MOSK, J. I dissent.
The singular circumstances of this proceeding go farther than to pique one’s curiosity; they clearly reveal an abuse of discretion. The indigent defendant, charged with multiple counts of murder and other offenses, requested the appointment of Richard A. Hodge as his attorney. Mr. Hodge, who has experience in trying murder cases, was and is willing to serve.1 The court nevertheless declined to appoint Mr. Hodge and instead designated Richard H. Breiner as counsel. Mr. Breiner, though unquestionably an able advocate, has never tried a murder case, and expressed reluctance to undertake a trial of the length here involved. Indeed, on behalf of the defendant he petitions for a writ of mandate.2
In the foregoing factual context, how is the administration of justice served by the dogged insistence that Mr. Breiner and not Mr. Hodge represent the defendant? Phrasing the question another way: what compelling state interest is served by denying appointment of the qualified and willing attorney of defendant’s choice? The obvious answer is: none. While I concede that ordinarily if competent counsel is appointed to represent a defendant no constitutional issue emerges, I fail to see in these facts any lofty and immutable principle justifying the trial court in planting its feet in concrete instead of tolerantly exercising discretion and expediting a trial that is not only fair but gives the appearance of being fair.
The events which transpired in open court in the first instance are of [937]some significance. The trial judge indicated that he had appointed separate attorneys for each of the other defendants and then, addressing this defendant, inquired: “I will ask you at this time do you have your attorney to represent you in this case?” The defendant asked that Richard Hodge, who was also present in court, be appointed as his attorney. To that the trial court replied: “Thank you. All right, you do not have an attorney that you have retained yourself or who has agreed to represent you?" (Italics added.) Mr. Hodge then advised the court that he was an attorney who agreed to represent the defendant and asserted that he was competent to do so. Over defendant’s and Mr. Hodge’s objections the court nevertheless proceeded to appoint Mr. Breiner, who had not previously been requested by the court to accept such an appointment and who was not before the court on that day.
Justice Douglas recently wrote, “The starting point of a decision usually indicates the result.” (EPA v. Mink (1973) 410 U.S. 73, 105 [35 L.Ed.2d 119, 142, 93 S.Ct. 827] (dissenting opinion).) In this case mere recitation of the facts points unerringly to what the result should be.
Contrary to the opinion of the majority, there is no cited authority which compels their conclusion. Indeed, the cases upon which they rely are not apposite to the narrow issue before us. No one questions the right of the court to deny defendant the choice of private counsel if the public defender is available to defend him (People v. Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733, 428 P.2d 869]; People v. Hughes (1961) 57 Cal.2d 89 [17 Cal.Rptr. 617, 367 P.2d 33]; People v. Taylor (1968) 259 Cal.App.2d 448 [66 Cal.Rptr. 514]) or if the request for appointment comes at a time when it would of necessity cause a substantial delay in the proceedings (People v. Aikens (1969) 70 Cal.2d 369, 378 [74 Cal.Rptr. 882, 450 P.2d 258]; People v. Stewart (1966) 240 Cal.App.2d 1, 6 [50 Cal.Rptr. 26]; United States v. Thompson (S.D.N.Y. 1944) 56 F.Supp. 683) or if a change is made subsequent to an original appointment by the court (People v. Stroble (1951) 36 Cal.2d 615, 629 [226 P.2d 330], affd. 343 U.S. 181 [96 L.Ed. 872, 72 S.Ct. 599]; but see Smith v. Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65]) or if the chosen attorney is not readily available to undertake the defense (Tibbett v. Hand (10th Cir. 1961) 294 F.2d 68; People v. Aikens, supra; People v. Manchetti (1946) 29 Cal.2d 452, 458 [175 P.2d 533]). Nor is the majority’s reliance on other federal authority well advised. Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, found an abuse of discretion when the [938]trial court appointed a deputy public defender in whom an indigent defendant had lost confidence. United States v. Burkeen (6th Cir. 1966) 355 F.2d 241, held a defendant not entitled to appointment of his own counsel after he had proceeded to defend himself. Davis v. Stevens (S.D.N.Y. 1971) 326 F.Supp. 1182, involved selection of counsel from a panel which would have disturbed a systematic rotational program.
The majority also refer to the American Bar Association Project on Minimum Standards for Criminal Justice, Providing Defense Services (Tent. Draft 1967) section 2.3, commentary (b), pages 29-30. While the ABA report expresses a preference for a strict rotational system for the appointment of counsel to assure “the even-handed distribution of assignments,” it also declares that where there is no rotational system, as here, “permitting the defendant to select the lawyer he wishes to represent him is one method for increasing his confidence that he is being provided competent counsel and of providing as early as possible the same conditions for the professional relation that obtain when counsel is retained by a defendant of means.” Moreover, the ABA report states that “Ad hoc appointment of counsel, lacking any predetermined rationale, is inadequate” (id. at p. 4), and asserts “This view is substantiated in the survey of state practice, which indicates that the worst inequities, to both the defendant and the bar, occur in those areas where no organized or systematic approach to the problem has been taken.” (Id. at p. 15.) The goal, states the ABA, is “to provide counsel who have the same freedom of action as the lawyer whom the person with sufficient means can retain. Inequalities . . . are quickly perceived by those who are being provided representation and may encourage cynicism toward the justness of the legal system and, ultimately of society itself.” (Id. at p. 19.)
In the instant case, the appointed attorney was selected by the judge with no stated or predetermined rationale, in the absence of a programmed system of selection, and without acceding to defendant’s request for a ready, willing and able counsel. Given these facts, it is clear that the authors of the ABA report on defense services would criticize rather than approve the trial court’s order.
Effective advocacy involves more than vigor, experience and familiarity with the law. The attorney-client relationship contemplates trust and mutual cooperation', particularly when the attorney is defending the client’s liberty. (Smith v. Superior Court (1968) supra, 68 Cal.2d 547, 561.) The desirability of a relationship of trust and confidence between an indigent defendant and his attorney has been elevated to indispensability as a result of this court’s recent decision in People v. Sharp (1972) 7 Cal.3d 448 [939][103 Cal.Rptr. 233, 499 P.2d 489], holding that a defendant has no constitutional right to defend pro se at trial. Prior thereto an indigent defendant had three choices open to him if he lacked confidence in his appointed counsel and the judge refused to designate an attorney of his choice: he could permit the attorney to represent him and abjectly be bound by crucial trial decisions with which he might disagree (People v. Hill (1967) 67 Cal.2d 105, 114 [60 Cal.Rptr. 234, 429 P.2d 586]; People v. Darling (1962) 58 Cal.2d 15, 19 [22 Cal.Rptr. 484, 372 P.2d 316]); he could dismiss the attorney and proceed to represent himself (People v. Williams (1970) 2 Cal.3d 894, 908 [88 Cal.Rptr. 208, 471 P.2d 1008]); or he could in unusual circumstances dismiss the attorney from responsibility for the case and represent himself but have counsel standing by for advice (People v. Mattson (1959) 51 Cal.2d 777 [336 P.2d 937]). After Sharp an indigent defendant has no choice as a matter of right: he must be represented by the appointed counsel. Thus in this case, the defendant must proceed with the appointed attorney, in place of other counsel in whom he has expressed confidence; as a result he will be compelled to acquiesce in subsequent trial tactics which he may find objectionable. (People v. Williams, supra, 2 Cal.3d at p. 905; People v. Nailor (1966) 240 Cal.App.2d 489, 494 [49 Cal.Rptr. 616].) It seems inevitable that this procedure will create serious problems in the administration of justice throughout the trial and future appeals, if any.
The majority refer to defendant’s refusal to cooperate with Mr. Breiner; they point out he has had no actual disagreement as to trial tactics with counsel and has failed to indicate any basis for lack of confidence other than absence of a prior relationship. Whether defendant’s conduct is justified or not, these circumstances arose after the court’s refusal to appoint his counsel of choice. Defendant’s intransigence subsequent to the trial court’s abuse of discretion is irrelevant in this proceeding.
The Attorney General, employing artful alliteration, also alludes to the “initial indigent implacability.” It is possible, of course, that some cunning or disturbed defendants will become implacable in irrational insistence upon counsel of their choice. Courts can deal with such circumstances when they arise. There is nothing in this record to indicate the request of the defendant and the willingness of Mr. Hodge to serve were other than in good faith.
There is an implication in these proceedings that because defendant is indigent and counsel is appointed, the need for trust and confidence between attorney and client is somewhat less significant. We firmly rejected a similar implication in Smith v. Superior Court, supra, 68 Cal.2d at pages [940561]-562: “A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary: it involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service.”
Several amici curiae, in briefs replete with quotations from Powell v. Alabama (1932) 287 U.S. 45 [77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527], Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733], Tehan v. Shott (1966) 382 U.S. 406 [15 L.Ed.2d 453, 86 S.Ct. 459], and similar landmark authorities, argue that indigent defendants have an unqualified right to select their counsel. While it might be desirable to recognize such a right' as an abstract principle, its application in the real world of criminal courts procedure is fraught with complications. Many a defendant charged with a commonplace violation, in the dreary solitude of his jail cell, contemplates his case as a cause celebre deserving representation by a Clarence Darrow or a Jerry Geisler. Understandably he would choose counsel who is the most celebrated, the best publicized, the more politically oriented, or counsel who may subtly solicit the assignment, regardless of four factors, inter alia, which the appointing judge must consider: the necessity for appointment of private counsel, qualifications of the preferred counsel for the specific case at hand, his availability for a prompt trial, and his willingness to serve for the regrettably meager compensation permitted by the public treasury.
For present purposes I agree with the conclusion of Justice Bray in the opinion he prepared for the Court of Appeal in this case (103 Cal.Rptr. 100, 106), concurred in by Presiding Justice Devine and Justice Rattigan: “[A]n indigent defendant is not entitled as a matter of law to the appointment of a willing attorney of defendant’s own choice, nor as a matter of law may such appointment be denied. The totality of the circumstances applicable to the situation at the time of the defendant’s request is the criterion upon which the court’s discretion should rest.” One caveat might be added. As we said in People v. Crovedi (1966) 65 Cal.2d 199, 208 [53 Cal.Rptr. 284, 417 P.2d 868], the cases “demonstrate a conviction that the state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best [941]. . . [yielding] only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.”
Under the circumstances revealed by this record it seems abundantly clear that the court erroneously denied defendant the "appointment of the counsel he requested. I would issue the writ.
Tobriner, J., concurred.
Petitioner’s application for a rehearing was denied April 4, 1973. Tobriner, J., and Mosk, J., were of the opinion that the application should be granted.
Richard Hodge declared in an affidavit that he has practiced law seven years, two of which were as a deputy district attorney, and that he specializes in criminal law. He has tried two cases in which the defendant was charged with first degree murder and one case of attempted murder. He has also tried cases involving defendants who were prisoners in state penal institutions.
We are here concerned with the rights of a criminal defendant. Therefore, although Drumgo is a petitioner in this proceeding, for literary convenience I shall refer to him as the defendant.