People v. Crandell

BROUSSARD, J. Dissenting.

I dissent from the affirmance of defendant’s conviction. My analysis of the proceedings below leads me to the conclusion that the lower courts deprived defendant of his fundamental constitutional right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I., § 15.) Denial of the right to counsel is prejudicial per se and requires reversal of the judgment. (Holloway v. Arkansas (1978) 435 U.S. 475, 489 [55 L.Ed.2d 426, 437-438, 98 S.Ct. 1173]; People v. Bigelow (1984) 37 Cal.3d 731, 744 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723].)

The record reveals that defendant had lost all faith in his appointed counsel, but clearly desired the assistance of counsel. The lower courts1 stubbornly rejected his many efforts to secure such assistance, despite the significant interests at stake and the options available to protect those interests. Indeed, the courts appeared to be more solicitous of the policies of the public defender’s office than they were of defendant’s constitutional right to the assistance of competent counsel and the state’s independent interest in the reliability and fairness of capital trials. (People v. Deere (1985) 41 Cal.3d 353, 363 [222 Cal.Rptr. 13, 710 P.2d 925].) The effect of the rulings by the lower courts was to force an untrained layperson to defend his life in a complex trial. Despite his admirable efforts, defendant’s performance pre*890dictably reflected his inexperience and lack of training. Had he been represented by counsel in the same fashion as that in which he represented himself, a strong case could be made for ineffective assistance of counsel. Because it is impossible to know how the evidence might have been developed and presented had defendant received the assistance of competent counsel, this court should have no confidence in the reliability of either the guilty verdict or the judgment of death. To affirm defendant’s conviction under these circumstances is a travesty of justice which our legal system should not tolerate.

I. Procedural Background

Defendant began to lose faith in his appointed counsel, Deputy Public Defender Samuel Gordon, when the latter failed to communicate with him or to answer letters or phone calls for two months. Defendant began filing motions on his own behalf in municipal court because he believed Mr. Gordon had abandoned him.2

About three months after Mr. Gordon had been appointed, defendant sought to “waive” his counsel on the ground that Mr. Gordon had “done nothing” on the case and had refused to communicate with him. The municipal court judge scheduled a hearing and ordered Mr. Gordon to attend. When defendant repeated his complaints, the judge noted Mr. Gordon’s reputation and experience. He then called a recess to enable attorney and client to confer. According to defendant, during the recess, Mr. Gordon admitted having done nothing on the case and “blew up” at him. Upon their return to the courtroom, defendant again repeated his complaints and “waived” the public defender as his counsel. The judge sought no further information about Mr. Gordon’s performance or the state of the attorney-client relationship. Instead, he informed defendant that the court had no power to appoint anyone but the public defender.3 After warning defendant that he would be given no special treatment, the judge found that defendant had knowingly waived his right to counsel.

Defendant subsequently requested that cocounsel be appointed to assist him in his defense. The municipal court reiterated its position that it could only appoint the public defender and denied the motion. Later, defendant renewed his motion for cocounsel and added a request for the appointment *891of advisory counsel. The same judge denied both motions on the ground that “we have no county funds to pay for that.”

Before beginning the preliminary hearing, defendant again raised the issue of cocounsel or advisory counsel. The magistrate informed defendant that his only choices were to employ a private attorney or to accept the public defender. The magistrate then called a recess to permit defendant to speak to Deputy Public Defender Winckler who was present in the courtroom. After talking to defendant, Mr. Winckler asked that the record reflect that defendant asked for the assistance of counsel, but that the public defender’s office had a policy against acting as advisory counsel. Unable to obtain the assistance of counsel other than Mr. Gordon, whom he mistrusted, defendant represented himself at his preliminary hearing, and was held to answer on the charges contained in the complaint.

In superior court, defendant filed a motion to set aside the information pursuant to Penal Code section 995 on the ground that his motions for the appointment of cocounsel or advisory counsel to assist him in the municipal court proceedings were erroneously denied. His motion was denied by Judge Arabian on the ground it had been within the prerogative of the municipal court to deny defendant’s earlier requests.

Defendant continued to seek the appointment of counsel at his first appearance in the superior court. He moved to have Mr. Kanarek, a private attorney who was present at the hearing, appointed to represent him. Judge Kolostian responded, “[t]he lawyer I appoint is the Public Defender, and the Public Defender that was assigned to the case is Mr. Sam Gordon. . . You have not the right to pick and choose between what Public Defender is going to represent you.” When defendant stated that he had a conflict of interest4 with Mr. Gordon, the court replied that it was simply a “personality conflict” and “I can’t appoint anybody but the Public Defender.” Mr. Kanarek then requested that the court conduct an evidentiary proceeding concerning the representation provided by Mr. Gordon, and that he be permitted to represent defendant in the hearing. Judge Kolostian replied, “I said I will appoint a lawyer, but that lawyer will be the lawyer for the whole trial. If there is no conflict, that lawyer will be his lawyer and he will have to pay for it or you will do it for free, one or the other.” The district attorney also opposed the appointment of anyone other than the public defender’s office. He pointed out that defendant only complained about Mr. Gordon and “that does not eliminate the rest of the Public Defender’s office.” He *892added that defendant would accept advisory counsel, to which the judge replied, “No, there is no such thing.”

Judge Kolostian ultimately scheduled an evidentiary hearing, but he did not permit Mr. Kanarek to attend. Defendant repeated his complaints about Mr. Gordon and stated that he had “no faith or confidence in him.” The judge characterized the problem as a “personality conflict” and accepted Mr. Gordon’s representation that there was no conflict of interest. The district attorney suggested that “an inquiry of cause must be made of the defendant’s reasons in detail.” He noted that defendant had alleged that Mr. Gordon recommended that he plead guilty and had failed to communicate with defendant for some two months. When the judge replied that “we have to be very careful not to go into confidentiality of communications,” the district attorney suggested that the inquiry be made outside of his presence. The judge expressed doubt about the obligation of the attorney to explain his conduct. He then asked a few perfunctory questions of Mr. Gordon, who assured the court that he did not recommend a plea and that he was “prepared to try the preliminary hearing the morning the defendant asked to go pro. per.” The court replied, “Okay, that is good enough for me. Lawyer is prepared to go to trial on the matter. . . .”

The matter was continued until the following day at which point defendant once again challenged the policy of the public defender’s office not to act as advisory counsel. The court replied, “I wouldn’t appoint that kind of counsel anyway.” The court explained again that the only time private counsel would be appointed is when the public defender’s office had a conflict—“either they are representing [] somebody else, like a co-defendant or a witness or somebody. ” The judge reiterated that he found no conflict of interest.

The judge then warned defendant of the hazards of representing himself, stating, “I am well aware of how smart you are and how good [svc] you are handling your case, so you are not the typical illiterate defendant. You are very smart and notwithstanding that, there are a lot of legal things you do not know.” The judge explained the ground rules: the district attorney was experienced; the proceeding would be adversarial; defendant risked making serious errors; the court had to remain neutral and could not assist him; and his incompetence would not form the basis of reversal on appeal. Defendant responded that he understood. The judge stated, “I think it is dumb what you are doing, but my opinion is immaterial.” He then found that defendant had validly waived his right to counsel.

For reasons that do not appear in the record, the court conducted a second hearing in camera outside of the presence of the district attorney. *893Defendant assured the court that his lack of confidence in Mr. Gordon did not stem from a personality conflict. He reiterated his complaints that counsel had recommended that he plead guilty without having investigated the case; had failed to respond to his communications; and had admitted having done nothing on the case. In response to the court’s questions, Mr. Gordon stated that he had prepared for the preliminary hearing, that he did not recommend that defendant plead guilty, that he had discussed diminished capacity and other defenses with defendant and that there had been a tactical disagreement concerning the defense.

Defendant’s case was assigned to Judge Arabian for trial. The judge asked whether there was any need for him to further admonish defendant about the hazards of self-representation. Defendant replied that there was no additional need and that he had tried unsuccessfully for over a year to obtain appointed counsel. When the judge asked if he intended to exercise his right to represent himself, defendant replied, “Yes. I have no alternative.” Defendant continued to represent himself throughout his capital trial.

II. Substitution of Counsel

The fundamental right to counsel includes the right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692, 104 S.Ct. 2052]; People v. McKenzie (1983) 34 Cal.3d 616, 626 [194 Cal.Rptr. 462, 668 P.2d 769].) Courts require that defense counsel meet the standard of representation expected of a “reasonably competent attorney acting as a diligent, conscientious advocate.” (People v. Pope (1979) 23 Cal.3d 412, 424 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Effective assistance of counsel also contemplates a relationship of trust and cooperation between attorney and client, particularly when the attorney is defending the client’s liberty. (Smith v. Superior Court (1968) 68 Cal.2d 547, 561 [68 Cal.Rptr. 1, 440 P.2d 65]; People v. Munoz (1974) 41 Cal.App.3d 62, 66 [115 Cal.Rptr. 726].) Thus, it is a denial of the right to effective assistance of counsel “ ‘to compel one charged with [a] grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict.’ ” (People v. Stankewicz (1982) 32 Cal.3d 80, 94 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476], quoting from Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1170.)

When a defendant raises the issue of incompetency of his appointed counsel, the trial court must give him an opportunity to explain the basis of his claim. (People v. Marsden (1970) 2 Cal.3d 118, 126 [84 Cal.Rptr. 156, 465 P.2d 44].) If defendant articulates facts which suggest that counsel is rendering constitutionally ineffective assistance, the trial court has a duty to make whatever inquiry is necessary to develop a record sufficient to assess *894the claim (People v. Munoz, supra, 41 Cal.App.3d at p. 66, cited with approval in People v. Lewis (1978) 20 Cal.3d 496, 499 [143 Cal.Rptr. 138, 573 P.2d 40].)5 Depending on the nature of defendant’s grievances, it may be necessary for the court to question his attorney. (People v. Hill, supra, 148 Cal.App.3d 744, 753.)

Judge Kolostian apparently attempted to adhere to this requirement by conducting the pretrial evidentiary hearings in superior court. However, the court’s inquiry was so perfunctory as to be “lacking in all the attributes of a judicial determination.” (People v. Munoz, supra, 41 Cal.App.3d at p. 66, citations omitted.) Moreover, the court failed to inquire into the state of the attorney-client relationship. As such, the hearing did not serve the interests protected by Marsden, supra, 2 Cal.3d 118.

The record of the evidentiary hearings leaves several significant questions unanswered. Although Mr. Gordon claims to have been prepared to try the preliminary hearing, it is not clear what he had done to prepare. There is no indication that he had investigated any of the possible defenses he claimed to have discussed with defendant. Although counsel maintains he met with defendant on three occasions, there is no indication when the meetings occurred, how long they lasted, or what specifically was discussed.6 Although he acknowledged his failure to communicate with defendant for two months between the arraignment and the preliminary hearing, Mr. Gordon did not provide any explanation for his conduct. One cannot ascertain from the record whether counsel received the letters sent by his client or messages of his phone calls or whether he was otherwise aware that his client was attempting to reach him. Moreover, there is no indication that Mr. Gordon made any attempt to reassure defendant or to repair defendant’s loss of faith in him.

The majority conclude that the record does not demonstrate that counsel failed to provide effective assistance. They maintain that lack of commani*895cation for two months is not enough to establish ineffective assistance, and that the court could properly rely on counsel’s representation that he was prepared to try the preliminary hearing. I submit that the court could not properly determine the import of counsel’s alleged failure to communicate with his client without knowing the circumstances behind the lapse in communication. If counsel were permitted to rebut a claim that he was unprepared merely by assuring the court that he was in fact prepared, the proceedings mandated by Marsden, supra, 2 Cal.3d 118, amount to little more than a meaningless ritual.

The majority also apparently adopt counsel’s characterization of the conflict between him and defendant as a “tactical” one. While tactical conflicts do not necessarily require the substitution of attorneys, they can be serious enough to “signal a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant’s right to effective assistance of counsel.” (People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710]; see also People v. Williams (1970) 2 Cal.3d 894, 905 [88 Cal.Rptr. 208, 471 P.2d 1008]; People v. Drumgo (1973) 8 Cal.3d 930, 935 [106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984].)

The majority find that the court reasonably concluded that defendant had not demonstrated a complete breakdown of the attorney-client relationship given the early stage of the proceeding at which Gordon’s representation of defendant terminated. In ruling on a claim of inadequate representation, courts often consider whether the claim was made too late in the proceedings. (Brown v. Craven, supra, 424 F.2d 1166, 1169-1170; United States v. Michelson (9th Cir. 1977) 559 F.2d 567, 571-572; United States v. McClendon (9th Cir. 1986) 782 F.2d 785, 789.) The majority turn this factor on its head by approving denial of a claim made too early in the proceedings.

Moreover, the scarcity of evidence in the record concerning whether the attorney-client relationship had broken down by the time Gordon was discharged is not as much a function of the early stage of the proceedings as it is the municipal court’s failure to conduct a Marsden inquiry {supra, 2 Cal.3d 118).7 Defendant fairly raised the issue and should not be penalized for the court’s failure to properly respond.

*896Despite the municipal court’s failure to develop an adequate record, there is no indication that insufficient time had elapsed for counsel and client to develop irreconcilable differences. According to Mr. Gordon, he had met with defendant on three occasions. Although the record does not disclose what transpired at those meetings, both counsel and defendant indicate that they disagreed on how to conduct the defense. Defendant alleges he made numerous attempts to reach his attorney, all of which were unsuccessful. Defendant further reports that he and Mr. Gordon had a serious altercation during the recess at the hearing in municipal court. Most significant is that defendant was desperate for the assistance of counsel, yet he persistently rejected representation by Mr. Gordon. Ultimately, defendant was willing to risk his life rather than to entrust Mr. Gordon with its protection. One cannot escape the clear implication that the relationship between defendant and his appointed attorney had irreparably deteriorated.

The superior court failed to carefully investigate the merits of defendant’s claim that his counsel provided inadequate assistance. This failure led to its erroneous denial of his claim, which in turn led to defendant’s invalid waiver of his constitutional right to the assistance of counsel.

III. Waiver of Right to Counsel

The Sixth Amendment of the United States Constitution affords criminal defendants the right to elect self-representation rather than representation by counsel. (Faretta v. California (1974) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]) A defendant’s choice to represent himself necessarily entails a waiver of the right to counsel. In order to assure that such a waiver is knowingly and intelligently made, defendant must be “made aware of the dangers and disadvantages of self-representation.” (Id. at p. 835 [45 L.Ed.2d at p. 582].)

Defendant does not dispute that the court, on more than one occasion, cautioned him against undertaking his own representation. Nor does he contest his capacity to waive his right to the assistance of counsel. Rather, he claims that his choice to represent himself was not voluntary, but was effectively coerced by the court’s insistence that his only other alternative was to accept representation by Mr. Gordon.

The Court of Appeal was faced with a similar situation in People v. Cruz, supra, 83 Cal.App.3d 308. That court noted “. . . the record that is before *897us clearly indicates that defendant’s decision to go pro. per. was not based on trial tactics that he could better persuade the jury, but was based on a lack of viable alternatives. The trial court’s failure to inquire precluded the possibility of a substitution of counsel. Defendant was left with the choice between counsel who he mistrusted or proceeding in pro. per. . . . Defendant, perceiving the alternatives as imposed and as limited by the court, chose self-representation.

“The knowing and intelligent waiver of counsel envisions the election between viable alternatives. Defendant’s decision to proceed in pro. per. was predicated upon his belief, mistaken or not, that he could not expect effective representation from the public defender’s office. This belief was effectively reinforced by the court’s failure to fully explore defendant’s charges. Under the circumstances, defendant cannot be said to have been fully apprised of his right to counsel and therefore did not effectively waive that right. [Citations].” (Id. at p. 318; see also United States v. Williams (9th Cir. 1979) 594 F.2d 1258, 1259-1261; 2 LaFave & Israel, Criminal Procedure (1984) § 11.4 (d), pp. 41-42.) The same reasoning is applicable here.

Defendant was erroneously forced to represent himself in his capital trial and was denied his constitutional right to the assistance of counsel. The error was prejudicial per se. (Holloway v. Arkansas, supra, 435 U.S. 475, 489 [55 L.Ed.2d at pp. 437-438]; People v. Bigelow (1984) 37 Cal.3d 731, 744 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723].)

IV. Advisory Counsel

The majority concede that the lower court erred by failing to exercise its discretion on defendant’s several requests for the appointment of advisory counsel. The majority also acknowledge that such failure requires automatic reversal of the conviction in cases in which a refusal to grant the request would have been an abuse of discretion. (People v. Bigelow, supra, 37 Cal.3d at p. 744.) However, they find that the court’s denial of defendant’s request in this case would not have been an abuse of discretion, and that the court’s failure to exercise its discretion was harmless. I disagree on both points. Had the court thoughtfully considered defendant’s request and denied it, I would find that ruling an abuse of discretion and reverse the conviction under the per se rule in Bigelow. Furthermore, we can only speculate how the advice of counsel would have changed the content and result of defendant’s trial. That he performed well given his lack of training says nothing about how he would have performed with the assistance of advisory counsel; nor does it assist in predicting whether the jury would have returned a verdict more favorable to him.

*898This case presents circumstances very similar to those presented in Bigelow, in which we held that it would have been an abuse of discretion for the trial court to deny defendant’s request for the appointment of advisory counsel. (37 Cal.3d 731.) Most notably, both defendants faced capital charges. In Bigelow, we observed that capital cases “raise complex additional legal and factual issues beyond those raised in an ordinary felony trial.” (Id. at p. 743.) Moreover, because life is at stake, courts must be particularly vigilant in capital cases to observe every precaution designed to ensure that the defendant receives a fair trial. (Id. at fn. 7, citing Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 [180 Cal.Rptr. 489, 640 P.2d 108].) In addition to the interests of the defendant, the state has an independent interest in the fairness and accuracy of capital trials. (People v. Deere (1985) 41 Cal.3d 353, 363 [222 Cal.Rptr. 13, 710 P.2d 925].)

The defendant in Bigelow was an untrained layman who was unfamiliar with the law. The trial court was initially reluctant to permit him to represent himself because he “just [didn’t] know enough about the law.” The court subsequently realized that Bigelow’s ignorance of the law did not render him incompetent to waive counsel, but its “initial conclusion that he was not competent to defend a capital case is unquestionably true.” (Bigelow, supra, 37 Cal.3d at p. 744.)

The majority distinguish this case from Bigelow by observing that “defendant appeared before the superior court as an obviously intelligent, literate, and articulate advocate in his own cause who had acquitted himself well at the preliminary hearing.” (Majority opn., ante, at p. 864.) These observations, however, simply do not lead to the conclusion that defendant was competent to conduct a capital trial. Courts confine the representation of capital cases to experienced members of the criminal bar. It would be unusual, and probably error, to appoint a recent law school graduate, or even a seasoned attorney inexperienced in criminal cases. It goes without saying that an unadvised layperson—even one who is intelligent, literate and articulate—cannot be expected to present a competent defense. A standard under which a defendant is denied the assistance of advisory counsel merely because he is intelligent fails to protect the interests of the state and of the defendant in the fairness and reliability of capital trials. Judge Kolostian’s impression that defendant was “not the typical illiterate defendant” does not meaningfully distinguish this case from Bigelow, supra, 37 Cal.3d 731, nor does it provide sufficient reason to deny defendant the assistance of advisory counsel.

The lower courts’ failure to exercise discretion was particularly disturbing in this case. From the early stages of the proceeding, defendant had made it abundantly clear that he desired the assistance of counsel. For over *899a year, he tried to secure such assistance. He did not stop at merely requesting the court to appoint counsel; he actually located private counsel who appeared at the Marsden hearing (supra, 2 Cal.3d 118) in superior court, ready and willing to serve as defendant’s trial counsel. At various points in the proceedings, defendant acknowledged the difficulties of representing himself and reiterated his preference to proceed with the assistance of counsel. In response to defendant’s requests for advisory counsel, the court consistently reiterated its ultimatum—defendant could either accept representation by the appointed deputy public defender or he could represent himself. Since the public defender had a policy against acting as advisory counsel, it was just as if, as Judge Kolostian put it, “there is no such thing.” The court appeared to elevate the policies of the Los Angeles Public Defender’s office above the defendant’s right to a fair trial.

Unlike Bigelow, supra, 37 Cal.3d 731, this is not a case in which the court mistakenly believed it had no authority to appoint advisory counsel. Indeed, after defendant had represented himself throughout his entire trial, the trial court ultimately appointed private counsel to act in an advisory capacity for the limited purpose of assisting defendant in the filing of his motion for a new trial. The court summoned Mr. Gordon and had him state once again on the record that he refused to act as advisory counsel. Then the court simply invoked its authority under Penal Code section 987.2, subdivision (a) to appoint private counsel when the public defender “has properly refused to represent the person accused.”

By granting defendant’s motion for advisory counsel at this stage of the proceeding, the trial court appeared to acknowledge defendant’s inability to competently argue the motion. It also demonstrated that the system was capable of accommodating the interests of the public defender’s office as well as those of the defendant, contrary to the earlier representations of the municipal and superior courts. The failure of the lower courts to exercise this prerogative in response to defendant’s earlier requests is disconcerting.

The majority conclude that the trial court’s error was harmless. They support this conclusion by listing various instances in which defendant exhibited skillful advocacy during the guilt and special circumstances phases. However, they completely fail to mention the instances in which defendant clearly demonstrated his incompetence. The most egregious example occurred at the penalty phase. Defendant presented no penalty evidence, and simply stated: “Your honor, I can’t mitigate circumstances of a crime I didn’t commit, so I am going to waive any argument I’m entitled to.”

Apparently, defendant mistakenly believed that by presenting mitigating evidence he would be forced to concede his guilt. Moreover, his comment *900suggests that he understood mitigating evidence to be limited to the circumstances surrounding the commission of the charged crime. He obviously did not understand that he was constitutionally entitled to have the jury consider as mitigating evidence any aspect of his character or record that he might have proffered as a basis for a sentence less than death. (Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 989-990, 98 S.Ct. 2954]; People v. Easley (1983) 34 Cal.3d 858, 876 [196 Cal.Rptr. 309, 671 P.2d 813].) Nor did he understand that the jury is entitled to act on the basis of sympathy or compassion aroused by such evidence. (People v. Robertson (1982) 33 Cal.3d 21, 58 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Lanphear (1984) 36 Cal.3d 163, 166 [203 Cal.Rptr. 122, 680 P.2d 1081].)

In People v. Deere, supra, 41 Cal.3d 353, we held that the failure of defense counsel to present any mitigating evidence in the penalty phase of a capital trial at the request of the defendant required that the penalty be set aside. We discussed the state’s interest in the reliability of the penalty determination and observed that “[t]o allow a capital defendant to prevent the introduction of mitigating evidence on his behalf withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling.” (Id. at p. 364.) Defendant’s penalty jury was equally deprived of information which would have assisted it in determining the appropriate penalty.8 “[N]ot only did defendant not have a fair penalty trial—in effect he had no penalty trial at all.” {Id. at p. 368.)

As in Deere, supra, 41 Cal.3d 353, we cannot predict the exact nature of the mitigating evidence defendant might have presented had he received the advice of competent counsel. However, as the majority acknowledge, the charged crimes represented apparently isolated and aberrant behavior since there was no evidence that defendant had ever been involved in other violent or criminal conduct. Evidence received during the guilt phase suggested that defendant had demonstrated kindness and generosity to members of the victims’ family. We have no way of knowing whether defendant had family members, friends, coworkers, neighbors or other persons whom he might also have called to testify on his behalf. Moreover, the aggravating evidence was not overwhelming. Multiple murder was the only special circumstance alleged. The prosecutor offered no evidence during the penalty phase and his brief argument pointed only to the circumstances of the crime in aggravation. Among capital crimes, these were not egregious mur*901ders. On this record, even assuming the court’s denial of the request for advisory counsel would not have been an abuse of discretion, the majority’s conclusion that the court’s error was harmless is wholly unsupportable.

V. Conclusion

The lower courts repeatedly rebuffed defendant’s efforts to secure the assistance of an attorney in whom he could lodge his trust and with whom he could cooperate in presenting his defense. The courts could have appointed another public defender or a private attorney to represent defendant or they could have appointed an attorney to act as advisory counsel. It was within the courts’ authority to reasonably safeguard the interests of the defendant as well as the interest of the public in the fair and efficient administration of justice. Their failure to do so was an abrogation of duty and resulted in denial of the defendant’s fundamental right to the effective assistance of counsel. (People v. McKenzie, supra, 34 Cal.3d 616, 626-627.) I would reverse the conviction.

Mosk, J., concurred.

Petitions of all parties for a rehearing were denied November 10, 1988.

Throughout this opinion, I will refer to the conduct and rulings of both the municipal and superior courts in order to present a complete picture of the underlying proceedings and to demonstrate the totality of the institutional intransigence faced by this defendant. In my view, both courts contributed to the overall injustice. Because the errors that occurred during the superior court proceedings provide sufficient grounds upon which to reverse the conviction, it is unnecessary to decide whether the rule in People v. Pompa-Ortlz (1980) 27 Cal.3d 519 [165 Cal.Rptr. 851, 612 P.2d 941] would preclude us from finding that error occurred in the municipal court proceedings.

Apparently through some clerical error, defendant was placed in the pro. per. section of the jail shortly after his arraignment. As a result of this transfer and Mr. Gordon’s failure to respond to defendant’s attempts to contact him, defendant assumed that he no longer had an attorney.

Mr. Gordon, apparently in support of the judge’s comments, pointed out on the record that there was no conflict of interest and that the court “has no power nor the funds to appoint counsel at defendant’s whim.”

At times, defendant referred to his problem with Mr. Gordon as a “conflict of interest." However, given the substance of his complaints, it is clear that he did not use that term as it is understood in the legal community. The essence of his claim was that Mr. Gordon failed to provide him with effective representation.

See also People v. Groce (1971) 18 Cal.App.3d 292, 296 [95 Cal.Rptr. 688], review denied Sept. 2, 1971; People v. Miller (1973) 33 Cal.App.3d 1005, 1021 [109 Cal.Rptr. 648]; People v. Molina (1977) 74 Cal.App.3d 544, 548 [141 Cal.Rptr. 533]; People v. Cruz (1978) 83 Cal.App.3d 308, 316 [147 Cal.Rptr. 740]; People v. Penrod (1980) 112 Cal.App.3d 738, 747-748 [169 Cal.Rptr. 533]; People v. Hill (1983) 148 Cal.App.3d 744, 753 [196 Cal.Rptr. 382], cited with approval in People v. Hamilton (1985) 41 Cal.3d 408, 421 [221 Cal.Rptr. 902, 710 P.2d 981]; People v. McElrath (1985) 175 Cal.App.3d 178, 184 [220 Cal.Rptr. 698]; People v. Brown (1986) 179 Cal.App.3d 207, 216 [224 Cal.Rptr. 476]; contra, People v. Jacobs (1972) 27 Cal.App.3d 246, 261 [103 Cal.Rptr. 536]; People v. Huffman (1977) 71 Cal.App.3d 63, 80 [139 Cal.Rptr. 264]; People v. Terrill (1979) 98 Cal.App.3d 291, 299-301 [159 Cal Rptr. 360].)

Although the court may have been legitimately concerned about disclosure of confidential communications in the presence of the district attorney, the subsequent in camera hearing provided an opportunity to inquire into the specific interactions between client and counsel pertinent to defendant’s complaints.

Contrary to the majority, I find that defendant’s requests in municipal court were sufficient to trigger the trial court’s duty to conduct a Marsden inquiry. On more than one occasion, defendant alleged that his counsel had provided inadequate assistance. The court merely assured him Mr. Gordon was a good lawyer and discouraged him from representing himself. When defendant then requested the appointment of cocounsel, the court told him that it only had authority to appoint the public defender. Defendant could have reasonably assumed that the court would not have appointed any attorney other than Mr. Gordon, and that it would have been futile to request the substitution of counsel; the court had already effectively denied the request. Moreover, “[t]he semantics employed by a lay person in assert*896ing a constitutional right should not be given undue weight in determining the protection to be accorded that right." (People v. Marsden, supra, 2 Cal.3d at p. 124.) Defendant made it clear that he considered his appointed attorney to be ineffective and that he wanted the assistance of some other attorney. This is tantamount to a request for the appointment of substitute counsel.

The prosecutor took advantage of defendant’s naive approach to the penalty phase and enhanced the probability that the jury would feel compelled to return a death verdict. In arguing that aggravating circumstances outweighed mitigating circumstances, the prosecutor stated: “The defendant has stated just moments ago he can offer nothing in mitigation of his defense.”