I respectfully dissent. Justice Crosby wrote a most persua sive opinion in the Court of Appeal which I adopt as my own:*
Robert Gregory Smith represented himself and was convicted of burglary with a prior burglary conviction in a jury trial which amounted to little more than an extended plea of guilty.
I.
Smith raises several issues on appeal. The simplest is the attack on the sufficiency of the evidence.
About 8 p.m. on January 17, 1982, Gregory Leverich opened the front door of his Fullerton residence when he heard sounds of breaking glass. *962Hanging from the window of a wholesale grocery directly across the street was Smith, paroled only a few days earlier for second degree burglary.1 While his wife phoned police, Leverich followed Smith to the only car in the parking lot, losing sight of him momentarily, before the car left the scene.
A short time later, Fullerton officers stopped Smith’s vehicle based on Leverich’s description. In plain view on the rear seat was half a case of cigarettes missing from the store. Leverich was brought to the scene and identified Smith, as he did later at the preliminary hearing and trial.
Smith suggests Leverich’s identification was based on assumptions the person who drove out of the parking lot was the burglar and the person caught in the car was the one who drove out of the lot. Nothing in the record supports these notions, however. There was no cross-examination of Leverich. Even if Smith’s speculation had been confirmed, the trial jury would have undoubtedly drawn the same conclusion Leverich is accused of doing. Smith offers no hypothetical explanation for his rather incriminating recent and contemporaneous possession of the vehicle used in the burglary and the loot. The evidence was more than sufficient.
II.
Experienced in the ways of the criminal justice system and undeterred by the powerful case against him, Smith trotted out a series of procedural obstacles to the efficient disposition of the matter in the trial court. The more he did, however, the worse his position became.
He first invoked his right to object to his court-appointed attorney and request a substitution. (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]; People v. Minor (1980) 104 Cal.App.3d 194 [163 Cal.Rptr. 501].) Next, when that motion was denied, he elected to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]); and the court made appropriate orders for law books, supplies, an investigator, and legal runner.
Here he complains the court did not sufficiently inquire into his motion to disqualify the public defender’s office. The court did enough. It indulged Smith’s rambling attack on the office largely based on his dissatisfaction with the deputy who handled his preliminary hearing, but she was not assigned to his case in the superior court. He also claimed the public defender *963wanted to “dump” his case from the beginning, but he offered nothing of substance to support that allegation. If the motion had any basis at all, it appears likely Smith merely confused a deputy’s realistic appraisal of his chances at trial with a lack of enthusiasm for Smith or his case. There was no reason to relieve counsel. (Cf. People v. Hill (1983) 148 Cal.App.3d 744 [196 Cal.Rptr. 382].)
Smith also attacks the granting of his motion to represent himself. He claims he was forced to that decision because his motion to relieve the public defender’s office was improperly denied. Not so. As we explained, given ample opportunity, Smith made an inadequate record to support disqualification of the public defender; and the court offered a reasonable continuance to secure private counsel. When Smith insisted on self-representation, the court made certain his choice was voluntarily and intelligently made. (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891 [144 Cal.Rptr. 610, 576 P.2d 93].) The court explained the dangers of self-representation and warned he would be held to the same standards as an attorney; but a “knowledgeable” Smith insisted on his Faretta rights. The court had no choice but to grant the motion. (People v. Joseph (1983) 34 Cal.3d 936, 943 [196 Cal.Rptr. 339, 671 P.2d 843].)
III.
Court appearances in the months preceding trial and the trial itself were largely given over to Smith’s complaints concerning his pro. per. status. A simple burglary case turned into a vexing lawsuit over jail conditions, Smith’s legal runners, requested witnesses and legal experts, his evening repose, pencils, law books, and so on. Smith appeared to enjoy tweaking the system; and we sympathize with the judges who, for the most part, patiently dealt with his often petty gripes.
If that were his aim, Smith did get the better of the judges in the end, however; for we must reverse his conviction despite the strength of the evidence. There are two reasons.
First, during the two-day trial, Smith, complaining of lack of sleep, made little effort to defend himself. He did not cross-examine or present witnesses and made but a brief closing argument, mostly relating to matters not supported by the record and to complaints about his treatment in court. Each day he said he was tired and demanded a continuance because he had been allowed insufficient sleep. The court refused to allow him to present evi*964dence of the fact. We set out the gist of these discussions at length in the margin.2
*965The court really had no option other than to take evidence to determine the merits of the claim Smith was too tired to go forward, as both he and *966the prosecutor suggested, or to accept his representation and grant daily continuances when he had not been allowed adequate sleep. Instead, it apparently accepted the representation but proceeded anyway with a vague allusion to reconsidering the subject on a motion for new trial.
[] [T]he right to self-representation is meaningless to a somnambulant prisoner attempting to act as his own attorney. Thus, because Smith was improperly denied the opportunity to prove the fact, the essentially uncontroverted record is he was too tired to defend himself; and the conviction must be reversed for failure to grant the continuance requested.4 (People v. Hill, supra, 148 Cal.App.3d 744, 757.)
*967The basis for our holding was aptly expressed in Javor v. United States (9th Cir. 1984) 724 F.2d 831: “Today we conclude that when an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary. See Holloway v. Arkansas, 435 U.S. 475, 489-91, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978); cf. Rinker v. County of Napa, 724 F.2d 1352 at 1354 (9th Cir. 1983) (per curiam). [1] Javor’s sixth amendment right to counsel was violated not because of specific legal errors or omissions indicating incompetence, but because he had no legal assistance during a substantial portion of his trial. The magistrate’s finding of no actual prejudice is not controlling because regardless of counsel’s participation when present, when a defendant is tried in the partial absence of counsel, he is prejudiced as a matter of law. Id. [f] Prejudice is inherent in this case because unconscious or sleeping counsel is equivalent to no counsel at all. The mere physical presence of an attorney does not fulfill the sixth amendment entitlement to the assistance of counsel, ...” (Javor v. United States, supra, 724 F.2d at pp. 833-834.) The rule has even greater application to a self-represented prisoner; for if the actions of the jailer have impaired his right to defend himself, the individual has not just suffered a deprivation of constitutional dimension, the state itself is responsible.5
IV.
The second basis for reversal relates to the inadequacy of the time and legal materials provided Smith to prepare and discuss jury instructions. During a strange pretrial hearing in which Smith was required to reveal, in camera,6 7his reasons for wishing to subpoena a particular inmate witness, Smith complained of his inability to obtain a copy of California Jury Instructions (CALJIC) from the jail law library. The court made this unfortunate reply:
“The Court: You’re concerned about something that is so insignificant in preparing for a trial. The average attorney probably doesn’t spend more than 15 minutes on jury instructions.[7] The court has the responsibility to give all law on the case that bears on the issues of the trial. So whether or not you’re conversant with what instructions should be given is not really *968relevant to your defense for the reason that the court will be giving all applicable law. And there’s no reason for you to have to study a CALJIC in detail, or most of the other books that you’ve asked for, in the court’s mind, and there’s no reason for you to spend your state prison term in county jail, if that’s what’s going to happen to you. [H] The other observation I made is that even though the People are very interested in giving you the maximum, the court is inclined to give you some consideration, if you’re interested in a plea in the case. I told you earlier that I would give you three years and I want you to think about that. If, before we actually start the trial in this matter, if it’s still before me, you decide you want to plead guilty, I’ll keep that offer open to you; three years instead of the maximum.”8
Then, in trial before a second judge, the prosecutor rested sooner than anticipated because of Smith’s refiisal or inability to participate in the proceedings. She needed a two-hour recess to collect her proposed jury instructions.9 Smith was provided those instructions and the court’s copy of CALJIC about 1:15 p.m., and the jury was ordered back at 1:30. Thus, Smith approximately received the 15 minutes prophetically suggested in the in camera hearing to examine the prosecution’s proposed instructions and CALJIC.10
*969Consequently, we must find a second interference with Smith’s Sixth Amendment right to represent himself. We have no way of knowing what, if anything, might have happened differently had Smith been allowed a reasonable opportunity to prepare his own instructions and study those presented by the prosecution. That is, of course, the grave difficulty with Sixth Amendment violations; the harm is generally impossible to assess. (Barber v. Municipal Court (1979) 24 Cal.3d 742, 756-757 (157 Cal.Rptr. 658, 598 P.2d 818]; Javor v. United States, supra, 724 F.2d 831.)
Even if we could affirm on the ground the errors were harmless beyond a reasonable doubt because of the overwhelming strength of the prosecution case, it would not be appropriate to do so for the same reason Smith was entitled to adequate representation in the first place. The right to counsel flows from the federal and state Constitutions and has nothing to do with the relative strength of the prosecution case. To paraphrase a golden oldie of the law, a defendant with a hard case is just as much entitled to adequate representation as anyone else and much more in need of it. Interference with that right is virtually the equivalent of the denial of the trial itself; neither is subject to meaningful evaluation after the fact. (People v. Joseph, supra, 34 Cal.3d 936, 945-948.) Smith is entitled to a new trial.
[]
*971Un Sromrtam
HONORABLE MARSHALL F. McCOMB
Judge of the Superior Court of Los Angeles County, 1927-1937
Associate Justice of the Court of Appeal, Second Appellate District, Division Two, 1937-1956;
Associate Justice of the Supreme Court of the State of California 1956-1977.
The Supreme Court of California met in its courtroom, Paramount Plaza Building, Los Angeles, California, November 6, 1981.
/
Present: Chief Justice Bird, presiding; Associate Justices Tobriner, Mosk, Richardson, Newman, Kaus and Broussard. Gill, Clerk; Williams and Rogers, Bailiffs.
Chief Justice Bird: We meet this morning to pay tribute to the memory of Marshall F. McComb, who served as an Associate Justice of the California Supreme Court from 1956 until 1977. On behalf of the court, I wish to welcome Justice McComb’s widow and his daughter, Martha Mullin and the friends of the family. Justice Frank Richardson will speak on behalf of the court.
Associate Justice Richardson: Thank you, Madam Chief Justice. The court pauses today in its Los Angeles calendar to note with sadness the passing of our colleague, Marshall Francis McComb, the 80th member of our court. While the occasion is one of sorrow at the state’s loss of a distinguished citizen, in reflecting upon his days among us we sense that here was a life fully and richly lived. Justice McComb was born in Denver, Colorado, the son of a mining father, who moved with his family in the 19th century successively to San Diego and then to Los Angeles. It is fitting that we should be expressing this tribute to him today, here in Los Angeles, because his roots were here. It is here that he lived his earlier years attending the Olive Street Grammar School, Manuel Arts High School, and the University of Southern California Preparatory School. After graduating from Stanford, Justice McComb served his country during World War I in the United States Navy attaining the rank of Lieutenant Commander. Following receipt of his law degree, cum laude, from the Yale Law School, he began the general practice of law here in Los Angeles.
Upon his appointment to the Los Angeles Superior Court in 1927, he began a judicial career which spanned more than a half century. His fellow jurists chose Justice McComb as presiding judge of that distinguished court and he devised the Master Calendar Plan which was widely credited with containing the then growing and heavy volume of litigation. The people of Los Angeles County reelected him twice.
*972His judicial skills were recognized in 1937 when he was appointed to the Court of Appeal for the Second District in Los Angeles. Then in 1956 he was called to our court and served on it from 1956 to 1977 becoming its senior member. Justice McComb was a devoted colleague who was always loyal to the court. His many opinions for the court over more than 20 years were uniformly crisp, spare, lean and to the point. His reasoning and conclusions were very well defined. His philosophy was one of restraint. There was no doubt where he stood on the critical issues which came before the court during his long tenure on it. He held the strong, independent and self-reliant views of the typical Westerner.
Beyond his contributions to California law, there was a quality in the character of Justice McComb which was revealed to all of those who observed him—that was his essential humanity. He had profound respect for people not only in the aggregate, but for people as individuals, as persons. He valued them as friends regardless of their station or their means. He related to them at their own level and they, in turn, responded to him. He was people oriented and was organizationally related.
His fraternal and association ties were numerous and diverse and he held high office in many groups. To mention any of his affiliations is to ignore many others, but his service in the Navy during World War I and his status as a war veteran were sources of considerable pride to him. He was proud of our flag and for many years wore a small emblem of the flag on his coat lapel. Both nationally as Vice President of the Navy League and locally as a charter member of Los Angeles Post No. 8, American Legion, he demonstrated his strong interest in veterans’ affairs.
He was very approachable and several members of his staff have recently recalled that during his busiest and most active years those with personal problems frequently sought the benefit of his experience and wisdom. We who served with him were constantly aware of his personal warmth and radiating kindness which were generated deep within the heart of the man whose impulses were generous. He gave of himself and of his substance to good causes in full measure. To a university library which has been named for him, to a major hospital on the governing board of which he served for many years, and the countless social, religious and charitable enterprises of many kinds, Justice McComb truly left a rich heritage. In the more than 20 years of his service on this court, while expressing both strong and honest views, he demonstrated a gentility of spirit, a generosity of outlook, and an acceptance of life which gave him an inner peace. Now that he is gone we can preserve only in memory his twinkling eye, his erect carriage, his unfailing courtesy, his gentlemanly manner, his humor and his kindness. As friends and colleagues, we cherish our association with him. We honor and respect his loyal service to the people of this state.
*973We extend to his widow, Margherite, and to all of his family our sincere sympathy in their loss. We share with them also our deep appreciation and that of the bench and the bar and the people of California for his life and for the many years of faithful service which Justice McComb gave to our judicial system.
Chief Justice Bird: Thank you, Justice Richardson, for those eloquent words. We will now turn to Justice Mildred Lillie, a long time friend of Justice McComb, who will speak next.
Justice Lillie: Madam Chief Justice and Associate Justices, may it please the court. We are here in remembrance and it is my pleasure to join with Justice Richardson in this splendid tribute to Justice McComb. The memory of Marshall Francis McComb will long live in the annals of California judicial history and in the hearts of those whose lives he touched.
His service to the people of the state and to the administration of justice began with his appointment to the Superior Court of Los Angeles County in October, 1927. Prior to his judicial career which spanned a period of over 50 years, he had been engaged in general practice. One of his most prestigious clients was The Hearst Corporation. His friendship with members of the family and the senior officers of the corporation he kept intact all of his life.
Marshall McComb was 33 years old when he became a superior court judge. He had a remarkable administrative ability of which few of us were aware or remember, and some senior lawyers will never forget. The youngest of 38 superior court judges and early in his judicial career, he was assigned to preside in the civil calendar department. In those days, as today, the court was bedeviled with an insurmountable backlog of civil cases. Marshall McComb resolved to clear up that backlog and he did just that, and in a surprisingly short time, through perseverance and his stem approach to lawyers who had fallen into dilatory practices. First he cut a swath through the backlog and then he designed the Master Calendar System. At first the mortality rate was high; lawyers who were not prepared for trial or whose clients or witnesses were not in court found their cases summarily dismissed, and staggered out of the courtroom in the old red courthouse not quite knowing what had happened to them. And he did all of this with unfailing courtesy, always the gentleman. He restored the court to its normal routine and reduced the time from initiation of the lawsuit to trial to six to eight months, a far cry from the present day stmggle to set causes for trial within the five-year period. Even in those days, it was a very dramatic accomplishment; he had devised a system that would enable our courts to deal satisfactorily with the ever increasing flow of civil cases. He won the admiration of the bar, that is after the lawyers involved had recovered from their shock, and his Master Calendar System became the subject of numerous articles in national publications. In only a short time, he made a worthy national
*974reputation for himself. And that accomplishment reflects his philosophy of getting on with it and getting the job done. Perhaps it is the same philosophy that inspired his short, concise opinions. Pithy, but to the point and covering all issues, the format used by him in both the Court of Appeal and the Supreme Court generally assumed the Socratic method. He stated the question and then answered it. Once, I asked him the secret of producing a short, adequate opinion; with tongue in cheek, he answered “You will find that as you grow older you will have less and less to say. ’ ’ But somehow it hasn’t worked out too well for me. His economy of words accounts too, for his disinclination to ask questions from the bench, and it generally characterized his personal communication with others. He wasted little time on unproductive conversation.
Marshall McComb valued countless persons in friendship. They came from everywhere, from every walk of life. Friendship was important to him; and he maintained his friendships and old ties throughout his judicial life without compromising his role as a judge. Those he befriended supplied him with a great variety of interests and often brought to him a greater variety of problems and concerns—to them he gave freely of his time and his personal advice. His great capacity for friendship touched my life too. My first contact came through my late husband who in the early 1940’s had started through the chairs in Elks Lodge 99, later to become exalted ruler, largely through the encouragement of Marshall McComb. He was a kind and generous mentor, and lavish with his time, his means, his wisdom and his experience. He long will be remembered for his fierce love of country and devotion to the preservation of its traditions and institutions. His opinions, majority and concurring and dissenting alike, reflect his philosophy of judicial restraint and his solid conviction that the community and the victim are as much entitled to the protection of the law as the perpetrator of the crime. At times he was devastatingly outspoken and there was never any doubt about his views on any given issue. He was an independent thinker and he had the courage and the strength of heart and spirit to stand alone in his convictions. His love of country and devotion to the principles and ideals that made it strong were reflected in his own personal life. At every turn he extolled the virtues of this great nation as though he himself, in the early days, had helped fashion the Republic with John Adams, Thomas Jefferson, and Benjamin Franklin, the generators of our democratic form of government. He never tired of voicing his pride in the system of which he was a part. Through his life, judicial career, accomplishments and contributions to the administration of justice, he left a rich and loving legacy to his family. He lives deep in the hearts and memories of his beloved widow, three daughters, grandchildren and great grandchildren. And through his legal opinions he will continue to live as long as there are readers of case law.
Thank you.
*975Chief Justice Bird: Thank you, Justice Lillie. We now will turn to Dean Leigh Taylor of Southwestern University School of Law, who is a friend of the McComb family.
Mr. Taylor: Madam Chief Justice and Associate Justices. May it please the court.
“He . . . proved again the simple secret that a great judge must be a great man. He must have a fall sense of the seamless web of life, a grasp of the endless tradition from which we cannot escape. He must be capable of stem logic and yet refuse to sacrifice to logic the hopes and fears and wants of men. He must be able to catch a glimpse of the ultimate in the immediate, of the universal in the particular. He must be statesman as well as jurist, thinker as well as lawyer. What he is doing is to shape the categories through which life must flow, and he must have a constant sense of the greatness of his task. He must know the hearts of men and yet ask to be judged from the conscience of their minds. He must have a constant sense of essential power, and yet be capable of humility in its exercise. He must be the servant of justice and not its master, the conscience of the community and not of its dominant interests. He has to put aside the ambition which drives the politician to search for power and the thinker to a constmction of an abstract system. No one must be more aware of the limitations of his material, none more hesitant about his personal conviction. The great judge is perhaps the rarest of human types, for in being supremely himself, he must yet be supremely selfless. He has to strive towards results he cannot control through material he has not chosen. He has to be in the great world and yet aloof from it, to observe and to examine without seeking to influence.”1
This observation was made by Harold Laski in 1931, in which he described that supreme fellowship which reaches back to the endless past in which men have sought a place for plan and order in human affairs. Gaius, Ulpian, Mansfield, d’Agnesseau, Marshall, Savigny, Maitland, and Holmes. I believe that they would surely welcome the company of Justice Marshall Francis McComb.
As a lawyer and a teacher of law, I feel especially privileged to be able to participate in this tribute to the memory of Justice McComb, who dedicated his life’s work to the law and1 to the judiciary in the State of California. When we reflect that his 50 years of service as a judge contrasts with only 200 years of American law, we can begin to appreciate the true significance of his contributions to our legal institutions, our profession and society.
As Justice Richardson and Justice Lillie have noted, Justice McComb was appointed to the Superior Court of Los Angeles County in 1927, and as Presiding *976Judge of that court will be remembered for his creative and energetic contributions to judicial reform in his work to improve the efficiency and effectiveness of that court. Justice McComb was appointed Associate Justice of the District Court of Appeal in 1937 and served on that court until his appointment to the Supreme Court by Governor Goodwin Knight in 1956. Governor Knight viewed his appointment of Justice McComb as one of his “proudest accomplishments.”
During his years on the California Supreme Court Justice McComb would write 314 majority opinions, 77 concurring opinions, and 339 dissenting opinions. His concurring and dissenting opinions help to sharpen our analysis and our focus of those cases. His majority opinions were clear, lucid and succinct, and often years ahead of their time. If one attempts to analyze his opinions, contradictions seem to appear, for while Justice McComb could be characterized as a law and order judge, he applied his sense of obedience to the law to citizen and governmental official alike.
But more than a judge to whom we might attempt to fix labels, Justice McComb was always a servant of the law. His basic judicial philosophy might well be illustrated in his opinion in In re Keddy,2 where he wrote, 1 ‘No individual or public official is above, beyond or exempt from the mandates of the Constitutions, state and federal. If judicial officers do not abide by their solemn pledge to protect and defend the Constitution, as well as to observe the limitations prescribed thereby, we must expect from the average citizen only contempt for our most cherished institutions and legal concepts. ’ ’
Justice McComb’s opinions reflect this philosophy and demonstrate his deep concern for constitutional principles of separation of powers, his strong deference to the findings and conclusions of trial judges and his deep commitment to insuring greater protection of the public from crime. These strong convictions, which would cause him to be regarded as a strict constructionist, were tempered by similar concerns with constitutional limitations on governmental access which were reflected in numerous other opinions.
Throughout his life, Justice McComb remained a student of the law. For years he shared his knowledge with students at UCLA, Loyola and Southwestern. He was always interested in the observations of people whose vantage points were different from his. He truly enjoyed all people, but especially the relatively young, uneducated, and unaccomplished. Whether it was as a student, teacher, lawyer, public servant or jurist, Marshall McComb spent his life listening and learning.
*977His contributions to the judiciary were acknowledged by two Presidents. In 1973 President Richard M. Nixon wrote, “For more than half a century, Justice McComb has been a bright star in California’s constellation of distinguished attorneys. He has graced the bench with an enlightened judgment and stabilizing influence. I well remember his brilliant effectiveness as an appellate court judge when I practiced law in Southern California. Since then he has immeasurably enriched his enduring contribution both to the body of California law and to the strength of American jurisprudence.” Following Justice McComb’s death, President Ronald Reagan wrote in his final tribute, “Marshall McComb’s philosophy and legal opinions will stand for eternity as exemplars of judicial restraint and discipline for which I shall forever respect him.”
As significant as these presidential memorials are, Justice McComb is remembered finally by his colleagues and friends as a man who was courteous to everyone, proud, patriotic, and gentlemanly, amiable, agreeable and civil, articulate and positive in his thinking, kind and encouraging, and a man who never said an unkind word about anyone. Never took himself too seriously, and was amusing, good company, and pleasant to be with, quite simply a warm and giving friend. Could there be a finer tribute?
Our profession is a strong and noble one and from it only a select few are chosen to administer our system of justice, and fewer still to sit in final judgment as members of this honorable court. The lawyer’s task as advocate pales in light of the awesome role we assign the judiciary, with its responsibility for ensuring that the fragile fabric of our society continues to be held together by the twin threads of the role of law and the continuing quest for justice. It is quite understandable then, as Justice Cardozo would comment, that the task of judging is one to baffle the wisdom of the wisest. Yet, too often we seek Solomonic decisions and correct opinions and lose sight of the greater importance of the legal process and the integrity of our judicial officers, factors which transcend the merits of any case.
Clearly, Justice McComb was a man of devotion, integrity and principle, a man with a total and abiding love for our concept of justice and equality under law. His lifetime commitment represents for all of us the finest example of professionalism and service. We could seek no finer qualities for ourselves, our children, or for the generations of law students, lawyers and judges yet to come.
At Southwestern University School of Law we will ensure that the Marshall McComb Senate of the Delta Theta Phi Legal Fraternity, the Marshall McComb Library and the Marshall McComb Scholarship Fund serve not only as fitting memorials, but also permit those generations to come to appreciate so worthy an exemplar. As Roger Grace wrote, “It is fitting that he be honored *978and that a tribute thus be paid him by students who are seeking to join him as servants of the law. For there has been no more faithful servant and no more diligent servant than Justice Marshall McComb. ”3
While all of us are especially saddened by the loss of such a fine friend, a fine man, a fine teacher, and a fine judge, Justice Marshall Francis McComb’s contributions to our profession and to society will endure, and I feel especially honored to be given the opportunity to express my appreciation to a man who gave us all so much.
Thank you.
Chief Justice Bird: Thank you, Dean Taylor. I thank all of the speakers here today for their remarks. In accordance with our custom, it is ordered that this memorial be spread in full upon the minutes of the court and published in the Official Reports, and that a copy of these proceedings be sent to his widow, Mrs. Marshall McComb. The court is adjourned.
Brackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal.
The jury learned about the prior because Smith did not admit it or seek to bifurcate the trial. (See People v. Bracamonte (1981) 119 Cal.App.3d 644 [174 Cal.Rptr. 191].) []
Before jury selection commenced, the following colloquy occurred:
“Mr. Smith: I would just like to tell you, Your Honor, that I’m not getting eight hours sleep, and there is a federal court order against denying prisoners who are going to trial eight hours sleep. [H] I was woken up [sic] at 3:30 this morning, and I have not gotten my eight hours sleep, and there is a federal court order by Judge Gray from the Central District prohibiting the Orange County Sheriff from doing that; and the sheriff blatently [sic] disregarded that court order, woke me up at 3:30 in the morning, thus denying me eight hours sleep. [K] I am supposed to defend myself on three hours sleep. I can’t do it, Your Honor.
“The Court: Ms. Brough, isn’t there in existence an order relating to the subject of the amount of sleep that a defendant is entitled to have?
“Mr. Smith: A federal court order.
“Ms. Brough: I don’t believe there is such an order in this particular case.
“Mr. Smith: The door was not—I was given a shower last night at about twenty minutes after ten, 10:30. I got out of the shower, and the shower door is right next to the dayroom door, and after I got out of the shower, the shower door opened, I stepped out, the dayroom door opened, and I was told to move in. [f] Then at about 11:30 I went back to my cell. Then at 3:30 I was woken up [sic].
“The Court: Would you inquire during the noon hour whether or not the practice is now to wake prisoners up at 3:30? If it is, I will make a separate order for purposes of this case.
“Ms. Brough: Thank you, Your Honor. I will.
“The Court: All right, [f] Are there any other preliminary matters?
“Mr. Smith: Just I have been denied the right to defend myself, and I haven’t even gotten my sleep. I can no longer defend myself like that.
“The Court: You have expressed yourself on the record.
“Mr. Smith: I would like to—if you would like, Your Honor, you can ask anybody in this room how much sleep they got last night.
“The Court: The jury will be ready but not brought up at 1:45. At 1:45 perhaps you can report on this problem of the sleep.
“Ms. Brough: I will.” That afternoon Smith’s complaints were discussed again:
“Mr. Smith: Your Honor, there is a federal court order. It is even in the books, Stewart vs. Gates. The jail isn’t complying with that court order, [t] I was very surprised when they came to my cell at 3:30 in the morning and woke me up. About 20 minutes later they are rattling my gate telling me to come out. [H] Your Honor, I want to take as fact that if the officer wouldn’t have rushed me out of my cell, I would have been ready right now with a motion to challenge the jury selection in this county. Because of that, I’m not prepared, because I got rushed out of my cell after getting only three hours sleep.
“The Court: Ms. Brough, the Court asked you to make inquiry over the noon hour into the subject. What did you learn?
“Ms. Brough: I spoke with Sergeant Keller over at the jail. He indicated that the usual time to awaken the prisoners is between 4:30 and 5:00 a.m., and that as far as he knew no one was awakened at 3:30.
“Mr. Smith: Your Honor, you want to bring over a couple of inmates that are—well, let’s see. [One inmate] is in [another] court right now. And you want to bring over [another]? He is over at the jail right now. We can bring in witnesses all day long on this, and they will—you like to take it for a fact that we were in fact woken up at 3:30 this morning, and I did leave my cell no later than four o’clock in the morning, and did enter the chow hall at a little after four o’clock in the morning and waited in the fourth floor another couple hours.
“The Court: I’m going to make an order in the matter without inquiring further into the matter. [\] The Court orders that the officials of the jail, sofar [sic] as the hours, that Mr. Smith is to have the opportunity to sleep and comply fully in all respects with the order of Judge William Gray in 450 Federal Supplement 583. [f] The clerk will make a separate *965minute order of that order and make a copy of it which will be given to the transportation deputy, and he will take it to the watch commander.
“Mr. Smith: So now, Your Honor, the question remains now, I have been denied sleep last night and this morning. I don’t know. I can’t even think clear right now, because I’m really tired, ft] I have been forced in, you know, conducting a voir dire without any help of, you know, without the benefit of looking at any kind of books that have anything to do with that, and without the benefit of eight hours sleep, ft] Like I said, Your Honor, I was gotten up at 3:30 this morning, and if you didn’t want to call over any witnesses to testify about that, then, I would like that taken as the fact.
“The Court: The motion for continuance was already denied both by me and by another judge this morning. So we will continue with the selection of the jury.
“Mr. Smith: Well, Your Honor, you could continue it for one day. I didn’t have my eight hours sleep. I already told you that. You were well aware of that fact before the jury came in.
“The Court: Court is in recess.”
After the recess the jury selection continued. Later, the same afternoon, the judge again addressed Smith:
“The Court: Mr. Smith, would you like to make an opening statement?
“Mr. Smith: No.
“The Court: There was a cough, and I didn’t hear the defendant’s answer.
“Mr. Smith: I’m too tired.”
The following day was more of the same:
“Mr. Smith: Okay, ft] Now, Your Honor, the Court—or the jail and sheriffs are not complying with the federal court order. I was woken up [sic] at ten minutes to four o’clock this morning. I have a copy here of Stewart vs. Gates about what the judge has to say about getting up at 3:30 in the morning. And ten minutes to four is twenty minutes later than 3:30 in the morning, and last night I got about a little over five hours sleep. And right now I’m real tired again. I’m about to go to sleep. I can’t think straight. Right now I’m emotionally poor—motioning for continuance until I get eight hours sleep before and after trial date, just like the federal court order says right here, because you just made that order yesterday that the jail was supposed to comply with all court orders made by William Gray in the Central District of the Federal Court here in California. [1] Would you like to read what it says here, Your Honor, about getting eight hours sleep the night before and eight hours sleep the night after trial dates? That is what it says right here, ft] I didn’t get no eight hours sleep last night. I’m tired.
“The Court: It sounds like a motion for continuance. Would you like to respond?
“Ms. Brough: Your Honor, People, of course, are opposed to that motion right in the middle of the trial. I don’t know what time the lights go out in the jail, but if Mr. Smith wants to continue his case until he gets eight hours sleep, and we are going to base that on his statement without any type of corroboration and not under oath, I don’t think we would ever go to trial in this case, ft] I oppose a continuance. The trial is in progress. I ask that we go ahead and complete the trial.
“Mr. Smith: Your Honor, [an inmate witness] is in front of [another judge] this morning, and he is in tank 14, module C, which is the tank right above mine. And I’m housed in tank 13. ft] If you would like to bring him down here so he may give oral testimony to add weight to my statement and enter his testimony as evidence into the record, you can call him over here, since he is in the courtroom right now. ft] If you would like to call inmates over from the Orange County Jail from tank 14 and tank 13, which is my tank, they will testify to the same thing, Your Honor, that at approximately ten minutes to four in the morning an officer was yelling on the microphone, ‘Wake up, get up, stand up for count, be in Ml jail issue,’ and was racking the gate as the lights came on. ft] If you are not willing to issue an order to bring them in here, those particular inmates [lists names of seven *966prisoners] who is up there.
“Ms. Brough: Your Honor, if I may just briefly respond, I think that is another attempt by the defendant for a delay tactic in his trial. So far we have heard reasons that the trial should not proceed because of pencils, erasers, inadequate access to books, the fact that his mother was his runner, and she is an older person, the fact that he needed a witness from San Quentin and who he decided he needed yesterday. [1] Now apparently he is raising this issue of inadequate sleep and some problem with an investigator. [H] I think when you see a pattern like this, it is apparent what is going on. He doesn’t want to go to trial. And I don’t think that he should be allowed to manipulate the Court into that kind of a situation just by bringing up a large number of excuses.
“Mr. Smith: Your Honor, I am not at this time asking for a long continuance. I’m just asking that the sheriff complies with your court order and the federal court order, which encompasses Orange County, of getting eight hours sleep the night before, the night after.
I will be ready to proceed tomorrow if the sheriff complies with the court order of the federal court.
“The Court: I’m ready to rule. The Court denies the motion. [\] There is a jury impaneled. The case is a very short one and should be concluded today. [1] In the event that there is occasion shown by way of a motion for new trial or vacating any verdict that may be entered in this case, the Court will consider it. The Court does not think that this is an appropriate case to enter into any kind of inquiry as to whether on [szc] not the jail has complied either with Judge Gray’s order or with this Court’s order. So we will proceed with the trial. [Italics added.]
“Mr. Smith: Then, Your Honor, since you refuse to bring those inmates over, I would just like it taken as a fact that we did get up at ten minutes to four this morning, I only got a little over five hours sleep last night, less than six hours, but a little over five hours sleep last night.
“The Court: I heard your statement.”
Later, after the arresting officer was called on direct, Smith was invited to cross-examine:
“The Court: You may cross examine, Mr. Smith.
“Mr. Smith: As I told you yesterday, and you can take it as fact this morning, Your Honor, that you are denying me everything. I’m too tired to cross examine him. The transcript is right here. I can show where he lied, about the transcript where he placed me under arrest, when he arrested me for Vehicle Code Section.
“The Court: You have an opportunity given to you to cross examine, not to make a speech to the Court. Do you desire to cross examine?
“Mr. Smith: You have totally restricted me from defending myself, Your Honor.
“The Court: The Court takes that answer as negative, then. You may step down, Officer.”
We do not consider whether to remand for a belated evidentiary hearing on the merits of Smith’s allegations concerning sleep because the next issue requires reversal in any event.
Moreover, apart from its obligation to Smith, the court had a responsibility to itself and the administration of justice. It should have given Smith the opportunity to prove his allegations, not only to consider the motion for a continuance, but also to enforce compliance by the sheriff.
Although the prosecutor was absent, two sheriff’s deputies were present, another of the uneasy compromises occasioned by Faretta, supra, 422 U.S. 806.
The sad accuracy of this observation cannot be doubted. It is a major reason so many cases, civil and criminal, founder on appellate shoals.
We withhold comment on the propriety of the latter portion of this statément in an ex parte proceeding. Smith did receive the maximum punishment but from a different judge.
A properly prepared prosecutor, particularly prosecuting a pro. per., should provide the proposed instructions much earlier in the proceedings.
The proceedings went like this:
“The Court: Bailiff, will you ask the jurors to remain outside until we complete this portion of the proceedings. [Í] Now, the deputy district attorney has submitted a plaintiff’s request for jury instructions. I have caused those instructions that have been requested to be xeroxed. [1] Mr. Smith, I understand you have requested no instructions specifically.
“Mr. Smith: Well, Your Honor—
“The Court: Just answer yes or no so I can get on with it.
“Mr. Smith: I don’t have access to any of the CALJIC, California Jury Instructions.
“The Court: All right.
“Mr. Smith: I haven’t had no opportunity to ever see them.
“The Court: Bailiff, will you hand the defendant the two copies of CALJIC and the .two supplements. [1] Now, I xeroxed the copy of the instructions that the district attorney has recommended. Do you have the two copies, Miss Clerk?
“The Clerk: I have one of the copies. The district attorney has her copy.
“The Court: All right. [U] Will the bailiff please hand to the defendant the copy that I have had made of the requested instructions by the district attorney. This is in order to simplify the Court’s decision as to which instructions to give.”
A few minutes later Smith stated, “Well, Your Honor, what are you going to do with my motion for continuance until I have time to look at the California Jury Instructions and look up the case law?
“The Court: Your remark is out of order.”
After going through each instruction without comment from Smith, the judge said, “Now, that concludes the advice that the Court is required under the law to give to counsel as to *969the instructions to be given.
“Mr. Smith: Your Honor.
“The Court: Yes, if there is want to it
“Mr. Smith: Yeah, ft] This is the first time that I ever been able to get the Cal Jury Instructions with additions for criminal flat [sic], I just told you right now there is no way that I can be ready with any jury instructions that I request in just a few minutes that you have given me. Besides that, the matter of not getting enough sleep.
“The Court: The Court will now state what the verdicts will be.”
Mr. Justice Holmes (F. Frankfurter ed. 1931) pages 139-140.
(1951) 105 Cal.App.2d 215,220 [233 P.2d 159,162],
Grace, Justice Marshall F. McComb: A Tribute (1973) 5 Sw. U.L. Rev. 221.