PEOPLE v. McKENZIE

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Elliot Cornace McKENZIE, aka William Williams, Defendant and Appellant.

Crim. 40849.

Decided: March 24, 1982

Quin Denvir, State Public Defender, and Neil Rosenbaum, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen.—Cr. Div., William D. Stein, Asst. Atty. Gen., Clifford K. Thompson, Jr., and Ann K. Jensen, Deputy Attys. Gen., for plaintiff and respondent.

NATURE OF APPEAL:

Defendant appeals from judgment of conviction of several crimes.   He contends he was denied the right to effective assistance of counsel.   His appointed public defender intentionally refused to participate in the trial other than to sit at counsel table.   Upon trial, a jury found defendant guilty of rape, robbery, forceable oral copulation, assault with deadly weapon, burglary with intent to commit great bodily injury and assault with deadly weapon with intent to commit great bodily injury.

We affirm the judgment.

PROCEDURAL BACKGROUND:

When arraigned in the municipal court, defendant expressed his desire for self-representation.   The magistrate warned defendant of the dangers and disadvantages of self-representation (People v. Wilks (1978) 21 Cal.3d 460, 467, 146 Cal.Rptr. 364, 578 P.2d 1369), but defendant insisted he did not want counsel and wished to represent himself.   Defendant indicated he knew what would have to be proved in court before he could be found guilty, the defenses to the charges, and that he could not later claim he had inadequate representation.   After ascertaining himself of defendant's educational level (11th grade), the magistrate permitted defendant to do so.   In Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the United States Supreme Court held that a defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he does so voluntarily and intelligently.   Accordingly, the magistrate's decision was proper.   Defendant entered a plea of not guilty to the charges, and a preliminary hearing was set for November 20, 1979.

Thereafter, but before the date of the preliminary hearing, defendant confessed to the police.   Therefore, the matter was calendared for defendant's appearance in superior court for plea on November 16, 1979.   On that date, defendant appeared before the superior court for the purpose of entering pleas of guilty.   Defendant explained that at a previous trial in Santa Barbara County, in which he was convicted of burglary and robbery, his attorney had argued defendant should have psychiatric treatment.   Defendant indicated he would plead guilty in the present proceedings if the court would commit him to a state hospital for treatment.   The court explained to defendant the three ways in which defendant could be sent to a state hospital.   Defendant asked the court to clarify the plea of not guilty by reason of insanity.   The court explained the plea as well as the possible sentence defendant could receive.   Defendant indicated he would like time to consider the discussed matters.   The deputy district attorney suggested defendant could make his decision about pleading known to the municipal court judge at the time of the preliminary hearing.   Defendant agreed.

At the preliminary hearing on November 20, 1979, defendant stated he wished to enter a plea of not guilty by reason of insanity.   The magistrate replied defendant could do so in superior court.   Defendant then asked for a continuance to prepare for the case.   Pointing out that all the witnesses were present and that defendant should have made the request for a continuance at an earlier time, the magistrate refused to delay the preliminary hearing.   Defendant declined to cross-examine the prosecution's witnesses and was held to answer in the superior court.

On December 11, 1979, the superior court appointed a psychiatrist, pursuant to Evidence Code section 730, to determine defendant's competence to stand trial, and also appointed the public defender for this specific proceeding.   At the hearing on December 20, 1979, the court advised defendant of his right to be represented by counsel and his right to have counsel appointed for him if he could not afford a private attorney.   When the court asked defendant if he had the money to hire a lawyer, defendant made no response;  and the court then appointed the public defender to represent defendant.   Both the prosecutor and defense counsel agreed to submit the issue of defendant's mental competency on the report of the court-appointed psychiatrist.   When the court found defendant to be mentally competent, the latter yelled.   He refused to enter a plea to the charges which were read to him and refused to answer any questions from the court.   The court, on its own motion, entered pleas of not guilty and deemed the alleged prior felony convictions denied.   Based on the deputy public defender's request for additional time to prepare the case, the trial court set February 4, 1980 for trial.

On January 3, 1980 the deputy public defender asked the court to be relieved as defendant's attorney.   He stated that since defendant had exercised his right of self-representation at the preliminary hearing in the municipal court, his silence in the superior court as to whether or not he desired appointed counsel indicated that he was invoking his right to self-representation under Faretta, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.   The trial court responded, “On the arraignment I advised him of his right to counsel and I have not yet read in Faretta where you get a Faretta right by silence.”   The court then asked defendant if he wished to be represented by counsel.   When defendant did not respond, the trial court stated:  “[T]he defendant stands mute, and I would find that he has not exercised his Faretta right on the Information filed in the Superior Court, and your motion to withdraw is denied․  [¶] [T]he Court would find that he would be denied his constitutional rights were he not assisted ․ by counsel on these proceedings.   The charges are of serious consequence.   The Court has grave doubts whether he could represent himself as it is on the underlying charges and whether or not he has the ability to represent himself or the capacity, because he will not respond to the Court's questioning on the issue of Faretta.”

After denying defense counsel's motion to withdraw as defendant's attorney of record, the trial court, at defense counsel's request, appointed a second psychiatrist to again examine defendant's mental competence.

On January 29, 1980, based on the psychiatric report and statements by defense counsel, the trial court declared a doubt as to defendant's mental competence.   The court suspended proceedings pursuant to Penal Code section 1368, appointed two psychiatrists to examine defendant, vacated the trial date of February 4, 1980 and set the matter of determining defendant's competency for jury trial on February 11, 1980.   To enable the public defender to testify, the court appointed private counsel to represent defendant at the competency trial which was continued to March 24, 1980.   After the jury had been sworn for that competency trial but before any evidence was taken, defendant started screaming.   He was removed from the courtroom and the competency trial took place in his absence.   The jury found defendant competent to stand trial.

On March 28, 1980 the trial court reappointed the deputy public defender over the latter's objection.   On May 7, 1980 defense counsel moved to have the information set aside (Pen.Code, § 995) and, in the alternative, for a new preliminary hearing.   Defense counsel argued that because defendant had not cross-examined the prosecution witnesses at the preliminary hearing, he (defense counsel) would be unable to provide effective assistance unless afforded a new preliminary hearing so he could cross-examine the witnesses.   The trial court denied the motion.

On May 14, 1980, the date set for trial, and in the presence of defendant, the deputy public defender announced he was not going to participate in the voir-dire of the jury, would not cross-examine the witnesses, and would not challenge either defendant's confession or the photographic line-up.   As he said, “I would sit next to my client and participate no further than that.”

Just before selection of the jury, defendant placed himself on the floor and emitted some loud yells.   As he was taken out of the courtroom, defendant continued yelling.   Trial proceeded in defendant's absence.   Defense counsel did not participate during the trial proceedings, nor did he say anything on defendant's behalf at the sentencing hearing.   The jury found defendant guilty as charged and found to be true the allegations of his use of a deadly weapon and service of two prior prison terms.   The trial court sentenced defendant to state prison.

DISCUSSION:

 The right to counsel, as guaranteed under the Sixth Amendment of the United States Constitution and Article I, section 15 of the California Constitution, is a fundamental right and essential to a fair trial.  (Gideon v. Wainwright (1963) 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799.)   Absent a knowing and intelligent waiver of that right, a person may not be imprisoned if he was not represented by counsel at trial.  (Argersinger v. Hamlin (1972) 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530;  People v. Locklar (1978) 84 Cal.App.3d 224, 228, 148 Cal.Rptr. 322.)

In this case, the deputy public defender appointed by the trial court to represent defendant, though physically present, refused to participate in any of the trial proceedings.  “[T]he constitutional right to counsel mandates diligent, substantial representation, not simply a pro forma appearance.   [Citation omitted.]”  (People v. Locklar, supra, at p. 229, 148 Cal.Rptr. 322.)

 Under presently announced standards, a defendant is entitled not merely to competent counsel but to effective, active, diligent representation by counsel.  (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612, 180 Cal.Rptr. 177, 639 P.2d 248;  People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859;  Reece v. Georgia (1955) 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77.   Tested by these standards, defendant's trial counsel failed to render effective assistance of counsel.   In two seemingly similar cases, People v. Locklar, supra, and Little v. Superior Court (1980) 110 Cal.App.3d 667, 168 Cal.Rptr. 72, relied on by appellate counsel, this failure resulting from refusal of counsel to participate was held to be reversible, prejudicial error.   But comparison of the facts in both of those cases with those at bench, indicates that the same result is not compelled here.

In Locklar, supra, the deputy public defender, representing the defendant, suddenly became ill the afternoon before the trial.   The next day another deputy moved for a continuance of a day or so until the recovery of defense counsel, who could then represent the defendant.   At the time he moved for a continuance, the deputy, appearing for the defendant's attorney of record, was totally unfamiliar with the case file, which had been taken home by defense counsel to prepare for trial.   The deputy making the appearance informed the trial court that if he were forced to participate at the trial on that date, he would merely sit next to the defendant and not participate because of his lack of familiarity with the case.   The trial court denied a continuance and insisted on impaneling the jury.   The “substituting” deputy did not question any juror nor did he exercise any challenge.   After impaneling the jury the case was continued for a few days.   By that time, the deputy originally assigned to the case was back in court.   He moved for a mistrial based on the manner in which the jury had been selected.   The court denied the motion.   The next day the jury found the defendant guilty of committing two burglaries, as charged.   On appeal, the court held that the counsel's deliberate and announced refusal to participate in the jury selection had resulted in a denial of defendant's constitutional right to assistance of counsel, constituting reversible error per se.  (People v. Locklar, supra, at pp. 227–229, 148 Cal.Rptr. 322.)

In Little v. Superior Court, supra, 110 Cal.App.3d 667, 168 Cal.Rptr. 72, on the date set for the preliminary hearing the deputy public defender assigned to the case failed to appear because of a calendaring error.   On his behalf, another deputy appeared in court and moved for a continuance to permit the original deputy to represent the defendant.   The prosecutor objected, stating that one of his witnesses had traveled quite a distance to appear in court and that another witness was a busy pediatrician.   The magistrate ordered the preliminary hearing to proceed despite the substituting deputy's statement that he would not participate in the proceeding because he was unfamiliar with the case and totally unprepared to proceed.   At the conclusion of the hearing, at which the substituting deputy had remained silent, the defendant was held to answer to the superior court.   The reviewing court noted that under the circumstances the magistrate should have granted the continuance and, relying on People v. Locklar, supra, 84 Cal.App.3d 224, 148 Cal.Rptr. 322, held that counsel's pro forma appearance without actual participation on behalf of the defendant had deprived the defendant of his right to assistance of counsel.   (Little v. Superior Court, supra, at pp. 670–671, 168 Cal.Rptr. 72.)

In the case at bench, the trial court appointed Deputy Herrick on December 20, 1979.   However, commencing on January 3, 1980 until May 14, 1980, the date set for trial, it was Deputy Hotchkiss who made all court appearances.   The latter clearly had ample opportunity to familiarize himself with the case.   Available to Hotchkiss were, among other things, a transcript of the preliminary hearing, police reports, a handwritten statement by one of the victims, photos used in the pretrial line-up, and his client's entire criminal record.   By contrast, the deputy in Locklar, as in Little, had had no opportunity to familiarize himself with the case when ordered to proceed because he was in court only to make an appearance on behalf of the deputy actually representing the defendant for the limited purpose of seeking a short continuance until the return of the original deputy.

While we recognize that defendant's refusal to talk and his complete lack of cooperation made it difficult for defense counsel to conduct a defense, there is no reason, legal or factual, why counsel, given the substantial time he had to prepare and his access to various documents and materials made available to him, could not have taken an active part in the trial and well and effectively defended the accused.   The record clearly indicates that the deputy public defender would have participated in the defense had the trial court granted his request for a new preliminary hearing.   As we mentioned earlier in our discussion of the procedural background, defense counsel felt a new preliminary hearing was necessary so he could cross-examine the prosecution's witnesses, which defendant, who represented himself at the hearing, had failed to do.   Since counsel had access to the transcript of that hearing, he certainly could have familiarized himself with the testimony given at the hearing and thus prepared for cross-examination of the witnesses at trial.

 Faced with a defendant who refused to say a word in court and ignored the trial court's questions as to whether he wanted to be represented by counsel or was willing to waive that right, the trial court acted correctly in appointing counsel for defendant.   Defendant did not expressly waive the right to assistance of counsel.   Having been appointed by the trial court as counsel for defendant, the deputy public defender, an officer of the court, had a duty to carry out the responsibility of defending defendant.   Had counsel actively participated in the defense, as best as could be expected from him under the circumstances, on appeal we would have had a record to measure counsel's performance against the standard of competence and diligence set forth in People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859, that is, whether counsel acted “in a manner to be expected of reasonably competent attorneys acting as diligent advocates.”

Comparison of the matter at bench and the cases of Locklar and Little illustrates a significant difference.   In those cases part of the reasoning of the appellate court in each rests on the fact that the appellate court found justification for not compelling trial counsel to proceed to trial.   In both of those cases the appellate decision treats the case as involving an emergency where all that was being requested by defense counsel was a short, reasonable continuance to enable the attorney truly “handling” the case to do so, and that to compel unprepared, unfamiliar counsel to nonetheless represent the defendant was error.   In both cases the unprepared temporary pinch-hitters were deemed unreasonably forced upon the defendants.   They could not adequately represent their defendants because of such sudden demand and their unpreparedness.   The pivotal substance of the reasoning in both cases is thus not the error of defense counsel intentionally refusing to render assistance.   Rather, it is that the trial court's refusal to continue the case until the return of original counsel was the cause of a truly unfamiliar and wholly unprepared counsel being compelled to represent defendants thereby denying defendants effective assistance.

Here, the refusal of trial counsel who was thoroughly familiar with the case to render any assistance was wholly unwarranted and an intentional creation of error.   Trial counsel professed “due respect” for the court and claimed that he was refusing to abide by the duties of his official office and of his appointment by the trial court, “relying on the Locklar case.”   He claimed he could not, under the canons of ethics adequately represent defendant.   Counsel claimed unpreparedness and inability to prepare by reason of the court's ruling in refusing to order a new preliminary hearing.   But reliance upon Locklar for the purpose used by defense counsel at bench cannot be tolerated.   The claim of unpreparedness was “phony.”   As clearly established by the record, defense counsel had ample time to prepare.   Defense counsel requested that a new preliminary hearing be ordered.   That is what he truly wanted—another shot at the preliminary, in effect, a second preliminary.   The trial court properly denied the request.   There was no just cause or reason to grant a new preliminary.   Upon such denial, defense counsel thereupon attempted to force the trial court to accede to defense counsel's demand by stating that he would not, and in fact refusing to, render any assistance to defendant.   The proper administration of justice cannot tolerate such procedural blackmail.   Irrespective of defense counsel's protestations of “due respect” for the court and of his desire not to offend the canons of ethics by representing a defendant without adequate preparation and knowledge, his act was nothing short of an effort to box the trial court into an untenable position of either acceding to a once properly denied request or to have “error” created.

Here we do not seek to hide the fact that defendant was actually denied by his own attorney effective assistance which could have been rendered, his attorney relying on Locklar.   Nonetheless, Locklar, supra, and Little, supra, cannot be relied upon as authority giving the right to counsel to threaten and to refuse to participate as defense counsel if some motion or demand of counsel is not met.   Any such extension of the holding of those cases would permit counsel to sabotage the administration of justice.   Moreover, the choice by defense counsel to deny his client effective representation was not of the court's making and does not require reversal.   A reversal would reward the misconduct of both defendant and his lawyer.

 Trial counsel's act, although resulting in denial of effective assistance, was with the knowledge of defendant.   Counsel in defendant's presence said what he was going to do.   Defendant was competent and thus able to cooperate with counsel.   Defendant did not object.   As counsel on appeal correctly observes, this argument relies on implied rather than express approval of the announced plan of defense counsel;  and a waiver of a constitutional right to assistance of counsel requires express waiver and may not be implied from a silent record, concluding “the People cannot have it both ways.”   Here the People are not seeking to have it both ways.   Rather the defendant and his counsel seek to have the right to create all possible conflicts resulting from the defendant's silence by “playing crazy” and defense counsel refusing to act although under a clear duty to act.

Apart from Locklar, supra, and Little, supra, which we have distinguished, no case with the same problem of intentional creation of error by denial of assistance has been cited or found by our independent research.   We believe, however, that the conflict created by counsel between the due process requirements of competent counsel and of “defendant's informed conclusions as to how his defense ought to be conducted” (Maxwell v. Superior Court, supra, 30 Cal.3d 606, 609, 180 Cal.Rptr. 177, 639 P.2d 248) does not require a reversal based upon prejudicial error.   We are aware that our decision can be interpreted as relying on and treating defendant's personal conduct as an approval of counsel's conduct.   If in fact defendant's personal approval is necessary in order to avoid the result of prejudicial error, we do not blink at the fact that such approval must be implied.   It is implied from defendant's failure to object to counsel's announced course of conduct rather than an express approval.   Additionally, we do not overlook the rule repeated in Maxwell :  “As in other cases involving forfeiture of the right to counsel, waiver of potential conflicts may not be inferred from a silent record.”  (Citing Carnley v. Cochran (1962) 369 U.S. 506, 516–517, 82 S.Ct. 884, 8 L.Ed.2d 70;  People v. Chacon (1968) 69 Cal.2d 765, 774, 73 Cal.Rptr. 10, 447 P.2d 106.)  (Maxwell v. Superior Court, supra, at p. 620, 180 Cal.Rptr. 177, 639 P.2d 248.)

But we are not dealing with a classic situation of determining whether to provide counsel (Carnley v. Cochran, supra, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70) or to provide separate counsel to one of several defendants (People v. Chacon, supra, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106) in which situations there is no question that the waiver of the right to be furnished or represented by counsel will not be inferred from a silent record.   We deal rather with the use by present defense counsel of a tactical ploy, combined with defendant's intentional “playing crazy”, thereby avoiding saying “yes” or “no.”   Additionally, the implied consent and the conclusion as to how his counsel will act concern the relationship between defendant and his attorney.   It does not relate to an implied consent to an act or order of the court or to a procedure not relating to the client-attorney relation.

In Maxwell v. Superior Court, supra, 30 Cal.3d 606, 620, 180 Cal.Rptr. 177, 639 P.2d 248, the court dealt with an express waiver of the possible conflict which could arise to deny a defendant full and effective assistance of counsel.   Although we deal at bench with the possible need of at least an implied waiver, the language of Maxwell is instructive and applicable.  “One due process requirement is that an individual charged with serious crime be represented by competent and independent counsel.   Another is that courts generally must not interfere with defendant's informed conclusions as to how his defense ought to be conducted.   In this lawsuit, which involves an indigent defendant accused of capital murder, those two requirements appear to conflict.”  (Id. at 609, 180 Cal.Rptr. 177, 639 P.2d 248.)   The decision in Maxwell holds that defendant's informed conclusion and choice as to how his defense ought to be conducted was paramount to and commanded more deference than the right to effective assistance of counsel.   The conclusion reached in Maxwell, supra, is that if the defendant wants a particular defense, he is entitled to that choice even if such defense diminishes the right to effective counsel.  Maxwell deals with a choice of particular counsel;  but the decision and language of the court is not limited to the right to choose particular counsel but clearly refers to and applies equally to the choice of a type of defense even though it may possibly conflict with the right to effective assistance.   The language somewhat illustrates the limitations on the trial court to compel representation by other counsel or to compel other manner or form of representation.

“California decisions ․ limit severely the judge's discretion to intrude on defendant's choice of counsel in order to eliminate potential conflicts, ensure adequate representation, or serve judicial convenience.”  (Maxwell v. Superior Court, supra, at p. 613, 180 Cal.Rptr. 177, 639 P.2d 248.)  “ ‘[T]he involuntary removal of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed․’  (Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697, 122 Cal.Rptr. 778, 537 P.2d 898.)”  (Id. at p. 615, 180 Cal.Rptr. 177, 639 P.2d 248.)

The opinion continues with a discussion of the limited areas wherein a trial court may interfere with the attorney-client relationship and with the attorney's manner of representation of a defendant in court.   No case is cited and no reasoning is expressed therein which supports judicial interference because of failure to render effective assistance of counsel based on an intentional and/or tactical choice to commit error by doing nothing.   To the contrary the entire tenor of the opinion reaffirms the proposition that trial courts are strictly limited in their power to interfere in the relationship between defendant and his counsel.

 Although Maxwell deals with privately hired counsel, the observation of the strict limits on the trial court's right or duty to interfere, even when there appears the potential conflict that effective counsel can or will be denied a defendant, apply equally to an appointed public defender or privately-retained counsel.   In determining the standards of competence and effectiveness of counsel, there can be no distinction made between retained or appointed counsel.   The conduct of either or both must be measured by the same standard of effective representation.  (Cuyler v. Sullivan (1980) 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333.)

The court in Maxwell declares “When substantial risks of conflict are brought to the court's attention before trial but an adequate waiver of defendant's effective-assistance rights cannot be obtained on the record, the court must presume that he has not knowingly and intelligently chosen to proceed with retained counsel.  [Citation.]  The court may then protect the record and defendant's right to effective assistance by requiring counsel's withdrawal.  [Citations.]”  (Maxwell v. Superior Court, supra, 30 Cal.3d 606, 620, 180 Cal.Rptr. 177, 639 P.2d 248.)   The court also notes in footnote 10 of the opinion:  “We do not deprive the trial court of power to act when an actual conflict materializes during the proceedings, producing an obviously deficient performance.   Then the court's power and duty to ensure fairness and preserve the credibility of its judgments extends to recusal even when an informed defendant, for whatever reason, is cooperating in counsel's tactics.”  (Id. at p. 619, fn. 10, 180 Cal.Rptr. 177, 639 P.2d 248.)

Irrespective of the above observations, the power of the trial court to remove counsel in the case at bench is no answer to the dilemma.   Although this conduct by defense counsel was grievously wrong, to have removed him would not assure that the next deputy would not do the same thing, if Locklar could or would be again interpreted to permit such conduct.   This is one of the dangers of Locklar as interpreted both by defendant's trial counsel and defendant's appellate counsel.

A more important concern is the unfortunate effect of the seeming rule of the Locklar case.   If it can be used, as was done in this case by defense counsel, as authority to permit counsel to force a trial court to change its ruling on any defense motion on counsel's threat of committing intentional error by non-representation, all defense counsel will be similarly entitled in every criminal case to use such tactic if we reverse the conviction here.   But to rule the act of defense counsel at bench a denial of effective counsel resulting in prejudice to defendant and reversible error will have precisely that effect.   Such prospect is absolutely unacceptable.   We must face that misapplication squarely and reject it.   The proposition cannot be accepted even for this case alone.   Subsequent reliance on the Locklar decision so demonstrates.   It was relied upon by the Little case and in the trial in the matter at bench to justify refusal to act.   As thus interpreted, it would spawn an unmanageable and disruptive device.

In addressing the problem of enforcing proper conduct, Justice Kaus opined in Maxwell that it is not “the duty of trial courts to act as an arm of the State Bar Court and specifically enforce professional ethics by recusing counsel.”  (Maxwell v. Superior Court, supra, at p. 623, 180 Cal.Rptr. 177, 639 P.2d 248 (conc. opn. of Kaus, J.).)   That observation explains another reason why the trial court correctly made no attempt to force counsel to perform his duty under threat of removal or contempt.   Trial courts should not be required to so compel performance of duty.   They have enough to do without this added burden of forcing counsel to defend or, in the alternative, to conduct disciplinary or contempt proceedings.

Based on all of the foregoing, we hold the conduct of trial counsel in this case does not result in per se reversible error.   Additionally, the record discloses that defendant suffered no actual prejudice.   The record discloses beyond a reasonable doubt that a result more favorable to defendant would not have been reached.   The case was not close.   The evidence thoroughly and solidly established defendant's guilt.   Appellate counsel argues that because of the failure of trial counsel to perform his duty, the evidence was not tested nor subjected to scrutiny and the hazard of possible exclusion;  and, therefore, we may not refer to or rely on the evidence to determine whether defendant in fact suffered prejudice or whether a result more favorable to defendant, but for the error, would have been reached.   It is true that effective trial representation would have so tested the evidence.   On the other hand, under the paradox that trial counsel's own misconduct removed an important part of the very means by which to test his conduct and its effect, we may and do rely on the means and methods remaining and available to us.   First we rely on the fact shown by the record that the trial court, prosecutor and jury performed their duties honestly and fairly.   That includes the obligations of court and counsel to allow and to offer respectively only lawfully admissible, honest evidence.

The jury was properly and carefully instructed.   Its questions to the court during deliberations disclosed a very hard-working, conscientious jury.   It was aware of the non-representation problem and did not treat this case perfunctorily.   It too performed its duty fully and honestly.

Secondly, we have carefully read the entire record including the transcript of all of the evidence.   In this examination we have given careful attention to those areas where defense counsel would have been especially concerned and which are included in many areas of defense inquiry to which appellate counsel refers, including the in-court identification of defendant by the two victims, the identification of defendant's photograph by both victims, the evidence of the discovery and the connecting of the knife used as belonging to the set owned by defendant's brother, the evidence of the occupancy by defendant's brother of the apartment next to that of one of the victims where the crime was committed, the circumstances of the confession and the completeness of the disclosure of the circumstances.   Although confessions create an extremely sensitive area of concern, the record shows that there was no coercion, promise, failure to warn or any other legal impropriety or reason which would have precluded the confession.

There was no overreaching or any unfairness in the conduct of prosecutor, court or jury.   To the contrary, these participants all seemed to realize the potential for unfairness and treated the case carefully and conducted themselves fairly.

Justice Mosk observed in People v. Carter (1967) 66 Cal.2d 666, 670, 58 Cal.Rptr. 614, 427 P.2d 214, “ ‘the right to counsel may not be used to subvert the orderly and efficient administration of justice [citations], and its utilization as a tool for dilatory purposes may not be permitted [citation], ․’ ”

The record here clearly establishes that a defendant feigning incompetency to be tried and a rebuffed lawyer attempted to use the right as a tool to intentionally create error.

The judgment is affirmed.

BEACH, Associate Justice.

COMPTON, Acting P. J., and LESTER E. OLSON,* J., concur.

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