PEOPLE v. MISSIN

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Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Stephen Paul MISSIN, Defendant and Appellant.

Cr. 11233.

Decided: February 22, 1982

Quin Denver, State Public Defender, Louis N. Hiken, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Willard F. Jones and Jane Kirkland Fischer, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a judgment of conviction entered upon a jury's verdict of guilty of voluntary manslaughter (Pen.Code, § 192) and finding that he personally used a firearm in committing the offense (Pen.Code, § 12022.5).   Defendant was sentenced to state prison for the middle term of four years for voluntary manslaughter (Pen.Code, § 193, subd. (a)), with a two-year enhancement for the use of a firearm (Pen.Code, § 12022.5), for a total sentence of six years.   He was credited with 254 days of presentence confinement.

Defendant presents four contentions on appeal:  (1) the trial court erred in failing to adequately inquire into defense counsel's state of mind during the hearing on defendant's pretrial motion for substitution of counsel;  (2) his statements and Miranda waiver were involuntary as a matter of law;  (3) the trial court erred in failing to consider certain mitigating factors at the time of sentencing;  and, (4) he is entitled to good time/work time conduct credits for the period of his presentence confinement.

We will direct the trial court to amend the abstract of judgment to reflect the presentence conduct credits to which we find defendant entitled.   We affirm the judgment as so amended.

FACTS

In April 1980 defendant was living in an upstairs apartment in Yuba City with his roommate, Phillip Henderson.   The downstairs apartment was occupied by John Collins.   On the morning of April 5, defendant, a diabetic, and Henderson began drinking early, as was their custom.   They consumed several beers and some whiskey.   Collins also began drinking early in the day.

In the evening, two groups formed.   Collins met with several friends, Alex Sanchez, Kelly Armstrong, Ramiro Leal and Audrey Buckner.   This group began buying and consuming six packs of beer.   They traveled to Colusa, intending to see a concert.   During the course of the evening, the group consumed literally cases of beer.   The second group consisted of defendant, Henderson, Rhonda Todd and John Moyer.   This group went to a “kegger” party in East Nicholas.   The “kegger” party was a public affair at which there were numerous 16-gallon kegs of beer and live music.   The group drank both en route to and at the party.

The Collins group returned to the downstairs apartment at about midnight.   They stayed there, drinking and talking.   Henderson and Todd returned later and entered the downstairs apartment.   Shortly thereafter, a fight broke out between Todd and Armstrong.   Sanchez broke up the fight and told Henderson and Todd to leave.   They left and went to the upstairs apartment.   Henderson had misplaced his keys and therefore broke open the door to get into the apartment.

Approximately 10 to 15 minutes later defendant returned.   He entered the downstairs apartment and asked Armstrong to go upstairs with him.   Sanchez and the others asked Armstrong not to go because of her earlier fight with Todd, but Armstrong accompanied defendant upstairs.   When they entered the upstairs apartment defendant argued with Henderson over the breaking of the door.   Sanchez, Leal and Collins, still downstairs, heard Armstrong and Todd resume fighting upstairs.   Sanchez and Leal ran up the stairs and entered the apartment to break up the fight.

Defendant was yelling for everyone to leave or “I'm going to blow one of you ․ away.”   He went into his bedroom and produced a shotgun.   Sanchez followed defendant into the bedroom and tried to calm him.   Defendant pointed the shotgun at Sanchez as he went back into the living room and repeated his threat that everyone had better leave or he was going to “blow one of you ․ away.”   Leal bent over Armstrong, who had fallen, to assist her out of the apartment.   Within seconds after defendant re-entered the living room the shotgun fired, striking Leal in the buttocks.   The blast killed him, traversing a path from the left buttock up to his lungs and heart.

Henderson and Todd ran from the apartment.   Sanchez attempted to aid Leal, but defendant prevented him, saying that if he touched the victim defendant was going to shoot him.   Defendant also said:  “I told you I was going to blow one of you guys away ․”  Collins called an ambulance and told defendant to put the gun away before the police arrived.   Defendant complied.   The police arrived shortly thereafter at about 3:15 a. m. and arrested defendant.

DISCUSSION

I

Defendant maintains that the trial court failed to adequately inquire into defense counsel's state of mind during the hearing on defendant's pretrial motion for substitution of counsel.

At a pretrial hearing on October 6, 1980, defendant indicated he would like to have his court-appointed counsel dismissed from his case.   The court scheduled an in camera hearing for October 7, outside the presence of the prosecutor “[s]o that Mr. Missin can advise in such particularity as he desires as to why Mr. Posner [defense counsel] should indeed be discharged.” 1  At the October 7 hearing, the court took the motion under submission to October 9.2

“[T]he right to the discharge or substitution of court-appointed counsel is not absolute, and is a matter of judicial discretion unless there is a sufficient showing that the defendant's right to the assistance of counsel would be substantially impaired if his request was denied.  [Citations.]”  (People v. Carr (1972) 8 Cal.3d 287, 299, 104 Cal.Rptr. 705, 502 P.2d 513.)

In People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, the court held that denial of a pretrial motion for substitution of appointed counsel without giving the defendant an opportunity to state specific grounds for his dissatisfaction deprived him of effective assistance of counsel.   (Id., at p. 126, 84 Cal.Rptr. 156, 465 P.2d 44;  see also People v. Hidalgo (1978) 22 Cal.3d 826, 827, 150 Cal.Rptr. 788, 587 P.2d 230;  People v. Lewis (1978) 20 Cal.3d 496, 497, 143 Cal.Rptr. 138, 573 P.2d 40.)   The court indicated that a trial court cannot thoughtfully exercise its discretion without listening to the defendant's 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.”  (People v. Marsden, supra, 2 Cal.3d at p. 123, 84 Cal.Rptr. 156, 465 P.2d 44.)

Here, there is no dispute that the trial court conducted a proper Marsden inquiry into the defendant's specific reasons for requesting substitution.   Defendant's counsel on appeal himself refers to the inquiry as “diligent.”   But defendant relies on People v. Munoz (1974) 41 Cal.App.3d 62, 115 Cal.Rptr. 726, for the proposition that where a defendant challenges his appointed counsel's attitude about the case, the court must inquire into counsel's state of mind to determine whether the representation is adequate.

In our view, the rule of the Munoz case is not as broad as counsel suggests.

In Munoz the defendant requested substitution of appointed counsel on the grounds that his attorney did not want to fight the case and had told the defendant that he was guilty and did not have a chance.   The attorney stood silent as the trial court summarily denied the motion without any further inquiry of defendant or his counsel.   The Fifth District Court of Appeal reversed the judgment “[b]ecause we agree with the assertion that the trial judge failed to inquire sufficiently into appellant's reasons for believing that he was not receiving competent representation from his court-appointed counsel.”  (People v. Munoz, supra, 41 Cal.App.3d at p. 65, 115 Cal.Rptr. 726.)   The court went on to state, however:  “In our view, the court's ruling denying appellant's request for a substitution of attorneys, without an inquiry into the state of mind of the court-appointed attorney and without attempting to ascertain in what particulars the attorney was not providing appellant with a competent defense was tantamount to a refusal on the part of the court to adjudicate a fundamental issue;  the court's failure to make the inquiry also resulted in a silent record, making intelligent appellate review impossible.”   (Id., at p. 66, 115 Cal.Rptr. 726.)

 Subsequently, in People v. Penrod (1980) 112 Cal.App.3d 738, 747, 169 Cal.Rptr. 533, the Fifth District had occasion to review its statement in Munoz and concluded that “inquiry into the attorney's state of mind is required only in those situations in which a satisfactory explanation for counsel's conduct or attitude toward his client is necessary in order to determine whether counsel can provide adequate representation.”  (Fn. omitted.)   In our view, inquiry into the attorney's state of mind is required only in those instances in which such inquiry is necessary in order to adjudicate defendant's motion and facilitate intelligent appellate review.3

 Under the circumstances of this case such inquiry was not necessary.   Defendant's representation that his counsel told him he was guilty did not per se require substitution of attorneys or necessitate further inquiry of counsel.   A defendant is not entitled to an attorney who believes in the client's innocence.   Otherwise, ultimately only the innocent would be entitled to an attorney.   Assuming that defendant's counsel believed his client to be guilty (of something) the defendant was entitled to representation by an attorney whose belief in his client's guilt did not prevent him from defending his client vigorously and effectively.  (People v. Munoz, supra, 41 Cal.App.3d at p. 66, 115 Cal.Rptr. 726.)   But, despite more than adequate opportunity, defendant offered no evidence that counsel's representation was inadequate.

 Nor did defendant's perception of his counsel's “inexperience” and “ ‘lack of a track record’ ” necessitate substitution or further inquiry of counsel.   Defendant conceded that he was actually unfamiliar with counsel's “track record” and that he was merely referring to the fact that counsel had “never before tried a murder trial.”   But, once again, defendant was not entitled to an attorney with prior murder trial experience.   Otherwise, there would ultimately be no qualified attorneys available to represent those so charged.   The court found from its own observation of counsel in the past and from his abilities as a trial attorney that counsel could provide defendant with the effective representation to which he was entitled.   Once again there is no evidence in the record, nor did defendant offer any evidence, that counsel's inexperience or “ ‘lack of a track record’ ” had resulted or would result in denial of defendant's right.

 Finally, defendant's feeling that his case did not “really matter” to his attorney because “[h]e wants to be a civil attorney” and “[a] civil lawyer doesn't need criminal proceedings to back him up,” was insufficient to require either further inquiry of present counsel or appointment of different counsel.   The court found that defendant's case was “very significant” to counsel.   A reasonable interpretation of the statements which defendant attributed to his counsel is that the attorney had no ax to grind, that is, had no self-interest in defendant's case because criminal trial experience would not promote his own career objectives.   The negative implication which defendant apparently drew (namely, that his counsel did not care whether defendant was effectively represented or not) was neither the court's interpretation nor supported by any other evidence in the record.   Counsel had previously filed and argued motions for change of venue, discovery, suppression of evidence, and to disqualify another judge.   Moreover, counsel's subsequent representation, to the extent it appears of record, evidences no lack of concern for defendant's interest or rights.   Here, contrary to defendant's stated apprehension, there is every objective indication that defendant's case did matter to counsel.

We point out that upon two occasions the court here, unlike in Munoz, invited defense counsel to comment upon defendant's representations and on both occasions counsel declined, on the latter occasion indicating he didn't want to get into a debate on the subject.   If a serious breakdown in the attorney-client relationship had in fact occurred, counsel could reasonably have been expected by the trial court to have joined in defendant's motion.  (See People v. Young (1981) 118 Cal.App.3d 959, 967–968, 173 Cal.Rptr. 700;  People v. Terrill (1979) 98 Cal.App.3d 291, 301, 159 Cal.Rptr. 360;  People v. Jacobs (1972) 27 Cal.App.3d 246, 263, 103 Cal.Rptr. 536.)

We also emphasize that in Munoz the trial court made no inquiry of any kind into defendant's reasons for requesting substitution and never attempted to ascertain in what particulars the attorney was not providing defendant with a competent defense.  (People v. Munoz, supra, 41 Cal.App.3d at p. 66, 115 Cal.Rptr. 726.)   The Munoz court concluded that the trial court's failure to inquire into the defendant's reasons for believing he was not receiving competent representation required reversal of the judgment.  (Id., at p. 65, 115 Cal.Rptr. 726.)   Here, to the contrary, the court conducted two special in camera hearings on defendant's motion, expressly invited defendant on at least 13 occasions to explain or further explain his reasons for requesting substitution, invited defense counsel on two occasions to comment upon defendant's statements, and made specific findings upon the evidence.   There was no refusal here to adjudicate defendant's motion or any failure to make a record facilitating appellate review.  (See People v. Munoz, supra, 41 Cal.App.3d at p. 66, 115 Cal.Rptr. 726.)   Further inquiry into counsel's state of mind was not necessary.  (See People v. Young, supra, 118 Cal.App.3d at p. 966, 173 Cal.Rptr. 700.)   The court did not abuse its discretion in denying defendant's motion for substitution of counsel.  (People v. Carr, supra, 8 Cal.3d at p. 299, 104 Cal.Rptr. 705, 502 P.2d 513.)

II

Defendant's second contention is that his post-arrest statements to police and Miranda waiver were involuntary as a matter of law.   Defendant's motion in the trial court to suppress the statements was denied.

There are three separate statements at issue.   The first was made by defendant in an interview room of the county jail approximately one-half hour after he was arrested.   Although he was not being questioned, he volunteered to an officer standing by the interview room's open door that he had a “right to blow him away if he is in my house for no other reason, I can show it to you in the Penal Code.”

The second statement was made to officers approximately one and one-half hours later, at 5:15 a.m., after defendant was read and had signed a written Miranda waiver card.  (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   This was a 30-minute interrogation by two officers.   The entire interrogation was taped.

The final statement was a telephone call made by defendant at his initiative to his mother at approximately 11 a.m. on April 6.   The call was made from the booking room at the county jail and was overheard by a jailer standing two to ten feet away.   During the conversation defendant said he was innocent because “this guy was crawling all over me and I had to blow him away.”   Defendant made no attempt to shelter his end of the conversation and spoke in a normal tone of voice.

Defendant's argument as to each of the three statements and the Miranda waiver is solely that it was involuntary as a matter of law due to defendant's alcohol intoxication and loss of control due to hypoglycemia (low blood sugar).

The standard to be applied by this court in determining the voluntariness of defendant's statements and Miranda waiver is set out in People v. Jimenez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672.   The reviewing court is to “ ‘ “examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found ․” ’ ”  (Id., at p. 609, 147 Cal.Rptr. 172, 580 P.2d 672;  see also People v. Murtishaw (1981) 29 Cal.3d 733, 753, 175 Cal.Rptr. 738, 631 P.2d 446.)

 There is no evidence in the record of any coercion, pressure, threats, promises of leniency or reward, or other inducement.   Nor does defendant point to any.   Defendant's statements appear to be entirely “self-motivated.”   (People v. Steger (1976) 16 Cal.3d 539, 550, 128 Cal.Rptr. 161, 546 P.2d 665.)   Defendant freely and voluntarily chose to speak without “any form of compulsion or promise of reward ․”  (People v. Trout (1960) 54 Cal.2d 576, 583, 6 Cal.Rptr. 759, 354 P.2d 231;  see People v. Thompson (1980) 27 Cal.3d 303, 327–328, 165 Cal.Rptr. 289, 611 P.2d 883.)

Defendant's sole contention is that as a result of voluntary intoxication and hypoglycemia his statements and Miranda waiver were not “the product of a rational intellect and a free will.”  (Blackburn v. Alabama (1960) 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, 249.)  “An accused's will can be overborne ․ by the influence of a drug [citation] ․ that impairs his ability to exercise his rational intellect and free will.   If an accused's will is overborne because of impairment of his ability to exercise his rational intellect and free will, it is immaterial whether that impairment was caused by the police, third persons, the accused himself, or circumstances beyond anyone's control.”  (In re Cameron (1968) 68 Cal.2d 487, 498, 67 Cal.Rptr. 529, 439 P.2d 633.)

At the hearing on defendant's motion to suppress officers testified that defendant appeared to be under the influence of alcohol or drugs at the time of the statements, his speech was slurred and he had an odor of alcohol.   They also testified that he appeared to be coherent and to understand what they were telling him and, in connection with the second statement, was responsive to their questions and appeared to make a conscious decision to voluntarily speak with them.

The jail nurse testified that when she observed defendant at about 11 a. m., some six hours after the taped conversation and an hour after he was given orange juice and sugar, he appeared glassy-eyed, nervous and agitated.   It was her opinion that defendant was possibly hypoglycemic prior to receiving the orange juice and sugar and that such condition would cause him to be “out of control.”

A pharmacologist estimated defendant's blood alcohol at the time of the taped interview to be .19 or .20.   He testified that at a .20 blood alcohol level combined with hypoglycemia an average person's thinking processes would probably be affected.

The trial court listened to the taped interview and compared defendant's recorded voice inflections with his normal inflections while speaking in court.   In denying the motion the court said:  “․ I am satisfied from the reading of the rights to him, the nature of his direct response to the direct questions that were placed to him by the police officers indicate coherence on the part of Mr. Missin to the point he could listen to the questions, respond directly to the questions, and listen to and understand his rights.”

At trial a physician testified that the effect of hypoglycemia is to impair the brain's ability to function properly and that it was common for diabetics in a hypoglycemic state to appear drunk.   He testified that “the patient may not realize that his brain is functioning improperly, ․ [¶] ․ because it takes a functioning brain to recognize that it's not functioning right.”

Defendant argues that the trial court's reliance on his coherence and verbal responsiveness in admitting his three statements was erroneous in light of the physician's uncontradicted testimony that a hypoglycemic could speak coherently and rationally and yet be so mentally impaired as to not know what he was doing.   But defendant misconstrues the doctor's testimony.   The doctor testified that the patient may not recognize his own mental impairment, not that others would not recognize such impairment.   Indeed, he testified that hypoglycemics often appear to be drunk and exhibit “peculiar behavior.”

 The record shows that despite defendant's intoxication and possible low blood sugar he was coherent, rational and responsive.4  (See People v. Taylor (1980) 112 Cal.App.3d 348, 361–362, 169 Cal.Rptr. 290.)   Having examined the uncontradicted facts, we determine that defendant's statements and Miranda waiver were the product of a rational intellect and a free will and that the trial court's conclusion that defendant's statements and Miranda waiver were voluntary was properly found.  (People v. Jimenez, supra, 21 Cal.3d at pp. 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672;  People v. Murtishaw, supra, 29 Cal.3d at pp. 753–754, 175 Cal.Rptr. 738, 631 P.2d 446.)

III

 Defendant next contends that the case should be remanded for resentencing to allow the trial court to properly consider several factors in mitigation.5  We disagree.   There is no showing that the trial court failed to consider any of such factors.  Rule 423 of the California Rules of Court describes circumstances in mitigation.   Rule 409 provides:  “Relevant criteria enumerated in these rules shall be considered by the sentencing judge, and shall be deemed to have been considered unless the record affirmatively reflects otherwise.”   Thus, the sentencing judge was obligated to consider those mitigating criteria enumerated in rule 423 which were applicable to the facts in this case.  (See Advisory Committee Com. to rule 409.)   And unless the record shows otherwise he is deemed to have done so.   Defendant's sole reference to the record to rebut the presumption established by rule 409 is the court's statement in selecting the middle term as the base term:  “there being no factors in mitigation.”   That the court found there to be no factors in mitigation does not show that the court failed to consider whether there were factors in mitigation, or the relevant criteria enumerated in rule 423.  (See People v. Regalado (1980) 108 Cal.App.3d 531, 538, 166 Cal.Rptr. 614.)   Defendant relies on People v. Burney (1981) 115 Cal.App.3d 497, 171 Cal.Rptr. 329.   But there the trial court found no circumstances in mitigation whereas the appellate court found that mitigating circumstances did indisputably exist as a matter of law.  (Burney, at p. 505, 171 Cal.Rptr. 329, see also People v. Simpson (1979) 90 Cal.App.3d 919, 927–928, 154 Cal.Rptr. 249.)   Having reviewed each of defendant's alleged mitigating factors (set forth ante, in fn. 5) in the light of the complete record, we conclude that none of said factors exists as a matter of law and that the trial court did not abuse its discretion in finding there to be no factors in mitigation.

IV

Finally, defendant contends that he is entitled to 127 days of good time/work time credit for his period of presentence confinement.  (People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874.)   No good time/work time credit was awarded to him at sentencing.

 We agree that defendant is eligible for good time/work time credit under Penal Code sections 2900.5 and 4019.   The formula to be used is one day good time/work time credit for every two days of presentence time actually served.  (People v. McMillan (1980) 110 Cal.App.3d 682, 686, 167 Cal.Rptr. 924.)

 The People argue that under Penal Code section 2931 6 conduct credit is due to defendant only upon a showing of “ ‘forbearance’ ” from enumerated acts and a hearing is necessary to determine defendant's eligibility for good time/work time credits.   This argument is inapposite, however, as the Sage court held that “ ‘term’ as used in section 2931 refers to time in prison subsequent to conviction.”  (Emphasis added.)   (People v. Sage, supra, 26 Cal.3d at p. 506, 165 Cal.Rptr. 280, 611 P.2d 874.)  Penal Code section 2931 thus applies to post -conviction confinement and is inapplicable in the present situation.

The section applicable to a pretrial detainee is Penal Code section 4019.   Section 4019 provides that defendant's good time/work time credits “shall be deducted from his period of confinement unless it appears by the record” that the prisoner has not satisfactorily performed his assigned labor or complied with established rules and regulations.  (Emphasis added.)  (Id., at subds. (b) and (c).)

 Defendant is entitled to good time/work time credits unless the record reveals a reason that the credits should not be granted.   As the record in the case at bench discloses no such reason, defendant is entitled to 127 days good time/work time credit for his 254 days of presentence custody.  (People v. Collins (1981) 123 Cal.App.3d 535, 539–540, 176 Cal.Rptr. 696.)

The trial court is directed to amend the abstract of judgment to reflect that defendant is entitled to 127 days of presentence good time/work time credit under Penal Code sections 2900.5 and 4019 and to forward the amended abstract to the Department of Corrections.

As so modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   At the in camera hearing on October 7 the following colloquy took place:“THE COURT:  ․ I'd be happy to listen to your reason to discharge Mr. Posner.“THE DEFENDANT:  Okay.   Mr. Posner told me that I was guilty, and that he felt I was, and because of that I feel that he could not represent me to the best of his abilities.“THE COURT:  Are there any other reasons why you feel Mr. Posner should be discharged?“THE DEFENDANT:  Well, I don't really feel that he's capable of representing me on a capital offense such as this one.“THE COURT:  Why?“THE DEFENDANT:  Just the inexperience.   He doesn't have a good track record for it.“THE COURT:  Any other reasons?“THE DEFENDANT:  Not really.   I'd like to say, though, that I would ask for the best that the Public Defender's Office has to offer me in the way of defense.“THE COURT:  Are there any other reasons why you feel Mr. Posner ought to, indeed, be discharged?“THE DEFENDANT:  I feel those are sufficient.“THE COURT:  And I want to make sure I have them all under my control.   You feel that because Mr. Posner's indicated to you that he thinks you're guilty, he's not in a position to defend you, and because of what you term ‘his inexperience—’“THE DEFENDANT:  Um-hum.“THE COURT:  ‘—and lack of a track record’ he is not in a position to defend you.   Is there any other reason at all?“THE DEFENDANT:  His track record doesn't show that he could defend me on a capital offense such as this one.“THE COURT:  Okay.   What is that track record as you understand it?“THE DEFENDANT:  That he has never before tried a murder trial.“THE COURT:  All right.   Anything other than that?“THE DEFENDANT:  I don't have his personal track record actually, no.“THE COURT:  All right.   Any other reason why you feel Mr. Posner's not adequate to represent you?“THE DEFENDANT:  I think because I can't trust him to do it as he does, you know.   This is—“THE COURT:  Okay.“THE DEFENDANT:  —high offense.   You're talking fifteen, twenty-five years of my life, maybe life.“THE COURT:  Any others, sir?   Any other reasons?“THE DEFENDANT:  No.“THE COURT:  Okay.   Is there any other evidence to be taken at the In Camera hearing?   Do you have anything you care to offer, Mr. Posner?“MR. POSNER:  No, Your Honor.”

2.   The following colloquy took place at the further in camera proceedings of October 9:“THE COURT:  I think the Court's satisfied on the record before the Court, Mr. Missin, that there's insufficient grounds for you to discharge Mr. Posner on the grounds that he—as you stated them.“If you have any additional grounds, I'll be happy to listen to them.“․“THE DEFENDANT:  It's actually real short.   He wants to be a civil attorney.   He doesn't really—my case does not matter to him, therefore, I see no reason why he should do it.“THE COURT:  Why do you say your case does not matter to him;  that's what he told you?   Mr. Posner told you that?“THE DEFENDANT:  That my case doesn't really matter to him.   It does him no good, no harm.   A civil lawyer doesn't need criminal proceedings to back him up.“THE COURT:  All right.   Anything else?“THE DEFENDANT:  No.“THE COURT:  Mr. Posner.“MR. POSNER:  Well, I'm not going to get into a debate ․“THE COURT:  All right.   Motion to discharge counsel is denied.   The Court's satisfied that, even assuming that's said—and I'm not finding that that was said—the Court would find that from its own observations of Mr. Posner in the past, and his abilities as a trial attorney, that your case, Mr. Missin, is very significant to him.“He realizes the nature and extent of the charges and his conscientious duties as counsel.“THE DEFENDANT:  You're putting me on a capital offense, and you're putting me with—how shall I put it—a rookie.   You're talking about life in prison, maybe even a death sentence, and you're talking about giving me a rookie;  where's that coming from?“THE COURT:  Do you have any other grounds you care to state, sir?“THE DEFENDANT:  I think those were sufficient.“THE COURT:  Are there any more you care to state?“THE DEFENDANT:  No.“THE COURT:  All right.   The Court's satisfied that the grounds are insufficient to cause a discharge of Mr. Posner.   Mr. Posner will continue as counsel for Mr. Missin in the case.“Motion to discharge counsel will be, and the same hereby is, denied.   Thank you․”

3.   There are sound reasons why trial courts should proceed cautiously in conducting such inquiries into defense counsel's state of mind.  (See generally People v. Huffman (1977) 71 Cal.App.3d 63, 80–81, 139 Cal.Rptr. 264;  People v. Groce (1971) 18 Cal.App.3d 292, 297, 95 Cal.Rptr. 688 (dis. opn., J. Draper).)   Such an inquiry may often require the court to recuse the prosecutor from the hearing.  (See Groce, at p. 297, 95 Cal.Rptr. 688.)   In our adversary system a court should not lightly undertake such a procedure, nor should the attorney-client relationship be unnecessarily invaded.   The United States Supreme Court has noted in discussing the appropriate scope of judicial inquiry into an attorney's state of mind in dual representation cases that compelled disclosure of confidential communications between attorney and client “creates significant risks of unfair prejudice, especially when the disclosure is to a judge who may be called upon later to impose sentences on the attorney's clients.”  (Holloway v. Arkansas (1978) 435 U.S. 475, 487, fn. 11, 98 S.Ct. 1173, 1180, 55 L.Ed.2d 426, 436.)   Under many circumstances, merely allowing defense counsel an opportunity to comment upon allegations respecting the attorney's state of mind may suffice.   If the defense attorney's relationship with the client has broken down to the point of jeopardizing the defendant's right to effective assistance of counsel, counsel should move to withdraw from the case.  (People v. Munoz (1974) 41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726;  cf. People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008.)   If such a breakdown has occurred counsel can thus be expected to join in defendant's motion.  (See People v. Young (1981) 118 Cal.App.3d 959, 967–968, 173 Cal.Rptr. 700;  People v. Terrill (1979) 98 Cal.App.3d 291, 301, 159 Cal.Rptr. 360;  People v. Jacobs (1972) 27 Cal.App.3d 246, 263, 103 Cal.Rptr. 536.)

4.   We, too, have listened to the entire tape-recorded interview with defendant at approximately 5:15 a. m. on April 6.

5.   Defendant maintains that the following mitigating factors were not considered:  (1) the victim was involved in a violent brawl in defendant's home, provoking the incident;  (2) there were unusual circumstances present (i.e., the provocation);  (3) defendant mistakenly believed he had a right to shoot the victim;  (4) defendant's prior record was “insignificant”;  (5) defendant was suffering from diminished mental condition;  and (6) defendant voluntarily acknowledged wrongdoing at an early stage of the proceedings.

6.   Penal Code section 2931 provides in pertinent part:“(a) In any case in which an inmate was sentenced to the state prison pursuant to Section 1170, or if he committed a felony before July 1, 1977, and he would have been sentenced under Section 1170 if the felony had been committed after July 1, 1977, the Department of Corrections shall have the authority to reduce the term prescribed under such section by one-third for good behavior and participation consistent with subdivision (d) of Section 1170.2․“․“(b) Total possible good behavior and participation credit shall result in a four-month reduction for each eight months served in prison or in a reduction based on this ratio for any lesser period of time.   Three months of this four-month reduction, or a reduction based on this ratio for any lesser period, shall be based upon forbearance from [certain enumerated acts] ․”  (Emphasis added.)

WARREN,* Associate Justice. FN* Assigned by the Chief Justice.

BLEASE, Acting P. J., and REYNOSO, J. **, concur.Hearing denied;  REYNOSO, J., did not participate.