People v. Perez

• Decision Date: 26 April 1979
• Docket Number: Cr. 20630
• Citation: 155 Cal.Rptr. 176,594 P.2d 1,24 Cal.3d 133
• Court: California Supreme Court
• Parties: , 594 P.2d 1, 3 A.L.R.4th 339 The PEOPLE, Plaintiff and Respondent, v. Carlos PEREZ, Defendant and Appellant.

Page 176

155 Cal.Rptr. 176

24 Cal.3d 133, 594 P.2d 1, 3 A.L.R.4th 339

The PEOPLE, Plaintiff and Respondent, v. Carlos PEREZ, Defendant and Appellant.

Cr. 20630.

Supreme Court of California, In Bank.

April 26, 1979.

Ernest Borunda, San Diego, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jeffrey A. Joseph and Gary W. Schons, Deputy Attys. Gen., for plaintiff and respondent.

Herbert M. Rosenthal, Truitt A. Richey, Jr., San Francisco, Beardsley, Hufstedler & Kemble, Seth M. Hufstedler, Dennis M. Perluss, Los Angeles, Glendalee Garfield, Terence W. Roberts, JoEllen L. Mitchell, Sacramento, Thomas Jed Scully, Gary T. Wienerman, Jane Wolf Eldridge, Arnold I. Siegel, George D. Crook, Los Angeles, and John J. Cleary, San Diego, as amici curiae on behalf of the plaintiff and respondent.

TOBRINER, Acting Chief Justice.

Defendant appeals from a conviction of second degree burglary (Pen.Code, § 459) following a jury trial in which Jack Loo, a certified law student acting under the supervision of a deputy public defender, appeared on defendant's behalf. The student's appearance was pursuant to the Rules Governing the Practical Training of Law Students promulgated by the State Bar of California on January 15, 1969 (hereafter cited as Rules).

Defendant argues that Loo's participation in the trial abridged his constitutional right to the assistance of counsel. ¹ Because the Rules had never been submitted to this court for approval, defendant further argues that Loo's appearance constituted the unauthorized practice of law in violation of Business and Professions Code section 6126. Finally, defendant asserts that he did not knowingly consent to representation by a law student and that the police failed to retain potentially exculpatory evidence.

The Rules, as we shall explain, were carefully drafted with a view to assuring that defendants would receive competent legal assistance. The law student must have completed at least three semesters of legal education or equivalent, and be certified as fit to participate in the program by the dean of his school; in criminal cases he appears in court only under the immediate supervision of an experienced attorney, who assumes personal professional responsibility for the student's performance. When, as in the case at bar, a defendant receives competent representation pursuant to a program carefully formulated to assure such competency of representation, we can find no abridgment of the defendant's constitutional right to the assistance of counsel.

Defendant's remaining contentions, we shall explain, also lack merit. Thus the State Bar's failure to submit the Rules to this court does not affect the present appeal; Loo, acting in good faith pursuant to rules formally promulgated by the State Bar, rendered a competent performance; as a result defendant incurred no prejudice which would justify the reversal of the conviction. Finally, the record on appeal fails to support defendant's claim that he did not knowingly consent to Loo's appearance or that the police improperly failed to preserve evidence.

1. Proceedings in the courts below.

Following defendant's arrest for burglary, the trial court appointed the public defender as defendant's counsel. Defendant Consented in writing to representation by Jack Loo, a certified law student, actually at this time a law school graduate awaiting the result of the bar examination, acting under the supervision of Edward Zinter, a deputy public defender. At trial Loo conducted the examination of witnesses and presented the argument to the jury. Zinter, who was present throughout the trial, interposed objections to evidence, approved jury instructions and verdict forms, participated in conferences with the court and prosecution counsel, and in other ways actively participated in the defense. Defendant raises no question as to the competency of the defense; indeed at the close of trial the court stated in front of the jury that "Mr. Loo did what I consider for a law student an outstanding job . . . a better job than some I've seen with . . . people who are full-fledged lawyers." ²

The evidence presented at trial clearly supports the conviction. Calexico police officers testified that they heard the sound of glass breaking, pulled up in front of Durazo's Men's Store, and saw that the glass door was shattered. They then noticed defendant walking away rapidly carrying paper bags. When they detained defendant, they observed that the bags contained new merchandise with price tags from Durazo's; they noted also that defendant had scratches and glass particles on his hands, arms, and the soles of his shoes.

Defendant denied committing the burglary, and claimed he discovered the bags on the sidewalk and picked them up only as the officers arrived. The defense further argued that the police failed to preserve the glass particles or to obtain fingerprint evidence of the crime.

The jury found defendant guilty of second degree burglary. On appeal, defendant raised two contentions: (1) that the police failure to preserve the glass particles denied him due process, and (2) that he did not knowingly waive his right to counsel or consent to be represented by a law student. The Court of Appeal, however, inquired further into the representation of defendant by a certified law student, and concluded that such representation abridged defendant's right to assistance of counsel and constituted the unauthorized practice of law. We granted a hearing to consider those issues.

2. Participation of a certified law student under the Rules does not abridge a defendant's right to competent assistance of counsel.

The State Bar drafted the Rules with special care to the end that defendants represented by attorneys and certified students pursuant to those Rules would receive competent assistance. (See Ann.Rep. of Bd. of Governors (1969) 44 State Bar J. 616, 631.) The law student must have completed three semesters or equivalent of legal education. (Rule III, part B.) The dean of the law school or the judge or attorney under whom the student is studying must certify to his competence. (Rule IV.) The student may appear on behalf of a client in a trial only to the extent approved by the court. (Rule VI.) Finally, the client must expressly consent in writing to the student's appearance, which consent must be filed with the court. (Rule VI.)

Of particular importance in the present appeal, the entire process of student participation, from initial client interview through trial, is actively supervised by an experienced attorney who incurs personal responsibility for the student's performance. Rule VI provides that a certified student may appear in court "only with the approval (and) under the direct and immediate supervision and in the personal presence of the supervising lawyer." That lawyer must be an active member of the State Bar of California who has "actively practiced law in California or elsewhere as a full time occupation for at least two years" (Rule V); the supervising attorney assumes "personal professional responsibility for any work undertaken by the student while under his supervision" (Rule V). The defendant, in other words, is not merely represented by a student who has not been admitted to the bar; he is represented by an experienced member of the bar who serves as counsel of record, undertakes personal and immediate supervision of the student's performance, and assumes responsibility for the conduct of the defense.

By so limiting the program to approved and qualified students, and by requiring the personal and immediate supervision of experienced counsel, the Rules provide reasonable assurance that the defendant will receive competent representation. Defendant does not dispute the practical efficacy of the safeguards provided in the Rules. Neither does he contend that he received inadequate representation, nor that student performance under the Rules is so frequently inadequate that the program itself must be overthrown on that ground. Instead, he pitches his argument on a high theoretical ground; adopting the position of the Court of Appeal, he maintains that even if he and all other defendants represented under the Rules receive reasonably competent representation, in contemplation of law participation by one not yet a member of the bar is an abridgment of the right to assistance of counsel.

The issue defendant raises is one of first impression in California, but it has been considered by the courts of two other states with rules similar to the California Rules. Both states held that the participation of a supervised law student did not violate the defendant's right to assistance of counsel. (State v. Daniels (La.1977) 346 So.2d 672, 674; People v. Masonis (1975) 58 Mich.App. 615, 619, 228 N.W.2d 489; cf. State v. Cook (1974) 84 Wash.2d 342, 525 P.2d 761, upholding prosecution conducted by student intern working for district attorney).

Defendant, however, ignores the cases upholding law student trial participation and instead cites a bizarre collection of decisions in which defendants were represented by imposters or impersonators. We find these cases clearly distinguishable. In Huckelbury v. State (Fla. D.C.A. 1976) 337 So.2d 400, the most noted case, defendant was represented by a man who had been refused admission to the Florida bar on moral grounds, but by deception had secured a position with the public defender. In reversing the conviction, the court observed that the case was Not analogous to "the Florida Bar Program of allowing senior law students to appear as interns. The intern program requires a degree of supervision far beyond that which a Public Defender would be expected to maintain over his professional staff." (337 So.2d 400, 403.) In People v. Cox (1957) 12 Ill.2d 265, 146 N.E.2d 19; People v....