I dissent.
The majority, despite obvious misgivings, appear to believe they have no choice on the present record but to affirm the judgment of conviction. I conclude, to the contrary, that our only rational choice is to declare that the patent inadequacy of counsel was the equivalent of denial of counsel and to reverse the conviction of this borderline mentally defective defendant.
While I have no quarrel with the majority analysis of counsel incompetency problems, unfortunately their views have no binding effect. *431Defendant Pope, found guilty of second degree robbery, appeals to this court for a reversal of his conviction. The majority, declaring the record inadequate to reveal incompetency of trial counsel, affirm the conviction. That is the only rule of law in this case. Any additional discussion of tests to weigh competency of counsel if the record had been adequate does not rise above mere obiter dictum.1
I am convinced that the record demonstrates the legal inadequacy of trial counsel under virtually any known test, that the lack of constitutionally adequate representation requires reversal of defendant’s conviction and that we can devise and apply in the case before us a revised standard that will have precedential value.
I
Repetition of the facts surrounding the crime and the arrest contained in the record, some of which are recited in the majority opinion, is unnecessary, although they reveal to any alert counsel the potential defenses of Miranda violations and defendant’s limited mental capacity. At the threshold the record discloses that this defendant received only superficial pretrial attention from his counsel, a fact that explains the obviously casual defense, including failure to attempt to subpoena the prime witnesses until after the trial was under way.
Two and one-half months before trial—ample time for preparation—the Sonoma County Public Defender was appointed to represent defendant. In multiple proceedings before the trial, the defendant was represented by four separate attorneys from that office, only one of whom appeared with him in any two different proceedings. Four working days before trial, a fifth attorney, a deputy public defender, was assigned to try the case. On each of those four days the deputy was involved in other hearings.
Before trial, the court appointed a psychiatrist to assist the defense. Although the augmented record on appeal does not include this psychiatrist’s report, the record does contain the expert opinions of several psychologists and psychiatrists embodied in four separate reports made in 1973, 1975 and 1976, all being received post trial. These reports *432uniformly characterize defendant as a borderline mental defective with a fourth or fifth grade intellectual achievement level. His probation report filed on June 15, 1976, indicates he has an I.Q. of 72; this places him in the third percentile range when compared to I.Q. test standardization norms.
The reports, available to us on this appeal, note that defendant last attended school at the age of 17 when he was in the 9th grade. He was enrolled in “Special Education Classes for the mentally retarded throughout most of the period of his junior high school and high school attendance.” The reports state that he “functioned intellectually like a child”; that he could not make change or drive a car; that he was gullible and suggestible; that he could not manage his own finances; that communication with him had to be couched in the “most elementary . . . vocabulary and sentence structure ... if there is to be any expectation that he [will] understand”; and that he had a poor tolerance for ambiguity. Defendant was also characterized as having a “penchant for naive fabrications,” and “a blanket denial mechanism”—a psychological, defense technique he used to justify himself. The evaluations also note his impaired memory, disoriented temporal sense, and limited attention span. In addition/ they state he is easily manipulated by his age group peers, and that he displays the impaired judgment, immaturity, and impulsivity of a child.
The trial judge read and considered these evaluations after trial but before he ordered defendant committed for diagnosis. The record does not reveal whether the public defender, Ms. Young, obtained copies of the 1973 and 1975 evaluations before trial, or whether she knew of their existence at that time. There can be no doubt, however, that she was aware of the defendant’s mental limitations because in her opening statement at trial she described him as having borderline intelligence. Nevertheless no evidence of defendant’s limited intelligence was introduced at trial or used before trial to challenge the admissibility of his out-of-court statements to police or for any other purpose.
During the trial, the only defense presented was that the robbery was committed by the two other suspects, Harbin and Stoker. There was evidence that one of these two or both of them might have been involved in the robbery or that they were percipient witnesses with testimony of potentially enormous significance to the case: they were both in the bar at the same time as Brower, the victim; Harbin may have been sitting next to Brower in the bar and might have talked with him for 30 to 40 minutes *433prior to the robbery; Harbin may have had ample opportunity to notice the money in Brower’s wallet; both-Harbin and Stoker followed Brower and defendant out of the bar; an investigating officer testified that both Brower and defendant had identified Harbin from a photographic lineup; Harbin had inadvertently made an inculpatory admission in the presence of another investigating officer; and both of them were listed in a police report as additional suspects. Defendant’s counsel knew, or should have known, of the foregoing evidence. Nevertheless prior to trial she failed to subpoena either Harbin or Stoker.
During the trial, in cross-examining the police officer who had talked to Harbin and Stoker, defense counsel asked about the inculpatory statement Harbin was heard to make. When the prosecution successfully objected on the ground that such hearsay could not be admitted unless counsel made a showing that the declarant was unavailable, only then, at that late date, did Ms. Young ask that the trial recess to give her an opportunity to subpoena Harbin and Stoker. The next day, counsel produced Harbin and called him as a witness, but he invoked his Fifth Amendment privilege and Stoker was not located on such short notice.
The prosecution offered into evidence a statement defendant made, after he had purportedly waived his Miranda rights, containing certain inculpatory and inconsistent statements. No objection was made to the admissibility of these statements. In fact, during the trial, defense counsel made no substantial objections, called no significant witness on his behalf, and made no helpful motions for him either before, during or after trial. It is difficult to detect what role defense counsel played at the trial other than that of a casual observer.
In her opening statement, Ms. Young declared “. . . Mr. Pope has a borderline intelligence, he does not understand a large percentage of what you are going to tell him and he’s very agreeable to go along with just about anything the police tell him. . . .” (Italics added.) Thus the record discloses defense counsel’s knowledge of defendant’s mental capacity existed from the very beginning of the trial. In closing argument, counsel argued that the only direct evidence that defendant participated in the robbery was the identification by Brower, who had been drinking before the crime occurred. She attempted to minimize Pope’s inconsistent statements to the police by suggesting that they resulted from defendant’s limited mental capacity. Thus, on the trial record, it is clear that counsel was aware of her client’s mental limitations, although she had failed to present any evidence on the subject during the trial. As a result the court *434curtailed the closing argument when the prosecution objected on the ground that no evidence had been introduced as to defendant’s mental capacity.
The jury found' defendant guilty of second degree robbery. Upon receiving the probation report, the trial judge ordered defendant committed for diagnosis pursuant to Penal Code section 1203.03. The court wrote the Director of Corrections in order to relate his concern for a defendant with a marginal mental capacity “who appears to be responsible for his actions in a purely legal sense, but that’s about all.” Following receipt of the diagnostic study and recommendation by the Department of Corrections, defendant was sentenced to state prison.
After sentencing, the court wrote the Director of Corrections again, this time to express concern over the conclusion of the diagnostic report that defendant’s incarceration would be only a “temporary expedient” and that there was no reason to believe he would be more adaptive after it.
Thus it is clear that the defendant’s mental condition was apparent even to the trial judge. Yet defense counsel made no motion in opposition to the sentence or the verdict, and made no comment on defendant’s behalf at the time of sentencing.
To suggest that the foregoing—all in the record before us—does not reveal inadequacy of trial counsel is to trifle with reality. The majority term the defense preparation “less than exemplary.” I deem it, beyond any doubt, less than adequate.
II
The record reveals another ground, glossed over by the majority, for finding defense counsel’s representation not only inadequate but improper. In explaining reasons for difficulty in obtaining Harbin’s appearance, Ms. Young told the court: “Unfortunately, you see, Harbin’s a client of ours, and he knows we are representing Pope, and he is not answering the phone calls.” (Italics added.)
Since the defendant intended to, and did, attempt to blame Harbin and Stoker for the robbery, it should have been clear to members of the public defender’s office that, a conflict of interest existed. Manifestly the public defenders could not effectively represent a client who was implicating another client of their office in a serious felony. (Rule *4355-102(B), Rules of Professional Conduct.) Indeed the court ultimately—though perforce late—recognized the conflict. After the public defender’s investigator brought Harbin into court in an office automobile, the court appointed independent counsel “to represent Mr. Harbin and advise him regarding his testifying.”
As a result, when defense counsel called their client, Harbin, to the stand, upon the advice of his new temporary court-designated attorney Harbin, asserted his Fifth Amendment rights.
It is difficult, on this record, to see how defense counsel could adequately represent defendant, who desired to implicate Harbin, when up to the moment Harbin appeared in court he was represented by the same office. The patent conflict necessarily resulted in inadequate representation. (See Glasser v. United States (1942) 315 U.S. 60, 76 [86 L.Ed. 680, 702, 62 S.Ct. 457] [“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”].)2 Also see Holloway v. Arkansas (1978) 435 U.S. 475, 489 [55 L.Ed.2d 426, 438, 98 S.Ct. 1173] [“Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.”].
Ill
Assuming, as we are permitted no alternative from the record, that defense counsel was well aware of defendant’s mental limitations, we must consider whether some strategic purpose could have induced counsel to forego presentation of any testimony on the subject. It is difficult—indeed, I find it impossible—to conjure up any theory for the abandonment of what appears to be a ready-made defense: that the defendant did not have the mental capacity to form the intent to commit the offense with which he was charged, or to understand the nature of the acts which he admitted to the police, or to understand the potential *436consequence of his admissions. (But see Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage (1977) 77 Colum.L.Rev. 827.)
Nevertheless, if we assume arguendo that counsel had some shrewd, if well-concealed, tactical purpose in mind, still another problem emerges. Should counsel alone be permitted to abandon her client’s clearly available and potentially effective defense, or should defendant be required, on the record, to waive that defense personally? A jury trial may be waived only by consent “expressed in open court by the defendant” and his counsel (Cal. Const., art. I, § 16). To enter a guilty plea we require recitation of a litany to demonstrate defendant is aware of, and personally waives, his several constitutional rights. Even in the less exacting civil context we have held that an attorney may bind his client in procedural matters “but he may not impair the client’s substantial rights . . . .” (Linsk v. Linsk (1969) 70 Cal.2d 272, 276 [74 Cal.Rptr. 544, 449 P.2d 760].) He clearly may not eliminate an essential defense. (Fresno City High School Dist. v. Dillon (1939) 34 Cal.App.2d 636, 644 [94 P.2d 86].) Justice Traynor in People v. Ibarra (1963) 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487], declared that withdrawal of a crucial defense denies defendant “the assistance to which he is entitled.”
I suggest that in the circumstances at hand, if counsel had a legitimate purpose in waiving defenses based on defendant’s mental limitations, she had a duty to spread on the record her abandonment of the defenses and to obtain defendant’s personal acquiescence in the waiver. Failure to do so is further indication of counsel’s inadequate representation of the defendant.
IV
The farce, sham or mockeiy test, if it still exists intact, is due for revision. The expression—usually only two of the three terms are employed in any one case—is vague, uncertain, enigmatic, and results in denial of defendants’ grievances in all but the most egregious circumstances, as, e.g., People v. Corona (1978) 80 Cal.App.3d 684 (hg. den.). As stated in Scott v. United States (D.C.Cir. 1970) 427 F.2d 609, 610, “That standard is no longer valid as such but exists in the law only as a metaphor that the defendant has a heavy burden to show requisite unfairness.” The difficulty is in devising an alternative test.
Parenthetically, we need not decide in this case whether different standards apply to defendants who have retained counsel, as distin*437guished from those for whom the state has provided counsel. (Compare Fitzgerald v. Estelle (5th Cir. 1975) 505 F.2d 1334 (cert. den. (1975) 422 U.S. 1011 [45 L.Ed.2d 675, 95 S.Ct. 2636]) with Moore v. United States (3d Cir. 1970) 432 F.2d 730, 736; also see Note (1976) 89 Harv.L.Rev. 593.) Here counsel was court-appointed, which directly involves state action; thus we have no problem with prerequisites for considering questions of due process and right to counsel.
The United States Supreme Court has never relied on a sham or farce test, nor on any of that genre. In McMann v. Richardson (1970) 397 U.S. 759 [25 L.Ed.2d 763, 90 S.Ct. 1441], a case involving effective assistance of counsel on a guilty plea, the court spoke of “the range of competence demanded of attorneys in criminal cases” (id., p. 771 [25 L.Ed.2d, p. 773]), but it did not define more precisely the acceptable range of competence demanded. Other federal courts—e.g., Bruce v. United States (D.C.Cir. 1967) 379 F.2d 113, 117—recognized that “It would not be fruitful to attempt further delineation of the applicable standard by reference to generalities, . . .” The applicable standard applied in Bruce was “gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense either in the [trial] Court or on appeal.” (Id., at pp. 116-117.)
Analysis of cases reveals that most attempts to define a standard with precision result in a frustrating tautology. For example, the so-called Maryland rule holds an accused has received incompetent counsel when, under all the circumstances of the case, the accused has not been afforded genuine and effective representation. (Slater v. Warden, Maryland Penitentiary (1966) 241 Md. 668 [217 A.2d 344, 346]; Harris v. State (Del. 1973) 305 A.2d 318, 319.) Other illustrations abound. (People v. Camden (1976) 16 Cal.3d 808, 815 [129 Cal.Rptr. 438, 548 P.2d 1110] [“‘“an extreme case must be disclosed” [citations]’ (People v. Ibarra (1963) 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487]) in which counsel ‘did not effectively supply to a defendant those skills and legal knowledge which we can reasonably expect from any member of the bar.’ (People v. Cook (1975) 13 Cal.3d 663, 672-673 [119 Cal.Rptr. 500, 532 P.2d 148].)”]; United States v. Reincke (2d Cir. 1967) 383 F.2d 129, 132 [“so ‘horribly inept’ as to amount to a ‘breach of his legal duty faithfully to represent his client’s interests’ ”]; Dillane v. United States (D.C.Cir. 1965) 350 F.2d 732, 733 [“extraordinary inattention to a client’s interests”]; Hickock v. Crouse (10th Cir. 1964) 334 F.2d 95, 100-101, cert. den. (1965) 379 U.S. 982 [13 L.Ed.2d 572, 85 S.Ct. 689] [requires “good-faith representation, with all the skill which counsel possesses”]; Edgerton v. State of North Carolina *438(4th Cir. 1963) 315 F.2d 676, 678 [“not afforded in any substantial sense professional advice and guidance”]; Cofield v. United States (9th Cir. 1959) 263. F.2d 686, 688, sentence vacated (1959) 360 U.S. 472 [3 L.Ed.2d 1531, 79 S.Ct. 1430] [effective assistance “contemplates the conscientious service of competent counsel,” not “mere perfunctory appearance”]; Maye v. Pescor (8th Cir. 1947) 162 F.2d 641, 643 [“an extreme case must be disclosed”]; State v. Osgood (1963) 266 Minn. 315 [123 N.W.2d 593, 600, fn. 2] [consultations must be “sufficiently adequate to inform the accused of all of his legal rights under the law and facts involved”]; see also Chambers v. Maroney (1970) 399 U.S. 42, 60 [26 L.Ed.2d 419, 433, 90 S.Ct. 1975] (Harlan, J., conc, and dis.) [whether, in the total picture, defendant was “deprived of rudimentary legal assistance”].)
Given the proliferation of standards, a serious question can be raised as to whether any precise standard is pragmatically helpful. No test yet proposed is self-determinative; all are deliberately vague and dependent upon subjective interpretation. It is inevitable that each will be applied in an ad hoc manner, with ad hoc results.
The American Bar Association has defined the lawyer’s obligation in this manner: “The basic duty the lawyer for the accused owes to the administration of justice is to serve as the accused’s counselor and advocate, with courage, devotion and to the utmost of his learning and ability, and according to law.” (ABA Standards Relating to the Prosecution Function and the Defense Function (1971) p. 153.) The flaw in that definition is that the utmost of the attorney’s learning and ability may still fall short of providing the defendant with the defense he needs and deserves.
In the final analysis, a readily adaptable standard for determining an unacceptable performance in a particular case should be stated in terms of reasonable competence. In rejecting a requirement of showing “gross incompetence,” the court in United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202, on appeal remanded the case to the trial court, holding that “a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”
The foregoing, though imprecise, is probably sufficient for guidance of the courts. Professor Strazzella explains the result: “The courts continue to reach for appropriate standards. There is a transition from the older standards to articulation of stricter but equally vague standards of performance. However, ... the standards articulated for measuring *439ineffective counsel may be necessarily and intentionally vague. This is probably one of those areas of the law, so rich in variables, in which the courts wish to avoid imposing rigid rules and probably could not devise a rigid list if they attempted to do so. The result leaves maneuvering room for the courts as they seek, in applying the standards, to assess each claim in the totality of the circumstances.” (Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems (1977) 19 Ariz.L.Rev. 443, 454.)
With application to the case at hand, we need only to turn to People v. McDowell (1968) 69 Cal.2d 737 [73 Cal.Rptr. 1, 447 P.2d 97], Our observations on that case fit the instant circumstances with remarkable relevance: “A defendant who pleads not guilty manifests his desire to contest the issue by every means lawfully at his disposal, and it is the duty of his counsel to assist him in this endeavor by the preparation and presentation of his defense. Under our adversary system, of course, the choice of strategy and tactics remains committed to counsel’s judgment. Accordingly, in appropriate cases counsel may justifiably decide to offer no affirmative defense and stand instead upon the presumption of innocence; or counsel may, as here, offer a defense on one count only of a multiple charge, standing on the presumption as to the remainder. But either of these courses of action presupposes that counsel is fully informed of the defenses that could actually be interposed on behalf of his client. ‘It is counsel’s duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.’ (People v. Ibarra (1963) supra, 60 Cal.2d 460, 464, and cases cited.)
“It is settled in this state that on the trial of the issues raised by a plea of not guilty to a charge of a crime which requires proof of a specific mental state, competent evidence is admissible to show that because of mental abnormality not amounting to legal insanity the defendant did not possess that mental state at the time he committed the act. As we said of the search and seizure principle involved in People v. Ibarra (1963) supra, 60 Cal.2d 460, 465, ‘This rule should be a commonplace to any attorney engaged in criminal trials.’ It was established almost two decades ago: ‘the defense, generally, has been well recognized since People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53].’ (In re Hawley (1967) 67 Cal.2d 824, 829 fn. 4 [63 Cal.Rptr. 831, 433 P.2d 919].) It was further developed in People v. Gorshen (1959) 51 Cal.2d 716 [336 P.2d 492], and has frequently been discussed in appellate opinions, in law review articles, and in the standard works of reference. ‘It can no longer be doubted that the defense *440of mental illness not amounting to legal insanity is a “significant issue” in any case in which it is raised by substantial evidence. . . .’ ” (Id., at pp. 746-747.) To the same effect see United States v. Browner (D.C.Cir. 1972)471 F.2d 969, 998.
V
The claim of ineffective trial counsel is preferably to be litigated on direct appeal in all cases in which the record includes sufficient information to do so. (Brody & Albert, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review (1977) 13 Colum. J. L. & Soc. Prob. 1, 87 [“Every effort should be made to deal with the claim on direct appeal rather than in a collateral proceeding . . . .”]; Bines, Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus (1973) 59 Va.L.Rev. 927, 939-940 fn. 66; see also Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems (1977) 19 Ariz.L.Rev. 443, 460.) This avoids the necessity of a second proceeding, with potentially duplicative hearings and appeals, and with the resultant burden on the judicial process.
There is an additional reason why resort to the trial record is preferred to institution of separate habeas corpus proceedings.
A petitioner for habeas corpus may learn, to his sorrow, that by opening up the issue of his trial attorney’s ability in a new proceeding he waives much of the attorney-client privilege. A trial attorney whose competence is assailed by his former client must be able to adequately defend his professional reputation, even if by doing so he relates confidences revealed to him by the client. For example, the attorney who is criticized for failing to call alibi witnesses to the stand should be permitted to explain that the client admitted to him he was at the scene of the crime and that the alibi was fabricated. Counsel should also be allowed to explain that other witnesses not produced might, under cross-examination, have implicated the client in other uncharged criminal activities.
In short, those who exercise 20/20 hindsight and instigate separate proceedings to assail the performance of trial attorneys must realize that the procedure is not without its potential pitfalls. The sword may be double-edged, both of them blunt. Resort to such proceedings should consequently not be judicially required in cases such as the one before us, *441because the record clearly reveals that counsel’s representation was ineffective and therefore makes it possible to avoid these pitfalls.
For all of the foregoing reasons I reject the majority’s invitation for a whole new round of duplicative litigation. On the present record I would reverse the judgment and remand for a new trial in which the defendant would have adequate representation.
Newman, J., concurred.
Appellant’s petition for a rehearing was denied March 28, 1979, and the opinions were modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.
Dictum, however well-motivated at the time, frequently receives imperious treatment in subsequent decisions. See, e.g., disparaging references to an earlier opinion in Hollister Convalescent Hosp. Inc. v. Rico (1975) 15 Cal.3d 670, 671-674 [125 Cal.Rptr. 757, 542 P.2d 1349], using such expressions as “panoramic dicta,” “erroneous dicta,” “ill-considered dicta,” “persistent dicta” and “unnecessary and overbroad dicta.”
With respect to conflicts of interest, it is clear that a public defender’s office must be treated the same as a law firm. Thus, as one commentator has observed, “The reason for viewing the office of the public defender as a firm for purposes of ethical regulation is a sound one. . . . [T]he close association of the attorneys in the public defender’s office makes it possible that confidential information will be inadvertently circulated. The necessity of utilizing the services of the same investigator, the inevitable discussions occurring in the office among the attorneys, and the overlapping sources of information from identical witnesses all contribute to this possibility. Furthermore, public confidence in the public defender and the Bar as a whole must be maintained. In order to do this, lawyers must ‘not only avoid evil, but also the appearance of evil.’ ... By appointing separate attorneys for individual defendants where there is alleged conflict, the courts uphold not only the individual’s constitutional rights and protections, but also the integrity of the entire criminal justice system.” (Fns. omitted.) (Comment, (1977) 5 Fla.St.L.Rev. 492, 504-505).