# People v. Snow > California Supreme Court · April 3, 2003 · 132 Cal. Rptr. 2d 271 URL: https://www.frixlaw.com/law-library/cases/9795906 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. PRENTICE JUAN SNOW, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** April 3, 2003 - **Citations:** 132 Cal. Rptr. 2d 271; 30 Cal. 4th 43; 2003 Daily Journal DAR 3671; 65 P.3d 749; 2003 Cal. Daily Op. Serv. 2875; 2003 Cal. LEXIS 2072 - **Precedential status:** Published - **Opinion:** Concurring in part by Werdegar - **Judges:** , Werdegar - **Cited by:** 452 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/9795906 ## How later opinions describe it (automated extraction) - holding that circumstantial evidence alone supported the de *897 fendant’s murder conviction - holding that circumstantial evidence alone supported the defendant’s murder conviction ## Opinion text WERDEGAR, J., Concurring and Dissenting. While I concur in the court’s affirmance of defendant’s murder conviction and the special circumstance findings, I dissent from the court’s affirmance of the death penalty in this case. In my view, the trial court’s error in failing to provide defendant an attorney to argue for his life requires reversal of the judgment as to penalty. This being so, I do not address any claim of ineffective assistance of counsel. As the majority acknowledges, the course of this penalty trial was highly unusual and troubling. Defense counsel, having rested without making an opening statement, presenting any evidence, or cross-examining any witnesses, announced their intent to submit the case without any argument as well. Counsel then refused not only to give a reason for this decision, but even to indicate in a general way what type of reason (e.g., strategic, ethical, client direction) they had. Nor would counsel say why no reason could be *129 given. Essentially, counsel stonewalled the court. The court asked defendant whether he wanted a different attorney appointed to argue for him; defendant replied that he did. The court nonetheless failed to appoint a new attorney. Rather, on the assurance of another attorney that appointed counsel had some still undisclosed reason not to argue for their client’s life, the court ultimately accepted counsel’s waiver of argument. Argument to the jury is, of course, a critical stage of trial, at which assistance of counsel is vital. (See Herring v. New York (1975) 422 U.S. 853, 858 [ 95 S.Ct. 2550, 2553 , 45 L.Ed.2d 593 ] [“There can be no doubt that closing argument for the defense is a basic element of the adversary fact-finding process in a criminal trial”]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1184 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ] [“It is firmly established that a criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact”].) Although defendant personally waived the presentation of mitigating evidence on his behalf, he did not waive—indeed, he expressly requested—the presentation of an argument to the jury. The trial court’s unwarranted refusal in the face of that request to appoint an attorney who would argue for defendant at the penalty phase deprived him of a fundamental right guaranteed by the Sixth Amendment to the United States Constitution. The error, moreover, was prejudicial: defendant’s complete lack of representation at this critical phase of trial renders the penalty verdict constitutionally unreliable and requires its reversal. (United States v. Cronic (1984) 466 U.S. 648, 659 [ 104 S.Ct. 2039, 2047 , 80 L.Ed.2d 657 ].) California precedents make clear a trial court may not thus abdicate its duty to ensure a criminal defendant the assistance of counsel. In People v. McKenzie (1983) 34 Cal.3d 616 [ 194 Cal.Rptr. 462 , 668 P.2d 769 ], limited on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [ 121 Cal.Rptr.2d 580 , 48 P.3d 1136 ], defense counsel refused to participate in the trial because of the court’s adverse pretrial rulings, including denial of a continuance to prepare a defense. Acknowledging that counsel’s difficulties were created by defendant’s refusal to cooperate, the trial court ruled that defendant had waived his constitutional rights, and thus allowed the trial to proceed without counsel’s participation. Because the defendant had been removed from the courtroom at the outset of trial due to disruptive behavior, his views concerning counsel’s nonparticipation or the substitution of counsel were never expressed. (McKenzie, supra, at pp. 624-625 .) McKenzie thus was a weaker case on appeal than the present one, where defendant expressly requested new counsel. We nonetheless held that appointment of substitute counsel would have been a proper trial court response (id. at pp. 629-630) and that the court erred by instead “allowing this defendant to proceed to trial without the assistance of counsel” (id. at p. 627). *130 The Court of Appeal reached the same conclusion in People v. Shelley (1984) 156 Cal.App.3d 521 [ 202 Cal.Rptr. 874 ]. There, the defense attorney, dissatisfied with certain trial court rulings, announced during trial that he would continue to be present but would no longer participate in any way. (Id. at pp. 524-525.) Although the prosecutor suggested counsel was trying to create “a ground for appeal,” counsel later stated he was only trying “to show the court the depth of my conviction” that its rulings were wrong. (Id. at pp. 525, 529.) The court allowed the trial to proceed to a jury verdict without counsel’s participation. (Id. at p. 527.) Whatever the reason for counsel’s choice, the Court of Appeal held, the trial court should not have acceded to counsel’s inaction on the ground that it was or could be described as a “tactic.” If defense counsel absolutely refuses to participate in the trial, the court “must appoint substitute counsel.” (People v. Shelley, supra, 156 Cal.App.3d atp. 531 .) The court’s failure to do so “breached its duty to safeguard appellant’s right to the effective assistance of counsel and to ensure the orderly administration of justice.” (Id. at p. 532.) Shelley , like McKenzie , was a weaker case than this one, because the defendant there said he agreed with counsel’s nonparticipation (Shelley, supra, at p. 527 ), whereas here, of course, defendant instead asked for another lawyer to be appointed to do what his current lawyers refused to do. The majority suggests defendant may, contrary to his express and unambiguous statement on the record, have harbored a desire to dispense with argument, a desire the majority speculates appointed counsel inferred from defendant’s behavior at his first trial (eight years earlier, in 1982) and his asserted lack of cooperation in investigating his family background. While anything is possible, nothing in the record of the present trial—and more important, nothing before the trial court when it accepted counsel’s waiver of argument—supports such an assumption. The possibility defendant wished to waive argument certainly occurred to the court, which directly asked lead counsel if that were the case: “The Court: . . . Mr. Miller, is this pursuant to the wishes of the defendant? “Mr. Miller: Your Honor, I’m in no position to answer the court’s question.” Having received this unhelpful response, the trial court turned to defendant: “The Court: ... I want you to be aware, if you want someone to argue in your behalf, I will gladly appoint another lawyer and to have him review this *131 casé for purposes of arguments. . . . There are so many aspects to factors in mitigation as to your case. You understand this Mr. Snow? “The Defendant: Yes. “The Court: Do you wish the court to appoint another lawyer in your behalf? “The Defendant: Yes. “The Court: Thank you. This will be for the purposes of the arguments in this case. Do you understand this? “The Defendant: (Defendant nods head in the affirmative.)” 1 (Italics added.) With the question of defendant’s wishes thus resolved, the court prepared to obtain new counsel, asking its clerk to contact an attorney, Mort Borenstein, known to the court as resourceful and competent. The court’s subsequent colloquy with Attorney Robert Gerstein (who appeared to argue for retention of appointed counsel Miller and Maple) shed no additional light on defendant’s wishes, as Gerstein expressly stated he had no information to provide on that subject: “Mr. Gerstein: I’ve—I understand—what I do want to say, your Honor, is that they are representing the client’s best interests in their professional judgment. Now, I did not mean to— “The Court: That’s all I want to hear. “Mr. Gerstein: —I did not mean to say by that that this was not the defendant’s judgment or that it was the defendant’s judgment, that that was not taken into account.” (Italics added.) Thus the court, attempting to determine whether defendant wanted an attorney to argue for him at the penalty trial, first heard appointed counsel Miller refuse to answer the question, then heard defendant answer that he did want an attorney to argue for him, and finally heard Miller and Maple’s attorney, Gerstein, say that he did not mean to say anything on the subject. The court, I submit, could not rationally conclude from this information that *132 deféndant wished to waive representation at the argument phase or to waive argument itself. 2 Indeed, the trial court’s own comments, at the conclusion of the Gerstein discussion, show that its decision to accept counsel’s waiver rested not on an intuition or inference regarding defendant’s wishes but on its acceptance of what the court took to be Gerstein’s assurance that appointed counsel had a tactical reason for their course of action, an assurance Gerstein never gave and that counsel steadfastly refused to give. The court had earlier attempted to elicit from appointed counsel a statement that they had a tactical or strategic reason to waive argument. That attempt failed, as counsel simply refused to say anything about their reasons: “The Court: . . . Does counsel for the defense wish to respond to the court’s inquiry? “Mr. Maple: I do not, your Honor. “The Court: Mr. Miller? “Mr. Miller: No, Sir. [f| . . . [f| “The Court: . . . Not one word is being argued in his behalf as to the penalty aspect of this trial before this jury. May I know why, counsel? Mr. Miller, have you any reply? “Mr. Miller: No, sir. No, your Honor. “The Court: Mr. Maple? “Mr. Maple: No, your Honor, [^j] . . . flf] *133 “The Court: Thank you. Is this pursuant to tactical reasons that you may have developed in the course of this trial? “Mr. Miller: I cannot answer the court’s question.” 3 After the discussion with Gerstein, however, the court noted that Gerstein had, in the court’s view, answered the question appointed counsel would not answer: “The Court: Now, with your statement, it appears that it’s solely tactical, and the presumption is that evidence to the contrary, the appellate court will take that presumption. “Mr. Gerstein: Well, your Honor, perhaps I have gone too far in saying that. “The Court: Well, you made the statement and I’ve accepted it.” (Italics added.) The court then said it would accept the waiver and submit the case to the jury without defense argument. Although the trial court correctly sought to determine, before appointing new counsel, whether current counsel had a valid tactical reason for waiving argument over the objection of their client, the court erred in finding, on the information before it, that counsel did have such a reason. The appointed attorneys refused to say whether they had such a reason. Attorney Gerstein stated that Miller and Maple believed they were acting in their client’s best interest, but expressly disavowed any representation that their reasons were tactical: “Mr. Gerstein: ... I have no intention of saying. . . that it was a tactical decision as opposed to any other sort of decision.” (Italics added.) Nor do the circumstances known to the trial court at the time of its decision to accept counsel’s waiver of argument indicate the presence of a *134 legitimate tactical or strategic reason for the waiver. Leaving one’s client defenseless, without any evidence or argument on his behalf, at a capital sentencing hearing, when the facts of the crime and the prosecution’s evidence of aggravating circumstances give the jury ample reason to find death the appropriate punishment, is neither a generally recognized nor an acceptable strategy for capital representation. (See Kubat v. Thieret (7th Cir. 1989) 867 F.2d 351, 368 [presentation of a “grossly substandard argument” at a capital sentencing hearing, after failing to present evidence in mitigation, was not a “competent strategic decision”]; Smith v. Stewart (9th Cir. 1998) 140 F.3d 1263, 1268-1269 [capital counsel who presented no mitigating evidence and, in argument, made only “a few asthenic comments to the effect that Smith still denied his guilt and that he was just 30 years of age” had no tactical reason]; Clabourne v. Lewis (9th Cir. 1995) 64 F.3d 1373, 1387 [making of perfunctory penalty argument, after presenting no mitigating evidence, “ ‘amounted] in every respect to no representation at all’ ”].) 4 The Attorney General suggests counsel were pursuing a “strategy” of failing to perform on defendant’s behalf so as to “preserve an inadequacy of counsel issue for appeal.” As Miller and Maple refused to give a reason for their decision not to argue on defendant’s behalf, any assignment of reasons to them would be speculative. But even assuming the trial court made the same guess as the Attorney General now mákes, the court nonetheless erred, as such a plan on counsel’s part could not be characterized as a competent strategy. Miller and Maple were defendant’s trial attorneys. Their job was to defend him zealously and with all their skill against the People’s criminal charges. While a trial attorney should seek to preserve potential appellate issues as they arise, he or she must not abandon the effort to provide a competent trial defense in the hope of creating a claim for appeal. (See Rules Prof. Conduct, rule 3-110(A) [attorney “shall not intentionally . . . fail to perform legal services with competence”].) *135 Abandoning the effort to conduct a defense at trial is not a competent tactical choice, whatever the reason. Even if counsel believed, for example, that the court’s earlier rulings had made the penalty trial unfair, they could not competently abandon their client in the hope of securing a reversal on appeal. Once assigned to represent a criminal defendant, an attorney “is bound to do so to the best of his abilities under the circumstances,” even in the face of adverse rulings counsel believes are incorrect. (People v. McKenzie, supra, 34 Cal.3d at p. 631 .) “A refusal to participate in formulating or conducting a defense is not generally among the available strategic options.” (Ibid.) The trial court’s first instinct was correct: faced with appointed defense attorneys who refused, without any explanation and against defendant’s expressed wishes, to perform as advocates for the life of their client, the court should have relieved them and appointed a new attorney. (See Code Civ. Proc., § 284, subd. 2 [attorney in action “may be changed” at any time “upon the application of [the] client”]; Smith v. Superior Court (1968) 68 Cal.2d 547, 558 [ 68 Cal.Rptr. 1 , 440 P.2d 65 ] [quoted statute applies in criminal cases].) On the defendant’s motion, substitution of attorneys is compelled when there is “ ‘a sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if his request was denied.’ ” (People v. Clark (1992) 3 Cal.4th 41, 104 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ]; People v. Stankewitz (1990) 51 Cal.3d 72, 87-88 [ 270 Cal.Rptr. 817 , 793 P.2d 23 ].) That a capital defendant’s right to counsel is substantially impaired through continued representation by attorneys who, against the defendant’s wishes and for no apparent tactical or strategic reason, refuse to argue for the defendant’s life, is, I believe, too clear to require further discussion. As nothing before the trial court reasonably indicated either defendant’s concurrence in counsel’s waiver or a legitimate reason (ethical, strategic, or tactical)—indeed, everything before the court refuted both—the court erred in accepting the waiver and sending the case to the jury without any attorney to argue for the defense. The court’s error resulted in the complete absence of an attorney’s assistance to defendant at a critical stage of trial, a clear deprivation of his Sixth Amendment right to counsel. The error was prejudicial, for the court’s erroneous acceptance of counsel’s waiver of argument, following as it did their decision not to make any opening statement, present any mitigating evidence, or cross-examine any of the People’s witnesses, resulted in what may be described either as a “complete denial of counsel” (United States v. Cronic, supra, 466 U.S. at p. 659 [ 104 S.Ct. at p. 2047 ]) at the critical stage of jury argument or as a complete failure of the defense to *136 subject the prosecution’s penalty phase case “to meaningful adversarial testing” (ibid.). Either way, “there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (Ibid.) 5 Acknowledging that a bona fide argument for sparing the defendant’s life may virtually always be made at the penalty phase, the majority nonetheless suggests that here Miller and Maple had nothing to argue because no mitigating evidence had been introduced. To the contrary, I believe the concept of residual or lingering doubt—which does not depend on introduction of mitigating evidence—would have provided the basis for an appropriate and possibly effective penalty argument in this case. 6 The case in aggravation rested primarily on the facts of the murder for which defendant was convicted. The evidence upon which the jury convicted, while legally sufficient, was entirely circumstantial and was far from absolutely conclusive; it consisted mainly of proof of motive and opportunity, together with a single fingerprint on a visor found elsewhere in Pasadena on the day of the killing, the unexplained presence of the victim’s telephone number in defendant’s notebook, and a prosecutor’s testimony—contradicted by credible defense evidence—that defendant had reacted without emotion when told of the victim’s death. That the jurors would have been unanimously willing to send a man to his death on such evidence, had counsel reminded them of the weaknesses in the prosecution case and argued vigorously for the appropriateness of a life sentence, was not a foregone conclusion. The majority places great emphasis on declarations filed under seal with another department of the superior court, in which trial counsel revealed some of the events and discussions that purportedly underlay their decision not to present mitigating evidence at the penalty phase. For two simple reasons, however, those declarations are irrelevant to analysis of defendant’s principal claim, which is that the court erred in not appointing an attorney to argue for him to the jury. First, the declarations relate to the investigation and presentation of mitigating evidence, not to the making of an argument to *137 the jury. Second, and more important, the declarations were not before the trial court at the time it decided to submit the case to the jury without defense argument. They could not possibly have influenced the court and cannot logically be used to justify the court’s decision. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 142, p. 390; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, pp. 369-370 [matters not in record and not before trial court are not properly considered on appeal of judgment or order].) For similar reasons, I disagree with the majority’s view that consideration of defendant’s principal claim—that the trial court erred in refusing to appoint new counsel for argument—is properly deferred until possibly raised in a future petition for writ of habeas corpus. The merits of defendant’s claim, as of any claim of trial court error, must be measured by the information available to the trial court when it made the challenged decision. Posttrial declarations of counsel attempting to justify their waiver of argument may affect the analysis of an ineffective assistance of counsel claim, but can shed no light on the merits of a claim that the trial court erred, during trial, in denying defendant an attorney to argue for him at the penalty phase of trial. The issue in this appeal is not whether this court can imagine a satisfactory explanation for counsel’s behavior, or whether one may be put forward in habeas corpus proceedings. The issue is, rather, whether the trial court was given, or could have inferred from information before it, a satisfactory explanation. On this question the appellate record is complete, and habeas corpus proceedings promise no greater insights. I would hold simply that in the penalty phase of a capital case, when the defense has made no opening statement, called no witnesses, cross-examined none of the prosecution witnesses, presented no evidence in mitigation, and proposes to make no closing argument, the trial court should not accept counsel’s waiver of penalty phase argument where that waiver is contrary to the defendant’s expressed wishes and is unaccompanied by any explanation from counsel. The majority’s contrary holding—that the court may accept counsel’s waiver without any explanation and contrary to defendant’s expressed wishes—seems to suggest that trial courts may turn a blind eye to an apparent abandonment of the client by appointed counsel in even the most serious of criminal cases. The possibility that Attorneys Miller and Maple will, in a habeas corpus proceeding years from now, come up with a post hoc explanation for their actions—an explanation they would not provide the trial court even in chambers and without the prosecutor present, and which *138 consequently would be of doubtful reliability—does not justify a holding that so undermines the appearance of justice in capital cases. George, C. J., and Moreno, J., concurred. Appellant’s petition for a rehearing was denied June 25, 2003. George, C. J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted. The trial court may have gone beyond its duties in inquiring of defendant whether he wanted new counsel to argue for him. That does not affect the court’s duty, once it learned defendant in fact did wish to have counsel argue, to appoint such counsel. The majority’s reliance on People v. Lang (1989) 49 Cal.3d 991,1029-1033 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ] (maj. opn., ante, at p. 120) is thus misplaced. Lang involved the defense’s decision to forgo a particular piece of mitigating evidence, not to waive argument to the jury. The claim was ineffective assistance of counsel, not trial court error in failing to appoint counsel. Most important, in Lang , the defendant’s desire not to have the evidence presented appeared in the record (Lang, supra, at p. 1029 ); here, in contrast, defendant specifically and expressly stated that he did want argument presented on his behalf. The last fact crucially distinguishes Lang and similar decisions, which simply recognize that counsel has no obligation to pursue penalty phase strategies contrary to the expressed wishes of the client. (See, e.g., People v. Howard (1992) 1 Cal.4th 1132, 1183-1186 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ]; People v. Deere (1991) 53 Cal.3d 705, 713-717 [ 280 Cal.Rptr. 424 , 808 P.2d 1181 ].) According to the majority, Miller and Maple “believed that confidentiality or attorney-client privilege precluded them from informing the court of their reasons for electing their chosen course of action at the penalty trial.” (Maj. opn., ante, at p. 118.) As to counsel’s decision to waive argument, this statement is without support in the record. Counsel steadfastly refused to give the trial court any indication of their reasons for that intended waiver, including any indication of why they could not or would not give their reasons. Bell v. Cone (2002) 535 U.S. 685 [ 122 S.Ct. 1843 , 152 L.Ed.2d 914 ], cited by the majority (maj. opn., ante, at p. 117), is readily distinguishable. The defense there had put on considerable mitigating evidence in an earlier stage of trial. At the penalty trial (held the day after the jury returned its guilt verdicts), defense counsel made an opening statement in which he called the jury’s attention to the mitigating evidence already before them and argued the defendant was remorseful and the jury should exercise mercy and spare his life. ( 535 U.S. at p. 691 [ 122 S.Ct. at p. 1848 ].) After both sides rested, the junior prosecutor gave a “ Tow key’ ” closing argument; the defense then waived closing argument, “preventing the lead prosecutor, who by all accounts was an extremely effective advocate, from arguing in rebuttal.” (Id. at p. 692 [ 122 S.Ct. at p. 1848 ].) In the ■present case, in contrast, the defense introduced no mitigating evidence at the guilt or penalty phase. The penalty trial took place more than a month after the guilt verdicts were returned, and the defense gave no opening statement. Moreover, before penalty argument began, the trial court ruled that the People would have no opportunity to rebut, and both prosecutors consequently gave their closing arguments before the defense was called on to argue. The factors that arguably justified a tactical waiver of final argument in Bell v. Cone were entirely absent here. Contrary to the majority’s suggestion (maj. opn., ante, at pp. 121-122), I refer to the fact no mitigating evidence was introduced not to demonstrate ineffective assistance of counsel, but only to explain how the court’s later decision to submit the case to the jury without any attorney having argued for defendant resulted in a complete failure of adversarial testing at the penalty phase. The majority minimizes this potential argument with the remark that “then again, Miller had taken that tack at the second penalty phase of defendant’s first trial,” where it was unsuccessful. (Maj. opn., ante, at p. 115.) Insofar as the majority implies that Miller could, as a competent strategy, have decided to do nothing rather than make a legitimate argument that had failed to persuade a different jury, which had heard evidence in a different trial, I fail to see the majority’s logic. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795906. Public record. Not legal advice.