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California Legal Help Topics, Discussions and Information relating to Legal Information specific to the State of California. This information is *NOT PROFESSIONAL* and should always be fact-checked!

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  #1  
Old 10-20-2009, 03:53 AM
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jenn85345 jenn85345 is offline
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Default Pro Se litigation

My neighbors to the West, how are you all doing? Say, I have a question that I was hoping somebody in here might be able to help me with.

My guy is trying to get his case back into court. I guess what had happened is that they had appointed him counsel, he fired the attorney he was appointed, went pro per and then the attorney that was fired was assigned to his advisory council. When I was visiting this weekend, he said there was California case law about this exact thing. He couldn't remember the name and I have been searching since Saturday night and haven't been able to find a single thing. So, I guess my question is, can anyone in here possibly point me in the right direction as to where I can browse California case law or possibly somebody out here knows the particular name of the case that I can look up and print and send it to him?

I realize this favor might not be the clearest in nature, but I'm hoping somebody out there might be able to point me in the right direction. Thanks for all your help!
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  #2  
Old 10-20-2009, 01:45 PM
South Bay South Bay is offline
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Default No right to Advisory Counsel in CA

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Originally Posted by jenn85345 View Post
My neighbors to the West, how are you all doing? Say, I have a question that I was hoping somebody in here might be able to help me with.

My guy is trying to get his case back into court. I guess what had happened is that they had appointed him counsel, he fired the attorney he was appointed, went pro per and then the attorney that was fired was assigned to his advisory council. When I was visiting this weekend, he said there was California case law about this exact thing. He couldn't remember the name and I have been searching since Saturday night and haven't been able to find a single thing. So, I guess my question is, can anyone in here possibly point me in the right direction as to where I can browse California case law or possibly somebody out here knows the particular name of the case that I can look up and print and send it to him?

I realize this favor might not be the clearest in nature, but I'm hoping somebody out there might be able to point me in the right direction. Thanks for all your help!
A defendant in California does not have actually a right to an advisory counsel, or a right to the related issue of standby counsel.

Reproduced below is part of section 54 of the publication “Right to Counsel Issues,” one of the CA Judges Bench Guide series. These bench guides are published by the CA Administrative Office of the Courts, a CA state agency, and as such, there are no copyrights on the material. Thus, I also attached a full copy of the guide to this post as a PDF file.

[§54.15] Appointment of Advisory Counsel

No Constitutional Right to Advisory Counsel: A defendant who chooses to exercise his or her right to self-representation does not have a constitutional right to simultaneous self-representation and representation by counsel, whether labeled “co-counsel,” “advisory counsel,” or “standby counsel.” People v Bradford (1997) 15 C4th 1229, 1368, 65 CR2d 145. See People v Barnett (1998) 17 C4th 1044, 1106, 74 CR2d 121 (criminal defendant has no right both to be represented by counsel and to participate in presentation of his or her own case). However, the court must consider and exercise its discretion in granting or denying a pro per defendant’s request for “advisory” counsel. People v Crandell (1988) 46 C3d 833, 861, 251 CR 227; People v Sherrod (1997) 59 CA4th 1168, 1175−1176, 69 CR2d 361.

Discretion To Appoint Advisory Counsel: When exercising its discretion on a motion for advisory counsel, the court should consider the defendant’s demonstrated legal abilities and the legal complexity of the case. People v Crandell, supra, 46 C3d at 863 (no abuse of discretion to deny request for advisory counsel in capital case when defendant exhibited substantial competence in presenting his case); People v Bigelow (1984) 37 C3d 731, 743, 209 CR 328 (abuse of discretion to deny advisory counsel in capital case when defendant possessed ninth-grade education and was unfamiliar with California law). But see People v Garcia (2000) 78 CA4th 1422, 1428, 93 CR2d 796 (no abuse of discretion to deny advisory counsel to defendant with ninth-grade education when defendant did not request counsel and was prosecuted for noncapital murder; court refused to extend Bigelow to noncapital case). The court should also consider the defendant’s reasons for seeking the appointment of advisory counsel. People v Crandell, supra, 46 C3d at 863 (request may be denied when defendant’s motive is to manipulate the court). A court should appoint advisory counsel only on a substantial showing that the appointment will promote justice and judicial efficiency in the particular case. People v Barnett, supra, 17 C4th at 1106.

Court’s Authority Over Advisory Counsel: When advisory counsel is appointed, the court retains authority to exercise its judgment regarding the extent of advisory counsel’s participation. People v Bradford, supra, 15 C4th at 1368−1369. Advisory counsel’s participation should not (a) interfere with the defendant’s control of the presentation of his or her case, or (b) undermine the jury’s perception that the defendant is representing himself or herself. McKaskle v Wiggins (1984) 465 US 168, 178, 104 S Ct 944, 79 L Ed 2d 122; People v Hamilton (1989) 48 C3d 1142, 1164 n14, 259 CR 701. The courts of appeal vary as to the extent to which they will allow advisory counsel’s participation at trial. Compare People v Bradford, supra (court properly refused to allow advisory counsel to argue, object, respond to the court’s questions, or to instruct the defendant about exactly what to say) and Scott v Superior Court (1989) 212 CA3d 505, 512, 260 CR 608 (court suggested advisory counsel may question specific witnesses upon proper showing). See also Brookner v Superior Court (1998) 64 CA4th 1390, 1393, 76 CR2d 68 (court criticized concepts of advisory and standby counsel as inconsistent with authority, stating that defendant has the right to represent himself or not to represent himself, but not both).

Court’s Advisements to Defendant: When a defendant’s request to proceed in pro per is accompanied by a request for the appointment of advisory counsel, the court must advise the defendant that he or she does not have a right to advisory counsel. People v Ebert (1988) 199 CA3d 40, 46, 244 CR 447. The court is not required to advise a defendant who is assisted by advisory counsel that he or she is precluded from asserting ineffective assistance of counsel on appeal. People v Bloom (1989) 48 C3d 1194, 1226, 259 CR 669.

Restriction or Termination of Advisory Counsel: Although a pro per defendant has no right to advisory counsel, once that privilege is granted, it may not be restricted or terminated absent due process. People v Ebert, supra, 199 CA3d at 44 (violation of due process to grant advisory counsel’s motion to withdraw after holding in camera hearing from which the defendant was excluded).

Appointment of Public Defender as Advisory Counsel: The courts of appeal disagree about whether the public defender can be ordered to serve as advisory counsel. Compare Brookner v Superior Court, supra, 64 CA4th at 1398 (yes), and Ligda v Superior Court (1970) 5 CA3d 811, 826, 85 CR 744 (yes), with Dreiling v Superior Court (2000) 86 CA4th 380, 382, 103 CR2d 70 (no) and Littlefield v Superior Court (1993) 18 CA4th 856, 860, 22 CR2d 659 (no). See also Chaleff v Superior Court (1977) 69 CA3d 721, 724, 138 CR 735 (public defender may withdraw as advisory counsel if continued service will require him or her to violate ethical duties as an attorney).

There is much more on right to counsel issues in the bench guide, and you might download it and print out to send to him (if he's allowed to receive such copies in his prison).

Please be aware, however, that most of the cases cited are applicable to California only, and thus only the federal cases cited are binding on the Arizona Courts.

But the guide does give a rough overview of the law with respect to self-representation, and may serve to educate him as to the present state of the law. In the end, however, he needs to consult the relevant Arizona cases on pro se status.

South Bay Scott
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File Type: pdf Bench-Guide-Right-to-Counsel.pdf (425.8 KB, 52 views)

Last edited by South Bay; 10-20-2009 at 01:59 PM..
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  #3  
Old 10-20-2009, 07:26 PM
Gryphon Gryphon is offline
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The aprocedural answer depends on what he's trying to get back into court to do.
For instance, if he has an outstanding warrant that'd be PC section 1381 if he's located inside CA) and PC 1389 (if he's located outside CA).

Although in CA there's no right to advisory counsel, if the previous appointment is still valid the lawyer will be able to answer his written questions (and might be able to answer in any event).

If he does have the right to counsel and declines it, that's a sure sign that he made a terrible decision. Before a judge allows self representation, thre's a warning that's read (called a Faretta Advisement) that quite plainly describes why the defendant is out of his mind and how it'll come out all wrong. Anyone who has the judge look them in the eye and tell them they are setting themselves up, yet ignores that advice, is crazy or foolish. If he gets a do-over he needs to accept a lawyer.

Quote:
Originally Posted by jenn85345 View Post
My neighbors to the West, how are you all doing? Say, I have a question that I was hoping somebody in here might be able to help me with.

My guy is trying to get his case back into court. I guess what had happened is that they had appointed him counsel, he fired the attorney he was appointed, went pro per and then the attorney that was fired was assigned to his advisory council. When I was visiting this weekend, he said there was California case law about this exact thing. He couldn't remember the name and I have been searching since Saturday night and haven't been able to find a single thing. So, I guess my question is, can anyone in here possibly point me in the right direction as to where I can browse California case law or possibly somebody out here knows the particular name of the case that I can look up and print and send it to him?

I realize this favor might not be the clearest in nature, but I'm hoping somebody out there might be able to point me in the right direction. Thanks for all your help!

Last edited by Gryphon; 10-20-2009 at 07:30 PM..
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  #4  
Old 11-03-2009, 01:34 PM
bincita
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Default Public Defender will not mail his file-can we force him?

We requested my husband's complete file from his public defender because we read here that it is his property. We requested the file in writing 10 days ago and have not heard a peep.

What avenues do we have to obtain this file without having to purchase the copies? If it belongs to him, he wants it.
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Old 11-04-2009, 03:44 PM
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There is a down side if the trial lawyer doesn't maintain a file copy. There'll be nothing for the lawyer to refresh recollection from if there is a legitimate IAC claim, and the lawyer is called on to prepare a declaration.

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We requested my husband's complete file from his public defender because we read here that it is his property. We requested the file in writing 10 days ago and have not heard a peep.

What avenues do we have to obtain this file without having to purchase the copies? If it belongs to him, he wants it.
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Old 11-04-2009, 05:43 PM
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It was a plea agreement. But what is a IAC? Does a copy of the file stay with the courthouse records?
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Old 11-04-2009, 07:41 PM
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Ineffective council???
sorry I dont know, I was guessing.
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Old 11-04-2009, 11:26 PM
Gryphon Gryphon is offline
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It was a plea agreement. But what is a IAC? Does a copy of the file stay with the courthouse records?
Ineffective assistance of counsel, one of few issues that could possibly survive a plea bargain.
No, the lawyer has the only copy of the attorney's file. The court house only has the documents generated in court, and contains nothing regarding the police report or defense investigation.
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Old 11-05-2009, 10:27 AM
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Shoot! The PD called and told him to pick up the file today at 1:30. I sure hope he makes copies. Once it is released to us that's it? It's no good anymore? Darn darn darn. He doesn't even know what his true blood alcohol level was because DMV never got it. And no one ever told him when he asked his PD. Pressured to plea for DUI and never given the facts????? I'd say there is something definitely wrong!
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Old 11-05-2009, 11:44 AM
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Well, it's not that it is NO good after it leaves the lawyer. There will be information that could be returned to the lawyr for review. The problem that most frequently arises is that the trial lawyer is asked if he did x, y, and z. For the writ, you want to hear the answer "no". The answers "yes" and "maybe" do you no good at all. The lawyer says he has no idea since too much time passed. He could refresh his recollection from his file, but he doesn't have it. If the client has the only copy, there is now no way to say what was or wasn't in the file when it was in the possession of the lawyer.

If the file is being examined for the purpose of post-conviciton remedies, then if the file isn't too large I'd suggest asking for (and probably paying for) a complete copy while the lawyer maintains his copy. If a case doesn't go to trial, it usually isn't a huge copy job. It's rare for a felony file to exceed 100 pages. (Of course, some files come with their own storage units.)

Some lawyers will copy the files "just because" (including me) unless the copy job is just too big to be practical. In a PD office, that's less likley to be the policy and you ask for the file, then you get the file (without a copy being made).
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Originally Posted by bincita View Post
Shoot! The PD called and told him to pick up the file today at 1:30. I sure hope he makes copies. Once it is released to us that's it? It's no good anymore? Darn darn darn. He doesn't even know what his true blood alcohol level was because DMV never got it. And no one ever told him when he asked his PD. Pressured to plea for DUI and never given the facts????? I'd say there is something definitely wrong!

Last edited by Gryphon; 11-05-2009 at 12:20 PM..
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Old 11-05-2009, 12:54 PM
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Ok. Thank you. He is going to call and request the lawyer to maintain a copy for his records and we will pay for it.

Do you think the lawyer is going to say he did what he was supposed to do? il.e., Did you give your client the results of his DUI? Yes. Did you allow your client to read the police report and rebut it or tell his side of what happened since he invoked miranda? Yes. ....

They can say yes to anything, right? I'm sure it's going to be an uphill battle. But I will know more when I see with my own eyes the results of his BAC.
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Old 11-05-2009, 03:15 PM
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I'd expect that any defense lawyer would most likely answer questions as truthfully as possible, although memories can fog so you'll get a lot of "I don't recall" answers. The lawyer (especially a PD) has no personal investment in whether or not a client pleads guilty.

By the way, those questions and replies would be insufficient to support a writ. It isn't enough that these things could or should have been done; it isn't enough to just show that mistakes were made. It has to have made such a difference that it constitutes a Due Process violation. In otehr words, the higher court has to believe that had the correct thing been donne, that it would have made all the difference in the case's outcome. Otherwise, it is merely "harmless error".
For more information see California Writs and Appeals published by CEB (Continuing Education of the Bar). It'll be in any CA public law library.
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Ok. Thank you. He is going to call and request the lawyer to maintain a copy for his records and we will pay for it.

Do you think the lawyer is going to say he did what he was supposed to do? il.e., Did you give your client the results of his DUI? Yes. Did you allow your client to read the police report and rebut it or tell his side of what happened since he invoked miranda? Yes. ....

They can say yes to anything, right? I'm sure it's going to be an uphill battle. But I will know more when I see with my own eyes the results of his BAC.
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