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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Michael FOWZER, Defendant and Appellant.

Cr. 35373.

Decided: June 23, 1980

Quin Denvir, State Public Defender, Therene Powell, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Weisman, Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

In an information filed September 20, 1978, appellant was charged with forgery in violation of Penal Code section 470 (count I), grand theft in violation of Penal Code section 487(1) (count II), attempted burglary in violation of Penal Code sections 664 and 459 (count III), and practicing as a private investigator without a license in violation of Business and Professions Code section 7520 (count IV). A later amendment added another charge of forgery in violation of Penal Code section 470 (count V). On April 20, 1979, a jury found appellant guilty of each of these offenses and he was sentenced to state prison for two years.

On April 9, 1979, one day prior to commencement of trial, appellant moved for a continuance so that he could obtain private counsel in substitution for the public defender representing him. The following colloquy occurred:

“THE COURT: Mr. Blum? [Deputy Public Defender.]

MR. BLUM: 202, Fowzer.

MR. STOVITZ: The People are ready on this matter, your Honor.

MR. BLUM: Your Honor, Mr. Fowzer advised me this morning that he wishes to have a continuance to hire a private lawyer.

MR. STOVITZ: We would oppose a continuance, your Honor. This case has been continued several times before. Mr. Fowzer had an opportunity to make that motion many times before. This is a case that we asked for priority the last time it was up. No mention was made at that time about hiring a private lawyer. I think that this is just a delaying, stalling tactic that will further clog the machinery of justice.

THE COURT: I agree. Motion denied.

MR. BLUM: And I have one other case that is ready for trial 213, Quigley.

THE COURT: Well, now, Mr. Fowzer is still standing next to you, is he not?

THE DEFENDANT: Your Honor, am I allowed to speak, please?

THE COURT: No, you may not.”

We accept as an established proposition the notion that a trial court commits error when it denies a defendant's request for substitution of counsel without providing the accused an opportunity to state the specific grounds for his dissatisfaction with his present attorney. (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44; People v. Lewis (1978) 20 Cal.3d 496, 143 Cal.Rptr. 138, 573 P.2d 40; People v. Hidalgo (1978) 22 Cal.3d 826, 150 Cal.Rptr. 788, 587 P.2d 230; see also People v. Chavez (1980) 26 Cal.3d 334, 346-347, 161 Cal.Rptr. 762, 605 P.2d 401.) We likewise are in accord with the view that the rule thus generally formulated is subject to qualification and one whose correct application will depend upon the circumstances of a particular case (People v. Reaves (1974) 42 Cal.App.3d 852, 117 Cal.Rptr. 163), and that it well may be, in any event, restricted to those instances where an assertion is made by the defendant, directly or by implication, that the performance of the lawyer sought to be discharged is in one fashion or another so inadequate as to deny the accused his constitutional right to effective assistance of counsel. (People v. Molina (1977) 74 Cal.App.3d 544, 141 Cal.Rptr. 533.)

But however the standard is understood, it seems clear it necessarily will condemn the summary silencing of one on trial when he attempts to speak to the question, thereby making it impossible for the trial court thoughtfully to exercise its discretion in the matter. (People v. Marsden, supra, 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44.) Nor will the result of such an accommodation be to “clog the machinery of justice” (see People v. Molina, supra, 74 Cal.App.3d 544, 548, 141 Cal.Rptr. 533), since the inquiry into the reasons why dissatisfaction is claimed will by its nature be of limited duration in most cases.

If, on the other hand, it were at all reasonable to surmise that the peremptory refusal to permit the defendant in the instant matter to speak was based upon a trepidation that the motion for substitution of counsel might be meritorious and that its success would create delay in proceeding to trial, even less justification would be present for the trial court's declining to listen.

However in support of his motion the court at bench did not decline to listen to defendant's motion because of its apprehension that defendant might make a meritorious showing in support of his motion but denied it because the record demonstrates no such showing was made and that the motion was not made in good faith.

The record shows defendant's occupation was that of a private investigator. The case was first called for trial on October 31, 1978. A public defender was prior thereto appointed for and continued to represent defendant without protest until April 9, 1979, when the motion was made. In the meantime five separate continuances had been had at defendant's request. Defendant had been released on bail at all times since prior to October 31, 1978.

Defendant was represented from the beginning of the proceedings continuously to and at the time of the motion for a continuance to substitute was made. No suggestion of incompetence and/or lack of cooperation by the public defender had been made to the court by defendant at any of the prior five appearances when successive continuances were obtained by the public defender on behalf of defendant. Defendant did not have private counsel in court at the time the motion was made and denied. The public defender is not only an officer of the court as is every licensed lawyer but he is a public official charged with the responsibility of representing defendant. There are no presumptions against his competence or any that question his good faith in making a complete defense—in fact the presumptions are to the contrary. There is every reason to assume that if defendant had retained private counsel who was in court that the public defender would have so stated. If private counsel had been retained but was not in court for some acceptable reason at the time the motion was made, the public defender would have made that statement. Instead the public defender said, “* Mr. Fowzer advised me this morning ** he wishes to have a continuance to hire a private lawyer.”

In brief defendant had not yet hired a lawyer—but it is clear from the record that the public defender had said all he possibly could because he had been informed on that very morning only of defendant's wish to hire a private lawyer. However the public defender true to his responsibility as defense counsel went further—he immediately informed the trial judge he had another case that could go to trial—as a substitute for defendant's trial. Defendant, addressing the trial judge, said, “* am I allowed to speak, please?” and the judge replied, “* you may not.” It is fair to assume if defendant had made known to the public defender in the same conversation in which he said he wished to hire private counsel or any previous conversations any causes of dissatisfaction with the public defender's representation or any complaints or suggestions showing lack of cooperation by the public defender with him the public defender would have made such complaint, a ground on which the motion was based or would have asked the court's permission to make an offer to prove the reasons for defendant's desire to substitute private counsel.

We are satisfied from the record that the public defender did not base the motion on ground of defendant's dissatisfaction and made no such offer because he had nothing to add to the information he had already transmitted to the court when he referred to defendant's wish1 and followed with the assurance no court time would be lost because he had another case ready to go.

We are satisfied the record impels the sound conclusion defendant's motion for a continuance necessarily fronted by counsel who represented him continuously for approximately six months deserved no consideration. Other questions raised by defendant in this appeal have no merit.

The judgment is affirmed.


1.  It is noted that this appeal is taken by the State Public Defender.

ROTH, Presiding Justice.

FLEMING and BEACH, JJ., concur. Hearing denied; BIRD, C.J., and MOSK, J., dissenting.