PEOPLE v. PEREZ (1978)

Defendant Carlos Perez appeals his jury conviction of second degree burglary (Pen.Code s 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.)

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, s 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.)

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 s 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.

The State Bar of California is authorized (Bus. & Prof.Code s 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 . . . (partakes) of the nature of a public trust (citation), the granting of which privilege to an individual is everywhere conceded to be the exercise of a judicial function. (Citation.) This is necessarily so. An attorney is an officer of the court, and whether a person shall be admitted is a judicial, and not a legislative, question. However, notwithstanding the inherent power of the courts to admit applicants for licenses to practice law, it is generally conceded that the Legislature may prescribe reasonable rules and regulations for admission to the bar which will be followed by the courts. The regulations so prescribed must, as stated, be reasonable and shall not deprive the judicial branch of its power to prescribe additional conditions under which applicants shall be admitted, nor take from the courts the right and duty of actually making orders admitting them. (Citations.) In short, such legislative regulations are, at best, but minimum standards unless the courts themselves are satisfied that such qualifications as are prescribed by legislative enactment are sufficient. The requirements of the Legislature in this particular are restrictions on the individual and not limitations on the courts. They cannot compel the courts to admit to practice a person who is not properly qualified or whose moral character is bad. In other words, the courts in the exercise of their inherent power may demand more than the Legislature has required. (Citations.) (Id. at pp. 327-328, 41 P.2d at p. 162.) 1

Moreover, it is for the courts to determine what constitutes the practice of law, not the Legislature or the State Bar of California.

“The predicate that the inherent judicial power extends to the practice of law because of the constitutional division of governmental powers, forecloses general power in the legislature over the subject. . . . In connection with qualification for bar admission the courts have upheld proper legislative police power regulations as valid minimum requirements subject, however, to the power of the courts to prescribe additional or maximum requirements. . . . The extension of these views to the subject of unauthorized practice of law appears to be justified . . . ” (117 Penn.Law Review 970, 995, Herbert M. Silverberg, “Law School Legal Aid Clinics: A Simple Plan; Their Legal Status,” citing G. Brand, “Unauthorized Practice decisions xi-xiii”.)

Rule VI, insofar as it would authorize law student representation in felony trials, is not sanctioned by the Sixth Amendment to the federal Constitution as interpreted in the landmark decision of the United States Supreme Court (1972) in Argersinger v. Hamlin, supra, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. The Supreme Court there held “absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial.” Argersinger involved a misdemeanor charge only. In his concurring opinion, Associate Justice William Brennan made this prophetic statement:

“ . . . I think it plain that law students can be expected to make a significant contribution, quantitatively and qualitatively, to the representation of the poor in many areas, including cases reached by today's decision.” (Emphasis added.)

The Argersinger decision (together with Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 751, 21 L.Ed.2d 718), has had a profound effect on the clinical training of law students. Law school and clinical programs offering representation to indigent misdemeanor defendants have been assured a continuing clientele and received judicial recognition. In a few jurisdictions, law schools have received federal loan grants to develop clinical programs in which law students represent misdemeanor defendants. These programs have been institutionalized by schools when funding ended. In other situations, student practice rules have been adopted to allow student representation of misdemeanor defendants. (Bar Admission Rules and Student Practice Rules, Steven H. Leleiko, “State Federal Rules Permitting the Student Practice of Law: Comparisons and Comments,” p. 913, 928.)

The Argersinger promise in the area of misdemeanant representation has not been fulfilled. For example, to comply with Argersinger, in Michigan, the Detroit Recorder's Court has institutionalized a misdemeanor public defender program in which law students from the three Detroit law schools participate representing misdemeanor defendants. In practice, the Detroit courts currently use a system that takes certain trial cases away from law students. (See People v. Masonis, 58 Mich.App. 615, 228 N.W.2d 489, 491.) Professor Robert Oliphant of the University of Minnesota reported in 1973:

“ . . . in Detroit, Michigan, some trial judges have interpreted the Michigan Student Practice Rule as giving them total discretion to remove a student at any stage of the proceedings. The rule is used to remove students from representing indigents whenever a jury trial demand is made.” (57 Minn.Law Review 545, 555, Robert Oliphant, “Reflections in the Lower Court System.”)

Under the New York Session Laws of 1965, chapter 877, certified law students are specifically exempt from the criminal proscriptions while “acting under the supervision of a legal aid organization . . . approved by the appellate division . . . when such students are acting under a program approved by the appellate division . . . .” The appellate division of the Supreme Court of the State of New York responsive to the legislative offer, has approved appearances by senior law students in certain civil proceedings; but consistent with the application made excludes “representation upon trial of persons accused of crime.” In Application of Cornell Legal Aid Clinic, 26 A.D.2d 790, 273 N.Y.S.2d 444, the appellate division denied the application:

“ . . . insofar as it requests approval of representation by law students of indigent persons at hearings in post-conviction proceedings and on appeals in criminal actions and habeas corpus proceedings, and of indigent mental patients at commitment and sanity hearings denied.” (Id. 26 A.D.2d at 790, 273 N.Y.S.2d 446 at p. 446.)

To the same effect see In the Application of Legal Aid Society of City of Albany, App.Div., 277 N.Y.S.2d 632.

We conclude the Argersinger decision does not give constitutional aura to the activities of Mr. Loo in this case. We find there no Sixth Amendment command that overrides California judicial prerogative vis-a-vis the Legislature. On the factual and legal posture here the separation of powers doctrine precludes surrender to the State Bar of California via legislative assignment of rule-making authority, the inherent judicial power to admit persons to the practice of law. Rule VI cannot authorize the practice of law by an unlicensed person.

There remains yet a further facet to Perez's polyphedral protestations: Mr. Loo acted as a lawyer on behalf of Perez in a criminal felony trial. The Board of Governors of the State Bar have justified these activities by the presence of the “supervising attorney”:

“For the protection of the client and public and to insure the validity of the experience from an education standpoint, the personal presence of the supervising attorney is required in certain especially important instances such as trials, proceedings before the superior or appellate courts of this state, and in all criminal matters where the right to counsel is guaranteed by the Constitution or statute.” (Journal of the State Bar of California, vol. 44, No. 5, “Annual Report of the Board of Governors,” p. 616, at p. 631.)

We now examine that premise in light of the Sixth Amendment guaranty to Perez of assistance of counsel in his defense. Preliminarily we note Perez is Spanish speaking; an interpreter was required throughout the trial. He asserts his signed waiver was invalid as “not knowingly and understandingly made.” He was without full knowledge of Mr. Loo's law student status. Whether this contention has merit we cannot here determine for no factual matters appear in the record from which we can glean the circumstances surrounding the signing of the written document approving of Mr. Loo's representation “under the direct supervision of Mr. Zinter.” The record is “silent”; it discloses no interrogation of Perez to determine his understanding of the consequences of his approval being represented at the trial by an unlicensed person where his liberty was at stake.²

A waiver of right to counsel under the Sixth Amendment must be intelligently and understandingly made. (Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70; Walton v. Arkansas, 371 U.S. 28, 83 S.Ct. 9, 9 L.Ed.2d 9.)

And “. . . some rights will never be deemed waived unless the defendant is first expressly advised of their existence.” (Michigan v. Mosley, 423 U.S. 96, 108, 96 S.Ct. 321, 46 L.Ed.2d 313, 328. Concurring opinion of White, J.) The right to assistance of counsel is such a right. (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Carnley v. Cochran, supra.)

“ The record must show . . . that the accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver. (Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. at 890; In Re Haro, 71 Cal.2d 1021, 1027, 80 Cal.Rptr. 588, 458 P.2d 500.)

And the court indulges in every reasonable presumption against waiver. (Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314; Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 423.)

This court may not presume from the “silent record” that Perez has voluntarily and intelligently waived a constitutional right. (Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Blake v. Municipal Court, 242 Cal.App.2d 731, 736, 51 Cal.Rptr. 771.)

Perez had the right to represent himself, i. e., waive counsel entirely. (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562); and in certain jurisdictions, it has been held that an accused may likewise waive his right to representation by one licensed to practice law. (People v. Cox, 12 Ill.2d 265, 146 N.E.2d 19.) But in either case such waiver should be accepted by the court only after the defendant has been made aware of the dangers and disadvantages of self representation (or of representation by an unlicensed person, if permitted) so that the record will establish “that ‘he knows what he is doing and his choice is made with eyes open.’ ” (Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. at p. 2541; People v. Cox, supra.)

We conclude the “silent record” here does not justify any legitimate reference that Perez intelligently, knowledgeably, with his eyes open authorized or consented to a law student to represent him in a felony jury trial. The case authorities require a contrary conclusion.

We next examine Perez's constitutional challenge to law student representation in a felony jury trial.

The federal Constitution, the Sixth Amendment thereof, made applicable to the State of California by the Fourteenth Amendment, is here controlling for the power of the State of California through the Legislature and/or the judiciary, to control the practice of law, cannot be exercised in such fashion as to abrogate federally protected rights. (NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428; Johnson v. Avery, supra, 393 U.S. 483, 89 S.Ct. 747, 751.)

The Sixth Amendment to the United States Constitution states:

“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.”

and the U.S. Supreme Court in Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, held:

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” (Id. at p. 807, 95 S.Ct. at p. 2527; Emphasis added.)

Here, Perez's writing authorized a nonlicensed person to try his case, to represent him, albeit under the direct supervision of a licensed lawyer. In the context of a felony jury trial such a consent triggers several Sixth Amendment alarms, for the right to counsel encompasses not only assistance of counsel but assistance of adequate counsel. The right to counsel as we have heretofore documented must be afforded in a real, not just a perfunctory, sense. The constitutional requirements are for “zealous and active counsel” and representation in a “substantial sense” not merely “pro forma.” (Powell v. State of Alabama, supra, 287 U.S. 45, 57-58, 53 S.Ct. 55, 59-60, 77 L.Ed. 158.)

See also Anders v. State of California, supra, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493.)

The dangers inherent in the practice of law by a student has been articulated thus:

“(A)ny law student . . . is apt to overlook relevant facts, to base his opinion of the law on a century-old case in a minority jurisdiction, to be unaware of statutory or administrative regulation which has supplanted the common law, and to fail to recognize the available defenses. Because the law is, in fact, a ‘seamless web,’ it is impossible to give competent advice in one area without a partial understanding of all the law.” (117 Penn.Law Review 970, supra, at p. 993, citing 36 Tex.L.Rev. 346, 348 (1958) “Unauthorized Practice by Law Students: Some Legal Advice About Legal Advice.”

We contrast the conceded premise of the incompleteness of the training of the law student with the competence requirements of the licensed attorney in the trial arena:

“The competency of representation includes competency in advice, in the general knowledge of criminal procedure, in the ability to understand human relationships and in insight into everyday living that can separate sham from truth. Competency means, as well, adequate examination at the pretrial hearing, astuteness in discovering inaccuracy and faulty memory, in recognizing over-use of imagination and downright dishonesty. Competency should also include a full understanding of trial technique, of cross examination (sic) and presentation before a jury. These concepts combined with a fertile knowledge of the law and a freedom to respectfully present objections and counsel's views all add up to what competency and adequate representation should be.” (117 Penn.Law Rev., supra, at p. 993, quoted from “E. Brownell, Legal Aid in the United States 142.”)

In the trial of a criminal case, whether jury or nonjury, the importance of manner, the timing, and the form of presentation of the defense is profound. Years of experience are required to hone the skills necessary to put the right question in a form and in a context to obtain the desired effect. Whether it be direct or cross-examination, the manner, the tone, of asking the question can be of significance. The unskilled asking of a too broad question on cross-examination can result in the opening of a whole new field of inquiry not otherwise authorized with possible disastrous effects. The failure to object, or to object timely, or to object on the right ground, may foreclose a possible defense.

An experienced trial judge can only watch with horror as a neophyte destroys his own case by inept questioning. The immediate presence of the experienced lawyer cannot undo the harm done by a single disastrous question. He cannot unring the bell; he cannot rehabilitate the effect of clumsy or disastrous handling of a difficult witness. There may be but one moment of time in the course of a trial when the right act, word or decision can be made and the case won. A reasonable doubt may be created. If that moment of opportunity passes, no amount of post-verdict advice to or critique of the law student's performance will give solace to a defendant in prison.

In evaluating whether representation by a law student with a licensed attorney in silent presence is the functional equivalent of assistance of counsel, another factor should be considered. The admission to practice law in California depends upon moral fitness as well as demonstrated knowledge of the law. The State Bar not only scrutinizes the moral reputation of applicants, but also requires that they take and pass a Professional Responsibility Examination in which they must demonstrate an understanding of and ability to apply the ethical standards of the profession. Reason fully supports such admission requirements.

“There is in fact, no vocation in life where moral character counts for so much or where it is subjected to more crucial tests by citizen and the public than is that of members of the bar. His client's life, liberty, property, reputation, the future of his family, in fact all that is closest to him are often in his lawyer's keeping. The fidelity and candor with which he performs his trust, point up reasons that distinguish the legal profession from other businesses.” (State v. Murrell, (Fla.) 74 So.2d 221, 224.)

By contrast the certified law student's moral standards and working knowledge of professional ethics are largely unknown. There is no requirement that such a student have taken a course in professional responsibility; certification requires merely “the student's written certification that he or she has read and is familiar with the Code of Professional Responsibility of the American Bar Association, and the Rules of Professional Conduct of the State Bar of California and will abide by the same in the activities permitted by these Rules.” In Huckelbury v. State (Fla.App.) 337 So.2d 400, defendant pleaded guilty to first degree murder while he was represented by an employee of the Public Defender who had passed the Florida Bar Examination but who was deemed morally unfit to practice and had not been admitted. Recognizing “(t)he right to court-appointed counsel presupposes appointment of counsel fully accredited by competency and moral standards to practice law” (id. p. 403; italics added), the court rejected the arguments of the state to the effect that the quality of legal services rendered is the only controlling factor in determining whether the defendant's right to counsel was fulfilled. The judgment of conviction was reversed.

Pre-Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, case authorities (68 A.L.R.2d 1141 annotation “Right to Counsel Unlicensed Attorney”) do not suggest or require a different result for Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, overruled by Gideon's blast, was the then controlling federal decision. Since Gideon, a defendant in a state criminal proceeding was entitled to be advised and represented at every critical stage of a case by counsel certified by the state to be competent and of good moral standing. (Huckelbury v. State, supra, at p. 402.)³

We conclude a surrender of such a critical mass of the lawyer's skill by the exercise by a non-lawyer in a felony trial is in effect giving up the right to effective assistance of counsel. Such a waiver, if permissible as shown by consent first obtained from the Supreme Court of this state, should be prefaced by inquiries at least equivalent to Faretta standards.

We conclude Rule VI authorizes the unlawful practice of law, authorized a species of admission to practice without permission first obtained from the Supreme Court of this state. We determine Mr. Zinter's participation in the case did not amount to representation of Perez within the constitutional concept of representation by counsel. This rule, the procedure here followed, impinge upon Perez's Sixth Amendment right to effective assistance of counsel in a felony jury trial without an intelligent, knowledgeable, eyes wide open waiver on the record first obtained. Error of constitutional proportion is pandemic in such proceeding.

Given the facts of this case the overwhelming evidence of guilt of the defendant and the opportunity to so decide, we would hold the error in this case as harmless beyond any reasonable doubt. (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705). However, this luxury we cannot afford since the denial of the right to counsel at any critical stage is reversible per se. (Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1127-1129; People v. Ruiz, 263 Cal.App.2d 216, 226-228, 69 Cal.Rptr. 473). The same result follows where a defendant has been denied the effective assistance of counsel or where the record fails to reflect a knowing, knowledgeable waiver of counsel was given. As the court stated in Faretta v. California, the Sixth Amendment rights to counsel are not related to the truth-determining process. The harmless error doctrine would make a right to the effective assistance of counsel virtually unenforceable; thus the judgment must be reversed.

For guidance of the court on any retrial, we examine Perez's next contention; to-wit: the police failed to collect and preserve evidence, the glass particles observed by the arresting officers in his arms, hands, and on the sole of his shoe. He asserts these glass particles were potentially exculpatory evidence. Therefore, he argues that he has been denied due process of law. This contention is without merit.

Perez does not inform us as to the manner in which the glass, if retained as evidence, would be exculpatory. With defendant caught “holding the bags,” attempting to quickly depart the crime scene just a few paces away, moments after the officers had heard the breaking glass, it is difficult to conjure up a reason for the police preserving the glass particles observed in his arms, hand or his sole. The People's case rests upon open-and-shut, caught-in-the-act, redhanded apprehension of the malefactor with the stolen goods yet-in-hand. To require the police in such circumstance to preserve the glass would be to require the unreasonable. This fact situation bears no relationship to a willful destruction or concealment by law enforcement of evidence potentially exculpatory.

Judgment reversed.

FOOTNOTES

1.  If persuasive authority from sister states is necessary to buttress the position recited, at least 10 different jurisdictions in the last year have reaffirmed the principal of the inherent power of the courts over regulation and the administration of admission to the practice of law: Alaska (Sullivan v. Alaska Bar Association (1976) 551 P.2d 531, 533), Florida (Florida Bar v. McCain (1976) 330 So.2d 712, 714), Illinois (Lozoff v. Shore Heights, Ltd. (1976) 35 Ill.App.3d 697, 342 N.E.2d 475, 478), Indiana (Matter of Farr (1976) 340 N.E.2d 777, 780), Kentucky (Kentucky Bar Association v. Vincent (1976) 538 S.W.2d 39, 42), Louisiana (Moity v. Louisiana State Bar Association (E.D.La.1976) 414 F.Supp. 180, 184 (fn. 17) (applying Louisiana law), affd. (5th Cir.) 537 F.2d 1141), Montana (State v. Cline (1976) 555 P.2d 724, 731), New Jersey (Matter of Logan (1976) 70 N.J. 222, 358 A.2d 787, 791), Ohio (Smith v. Kates (1976) 46 Ohio St.2d 263, 75 Ohio Ops.2d 318, 348 N.E.2d 320, 322), and Washington (Matter of Washington State Bar Association (1976) 86 Wash.2d 624, 548 P.2d 310, 315).

2.  The following exchange may indicate Mr. Perez believed Mr. Loo was an attorney:“By Mr. SIDDELL (the District Attorney) Q: You're represented by counsel in this action; is that correct?“By Mr. PEREZ A. An attorney? A lawyer? A lawyer?“By Mr. SIDDELL Q: Yes, have you been contacted by an attorney?“By Mr. PEREZ A: Just the two . . . ”

3.  Perez makes no contention that his representation by Mr. Loo was incompetent under People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 standards; nor do we by our recitation of case facts and law hint or suggest that Mr. Loo is anything but a most moral and upright person.

STANIFORTH, Associate Justice.

GERALD BROWN, P. J., and COLOGNE, J., concur.