supra, 177 CA3d at 968, 223 CR at 367 (emphasis added)]”

****“1. [6:500] Defendant’s Constitutional Right to Competent Counsel: The right to effective assistance of
counsel in a criminal case is guaranteed by the Sixth Amendment to the U.S. Constitution and Article I, § 15 of the
California Constitution. [Strickland v. Washington (1984) 466 US 668, 684–687, 104 S.Ct. 2052, 2063–2064;
People v. Diggs (1986) 177 CA3d 958, 968, 223 CR 361, 367; see also People v. Reed (1998) 62 CA4th 593, 597,
72 CR2d 615, 617–618—fact that attorney incompetence claim is based on federal (as opposed to state) Constitution
irrelevant since incompetence claims evaluated identically under both Constitutions]

The right to assistance of counsel means the accused is entitled to a “reasonably competent attorney acting as a
diligent, conscientious advocate.” [People v. Diggs, supra, 177 CA3d at 968, 223 CR at 367 (emphasis added)]

This constitutional requirement applies both to privately-retained attorneys and counsel appointed by the court for
indigent defendants. [People v. Pope (1979) 23 C3d 412, 424, 152 CR 732, 738 (overruled on other grounds in
People v. Berryman (1993) 6 C4th 1048, 1081, 25 CR2d 867, 887, fn. 10, overruled on other grounds in People v.
Hill (1998) 17 C4th 800, 823, 72 CR2d 656, 667, fn. 1)—conviction may be overturned if indigent defendant
receives representation of lower quality than that of a reasonably competent attorney]

POINTS AND AUTHORITIES

1. Amendment VI, United States Constitution

 2. Amendment XIV, United States Constitution

3. Article I, Section 15, of the Constitution of

the State of California.

a citizen, accused of a crime

keywords: in criminal cases right to effective assistance of counsel

is for a reasonably competent attorney having the learning skill
knowledge experience in the fields, areas, subjects of law that are
involved basis in the counts charges of the criminal complaint

**In a prosecution for numerous offenses, the actions and inactions of

defendant's appointed counsel could not be characterized as constituting
effective assistance. Thus, defendant was deprived of his constitutional
right to assistance of counsel, where counsel refused to participate in
the trial other than to sit next to his client, did not ask questions or
exercise challenges during jury selection, made no arguments to the jury,
did not cross-examine any witnesses or object to the admission of any of
the evidence, and remained completely passive at sentencing proceedings.
The failure to object to the introduction of certain evidence deprived
defendant of the opportunity to litigate the propriety of admitting
arguably prejudicial material in evidence. People v. McKenzie (1983) 34
Cal 3d 616, 194 Cal Rptr 462, 668 P2d 769, 1983 Cal LEXIS 234.

**Const Art I, § 15 guarantees a criminal defendant effective

assistance of counsel. The right of a criminal defendant to counsel
entitles the defendant not to some bare assistance but, rather, to
effective assistance. Specifically, he is entitled to the reasonably
competent assistance of an attorney acting as his diligent and
conscientious advocate, which means that before counsel undertakes to act,
or not to act, counsel must make a rational and informed decision on
strategy and tactics founded on adequate investigation and preparation.
While the appellate court's scrutiny of an attorney's conduct of the
defense is deferential, that deference is limited. It must never be used
to insulate counsel's performance from meaningful scrutiny and thereby
automatically validate challenged acts or omissions; otherwise, the
constitutional right to the effective assistance of counsel would be
reduced to form without substance. In re Gay (1998) 19 Cal 4th 771, 80 Cal
Rptr 2d 765, 968 P2d 476, 1998 Cal LEXIS 8039.

People, v. Williams 2012 WL 1865493, 27

“The burden of proving ineffective assistance of counsel is on the

defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) A defendant
claiming ineffective assistance of counsel must show that his or her
counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms and also that it is reasonably
probable, but for counsel’s failings, the result would have been more
favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668,
687, 694.) “A defendant must prove prejudice that is a ‘ “demonstrable
reality,” not simply speculation.’ [Citations.] Prejudice requires ‘a
reasonable probability that a more favorable outcome would have resulted
..., i.e., a probability sufficient to undermine confidence in the
outcome.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

*28 “[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, ...
that course should be followed.” (Strickland v. Washington, supra, 466
U.S. at p. 697.)

Petition for Review

In the Matter of ROBERT P., Petitioner, On Habeas Corpus.Supreme Court of

California.November 16, 2004No. S129246.2004 WL 3088905
Petitioner concedes that this case does not meet the criteria for a grant of review under California
Rules of Court, rule 28(b). However, it is equally true that petitioner has suffered...
...belief, Mr. Sanford made a tactical decision based on his ignorance of the law - i.e.,
ArandalBruton and its progeny - to admit...
...Mr. Sanford did not know, and still does not, the law in this area, he failed to “make a rational
and informed decision on strategy and tactics founded on an adequate investigation and
preparation.” (In re Marquez (1992) 1 Cal.4* 584...
Fusco v. Beard 2014 WL 2711833, 6,

Standard of Review

A federal court may not grant a writ of habeas corpus on behalf of a person in state
custody

with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim (1) resulted in a
decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412 (2000).

Under section 2254(d)(1), a state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fairminded jurists could disagree” on the correctness of
the state court’s decision.2 Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). This is true even where a state
court’s decision is unaccompanied by an explanation. In such cases, the petitioner must
show that “there was no reasonable basis for the state court to deny relief.” Harrington,
131 S.Ct. at 784.
Under section 2254(d)(2), relief is warranted only when a state court decision based on a
factual determination is “objectively unreasonable in light of the evidence presented in
the state-court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 384
F.3d 628, 638 (9th Cir.2004)).

Finally, state court findings of fact—including a state appellate court’s factual

summary—are presumed to be correct unless petitioner rebuts that presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); see Slovik v. Yates, 556 F.3d 747, 749
n. 1 (9th Cir.2009).

Discussion

1. Ineffective assistance of counsel

The Sixth Amendment guarantees that a criminal defendant will not be convicted without
the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685–686
(1984). In order to establish ineffective assistance of counsel, petitioner must satisfy the
two prerequisites set forth by the Supreme Court in Strickland. **First, petitioner must
identify the acts or omissions of counsel that were not the result of reasonable
professional judgment. Strickland, 466 U.S. at 690. Scrutiny of counsel’s performance
must be “highly deferential,” and petitioner must overcome “the strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Stated differently, petitioner must show that the challenged action cannot reasonably be
considered sound trial strategy under the circumstances of the case. Strickland, 466 U.S.
at 689. “A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689.

*7 To satisfy Strickland’s second prong, petitioner must show a reasonable probability

that, but for his counsel’s errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694; see also Knowles, 556 U.S. at 127. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694; see also Knowles, 556 U.S. at 127.

Petitioner bears the burden of satisfying both prongs of the Strickland standard.
Strickland, 466 U.S. at 687; Cheney v. Washington, 614 F.3d 987, 995 (9th Cir.2010).
Consequently, a federal court “need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at
697.

Finally, this Court’s review of the state court determination of petitioner’s claim is highly
deferential. Premo v. Moore, 131 S .Ct. 733, 740 (2011) ( “The standards created by
Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so. The Strickland standard is a general one, so the range of reasonable
applications is substantial.”) (citations omitted). Thus, when section 2254(d) applies, as it
does in this case, “the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Premo, 131 S.Ct. at 740.

And the court stated at p. 11,

“So the argument is a good one with respect to the fact that [Molfetta]
misunderstood the law and was not able to present or did not present any of that
evidence that subsequent counsel has already ... presented. So the question is did the
first prong, did that fall below the objective standard of reasonableness under the
prevailing professional norms.

****“Well, certainly if I was in [appellant’s] shoes I’d want my attorney to be well

versed in all areas of the law and present every possible defense. That is why you
pay a defense attorney, especially when your freedom is on the line. So it’s a good
argument. Does it rise to that level that it’s below the objective standard of
reasonableness? ... Certainly I would acknowledge that [appellant] would want his
attorney to be armed with ... knowledge [of the White case]. That’s a pretty
persuasive argument.
*12 “But it’s the second part of the analysis, the second prong that is going to lead me to
deny the motion ... and that [pertains to whether] there is a reasonable probability that but
for counsel’s unprofessional errors, [assuming Molfetta’s representation] fell below the
standard, would the result of the proceeding have been different.

California Criminal procedure reasonable continuance to to hire employ

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