# People v. Smith

> California Supreme Court · December 16, 1993 · 6 Cal. 4th 684

URL: https://www.frixlaw.com/law-library/cases/9560313

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MICHAEL DeSHAWN SMITH, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 16, 1993
- **Citations:** 6 Cal. 4th 684; 25 Cal. Rptr. 2d 122; 93 Daily Journal DAR 15993; 863 P.2d 192; 93 Cal. Daily Op. Serv. 9331; 1993 Cal. LEXIS 6128
- **Precedential status:** Published
- **Opinion:** Concurrence by Baxter
- **Judges:** Arabian, Baxter
- **Cited by:** 241 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9560313

## How later opinions describe it (automated extraction)

- applying an abuse of discretion standard of review and requiring a defendant to make a "proper showing” that there are adequate grounds for the ineffective assistance of counsel claims

## Opinion text

BAXTER, J., Concurring.
The majority holds that the test by which a trial court should exercise its discretion to grant a defendant’s motion, made pursuant to People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ], for appointment of substitute counsel includes two elements. The first looks back to determine if counsel has provided constitutionally adequate representation. If so, the motion should be denied. If not, the court must assess the manner in which counsel’s representation falls short and appoint substitute counsel if it appears to the court that failure to do so will substantially impair the defendant’s right to counsel in subsequent proceedings. That test applies to postconviction Marsden motions just as it does to motions made at earlier stages of the proceedings.
I agree with those conclusions and concur in the judgment. However, the majority does not answer, in the context of this case, the question it initially poses. It does not address the circumstances relevant to ruling on the postconviction Marsden motion of a defendant who has pleaded guilty and whose motion to withdraw the plea has been denied—the case in which it appears nothing remains but the imposition of judgment at a probation and sentence hearing. Instead, the majority addresses the concerns underlying the opinion of the Court of Appeal in People v. Stewart (1985) 171 Cal.App.3d 388 [ 217 Cal.Rptr. 306 ] (Stewart), where the motion was made by a defendant convicted after trial—a case in which a motion for new trial was available.
Moreover, the majority adopts the view endorsed by only three members of this court in People v. Diaz (1992) 3 Cal.4th 495, 573, 574 [ 11 Cal.Rptr.2d 353 , 834 P.2d 1171 ]) (Diaz), where, quoting Stewart, supra, 171 Cal.App.3d 388 , the plurality opinion stated that a motion for new trial may be based on a claim that counsel performed inadequately in matters that occurred outside the courtroom. I do not agree with that proposition.
*698 If, however, such a motion is permissible, this court should make it clear that the trial court has discretion to deny a new trial motion without consideration of the merits whenever the motion is based on a claim of incompetent counsel, the assertion of incompetence is based on matters outside the record, and the projected time for investigation, presentation, and consideration of the merits of the incompetent counsel claim will unreasonably delay conclusion of the trial proceedings. In such cases the defendant should be left to his or her remedy by habeas corpus.
The possibility that proceedings subsequent to a Marsden motion will include a motion for new trial predicated on an assertion of incompetent counsel necessarily affects the court’s assessment of whether the challenged attorney can adequately represent the defendant in proceedings subsequent to the Marsden motion. If the only subsequent proceedings anticipated are ruling on a new trial motion made on statutory grounds, the factors to be considered by the trial court in assessing the need to appoint new counsel do not include the conflict of interest assessment that troubled the court in Stewart, supra, 171 Cal.App.3d 388 . For that reason I first address the underlying question of the permissible scope of a new trial motion and the limited extension of the statutory grounds for such motions created by this court in People v. Fosselman (1983) 33 Cal.3d 572 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ].
A. Grounds for a Motion for New Trial.
In Diaz, supra, 3 Cal.4th 495, 574 , the plurality stated that if a defendant’s claim of inadequate counsel “relates to matters that occurred outside the courtroom, and the defendant makes a ‘colorable claim’ of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.” The plurality thus assumed that a new trial motion may be predicated on trial counsel’s incompetence in matters which did not occur at trial in the presence of the court.
Although I was one of the three justices who concurred in the lead opinion in Diaz, supra, 3 Cal.4th 495 , in retrospect, I believe that the plurality erred in that respect. That aspect of the Diaz plurality opinion should not, by citation with apparent approval here, become fixed in the law.
The Legislature has, as is its right (People v. Amer (1907) 151 Cal. 303, 305 [ 90 P. 698 ]; People v. Bernstein (1861) 18 Cal. 699, 700 ), specified the grounds on which a superior court may grant a defendant’s motion for a new trial in a criminal case. It has made those grounds exclusive. Penal Code section 1181 provides: “When a verdict has been rendered or a finding made *699 against the defendant, the court may, upon his application, grant a new trial, in the following cases only. . . .” (Italics added.) The statutory grounds do not include the court’s view that the defendant has not received constitutionally adequate representation by his or her attorney. 1
In People v. Serrato (1973) 9 Cal.3d 753, 760 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ], we confirmed, albeit in dictum, that “the power of a California trial court to hear and decide a motion for a new trial in a criminal case is strictly limited to the authority granted by Penal Code section 1181.” In People v. Fosselman, supra, 33 Cal.3d 572, 583 , footnote 1, however, we disapproved that dictum “to the extent that” it conflicted with a limited nonstatutory ground for the motion recognized in Fosselman . The justification and authority for our judicial recognition of that nonstatutory ground is crucial to both the factors to be considered in ruling on a postconviction Marsden motion, and the permissible scope of a new trial motion predicated on incompetence of trial counsel.
In People v. Fosselman, supra, 33 Cal.3d 572 , we did not question the legislative limits on the trial court’s authority to grant a motion for new trial except to the extent that it might be “read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.” (Id., at p. 582.) That duty, we held, included ensuring that the trial is conducted with respect for the defendant’s essential rights, including the right to competent counsel.
We did not hold, however, that this duty extended beyond ensuring that the proceedings before the court were conducted competently. Rather, we *700 said: “It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.” (People v. Fosselman, supra, 33 Cal.3d at pp. 582-583, italics added.) We held that in the context of a motion made on the basis of trial counsel’s failure to make appropriate objections, a case in which the judge had called counsel into chambers during trial to inquire about his omission to object, and where the judge had expressed doubts after conviction about counsel’s competence. The motion was based on matters observed by the court.
Fosselman does not support an assumption that it is permissible and appropriate for a court to grant a new trial motion predicated on acts or omissions of counsel which did not occur in the presence of the trial court. It did not hold that the court’s responsibility to ensure “ ‘the trial is conducted’ ” (People v. Fosselman, supra, 33 Cal. 3d 572, 582 ) with proper regard to the defendant’s rights extends to making inquiry about matters that do not occur during the trial itself. Due process does not compel expanding the motion for new trial to the point where it becomes a substitute for habeas corpus. 2
I recognize that in this case the majority’s statement is dictum, since this defendant pleaded guilty. Therefore, substitute counsel could not have been appointed in anticipation that he or she would investigate and possibly make a new trial motion. (See Pen. Code, §§ 1179, 1181.) Nonetheless, the majority imply approval of the Diaz-Stewart assumption that substitute counsel may make a motion for new trial on the ground that former counsel performed inadequately in matters that occurred outside the court, and consider that possibility relevant to a trial court’s exercise of discretion in ruling on a postconviction Marsden motion.
If read as an endorsement of that aspect of the holding in Stewart, supra, 171 Cal.App.3d 388 , the majority not only invites, but permits, the superior court to act in excess of the jurisdiction granted it by the Legislature. The majority’s suggestion that appointment of new counsel may be necessary *701 because a defendant’s trial counsel may face a conflict of interest in arguing a new trial motion based on counsel’s own incompetence in matters which were not observed by the court overlooks the limited scope of the nonstatutory ground approved by the court in People v. Fosselman, supra, 33 Cal.3d 572 , and, as I discuss below, adds an irrelevant consideration to the ruling on a Marsden motion.
B. Discretionary Denial of Marsden and New Trial Motions.
In People v. Marsden, supra, 2 Cal.3d 118, 123 , we held that substitute counsel must be appointed if in future proceedings “ ‘the right to the assistance of counsel would be substantially impaired ... in case the request is not granted . . . .’” (Italics added.) The majority agrees that this continues to be the test upon which the court’s discretion to appoint substitute counsel is to be exercised. “Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (People v. Webster (1991) 54 Cal.3d 411, 435 [ 285 Cal.Rptr. 31 , 814 P.2d 1273 ].)
Appointment of new trial counsel following conviction is rarely necessary. There are few subsequent proceedings. If there has been a guilty plea, there may be a motion to withdraw the plea, and there will be a probation and sentence hearing. If the conviction follows trial there may be a motion for new trial pursuant to Penal Code section 1181. If a Marsden motion is made, the trial court should appoint substitute counsel to represent a defendant in those proceedings if the court is satisfied by its observation of counsel’s performance that counsel cannot (1) competently present a motion to withdraw the plea or a new trial motion made on statutory grounds, and/or (2) competently represent the defendant at the probation and sentence hearing.
1. Competence of counsel in matters observed by the court.
When counsel’s courtroom performance is adequate, there is no reason to believe that he or she cannot or will not continue to perform adequately in making postconviction motions and in representing the defendant in probation and sentence proceedings. It is true that if a motion for new trial based on an inadequate performance should be made, a conflict exists. A conflict exists if an attorney’s efforts on behalf of a client are threatened by his or her own interests. (People v. Bonin (1989) 47 Cal.3d 808, 835 [ 254 Cal.Rptr. 298 , 765 P.2d 460 ].) A disqualifying conflict exists only if the quality of counsel’s representation may be substantially diluted, however. (People v. Hardy (1992) 2 Cal.4th 86, 136 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ].)
*702 That counsel made an error or omission during trial of such serious nature that ordering a new trial may be warranted is not in itself a basis for concluding that a disqualifying conflict of interest exists. As the majority recognize, the attorney may find himself or herself in an “awkward position,” but that alone does not establish an actual disqualifying conflict. Conscientious trial attorneys who recognize that an error or omission on their part during trial is so serious as to afford an arguably meritorious basis for a motion for new trial will make that motion. When the error has occurred in the presence of the court it will be apparent on the record. Thus, even if counsel is unwilling to make the motion, the claim may be made on appeal. This affords an adequate remedy. (See, e.g., People v. Belcher (1974) 11 Cal.3d 91 [ 113 Cal.Rptr. 1 , 520 P.2d 385 ]; People v. Shells (1971) 4 Cal.3d 626 [ 94 Cal.Rptr. 275 , 483 P.2d 1227 ]; People v. Ibarra (1963) 60 Cal.2d 460 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ].)
Moreover, the trial court judge who has observed counsel’s performance during the trial is quite capable of assessing whether counsel has performed competently in carrying out the duties of an attorney defending an accused, i.e., by making and arguing appropriate motions and objections, marshalling and presenting evidence, examining and cross-examining witnesses, preparing and delivering opening statements and closing arguments, proposing instructions, etc. Therefore, unless the court concludes that counsel’s performance in these areas is so deficient that it is unlikely that counsel can adequately represent the defendant in making a statutory motion for new trial and/or at the probation and sentence hearing, it is not necessary to appoint new counsel to ensure that the defendant will receive adequate representation in postconviction proceedings.
Neither due process nor the right to competent counsel mandates that substitute counsel be appointed in these circumstances on the chance that trial counsel may fail to urge his or her own error or omission as a basis for granting a new trial. The possibility that counsel will be unwilling or unable to competently assess or present a motion for new trial based on his or her own trial error is not so immediate as to require substitution of counsel. The court is competent to assess a claim of this nature when presented by the defendant in a Marsden motion, and is equally competent to do so when the claim is made in support of a motion for new trial. (People v. Fosselman, supra, 33 Cal.3d 572, 582 .) The skills and advocacy of substitute counsel are not necessary to the adequate presentation and consideration of the claim.
Even if, on inquiry by the court trial counsel advises that no motion for new trial will be made or, if one is to be made, it will not be based on counsel’s own asserted incompetence, substitute counsel need not be appointed on that basis alone to represent the defendant for the remaining *703 proceedings. The interest of the court in avoiding the necessity of a suspension of the proceedings while substitute counsel familiarizes himself or herself with the record in order to assess former counsel’s performance and prepare a motion for new trial clearly outweighs the defendant’s interest in being afforded substitute counsel at that stage of the proceedings when the defendant has remedies other than the motion for new trial by which to obtain relief.
We have long recognized that a defendant is not entitled to a perfect trial or to counsel whose performance is errorless. If the trial court believes that counsel has performed competently during the trial, the court may presume that counsel will continue to do so in postconviction proceedings. Permitting counsel to continue to represent the defendant, even if counsel declines to assert his or her own incompetence in a new trial motion, does not abrogate the defendant’s right to competent counsel, since both appeal and habeas corpus are available to the defendant. Neither the right to counsel nor due process mandate that an additional remedy be made available at this stage of the proceedings.
Finally, when a Marsden motion is based on trial counsel’s conduct of proceedings before the court, the court necessarily considers the same facts and conduct that would form the basis for a new trial motion based on incompetent counsel, if that motion is limited to in-court matters. There is no need, therefore, to appoint new counsel for the purpose of making the new trial motion in these cases. If the court concludes that counsel was incompetent, a new trial may be ordered without the redundancy of appointing new counsel to move for new trial on the basis of matters already, considered by the court.
2. Incompetence in matters not observed by the court.
As I have explained, I do not accept the majority assumption that in ruling on a postconviction Marsden motion a trial court should consider the potential conflict of interest inherent in presentation by that attorney of a new trial motion based on his own or her incompetence in matters not observed by the court. If such motions are to be allowed, however, this court should make it clear that the trial court has discretion to deny a postconviction Marsden motion which seeks new counsel on that basis, and the new trial motion itself, if the court concludes that the administration of justice would be better served if the defendant is left to his remedy by habeas corpus.
Unless this court does so, a trial judge who believes that the defendant’s claim of incompetent counsel has potential merit and that present counsel *704 may not adequately present a new trial motion must appoint new counsel to make the motion. The court must then: (1) continue the proceedings to permit new counsel to investigate and prepare the motion; (2) hear the motion and all evidence in support of it; (3) grant the People time to discover and offer rebuttal evidence; and (4) then rule on the merits of the motion.
This follows because, unless a procedural bar is present, a trial court is expected to rule on the merits of any motion presented by a party. Unless qualified by this court, that will be true with respect to a new trial motion predicated on incompetence of trial counsel regardless of whether the conduct which underlies the motion occurred in the presence of the court. These new trial motions may unnecessarily delay imposition of judgment and impose substantial burdens on the administration of justice. Moreover, when a new trial motion based on incompetent counsel is substituted for habeas corpus, the People may be called upon to defend claims of ineffective counsel which would never reach the hearing stage had habeas corpus procedures been followed.
When conviction follows a plea of guilty, as in this case, a Marsden motion may seek new counsel to assist the defendant in moving to withdraw the plea. In such cases, there is no lengthy record to review. Even in these cases, however, granting a Marsden motion and appointing new counsel to represent the defendant on a motion to withdraw the plea on grounds that trial counsel was incompetent with respect to matters that occurred outside the presence of the court is not necessarily preferable to habeas corpus. 3 And, when a postconviction Marsden motion is made after a lengthy trial and conviction by a jury, the undesirable consequences of resolving the claim on motion for new trial may be manifest to the trial court.
In either case the Marsden motion is heard out of the presence of the prosecutor, who therefore has no knowledge of the factual basis for the claim of incompetent counsel. The prosecutor has had no opportunity to oppose the claim. Thus, substitute counsel may be appointed in cases in which a petition for writ of habeas corpus would have been summarily denied had the prosecutor been afforded the opportunity to submit an opposition to the petition.
When substitute counsel is appointed to represent the defendant in making a motion to withdraw the plea based on a claim of incompetent counsel or for a motion for new trial and the probation and sentence hearing, the People *705 have no notice of the factual basis for the substitution of counsel. The newly appointed attorney is given a license to investigate not only the manner in which former counsel actually performed in court, but also the entire case to determine if a basis exists on which to move to withdraw the plea or for a new trial on the ground that former counsel was incompetent.
Proceedings are suspended while counsel does so, and, in a capital case or one in which an insanity plea has been made, the jury is not discharged, but is in recess while substitute counsel reviews the record of the proceedings. Counsel may do so immediately if a reporter’s transcript is available, but may have to wait until the reporter prepares the transcript. (See, e.g., People v. Westbrook (1976) 57 Cal.App.3d 260 [ 129 Cal.Rptr. 143 ].) Counsel must also look into whether former counsel prepared adequately, conducted adequate investigation to discover witnesses and other evidence, and did the myriad of things necessary to a competent defense.
Having done so, and this may take as short a time as a week or two, but in a complex case might take many weeks, if substitute counsel believes that a meritorious argument can be made that prior counsel did not provide constitutionally adequate assistance, he or she will make a motion to withdraw the plea or for new trial on that ground. That motion must be heard on the merits, and counsel must be permitted to offer such evidence as has been discovered in support of the motion. If the motion is made after a trial, establishing that a new trial should be granted requires that substitute counsel demonstrate that the defendant was prejudiced by counsel’s errors or omissions. Doing so, as this court is aware, may involve proceedings almost as protracted as the trial itself. 4 But, unlike a hearing on a habeas corpus petition, all of this must occur in a setting in which the People have,had no opportunity to rebut the prima facie showing of incompetence the defendant presumably made at the Marsden hearing.
Furthermore, while a new trial motion should be made in writing specifying the grounds (see 6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 3073, p. 3798), there is no statutory requirement to that effect, and the motion need only identify the particular ground or grounds on which it is based. There is no requirement that the motion allege the specific facts on which the defendant relies in support of his incompetent counsel claim. The *706 hearing itself may be the first notice to the People of the actual basis for the claim that trial counsel performed incompetently. At that point the People may need further time to prepare to meet the defendant’s assertions. (See People v. Dennis (1986) 177 Cal.App.3d 863, 873 [ 223 Cal.Rptr. 236 ].) At the hearing, the disputed issues will not have been identified as they would be had there been the procedural protections of a habeas corpus proceeding. 5
The hearing on the motion to withdraw the plea or for a new trial may thus be protracted. Addressing the incompetent counsel claim on motion for new trial in these cases will not necessarily further the administration of justice.
Since these nonstatutory proceedings are not mandated by due process, and habeas corpus is available to any defendant who claims denial of the constitutional right to competent counsel, this court should make it clear to trial judges that they have discretion to deny Marsden motions and motions for new trial predicated on claims of incompetent counsel in matters that did not occur in the presence of the court. A judge who concludes that habeas corpus is an adequate remedy and that the administration of justice would be better served if the defendant is relegated to that remedy has discretion to deny both motions without regard to the potential merit of the claim of incompetent counsel.
Panelli, J., concurred.
Respondent’s petition for a rehearing was denied Feburary 3, 1994, and the opinion was modified to read as printed above.
The statutory bases for granting the motion are:
“1. When the trial has been had in [the defendant’s] absence except in cases where the trial may lawfully proceed in his absence;
“2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property;
“3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or [has] been guilty of any misconduct by which a fair and due consideration of the case has been prevented;
“4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors;
“5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury;
“6. When the verdict or finding is contrary to law or evidence, but [the court may modify the verdict to a lesser degree of the crime];
“7. When the verdict or finding is contrary to law or evidence [of the crime of which the defendant was convicted, the court may modify the punishment];
“8. When new evidence is discovered material to the defendant, which he could not, with reasonable diligence, have discovered and produced at trial. . . ;
“9. [When a reporter’s transcript cannot be prepared.]”
Since a defendant is presumably aware of the out-of-court acts and omissions of counsel on which he bases his incompetence claim long before conviction, he should not be permitted to gamble on a favorable outcome at trial and postpone his Marsden claim until conviction. (See People v. Mayorga (1985) 171 Cal.App.3d 929, 941 [218 Cal.Rptr. 830 ] [defendant failed to show he could not have raised suppression of evidence issue earlier than motion for new trial].)
It would, of course, give the defendant an advantage he would not have were he to seek relief by petition for writ of habeas corpus. He would have counsel to investigate and present the motion.
Penal Code section 1191 mandates that judgment be pronounced within 20 judicial days following a verdict or finding of guilt, and permits an extension of that time for only 10 days if a motion for new trial must be heard. However, since the court held in People v. Fossleman, supra, 33 Cal.3d 572 , that due process mandates that an incompetent counsel claim be considered on motion for new trial, it would seem to follow that due process also mandates that these time limits be extended, or waiver by the defendant allowed, if additional time is necessary for adequate presentation of the claim.
In habeas corpus the petitioner must make his factual claims in a verified pleading, the People are called on to respond only after an order to show cause issues, and once the People file a response, a traverse must be filed by the petitioner. In that manner the disputed factual issues are identified and the People are made aware of the evidence they must be prepared to meet and refute if an evidentiary hearing is necessary. (See In re Saunders (1970) 2 Cal.3d 1033, 1047-1048 [ 88 Cal.Rptr. 633 , 472 P.2d 921 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560313. Public record. Not legal advice.