People v. Crandell

ARGUELLES, J., Concurring and Dissenting.

I agree with the lead opinion that, as a result of the conducted Marsden and Faretta hearings (People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ]; Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ]), defendant was not denied his constitutional right to counsel and that his waiver of appointed counsel was voluntary. Consequently, the trial court did not err in permitting defendant to represent himself.

As the lead opinion recognizes, however, it is clear under People v. Bigelow (1984) 37 Cal.3d 731, 743 [ 209 Cal.Rptr. 328 , 691 P.2d 994 , 64 A.L.R.4th 723 ], that the trial court erred when it denied defendant’s motion for the appointment of advisory counsel on the mistaken premise that it had no discretion to make such an appointment. Unlike that opinion, I do not believe that we can properly discount the trial court’s failure to exercise discretion on the theory that the court would not have abused its discretion had it denied the advisory counsel motion. This is a capital case in which the aid of a knowledgeable legal advisor is of paramount importance. Although defendant had apparently done a creditable job in representing himself at the preliminary examination, the record is clear he continually felt he needed legal assistance at trial. Given the gravity of the consequences which defendant faced and the complexity of death penalty provisions and procedures, I cannot find either that the trial court would have denied the motion for advisory counsel if it had recognized that it had the discretion to make such an appointment or that the court could properly have refused such an appointment in these circumstances.

Although I thus conclude that the trial court erred in failing to appoint advisory counsel in this case, I would not embrace the broad statement in the majority opinion in Bigelow, supra, 37 Cal.3d at pp. 744-746, that an erroneous denial of advisory counsel necessarily requires reversal in every case regardless of the circumstances, i.e., is subject to a rule of per se reversal. That statement was not necessary to the decision in Bigelow , because on the facts of that case the defendant was quite clearly prejudiced by the court’s failure to appoint advisory counsel. Instead, I would follow the views expressed by Justice Kaus in his separate opiiiion in Bigelow, supra, 37 Cal.3d at p. 756 , and would leave open the possibility that in an appropriate case such an error may be found nonprejudicial.

On the particular facts of this case, however, the failure to appoint advisory counsel must be found prejudicial, with respect to both the *889 guilt/special circumstance phase and the penalty phase. Although there was sufficient evidence to support the jury’s guilt and special circumstance verdicts, there was also considerable evidence indicating that both the defendant and one of the victims had been drinking heavily on the night of the killings and also some evidence suggestive of heated quarreling and self defense. Given such evidence, I cannot share the lead opinion’s confidence that the absence of advisory counsel did not affect the guilt or special circumstance verdicts actually rendered. Furthermore, because it is unclear from the record that defendant recognized how to conduct a penalty phase defense and no such defense was presented, the absence of advisory counsel at that stage was patently prejudicial.

Accordingly, while I agree with the lead opinion’s result with respect to the penalty judgment, I dissent from the affirmance of the guilt judgment and the special circumstance finding.