People v. Stankewitz

*117 MOSK, J

I concur in the judgment. After review, I have found no error requiring reversal.

I write separately because I cannot join in the majority’s labored and potentially mischievous analysis concerning defendant’s interrelated claims that (1) the court was without authority to hold proceedings on his pro se motion for substitution of counsel after it ordered a hearing into his mental competence; (2) the court failed to conduct a meaningful mental-competence hearing; and (3) the statutory presumption of mental competence (Pen. Code, § 1369, subd. (f)) is violative of due process when a defendant has offered some constitutionally significant evidence to the contrary.

First, the court did indeed have authority to hold proceedings on defendant’s pro se substitution-of-counsel motion even after ordering a mental-competence hearing. It is true that Penal Code section 1368, subdivision (c), provides in relevant part that “when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.” The evident intent of the Legislature in enacting the statutory provisions on the determination of mental competence (Pen. Code, § 1367 et seq.) was to establish a form of inquiry that was fair in procedure and reliable in result. In light of that intent, the phrase “all proceedings” should be construed to mean “all proceedings except such as may be reasonably necessary to facilitate the determination of mental competence.” The court impliedly found that the proceedings on defendant’s substitution-of-counsel motion were in fact reasonably necessary to facilitate that determination. Under any standard, that finding was sound.

Second, the court did indeed conduct a meaningful mental-competence hearing. It is reasonably clear from a close reading of the record that the court’s determination of defendant’s mental competence was based on what it saw and heard, in open court and especially in camera, in the course of the ancillary proceedings on defendant’s substitution-ofcounsel motion. It impliedly found that defendant did not harbor any delusions at all affecting his mental competence, but merely entertained “a deep distrust for the public defender” (People v. Huffman (1977) 71 Cal.App.3d 63, 70, fn. 2 [ 139 Cal.Rptr. 264 ])—an attitude that may be baseless but is evidently not uncommon. “It is an odd phenomenon familiar to all trial judges who handle arraignment calendars that some criminal defendants have a deep *118 distrust for the public defender .... It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable public defender.” (Ibid.) Under any standard, the court’s determination of defendant’s mental competence was sound.

Third, we need not decide whether the statutory presumption of mental competence (Pen. Code, § 1369, subd. (f)) is violative of due process when a defendant has offered some constitutionally significant evidence to the contrary. In this case, defendant did not offer any evidence of mental incompetence whatever. Here, the relevant proceedings were initiated when “a doubt [arose] in the mind of the judge as to the mental competence of the defendant. . . .” (Pen. Code, § 1368, subd. (a).) That doubt arose not from evidence introduced by defendant, but merely from representations made by his counsel.

In passing, I note two additional problems. The majority hold that the court did not err by instructing the jury to determine whether Billy B. was an accomplice. But their analysis supports the opposite conclusion. They state that “the evidence indicated that Billy B. was not an accomplice as to any of the offenses charged against defendant.” (Maj. opn., ante, at p. 92.) From that assertion it would follow that the court erred by leaving the issue of accomplice liability for the jury: evidentiary support was lacking.

In addressing an ineffective-assistance claim, the majority declare: “ ‘A defendant claiming ineffective assistance of counsel has the burden of showing that “counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” [Citation.] In addition, the defendant must show that counsel’s acts or omissions deprived him of a potentially meritorious defense [citation] or that it is “reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings” [citation]. Once the defendant has met these burdens, the appellate court must examine the record to determine whether there is any explanation for counsel’s acts or omissions’ ” (Maj. opn., ante, at p. 113, italics added.) But once the defendant has met the burdens of showing deficient performance and prejudice, he prevails. The italicized language in the majority opinion implies that deficient performance can somehow be justified or excused—or in any event rendered constitutionally insignificant—if it can be “explained.” Such a position, however, is untenable. Counsel’s performance is evaluated under an objective standard: his explanation for acting, or failing to act, as he did is simply immaterial if his conduct is in fact objectively unreasonable under prevailing professional norms. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688 [ 80 L.Ed.2d 674, 693-694 , 104 S.Ct. 2052 ] [decided under federal Constitution]; *119 People v. Ledesma (1987) 43 Cal.3d 171, 216 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ] [decided under federal and state Constitutions].)

Nevertheless, having found no error requiring reversal, I concur in the judgment.

Appellant’s petition for a rehearing was denied August 29, 1990.