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.
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."
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
"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
"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.
"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 is 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 properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, "[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation
Moreover, it is possible that defendant's reference to the transcript was designed to indicate significant omissions, such as failure to call percipient witnesses or to adequately cross-examine witnesses concerning bias or details not previously related. The trial judge would be no better equipped to determine the validity of such claim of inadequate representation than he would be to review any other out-of-court events, unless the defendant were permitted to explain the reasons for asserting his attorney's incompetence.
Further support for the defendant's contention that it was error to deny his motion without an opportunity for explanation comes from the line of authority beginning with People v. Youders (1950) 96 Cal.App.2d 562, 569 [215 P.2d 743]. (See, e.g., People v. Monk (1961) 56 Cal.2d 288, 299 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Prado (1961) 190 Cal.App.2d 374,
We are unmoved by the rationale of the trial judge for his unwillingness to hear the defendant's basis for dissatisfaction with counsel. An expressed concern that defendant's evidence might "prejudice you before me as to the case," lacks substance. In a jury trial it is difficult to comprehend how a defendant's statement made out of the presence of the jury to support his claim that his counsel is inadequate could adversely affect a judgment on the merits of the case. During most trials, judges hear numerous motions and argument in chambers dealing with prior convictions, the voluntariness of confessions, the admissibility of evidence, and other procedural matters, without permitting such proceedings to jaundice their views on ultimate conclusions. Furthermore, if there were some remote prejudicial effect, it would be outweighed by the importance of replacing an incompetent attorney.
The trial judge also indicated that he was precluded by law from advising defendant how he might successfully show cause to justify the replacement of trial counsel. "[T]he Court is 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." We are referred to no statute or authority which precludes a judge from advising a defendant as to the procedures for effectively challenging the competence of his attorney, and research has disclosed none. To the contrary, in People v. Redmond (1969) 71 Cal.2d 745, 758 [79 Cal.Rptr. 529, 457 P.2d 321], this court commended judges who consider it part of the judicial function to aid and advise defendants appearing before them without counsel. "Although a trial judge may not be required to aid a defendant who represents himself, it is a common practice in both civil and criminal cases for trial judges, by advice and suggestion, to assist persons who represent themselves.... It is in the highest tradition of
In the case at bar, although defendant was represented by counsel, he was groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney, and the trial judge would have been well within the bounds of judicial propriety in giving any helpful suggestion which might have aided defendant in the presentation of his complaint. Furthermore, the judge was not being called upon to offer advice, but only to listen to defendant's reasons for requesting different counsel.
Finally, we reach the question whether the error in the trial court was prejudicial to defendant. There can be no doubt it was. On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].)
The judgment is reversed.
Tobriner, Acting C.J., Peters, J., Burke, J., Sullivan, J., and Molinari, J.,
I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Caldecott in the opinion prepared by him for the Court of Appeal, First District, Division Three (People v. Marsden, 1 Crim. 7601, filed October 10, 1969, certified for nonpublication).