People v. Perez, Cr. 8753

• Decision Date: 23 June 1978
• Docket Number: Cr. 8753
• Citation: 147 Cal.Rptr. 34,82 Cal.App.3d 89
• Parties: , 82 Cal.App.3d 952 The PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos PEREZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 34

147 Cal.Rptr. 34

82 Cal.App.3d 89, 82 Cal.App.3d 952

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos PEREZ, Defendant and Appellant.

Cr. 8753.

Court of Appeal, Fourth District, Division 1, California.

June 23, 1978.

Ernest Borunda, San Diego, under appointment by the Court of Appeal, 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.

STANIFORTH, Associate Justice.

Defendant Carlos Perez appeals his jury conviction of second degree burglary (Pen.Code § 459). Perez was caught holding two bags containing several articles of brand new merchandise with price tags yet affixed from Durazo's Men's Store, Calexico. Patrolling officers heard glass breaking, pulled up in front of Durazo's and observed a glass front door shattered. They then saw Perez, bags in arms, walking at a fast pace away from the crime scene. The officers stopped Perez, observed the new merchandise, several scratches and glass particles on his forearm and hands. Perez testified no paper bags were in his arms; he had discovered the bags just off the sidewalk immediately before his arrest. He had first handled the merchandise when he stooped to pick up the articles to place in the bags to give to the police officers. The evidence of Perez's guilt, conservatively speaking, is overwhelming.

Perez contends his Sixth Amendment rights to assistance of counsel were substantially impaired (1) in that his representation by a California State Bar certified law student was a waiver of his right to assistance of counsel which was invalid as not knowingly and understandingly made, (2) he asserts the representation by a law student, not a licensed attorney, was a denial of his Sixth Amendment rights to assistance of counsel, and (3) if representation by a law student was in effect a waiver of such Sixth Amendment rights, then Faretta standards must be applied before a waiver can be accepted by the court. He relies upon the Sixth Amendment to the federal Constitution and Faretta v. State of California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 for support.

The factual background for these contentions briefly stated is: On the first day of trial Perez appeared with Edward Zinter, his appointed counsel (deputy public defender) and Jack Loo, a certified law student. Mr. Zinter identified himself and told the court he was appearing on behalf of defendant. At that time a form was filed, signed by Perez consenting to representation by Mr. Loo. Mr. Loo was identified therein as a law student under the supervision of Mr. Zinter. The conduct of Perez's defense was carried on wholly by Mr. Loo. He examined and cross-examined witnesses made objection and motions, made argument to the jury. Mr. Zinter, however, was present throughout the trial but no word was said by him (at least on the record) before the jury. The record does not reflect the nature or the extent of any private conversations between Mr. Loo and Mr. Zinter in the course of the trial. From the silent record, we conclude Mr. Zinter's interest in the trial was not of a "continuing and substantial nature." (See Higgins v. Parker, 354 Mo. 888, 191 S.W.2d 668.)

3] The right to counsel encompasses not only the presence of counsel but assistance of adequate, active counsel. Mere presence did not amount to representation of Perez within the constitutional concept of assistance of counsel. The right to counsel must be afforded in a real, not just a perfunctory, sense. The constitutional requirements are for "zealous and active counsel" and for representation in a "substantial sense" not merely "pro forma." (Powell v. State of Alabama, 287 U.S. 45, 57-58, 53 S.Ct. 55, 59-60, 77 L.Ed. 158.)

The United States Supreme Court was more specific in Anders v. State of California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 stating:

"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, . . . "

While Zinter was not in the capacity of an amicus curiae as in Anders, an "active advocate" he was not.

Concerning Mr. Loo's activities, we observe his representation of Perez in a time before a judicial body is at the very heart of the practice of law. It is the highest point of the calling. (Smallberg v. The State Bar, 212 Cal. 113, 118, 297 P. 916; People v. Merchants Protective Corp., 189 Cal. 531, 535, 209 P. 363; In re Steven C., 9 Cal.App.3d 255, 265, 88 Cal.Rptr. 97; 7 Am.Jur.2d Attorneys at Law, § 73, p. 94.) In the trial of the defense of a felony charge, Mr. Loo was engaged in an activity traditionally viewed as the practice of law. Actions much further removed from the heart of law practice have been subject to strict control and sanctions by the courts when attempted or accomplished by non-lawyers or suspended lawyers. (See Crawford v. State Bar, 54 Cal.2d 659, 668, 7 Cal.Rptr. 746, 355 P.2d 490; Farnham v. State Bar, 17 Cal.3d 605, 612, 131 Cal.Rptr. 661, 552 P.2d 445; Bluestein v. State Bar, 13 Cal.3d 162, 118 Cal.Rptr. 175, 529 P.2d 599.)

4] Without factual doubt, Mr. Loo acted as the lawyer in Perez's trial. His actions clearly and without question constitute an unlawful practice of law by an unlicensed person, a misdemeanor (Bus. & Prof.Code § 6126) unless in some manner authorized by statute or judicial decision.

Perez challenges the assumption a certified law student, with a licensed attorney present, can represent a defendant in a jury trial on a felony charge. No case or authority is found in California which supports the practice here followed.

The People, however, would justify Mr. Loo's representation of Perez citing the "Rules Governing the Practical Training of Law Students" first adopted by the State Bar of California in January 1970 and amended as recently as May 1976. Since January 1970, when the board adopted these "Rules", several thousand students have been certified to participate in this program. These rules permit qualified students, under supervision of a practicing lawyer, to engage in a variety of practice-related activities including, under specified conditions, participation in trials or in hearings before courts and administrative agencies. Specifically, here applicable Rule VI provides for:

"Activities Requiring Direct Supervision

A. A student may engage in the following activities only if the client on whose behalf he acts shall have approved in writing the performance of such acts by such student or generally by any student and then only with the approval, under the direct and immediate supervision and in the personal presence of the supervising lawyer:

" . . .edi "(3) Appearing on behalf of the client in any public trial, hearing or proceeding pertaining thereto in a court, or tribunal, or before any public agency, referee, commissioner, or hearing officer, State or Federal, to the extent approved by such court, public agency, referee, commissioner, or hearing officer.

"B. In all instances where, under these Rules, a student is permitted to appear in any trial, hearing or proceeding, the student shall, as a condition to such appearance, first file with the court, tribunal, public agency, referee, commissioner or hearing officer, a copy of the written approval of the client required by Paragraph A of this Rule VI.

Rule III E provides:

"A student is eligible to participate in activities under these rules:

"1. May be terminated by the Supreme Court or by the State Bar at any time without a hearing and without any showing of cause. . . . "

This rule purports to authorize, without prior screening or approval by the Supreme Court of this state, a "certified" law student with a supervising lawyer present to defend or prosecute not only traffic infractions but arson or a murder charge where the death penalty is sought.

5] The State Bar of California is authorized (Bus. & Prof.Code § 6047) to adopt regulations "as may be necessary or advisable for the purpose of making effective the qualifications prescribed in Article 4" for admissions to the practice of law. The State Bar is not authorized to admit a person to the practice of law.

Insofar as Rule VI would authorize a law student to try any lawsuit before a court in California let alone a felony case it runs afoul of several shoals, statutory as well as constitutional.

"Historically, the courts, alone, have controlled admission, discipline and disbarment of persons entitled to practice before them (citations). In adopting the statutory system now existing in California, the Legislature did not attempt to alter this basic concept. On the contrary, it provided for examination of candidates by the State Bar, followed by certification to the Supreme Court . . . The State Bar has no power to admit persons to practice law. On the contrary, its failure or refusal to certify is specifically made reviewable . . . ." (Brotsky v. State Bar, 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 159, 368 P.2d 697, 703.)

In Brotsky the Supreme Court describes the State Bar of California as:

" . . . not an administrative board in the ordinary sense of the phrase. It is sui generis. In disciplinary matters (and in many of its other functions) it proceeds as an arm of this court. If the Legislature had not recognized this fact, and made provision therefor, the constitutionality of those portions of the State Bar Act which provide for the admission, discipline and disbarment of attorneys could have been seriously challenged on the ground of legislative infringement on the judicial prerogative." (Ibid.)

Brotsky reaffirms the decision of the California Supreme Court in In re Lavine, 2 Cal.2d 324, 328, 41 P.2d 161, where the court, speaking of admission to the practice of law:

" . . . the right to practice law . . . (parta...