PEOPLE v. DE LA CRUZ (1983)

Jerry Emery De La Cruz appeals from judgment of conviction on three counts of murder and three counts of assault.   Allegations concerning use of a deadly weapon were found to be true as to all six counts.   Appellant was sentenced to state prison.   We reverse.

ISSUES

Appellant raises three points of claimed error on this appeal:

1. That the due process rights of appellant were violated because the police failed to take reasonable procedures to preserve material evidence of the crimes.

2. That the trial court erred in ruling that a prior instance of violence by appellant could be referred to by the prosecution, if appellant produced medical evidence of diminished capacity and concerning his inability to form intent to commit the crimes.

3. That when a potential conflict of interest was presented to the court as to appellant's trial counsel, the court failed to conduct adequate inquiry on the matter.

FACTS 1

Lorrie Cravens had been appellant's girlfriend.   She had lived with him and had borne him a son.   By October 31, 1980, Lorrie Cravens had broken up with appellant and gone to live with her father.   There was bad blood between Lorrie Cravens' family and appellant.   Lorrie Cravens' father (Mr. Cravens) did not want appellant around the house.

On the evening of October 31, appellant and a friend, Larry Nelson (Nelson), went to a bar.   There they encountered Lorrie Cravens in the company of one of her friends, Rusty Bursell.   Also present were Robbie Cravens, Jr., the brother of Lorrie Cravens, and Beverlee Bobb.

Appellant and Nelson consumed a couple of six-packs of beer and each had a mixed drink.   They also had some cocaine, a little “speed” and some marijuana.

At the bar, appellant and Lorrie Cravens argued.   Appellant left the bar with Lorrie Cravens and Nelson.   Appellant drove them to the Cravens home and Lorrie Cravens went into the house to get appellant's son.

While she was away from the car, appellant and Mr. Cravens began to argue.   Robbie Cravens, Jr., came over to the car and pulled appellant out of it.   A fight began.   Appellant was severely beaten about the face and head.   Lorrie Cravens tried to stop the fight.   Ed Burruel finally broke it up.

Appellant got in his car and told Mr. Cravens that Mr. Cravens would pay for it.   As appellant left the scene, he was heard to yell, “I'll get you.”   Mr. Cravens yelled, “I'll get you.”

After appellant drove off with Nelson, an argument ensued between Lorrie Cravens and Sherry Manna.   Ed Burruel grabbed Lorrie Cravens in the street, pulled her across the street and pinned her against a car.

As he was driving away, appellant said, “Oh the hell with it,” or a statement with another expletive.   He turned his car around and went back by the Cravens residence.   There were people in the street.   Appellant was traveling 60 miles per hour.   As he passed by the people in the street, appellant turned the wheel and drove the car into them.

As a result of the collision, three people died—Mr. Cravens, Sherry Manna and Beverlee Bobb.   Three others were injured—Deborah Ashman, Ed Burruel and Lorrie Cravens.   After the collision, appellant asked Nelson, “Do you think I killed them?”   Two hours after the incident appellant called Lorrie Cravens at her home.   He said, “I thought I killed you.”   He asked Lorrie Cravens if he had hit her dad and if he had killed him.

By information, appellant was charged with three counts of violation of Penal Code section 187 ² and three counts of violation of section 245, subdivision (a).   As to each of the six counts it was alleged that appellant used a dangerous and deadly weapon, an automobile, within the meaning of section 12022, subdivision (b).   As to each murder count, it was alleged that enhancement under section 190.2, subdivision (a)(3) was appropriate because of the multiple murders.   As to the assault count naming Deborah Ashman as victim, it was further alleged that appellant, with the intent to inflict such injury, personally inflicted great bodily injury upon her.

DISCUSSION

ITHERE WAS NO VIOLATION OF DUE PROCESS RIGHTS ARISING OUT OF THE DESTRUCTION OF THE AUTOMOBILE WHICH APPELLANT WAS OPERATING

Appellant was arrested on November 1, 1980.   Criminal complaint was filed in municipal court on November 5, 1980.   On that same date, appellant was arraigned and the office of the public defender was appointed as his counsel.³  The preliminary hearing was held on December 19 and December 22, 1980.

The public defender remained counsel of record for appellant until his arraignment in superior court on January 7, 1981.   On that date appellant's motion for pro per status was granted.

Later, a conflict of interest was declared by the office of the public defender.   Appellant brought up the name of Wiley Ramey, to serve as counsel under section 987.2.   On March 20, 1981, Mr. Ramey was appointed under section 987.2 and served as counsel for appellant through a mistrial, the subsequent trial, the motion for new trial and the hearing on the probation and sentence report.

The vehicle which appellant had been operating on the evening of the offenses was impounded at about 6 a.m. on November 1.   Appellant surrendered himself to the Foothill station of the police department on the morning of November 1 at about 7 a.m. and has, ever since, been in custody.

According to Department of Motor Vehicles (D.M.V.) records, the registered owner of the vehicle in November 1980 was Arthur Lamensdorf, with a notice of transfer to appellant as buyer dated “7–7–80.”   Appellant purchased the vehicle in July 1980 but never took steps to have the vehicle registered with the D.M.V. in his own name.

The officer who directed the impounding of the vehicle informed the impound yard to hold the vehicle for Foothill detectives of the police department.

On November 1 at approximately 2 p.m., a criminalist for the police department examined the vehicle.   A police photographer was present to take pictures of the vehicle as directed by the criminalist.

The criminalist took several samples of what later proved to be blood stains from various parts of the hood, windshield, front and sides of the vehicle.   He also took a wheel cover from the right front wheel.

On December 12 the vehicle was inspected by a police department mechanic while it was at the impound lot.   The vehicle was not test driven at that time.

The impound lot proceeded to perfect a lien sale of the vehicle.   When the lien sale was about to take place, the impound lot notified Lamensdorf as registered owner.   As legal owner, a credit union which financed the purchase by Lamensdorf was notified.   Notice was also sent to appellant at 7342 Independence Avenue in Canoga Park.   That notice was mailed to appellant because a notice of transfer had been filed with the D.M.V., showing appellant as an interested party and listing the Independence Avenue address for appellant.

The notice to Lamensdorf and the notice to the credit union were returned by the post office.   The notice to appellant was receipted for by “L. De La Cruz.”   L. De La Cruz is the father of appellant.   He signed for the letter.   Appellant had been living at the Independence Avenue address in July 1980.   He moved out after that time and gave the post office an address in Simi Valley, to which his mail was to be forwarded.   The notice of lien sale, however, was not forwarded to Simi Valley.

Mr. Fair, the stepfather of appellant, had loaned appellant $1,000 to buy the car.   In mid-November Mr. Fair inquired of the police about retrieving the car.   According to Mr. Fair, he was told by the impound lot personnel that he was not permitted to see it because it was in police impound and both a police officer (whom he could not identify) and the impound lot personnel told Fair he would be notified when he could have the car.   Fair left his name and address with the police and with the impound lot personnel.   Fair never received notice of the sale.

The Los Angeles Police Department had sent out a notice in November that the vehicle could then be picked up from the impound lot.   This notice was mailed to Lamensdorf as registered owner and to appellant as purported new owner.   Appellant testified that he did not receive this notice.   There is no evidence that anyone received this notice on appellant's behalf.

On December 22, 1980, the vehicle was lien sold by the impound lot.   The police had released the car on November 3.   The purchaser at the lien sale was a subsidiary of the impound lot.   After parts had been salvaged from the vehicle, it was eventually sold to a scrap yard and crushed.

On April 23, 1981, a defense investigator sought to examine and test drive the vehicle.   A few days later the investigator learned that the car had been destroyed.   This was the first time the defendant, his attorney or his investigator knew that the vehicle was not still in the impound.

Appellant urges that People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, compels the imposition of a sanction on the People because of the destruction of the vehicle.   We do not agree.

In Hitch, the defendant was arrested for and charged with driving under the influence of alcohol.   As provided under the Vehicle Code, the arrestee furnished a breath sample, for purposes of chemical testing by a breathalyzer.   The sample was captured in an ampoule and the officer, as a part of routine procedure, poured the contents of the ampoule into a glass bottle, threw away the ampoule and delivered the bottle to the crime lab.   The lab, according to its established policy, eventually disposed of the contents.

The Supreme Court observed that “the destruction of the ampoules and their contents was accomplished by the investigative authorities in good faith and in conformity with standard law enforcement procedures.”  (Id. at p. 655, 117 Cal.Rptr. 9, 527 P.2d 361.)

In formulating guidelines for the determination of a defendant's claim to relief where the evidence subject to disclosure is no longer available, and constitutes material evidence on the issue of guilt or innocence, the court stated, “․ We conclude that the investigative agency involved in the test has a duty to preserve and disclose such evidence.   Accordingly we hold that, where, as here, such evidence cannot be disclosed because of its intentional but nonmalicious destruction by the investigative officials, sanctions shall in the future be imposed for such nonpreservation and nondisclosure unless the prosecution can show that the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the test ampoule and its contents and the reference ampoule used in such chemical test.   The prosecution shall bear the burden of demonstrating that such duty to preserve the ampoules and their contents has been fulfilled.   If the prosecution meets its burden and makes the required showing, then the results of the breathalyzer test shall be admissible in evidence, even though the ampoules and their contents have been lost.   If the prosecution fails to meet its burden then the court shall apply sanctions for nondisclosure.   Finally we hold that in such latter event due process shall not require a dismissal of the action but shall require merely that the results of the breathalyzer test be excluded from evidence.”  (Id. at pp. 652–653, 117 Cal.Rptr. 9, 527 P.2d 361, fns. omitted.)

In People v. Nation (1980) 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051, defendant was charged with a sex offense.   The prosecution obtained a semen sample from the region of the victim's vagina.   The sample was retained by the police but not refrigerated.   Refrigeration would have assured preservation of the sample for future identification analysis.   Defense counsel acquired the sample during the course of discovery.   The only analysis of the semen sample by the defense came after the trial.   An extensive analysis was not performed because the sample had not been properly preserved.

The court held that the prosecution had failed to meet its burden of preserving material evidence and observed, “evidence lost to the defense because of its destruction by the authorities will be deemed material for the purpose of triggering the due process concerns of Hitch if there is a reasonable possibility that it would be favorable to the defendant on the issue of guilt or innocence.”  (Id. 12 Cal.3d at p. 176, 117 Cal.Rptr. 9, 527 P.2d 361.)

 Under the circumstances of the case before us, it is apparent that there is a reasonable possibility that the availability of the vehicle for inspection and testing by appellant, including test driving of the vehicle, would produce evidence favorable to appellant on the issue of guilt or innocence.   Appellant faced three charges of murder and three charges of assault.   All charges arose from operation of the vehicle.

The theory of the defense was that there was a loose engine block in the trunk of the vehicle and the presence of that object, weighing up to 400 pounds, may have affected the handling of the vehicle on October 31.   Additionally, according to the evidence, reconstruction of the accident by experts would have been more complete had the vehicle been available for testing.   The reconstruction expert called by the prosecution, who never examined the vehicle, conceded that without examination of the vehicle which struck the victims (including observation of handling characteristics and mechanical malfunctioning of the vehicle), total reconstruction of the accident was not possible.

 The critical question is whether, under People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, the prosecution discharged its duty to take reasonable efforts to preserve the material evidence, the vehicle.   We conclude that the duty of the prosecution was discharged in this case.

This conclusion is compelled, in our view, by the following factors:

(1) The police department mailed a notice to the registered owner and to appellant as one who had an apparent interest in the vehicle that the investigation was complete and the vehicle could be claimed.

(2) That said notice did not reach appellant is traceable to his failure to register the vehicle in his own name when he acquired it in July 1980 along with his failure to notify the D.M.V. of any subsequent change in his address.

(3) Appellant was represented by the public defender from and after November 5, 1980.   His counsel received a copy of the complaint and presumably knew the charges.   At all times up to the date the preliminary hearing was scheduled to commence on December 11, 1980, counsel was in a position to direct an investigator to inspect the vehicle.⁴

On December 11, appellant was present with the deputy public defender who was assigned to represent him and who did represent him at the preliminary hearing held eight days later.   The vehicle was still available on December 11;  it was inspected by police authorities on December 12.

(4) The impound yard followed the statutory procedure for the lien sale which was conducted.   This procedure included the mailing of notice to the registered owner, to the legal owner, and to appellant.   The notice to appellant was received and signed for by appellant's father at the address appellant furnished to the seller of the vehicle and which the seller of the vehicle sent to the D.M.V.

Appellant urges upon us that we adopt as a standard of reasonableness a requirement that the police give actual notice to any person in custody that a vehicle in which he may have a proprietary interest is being released from police hold.   He would require that the police authorities make value judgments as to whether or not a person in custody has a property interest in a vehicle.   He would require that the police authorities track down a defendant to see whether, at the time the police hold on the vehicle is relinquished, the defendant is then in custody.   We see no reason to impose these requirements on police authorities.   The mailed notices, mailed from the police authorities and from the party conducting the lien sale, are adequate notice.   Such notices were mailed to appellant.

Appellant himself is not entirely blame free in this case.   Had he registered the vehicle in his own name and kept the D.M.V. notified of his changes of address, the chances of his receiving each notice which was mailed in this case would markedly have improved.   If, as he contends, he was estranged from his natural father and felt a kinship to his step-father, by giving his step-father's address to the D.M.V. in July 1980, he could have avoided the short circuit apparently created when appellant's father failed to inform appellant of the receipt of the mail from the impound yard concerning the lien sale.

Appellant's problem is that the car was not inspected and test driven by his representative before it was destroyed.⁵

This problem, in reality, is not related to the notice which was or was not given concerning release of the police hold and/or the lien sale.   The failure to inspect and test drive the vehicle was the result of the failure of appellant's attorney of record to take action, prior to the preliminary hearing, to initiate investigation, including inspection and test driving of the vehicle.

When appellant was acting in pro per, from January 7, 1981, to March 20, 1981, he also failed to have an investigator search out the vehicle, even though he obtained a court order on February 10, 1981, appointing an investigator chosen by him.

The consequence of these failures, coupled with the destruction of the vehicle after the lien sale, was that appellant was restricted to using the photographs of the vehicle and other investigative material produced by the police investigators when the defense prepared for trial.

In summary, we see no due process violation in the totality of the facts in this case.

II

THE TRIAL COURT ERRED IN RULING THAT A PRIOR INSTANCE OF VIOLENCE COULD BE REFERRED TO BY THE PROSECUTOR

 Appellant had planned to present evidence from a forensic surgeon.   The offer of proof presented to the court was that:

“Dr. Davis, if called, would testify that at the time of the offense, Mr. Delacruz [sic] did not have the medical [sic] capacity to formulate specific intent to harbor malice, malice aforethought, to meaningly reflect on the consequence of his contemplated action, premeditation or the specific intent to kill anybody.

“The basis of his opinion is essentially two-fold.   Number one, he was moderately intoxicated with alcohol and amphetamines in the opinion of Dr. Davis;  and number two, he had a cerebral concussion caused by blows to his head.

“․

“His opinion is based on intoxication and on concussion, physical type of conditions.”

The prosecution countered that if such testimony were to be given by the doctor, the prosecutor wished to inquire of the doctor as to the effect, if any, on such opinion of an incident on March 3, 1980.   In that incident, Laurie Cravens had gone away from appellant and left their child with appellant.   When she returned for the child, appellant would not give her the youngster.   Laurie Cravens brought two friends with her.   Appellant fired a shotgun at them, wounding one of the persons who had accompanied Laurie Cravens.

At that time, the ruling of the trial court on the motion in limine was expressed in these words,

“Now, if you intend to bring a doctor in here, which is your privilege and certainly you can call him, with the exception of those areas which I have now delineated is not dealing with the area of violence, if this doctor intends to come into this courtroom and tell this jury whatever he wants to say about capacity to formulate specific intent, malice aforethought, state of mind, and the questions of intoxication or ingestion of controlled substances or dangerous drugs, or otherwise than [sic] it seems to me that a non-remote occurrence which is alleged to have taken place certainly will bear on the question of whether or not this is a fabricated medical theory on the part of that doctor.

“There is a great school of thought which has now borne out greater credence in the concept that the legislature has attempted to do away with psychiatrists coming in and telling juries that they know more about all this than the jurors do and on the basis that they were not present at the time of any alleged occurrence in this case.   They are basing their statements on their experience and opinion and some speculation.

“If he intends to come in here and do his duty as he sees fit, you are certainly entitled to call him.   I am going to allow this to be a two-way street, and the People will be allowed to proceed by way of questions on other acts of violence.   And I will specifically limit them to the alleged occurrence with Laurie Cravens ․”

Later, in a hearing out of the presence of the jury, the medical witness stated that the shotgun incident had no bearing on his opinion that, at the time of the offenses for which he was on trial, appellant had a torn retina, a cerebral concussion, and was moderately intoxicated with alcohol, amphetamines, and probably marijuana.

The prosecutor indicated he was prepared with two witnesses to the March 1980 act.   Those witnesses were Laurie Cravens and Rusty Bursell, both of whom were present when appellant fired the weapon.⁶

As a part of the proceeding out of the presence of the jury, the prosecution, however, did not call any of the witnesses so that they could be examined as to exactly what they had observed in March 1980.   Laurie Cravens, it was asserted by the prosecutor, “was hiding with her head down during the time that the defendant was firing at Mr. Meneke.”

After the hearing, the court reiterated its earlier ruling.   The defendant then elected not to call Dr. Davis as a witness during trial.

Evidence Code section 1101 provides:

“(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.

“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.

“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”

Here the reason for introducing the evidence of the March 1980 incident was to show intent.   In People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, the Supreme Court discussed admissibility of other acts to show intent as to the crimes in question and stated, “The admission of any evidence that involves crimes other than those for which a defendant is being tried has a ‘highly inflammatory and prejudicial effect’ on the trier of fact.   This court has repeatedly warned that the admissibility of this type of evidence must be ‘scrutinized with great care.’  ‘[A] closely reasoned analysis' of the pertinent factors must be undertaken before a determination can be made of its admissibility.”  (At p. 314, 165 Cal.Rptr. 289, 611 P.2d 883, fns. omitted.)

The Thompson court detailed the three factors to be considered by a trial court in ruling on admissibility—“(1) the materiality of the fact sought to be proved or disproved;  (2) the tendency of the uncharged crime to prove or disprove the material fact;  and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.  [Citations.]”  (At p. 315, 165 Cal.Rptr. 289, 611 P.2d 883.)

Additionally, the Thompson court noted:

“Even if evidence of other crimes is relevant under a theory of admissibility that does not rely on proving disposition, it can be highly prejudicial.   ‘Regardless of its probative value, evidence of other crimes always involves the risk of serious prejudice․’  (People v. Griffin (1967) 66 Cal.2d 459, 466 [58 Cal.Rptr. 107, 426 P.2d 507].)  Therefore, the law places other restrictions on its admissibility.   If evidence is ‘merely cumulative with respect to other evidence which the People may use to prove the same issue,’ it is excluded under a rule of necessity.  (People v. Schader, [1969], 71 Cal.2d [761] at pp. 774, 775 [80 Cal.Rptr. 1, 457 P.2d 841], fn. omitted;  see also People v. Guerrero (1976) 16 Cal.3d 719, 725, 727 [129 Cal.Rptr. 166, 548 P.2d 366].)  Further, under Evidence Code section 352, the probative value of this evidence must outweigh its prejudicial effect.  (See People v. Guerrero, supra, 16 Cal.3d at p. 727 [129 Cal.Rptr. 166, 548 P.2d 366];  People v. Schader, supra, 71 Cal.2d at pp. 772, fn. 4 [80 Cal.Rptr. 1, 457 P.2d 841], and 774.)   Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.   If there is any doubt, the evidence should be excluded.  (See People v. Kelley, [1967], 66 Cal.2d 232, at p. 239 [57 Cal.Rptr. 363, 424 P.2d 947].)”  (People v. Thompson, supra, 27 Cal.3d at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883, fns. omitted.)

The records in the case before us does not reflect that the trial court engaged in any detailed weighing process before making its ruling.

The factors which might have been considered in such a balancing process include (a) the closeness in time between the March 1980 and October 31, 1980 incidents, (b) that Laurie Cravens was present at both times, (c) that appellant's young child was present and collaterally involved on both occasions, (d) that Rusty Bursell was present both times, (e) the March 1980 incident involved use of a gun and the October 31, 1980 incident involved use of a vehicle as the weapon, (f) when appellant allegedly used the gun, he was at his own home, and (g) Mr. Cravens pummeled appellant on October 31, 1980, and, under the prosecution theory, appellant took his revenge by driving a vehicle into Mr. Cravens whereas in March 1980, Mr. Cravens was not on the scene.

Felony prosecution of defendant under section 245, subdivision (a) ⁷ arising out of the March 1980 incident was dismissed on June 4, 1980, because the prosecution witness, Laurie Cravens, had changed her mind and did not want to testify.   Further, no other witnesses to the incident appeared at that trial.   Apparently, from the preliminary hearing transcript in that prior prosecution, Laurie Cravens did not actually see appellant fire a shot and did not see how far away the victim was.   Rusty Bursell did not see the shot fired.   At the time of appellant's trial for the October 31, 1980 charges the victim, Mike Meneke, was in Chino State Prison.

Because the record does not reflect the required “closely reasoned analysis of probative value in order to determine whether such value is sufficient to outweigh inherent prejudice” (People v. Banks (1970) 2 Cal.3d 127, 137, 84 Cal.Rptr. 367, 465 P.2d 263) concerning evidence of offenses other than that charged, and because it appears that such an analysis would have produced the result of excluding such evidence as was available to the prosecutor at the time of the hearing concerning the March 1980 event, we reverse the conviction.   It is reasonably probable that a result more favorable to the defendant would have been reached if the prosecution were prohibited from referring to the March 3, 1980 incident had the doctor expressed his opinion on the mental capacity of appellant on October 31, 1980.  (People v. Watson (1956) 46 Cal.2d 818, 836–837, 299 P.2d 243.)

III

THE INQUIRY OF THE COURT INTO THE QUESTION OF CONFLICT OF INTEREST OF TRIAL COUNSEL WAS ADEQUATE

On March 23, 1982, the date set for consideration of probation and sentence and for hearing of a motion for new trial, appellant filed a “Motion for Hearing, (P. v. Marsden)” (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44).   In the unsigned declaration which accompanied the motion, appellant indicated that prior to trial he learned of some information which suggested to him that a conflict of interest existed with respect to his trial counsel, Mr. Ramey.   In the motion, appellant requested that new counsel be appointed for him for the remaining hearings in the case.

According to the recitation, prior to trial appellant received a civil complaint for damages which were caused by the automobile incident of October 31, 1980.   The plaintiff in the action was one of the prosecution witnesses in the criminal case and was represented by an attorney whose office address and suite number was the same as that of appellant's trial counsel.

Appellant had placed a few calls to the phone number of the plaintiff's lawyer and learned that the same person answered that phone and took messages as was the one who answered the separate phone number of his trial counsel and took messages for his trial counsel.

Mr. Ramey had, on March 16, 1982, filed a notice of motion for new trial, noticed for March 23, 1982.   In considering the Marsden motion on March 23, the trial court first inquired of Mr. Ramey in open court about the matters raised in the motion to disqualify him.   Mr. Ramey, although not placed under oath, reported to the court the following:  that he does share office space with the other lawyer but that they are not partners;  that the other lawyer represents an insurance company and is pursuing its rights of subrogation against appellant;  that Mr. Ramey has no access to the files of the other lawyer and the other lawyer has no access to the files of Mr. Ramey;  that with respect to the criminal proceedings and the civil action arising out of the incident, Mr. Ramey does not have access to the files of the other lawyer and the other lawyer does not have access to Mr. Ramey's files.

The court denied the motion to relieve counsel.   Next, the motion for new trial was argued by Mr. Ramey and was denied.   Finally, while Mr. Ramey continued to represent him, appellant was sentenced.

 Since there was no signed declaration from appellant before the court concerning the motion under People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, the informal manner in which responses were solicited from Mr. Ramey as an officer of the court were adequate.   Inasmuch as we reverse for the reasons expressed herein, before proceedings are resumed in the trial court, appellant is to be afforded the opportunity to raise there the question of whether Mr. Ramey may properly continue to represent him.⁸

DISPOSITION

The judgment is reversed.   The matter is remanded for retrial.

FOOTNOTES

1.   There are particular facts for each issue, which will be outlined in the discussion of that issue.

2.   All references are to the Penal Code, unless otherwise indicated.

3.   Under Evidence Code section 452, subdivision (d), we have taken judicial notice of the docket sheets of the municipal court proceedings in this case.

4.   On December 11, 1980, the preliminary hearing was continued to December 19, 1980, on motion of the People.

5.   The date of its destruction is not clear from the record, but we know that it occurred after December 27, 1980, when the purchaser at the lien sale took possession, and before April 1981.

6.   Those two witnesses had already testified in the trial concerning the October 31, 1980 incident.

7.   Appellant was charged with three counts of violation of section 245, subdivision (a) in the prosecution for the October 31, 1980 incident.

8.   If the issue is raised, it should be framed by sworn statements from appellant, from Mr. Ramey, from counsel for the plaintiff, and from such other witnesses as are appropriate and necessary to a resolution of the issue.

AMERIAN, Associate Justice.

McCLOSKY, Acting P.J., and LACHS, J.,* concur.