I dissent from the judgment of conviction against Theodore A. Cohen (hereafter referred to as Cohen) and concur in the judgment of reversal with reference to Susan Cohen.
First of all a chronological recital of some of the appearances of the defendants in the various departments of the superior court and what was said and done there is necessary to an understanding of Cohen’s contention as to whether he was advised of his constitutional rights and as to whether there was a knowledgeable and intelligent waiver thereof.
Date
September 27,1966
October 3, 1966 Deputy District Attorney Joseph Orr
October 10,1966 Deputy District Attorney Joseph Orr
Event
Indictment returned.
Each of the defendants was in court (Dept 100) where they were advised of their constitutional rights.1 The case was then continued to October 10, 1966.
(Dept. 100) Patrick Coleman, an attorney at law, appeared for Theodore Cohen and Dr. Zelechower and Theodore Cohen appeared as attorney for Susan Cohen. The judge expressed the view that it might be questionable under the circumstances for Theodore Cohen to represent Susan Cohen. The parties were handed copies of the indictment and the matter was continued to November 3, 1966 for pleas.
*332 Date
November 3,1966 Deputy District Attorney H. Stanley Coleman for Cohen and Zelechower
November 17,1966 Deputy District Attorney H. Stanley Coleman for Cohen and Zelechower
November 18,1966 Deputy District Attorney H. Stanley Coleman for Cohen and Zelechower
Event
(Dept. 100) Cause continued to November 17, 1966.
(Dept. 104) Argument as to construction and selection of grand jury and argument as to the indictment.
Motion under section 995, Penal Code denied—continued to November 28, 1966.
*333
November 28,1966 Deputy District Attorney H. Stanley Coleman for Cohen and Zelechower
January 9,1967 Deputy District Attorney H. Stanley Coleman for Cohen and Zelechower
January 12,1967 Deputy District Attorney H, Stanley Coleman for Cohen and Zelechower
February 15,1967 Deputy District Attorney H. Stanley Attorney Cooperman for Coleman as attorney for Cohen and Zelechower
Marchó, 1967 Deputy District Attorney H. Stanley Cohen for Susan Cohen
April 4,1967 Deputy District Attorney H. Stanley Coleman not present as attorney for Cohen
Event (Dept. 100) Hearing on demurrer set for December 8, 1966—later continued to December 22, 1966—then continued to December 29, 1966— then to January 9, 1967.
(Dept. 6) Demurrer overruled— cause transferred to department 100 for arraignment and plea and continued to January 12, 1967.
(Dept. 100) Motion of Susan Cohen to sever granted. She pleaded not guilty, cause continued to March 8, 1967, in department 101 for trial. Theodore Cohen and Zelechower pleaded not guilty and continued for trial in department 103. At this proceeding the prosecutor objected to the severance stating that there “is an obvious conflict of interest.” Each defendant pleaded not guilty to each count of the indictment.
(Dept. 103) Cases of Theodore Cohen and Zelechower continued to April 10, 1967.
(Dept. 101) Trial of Susan Cohen continued to April 24, 1967.
Case of Theodore Cohen and Zelechower continued to May 15, 1967 for trial. It was announced in court by the prosecutor that Coleman, the attorney of Theodore Cohen and
*334 Date
April 24,1967
May 11,1967 Deputy District Attorney H. Stanley Coleman not present as attorney for Cohen
Event
Zelechower, had been appointed to a judicial position and that, in effect, he could no longer represent those defendants. Coleman was not present in the court at that time—both defendants were present. The question of a substitution of attorneys or of relieving Coleman was suggested and the prosecutor stated in effect that the defendants were “aware of their position” and they could “handle the responsibilities for obtaining new counsel.” Each defendant stated, in effect, that such was agreeable to him. The judge declined, in effect, to relieve Coleman unless he participated in such proceeding.
(Dept. 101) Case of Susan Cohen continued to May 22,1967, for trial.
(Dept. 103) Announced by Theodore Cohen that he was attorney for Susan Cohen and he was also a defendant and that he had heard that department 103 would be dark during the time the case was previously set for trial. Cohen stated that Coleman had been appointed to a judicial positon, that he had discussed the matter of representation of himself with several attorneys—Cohen further stated that he and the doctor had no áttomey, that he was seeking other counsel, having talked with six or seven attorneys, that he could not pay the fees which some had quoted, but that he was in the “process of attempting to find counsel.” When questioned by the judge about a proceeding, which Cohen had instituted
*335 Date
May 18,1967 Deputy District Attorney M. Harris
May 19,1967 Deputy District Attorney W. Sweeters
May 19, 1967 Deputy District Attorney H. Stanley
May 24,1967
Event
in the United States Supreme Court with reference to this case, Cohen made it clear that he was answering presently as a defendant and not as counsel and that he was not representing himself in the case at bench. Cohen again called particular attention to the fact that “we have no counsel.” The case was transferred to department 100 to May 18, 1967, for trial setting.
(Dept. 100) The clerk’s minutes show that Theodore Cohen and Zelechower appeared (they being the only persons who were so directed to be present) without counsel and the case was continued over to May 25, 1967. The court reporter’s transcript shows that Susan Cohen was in court and made several statements to the judge with reference to what occurred in department 103 on May 11, 1967. It appears obvious that one of the transcripts is grossly in error.
(Dept.. 100) Bail forfeiture of Theodore Cohen set aside and bail reinstated.
(Dept. 101) Susan Cohen proceeding continued to May 24, 1967.
(Dept. 101) Matter of Susan Cohen, represented by Theodore Cohen, called for hearing and continued to May 26, 1967.
*336 Date
May 25, 1967 Deputy District Attorney M. Harris
May 26,1967 Deputy District Attorney H. Stanley
May 29,1967 Deputy District Attorney H. Stanley
May 29,1967 Deputy District Attorney M. Harris
May 31,1967 Deputy District Attorney H. Stanley
June 1,1967 Deputy District Attorney H. Stanley
Event
(Dept. 100) Theodore Cohen and Zelechower appeared without counsel. Judge announced that cause was in court for “substitution of counsel." Cohen replied “I think we could have counsel by Monday.” The case was continued to May 29, 1967.
(Dept. 101) Susan Cohen’s case continued to May 29, 1967.
(Dept. 101) Susan Cohen’s case continued to May 31, 1967.
(Dept. 100) Theodore Cohen and Zelechower appeared without counsel. Cohen stated that Mr. Weiss’ firm was to represent Zelechower and Mr. Davis was “going to represent me.” Davis was apparently not present in court on the matter. Case then continued to June 1, 1967, for trial setting.
(Dept. 101) Case of Susan Cohen set for trial on July 10, 1967.
(Dept. 100) H. Weiss appeared for Zelechower. Discussion with reference to Theodore Cohen—Cohen stated that Davis was “still out of town” but that he, Cohen, would have “no objection to appearing in pro. per. at this time so that the matter might be set.” The judge called attention to all concerned that the substitution of attorneys for Cohen would have to be effected in the trial department and that the
*337 Date
July 10,1967 Deputy District Attorney H. Stanley
August 14,1967 Deputy District Attorney H. Stanley
Event
cause “should be advanced formally for that purpose so there is no question of the substitution being effected.” Clerk’s transcript recites Cohen appeared in propria persona “this date only.” Case of Theodore Cohen and Zelechower then set for trial on August 15, 1967.
(Dept. 101) Case of Susan Cohen called for trial. Prosecutor made a motion to continue and to reconsolidate the case with the case of Theodore Cohen and Zelechower set for trial on August 15, 1967, in department 112. Court so ordered.
(Dept. 112) All defendants were in court. Peter Knecht, apparently from Weiss’ office, appeared for Zelechower. Theodore Cohen appeared as attorney for Susan Cohen. Theodore Cohen further stated, “and I individually also waive my right to a jury trial and agree that the matter might be heard by the court sitting without a jury.” Thereupon all parties and counsel present waived a jury trial. Cohen stated that he appeared in pro. per. for himself and as attorney for Susan Cohen. Cohen explained and said to the judge that Coleman had previously represented Zelechower and him and upon Coleman’s appointment as a commissioner “we were left without counsel. I do assume that I will have counsel for me at these proceedings when they come about” and the judge replied “all right.” Cases then continued to October 9, 1967, for trial.
*338
October 9,1967 Deputy District Attorney H. Stanley
October 16,17,18, 19, 20,23,24, 25, 26,31, November 1, 2, 3, 7, 8, 9,10, 13,14,15,16, 20,21,22,1967
November 28,1967 Deputy District Attorney H. Stanley
January 16,1968 Deputy District Attorney H. Stanley
Event
(Dept. 119) All parties present in court. Knecht, for H. Weiss, representing Zelechower and Theodore Cohen representing Susan Cohen. Theodore Cohen appearing individually without counsel. Stipulated that transcript of grand jury proceedings be received, subject to court’s rulings, each side to have right to submit other evidence. Case continued to October 16, 1967.
(Dept. 119) Trial of case. Each day thereof Theodore Cohen appeared in propria persona, and as attorney for Susan Cohen. H. Weiss, or a representative from his office, appeared for Zelechower.
(Dept. 119) Theodore Cohen and Susan Cohen found guilty as heretofore indicated. Probation reports ordered.
(Dept. 11) Motion for new trial made by Theodore Cohen for himself individually and as attorney for Susan Cohen. Cohen was advised by the court: “Incidentally, Mr. Cohen, you are aware that you have a right under the Federal and State Constitutions to be represented by counsel of your choice at all stages of the criminal proceedings pending against you?” Cohen replied: “I understand that at this time.” Cohen then in answer to the judge’s questioning stated that he would ask leave to appear as counsel in his own behalf insofar as the proceedings of the day were concerned but that such waiver of counsel was “not a retrospective
*339 Date
Event
waiver in any sense,” that the waiver was not to be considered a waiver of any other prior time or occasion. The judge later stated, “the court feels that there was a conscious and intelligent waiver of your right, Mr. Cohen, to be represented by separate counsel. Whether or not that decision is supportable will rest upon the Appellate Courts.” (Italics added.) The judge indicated that he was relying upon the advice given at the arraignment on October 3, 1966, and upon what was stated at the proceedings on August 14, 1967 (jury waiver)— and Cohen’s statement “I do assume that I will have counsel for me at the trial.”
In considering the contention of Cohen to the effect that he never made a proper waiver of his right to counsel under the circumstances the Attorney General argues that, in effect, Cohen was advised of his constitutional rights at the time of the arraignment on October 3, 1966, and that he appeared in propria persona on occasions and indicated that he intended to secure private counsel and therefore it was unnecessary to advise him any further at any time.
In People v. Cummings, 255 Cal.App.2d 341 [62 Cal.Rptr. 859], the defendant stated at the preliminary hearing that he desired to represent himself; at the trial there was no inquiry by the court with reference to a waiver of counsel. The appellate court said (pp. 345-346): “To establish that counsel was effectively waived, it must be shown that the accused was offered counsel and that he intelligently and understandingly waived his right. [Citations.] ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ [Citations.] This determination must be made before any plea is accepted by the trial court. [Citations.] The courts will not lightly find that there has been a waiver and will indulge in every reasonable presumption against a waiver of a fundamental constitutional right. [Citations.]
“ ‘In order for a trial fudge to determine whether there has been a com*340petent and intelligent waiver of counsel, he must first ascertain whether the defendant clearly understands the nature and effect of his waiver.’ [Citations.] More than a superficial inquiry is required of the trial court. [Citations.]
“A waiver cannot be accepted ‘from any one accused of a serious public offense without first determining that he “understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted.” ’ [Citations.] While this determination is for the trial judge to make, in the present case no attempt was made at any stage of the proceedings below to inquire into appellant’s ability to defend himself or into his understanding of the offense charged—its nature, pleas, defenses, or punishment. [Citations.] ... A waiver ‘may be made only by a defendant who has been apprised of his rights and who has “an intelligent conception of the consequences of his act.” ’ [Citations.]” (Italics added.)
The fact alone that Cohen was an attorney at law should be of no particular consequence. It is quickly observed by a reading of the record in this case that Cohen (as the saying goes) had a fool for a client when he represented himself, but in addition to that, the whole mess was compounded and made worse, when at the same time he was permitted to represent his wife as her counsel. It was a situation which cried out for correction at the Very first and the problem was alluded to by several of the judges prior to the time of trial. In Bogart v. Superior Court, 60 Cal.2d 436 [34 Cal.Rptr. 850, 386 P.2d 474] it is stated that the judge of the court must take the initiative in ascertaining whether there is a valid waiver and that responsibility does not shift simply because the defendant happens to be an attorney and that a lawyer who is accused of a crime is equally entitled in every stage of his trial to the presence and aid of counsel the same as other persons. In other words, the rights of individuals in this respect are not to be gauged by their profession or occupation. The majority in this case, in effect, attempt to carve out an exception to the rules laid down by the Supreme Court of the United States and the Supreme Court of California. The guidelines, under their proposed exception, are so impossibly vague and unpredictable as to provide no standard at all. It is common knowledge that there are many attorneys at law who represent companies, banks, trust companies and those who restrict their practice to probate matters who are and would be completely lost in the maze of criminal law as of today. Yet under the proposed new standards if one of such attorneys were charged with a crime he would not be entitled to the same advantages that a learned, nonattorney recidivist robber or burglar would receive in our courts today.
*341Cohen asserts, in effect, and properly so, that there never was a substitution of attorneys after Coleman left the case. It does clearly appear that Coleman entered the case on October 10, 1966, and continued therein as the attorney for Cohen and Zelechower until shortly before the call of the case in department 103 on April 4, 1967. Coleman never appeared as counsel for Cohen after that date.
The judge in that department at that time indicated quite clearly upon being advised of Coleman’s appointment to a judicial position that a substitution of attorneys would have to be made. No claim is made by the prosecution that anything was ever filed with the cleric pursuant to the provisions of section 284, Code of Civil Procedure and no claim is made that sections 284 and 285 of the Code of Civil Procedure were ever complied with. In People v. Bouchard, 49 Cal.2d 438 [317 P.2d 971], it was established that the procedural requirements of the above mentioned sections govern the change of an attorney in a criminal as well as a civil proceeding. As stated in People v. Prince, 268 Cal.App.2d 398 [74 Cal.Rptr. 197]: “‘Having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will, nor for considerations personal to himself.’ [Citations.] The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. 2) is one which lies within the sound discretion of the trial court ‘having in mind whether such withdrawal might work an injustice in the handling of the case.’ [Citations.]”
Even assuming that by some legal legerdermain, Coleman was properly released as Cohen’s attorney, it nevertheless became the duty of the court to advise Cohen properly and fully of his constitutional rights. It was evident that Coleman never was in court representing Cohen after February 15, 1967.
The record in this case is completely barren of any finding, prior to the conclusion of the trial, let alone an unqualified finding, by any judge of any court or department thereof that Cohen had waived his right to counsel and repeatedly it has been held that we cannot presume acquiescence in the loss of fundamental rights.
It may be that Cohen adroitly avoided ever having the matter properly concluded by asking for counsel or by seeking permission to represent himself or any of a number of other proper procedures; however, the record does seem to indicate that never did he ask for a continuance for the purposes of getting counsel after Coleman left the case. The sides were *342equally guilty of the worst sort of dilatory tactics, as evidenced by the chronology of events.
The Attorney General contends that on January 16, 1968, after the trial, and on the motion for a new trial, the judge told Cohen of his constitutional rights and that such advice at that time should suffice. The records seem to indicate that the judge who heard the matter (after the trial and the finding of guilt) attempted to secure a waiver from Cohen which would be retroactive. Cohen made it clear, however, that he would make no waiver which would be so applied. As Cohen suggests in his brief, if there was a good waiver on his part at a previous occasion or occasions why was it necessary to get a retroactive waiver at the time of the motion for the new trial proceedings.
The law as stated in Carnley v. Cochran, 369 U.S. 506, 513-516 [8 L.Ed.2d 70, 76-77, 82 S.Ct 884], is the law this court ought to follow. There the court said, among other things: “But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. In McNeal v. Culver, 365 U.S. 109 [5 L.Ed.2d 445, 81 S.Ct. 413] supra, the petitioner’s allegation that he had requested counsel was countered by a denial in the return that ‘petitioner’s constitutional rights were violated by the court’s alleged refusal to appoint counsel in his behalf,’ and the State Supreme Court noted that the record was silent as to any request. We held that when the Constitution grants protection against criminal proceedings without the assistance of counsel, counsel must be furnished ‘whether or not the accused requested the appointment of counsel. Uveges v. Pennsylvania, 335 U.S. 437, 441.’ [Citations.]
“ ‘It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and that we “do not presume acquiescence in the loss of fundamental rights.” ’
“ ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’
“We have held the principles declared in Johnson v. Zerbst equally applicable to asserted waivers of the right to counsel in state criminal proceed*343ings. . . . Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (Italics added.)
In People v. Carter, 66 Cal.2d 666, 669-670 [58 Cal.Rptr. 614, 427 P.2d 214], the court stated: “Speaking of the right to counsel and the effective waiver thereof, we declared in People v. Douglas (1964) 61 Cal.2d 430, 434-435 [38 Cal.Rptr. 884, 392 P.2d 964]: 1 “The right to counsel is a fundamental constitutional right, which has been carefully guarded by the courts of this state.” (In re James, 38 Cal.2d 302, 310 [240 P.2d 596].) Meaningfully applied, the right to counsel includes the opportunity to receive “effective aid in the preparation and trial of the case.” [Citations.] To be sure, this right may be waived [citations], but “a finding of waiver is not lightly to be made.” [Citation.] “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental-rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” [Citation.] These principles are “equally applicable to asserted waivers of the right to counsel in state criminal proceedings.” [Citation.] Not only must the waiver be unqualified, but it may be made only by a defendant who has been apprised of his rights and who has “an intelligent conception of the consequences of his act.” [Citation.]’ ”
Reference is made by the majority to a comment in a speech by the Right Honorable The Lord Diplock (presumably an observer from England) to the effect that sometimes our reviewing courts “seem at times to have adopted the principle of the irrelevancy of guilt.” It is wholly unnecessary to travel abroad or any great distance for any such a view or observation. Some appellate court justices have repeatedly called attention to the trend (including the writer hereof), however, this is an intermediate appellate court and the law as written by the Supreme Court of the United States and the Supreme Court of California should be followed meticulously by this court. Otherwise, we promote, in effect, the philosophy that when attorneys are involved in criminal cases we operate under a different set of constitutional rules and interpretations. Uniformity in the application of constitutional rights and guarantees is an absolute necessity, if there is to be anything to the “rule of law.” To follow the law so laid down does not necessarily indicate an agreement with such law but to do less is to encourage a rule of men.
I would reverse the judgment of conviction as to Cohen.
I concur in the reversal of the judgment as to Susan Cohen.
A petition for a rehearing was denied November 24, 1970, and the petition of appellant Theodore Cohen for a hearing by the Supreme Court was denied January 14, 1971.
Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
“The Court: Theodore Cohen, Richard Zelechower, and Susan Cohen, it is my duty to advise each of you that you are entitled to the following constitutional rights.
“Each of you is entitled to a speedy and a public trial.
“Each of you is entitled to counsel.
“Each of you is entitled to face those people who will testify against you and to cross-examine them through your attorney.
“You .also have the right to the subpoena power of the Court to obtain witnesses on your own behalf.
“Each of you has the right to the assistance of counsel of your own choosing at *332all stages of the proceedings against you, and, if you are unable to afford an attorney, the Court will appoint an attorney for you.
“You also have the right to reasonable bail.
“Mr. Cohen, do you have any questions as to your constitutional rights?
“Defendant T. Cohen: No.
“Mr. Orr: Mr. Cohen, are you representing yourself?
“Defendant T. Cohen: No, I am not.
“Mr. Orr: Who is your attorney, sir?
“Defendant T. Cohen: I don’t have one.
“The Court: Do you have the money to hire an attorney, Mr. Cohen?
“Defendant T. Cohen: Your Honor, I prefer not to state that at this time on the grounds that it may tend to incriminate me. I would ask the Court for a continuance. I don’t at this time even know what the charges are.
“The Court: All right. At this time you do not wish the Court to appoint an attorney for you?
“Defendant T. Cohen: No, your Honor. I believe that I will have counsel, but not knowing the charges, I haven’t had a chance to discuss it.
“The Court: You are a member of the State Bar. The Court finds, at least for this appearance, you are capable of making an intelligent—You do wish to represent yourself at this proceeding only?
“Defendant T. Cohen: No, I don’t.
“The Court: You don’t wish to represent yourself?
“Defendant T. Cohen : No, I don’t. I am asking for a continuance so that I might obtain counsel.
“The Court: You pose a problem for the Court. You can’t be arraigned without an attorney which you insist upon. How are you to know the charge if you don’t have the documents?
“Defendant T. Cohen: I don’t, but I certainly don’t want to become my own attorney of record.
“The Court: .... As to Theodore Cohen, the matter will be continued to October the 10th at 9:00 a.m. for arraignment and plea.
“I urge each of you to have an attorney here on October the 10th to save any further delay in this matter.
“October the 10th, 9:00 a.m. for arraignment and plea.”