People v. McKenzie, Cr. 22615

Citation194 Cal.Rptr. 462,668 P.2d 769,34 Cal.3d 616
Decision Date08 September 1983
Docket NumberCr. 22615
CourtUnited States State Supreme Court (California)
Parties, 668 P.2d 769 The PEOPLE, Plaintiff and Respondent, v. Elliot Cornace McKENZIE, Defendant and Appellant.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Neil Rosenbaum, Deputy State Public Defender, for defendant and appellant.

Jeff Brown, Public Defender, San Francisco, Peter G. Keane, Chief Atty., Wilbur D. Littlefield, Public Defender, Los Angeles, and Ephriam Margolin, San Francisco, as amici curiae on behalf of defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Clifford K. Thompson, Jr. and Ann K. Jensen, Deputy Attys. Gen., for plaintiff and respondent.

Cecil Hicks, Dist. Atty., Orange, Michael R. Capizzi, Asst. Dist. Atty., and William W. Bedsworth, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

The sole issue on this appeal is whether reversal is appropriate after defense counsel expressly refuses to actively participate in his client's trial. Counsel here attempted to justify his action on the ground that certain trial rulings made it impossible for him to effectively represent his client. Although we are extremely reluctant to appear to reward such tactics, we nevertheless conclude that reversal is necessary because, on this record, the defendant was unquestionably deprived of the effective assistance of counsel.

Defendant appeared in municipal court for arraignment on charges of burglary, assault with a deadly weapon, rape, forcible oral copulation, and robbery. The complaint also contained allegations of great bodily injury, use of a deadly weapon, and two prior felony convictions. Despite the magistrate's careful admonition about the dangers of self-representation, defendant elected to waive his right to be represented by an attorney. The record indicates that defendant fully understood the nature of the charges against him and the ramifications of his decision. Reluctantly, the magistrate permitted him to represent himself. (Faretta v. California (1975) 422 U.S. 806, 834-835, 95 S.Ct. 2525, 2540-2541, 45 L.Ed.2d 562.) Defendant then pleaded not guilty to each charge. Nevertheless, two days later he confessed at length to the charges.

Following this confession, defendant indicated his desire to plead guilty. At a special superior court hearing on the plea, however, defendant asked the court to commit him to a state mental hospital. The judge carefully explained that a guilty plea would not necessarily result in such a commitment. 1 Defendant chose to reconsider entering a plea and to defer any decision on the matter until the preliminary hearing.

At the preliminary hearing, defendant represented himself. He stated his intent to plead not guilty by reason of insanity and was informed that he could only enter that plea in superior court. The hearing proceeded with the two victims testifying about defendant's crimes. Defendant asked them no questions and presented no evidence; the magistrate accordingly held him to answer on all charges. After arraigning defendant on the felony information, the superior court initiated proceedings to determine defendant's competency to stand trial. (Evid.Code, § 730; Pen.Code, § 1368). The court specially appointed the public defender to represent defendant in those proceedings. On the basis of a psychiatrist's report, the court found that defendant was competent to stand trial. When asked whether he could afford to hire counsel, defendant refused to answer; as a result, the court assigned the public defender to represent him. At his arraignment, defendant failed to make an intelligible response when requested to enter pleas. The court, on its own motion, entered pleas of not guilty.

Two weeks later, the public defender moved to terminate his appointment. He argued that (1) defendant's right of self-representation, once invoked in municipal court, continued in effect in superior court; (2) there had been no adequate ground to terminate this self-representation; and (3) defendant's actions indicated he rejected representation by appointed counsel. When the court asked defendant whether he still wished to represent himself, he made no reply. Expressing solicitude for defendant's right to the assistance of counsel in the absence of a renewed waiver and doubts concerning defendant's capacity to represent himself, the court denied the public defender's motion to withdraw. After reviewing a second psychiatrist's report, the court ordered another competency trial pursuant to Penal Code section 1368. Because of his disruptive outbursts, defendant had to be removed from the courtroom during that proceeding. Again, he was found competent to stand trial.

At his next court appearance, defendant again refused to respond when asked if he wanted counsel. The public defender was reappointed to represent defendant. In ordering the appointment, the court emphasized its concern for defendant's right to the effective assistance of counsel and expressed its unwillingness to infer a continuing waiver of the right to counsel merely from defendant's silence.

The public defender subsequently moved to set aside the information (Pen.Code, § 995) on the ground that defendant was denied the effective assistance of counsel at the preliminary hearing because the witnesses against him were not cross-examined. Alternatively, defense counsel sought a new preliminary hearing on the ground that otherwise he would be unable to effectively prepare for trial. The court denied both motions and ordered that the case proceed to trial. The defense later moved for a continuance (Pen.Code, § 1050) to allow counsel to seek appellate review of the previous denial of the section 995 motion. In support of this motion, counsel filed an in camera declaration detailing possible defenses that might be available to defendant depending on the outcome of cross-examination at a new preliminary hearing. The court denied the continuance motion, noting that the public defender could seek a stay from the appellate court. 2

Before voir dire began, the public defender in chambers renewed his motion for a continuance. He thoughtfully articulated for the record the reasons why he was unwilling to proceed to trial. He stated that he had not been able to develop a viable defense theory or trial strategy because of the lack of a thorough preliminary hearing and because of defendant's failure to cooperate or communicate with him. Citing People v. Locklar (1978) 84 Cal.App.3d 224, 148 Cal.Rptr. 322, and American Bar Association, Code of Professional Responsibility, Disciplinary Rule DR 6-101(A)(2), 3 he flatly refused to participate in the trial beyond appearing in court and sitting next to his client.

The judge acknowledged defense counsel's dilemma and attributed it to defendant's refusal to cooperate in his own defense, but declined to further delay the trial. He remarked: "[I]t seems to me that all of your problems, which are understandable, are created by the defendant who understands and is able to cooperate and, in effect, he is waiving a lot of rights that the Constitution affords him. But it's his right to waive those protections. And I find that that is what he is doing. [p] So we will proceed as best we can."

As jury selection was about to begin, defendant threw himself on the floor and screamed. He was removed from the courtroom and remained absent throughout the remainder of his trial.

True to his word, the public defender did not participate in the trial of his client. He did not ask questions or exercise challenges during jury selection, nor did he make an opening or closing argument to the jury. He did not cross-examine any of the prosecution's witnesses or object to the admission of any of the prosecution's evidence. 4 After the jury's predictable conviction of defendant, counsel remained completely passive at the sentencing proceedings. His participation was limited to a reiteration of his view that he was unable to render effective assistance without the benefit of a second preliminary hearing.

The Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee criminal defendants the right to be represented by counsel at trial. (Gideon v. Wainwright (1963) 372 U.S. 335, 342-345, 83 S.Ct. 792, 795-797, 9 L.Ed.2d 799; Argersinger v. Hamlin (1972) 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530.) "It has long been recognized that the right to counsel is the right to the effective assistance of counsel. See Reece v. Georgia, 350 U.S. 85, 90 [76 S.Ct. 167, 170, 100 L.Ed. 77] (1955); Glasser v. United States, 315 U.S. 60, 69-70 [62 S.Ct. 457, 464-465, 86 L.Ed. 680] (1942); Avery v. Alabama, 308 U.S. 444, 446 [60 S.Ct. 321, 322, 84 L.Ed. 377] (1940); Powell v. Alabama, 287 U.S. 45, 57 [53 S.Ct. 55, 56, 77 L.Ed. 158] (1932)." (McMann v. Richardson (1969) 397 U.S. 759, 771, fn. 14, 90 S.Ct. 1441, 1449, fn. 14, 25 L.Ed.2d 763; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612, 180 Cal.Rptr. 177, 639 P.2d 248.) Therefore, the courts have required that defense counsel meet the standard of representation to be expected of "a reasonably competent attorney acting as a diligent, conscientious advocate." (People v. Pope (1979) 23 Cal.3d 412, 424, 152 Cal.Rptr. 732, 590 P.2d 859.) The foregoing implies a duty of the trial judge to assure, to the extent possible under all the circumstances, that defendant receives such diligent advocacy. Therefore, the question presented is whether counsel's actions, coupled with the trial court's inaction, resulted in the denial of defendant's fundamental right to effective assistance.

I

We first examine the obligations of the trial judge to assure that a criminal defendant is afforded a bona fide and fair adversary...

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