Opinion
TOBRINER, Acting C. J. — Defendant appeals from a conviction of second degree burglaiy (Pen. Code, § 459) following a jury trial in which Jack Loo, a certified law student acting under the supervision of a deputy public defender, appeared on defendant’s behalf. The student’s appearance was pursuant to the Rules Governing the Practical Training of Law Students promulgated by the State Bar of California on January 15, 1969 (hereafter cited as Rules).
Defendant argues that Loo’s participation in the trial abridged his constitutional right to the assistance of counsel.1 Because the Rules had [136]never been submitted to this court for approval, defendant further argues that Loo’s appearance constituted the unauthorized practice of law in violation of Business and Professions Code section 6126. Finally, defendant asserts that he did not knowingly consent to representation by a law student and that the police failed to retain potentially exculpatoiy evidence.
The Rules, as we shall explain, were carefully drafted with a view to assuring that defendants would receive competent legal assistance. The law student must have completed at least three semesters of legal education or equivalent, and be certified as fit to participate in the program by the dean of his school; in criminal cases he appears in court only under the immediate supervision of an experienced attorney, who assumes personal professional responsibility for the student’s performance. When, as in the case at bar, a defendant receives competent representation pursuant to a program carefully formulated to assure such competency of representation, we can find no abridgment of the defendant’s constitutional right to the assistance of counsel.
Defendant’s remaining contentions, we shall explain, also lack merit. Thus the State Bar’s failure to submit the Rules to this court does not affect the present appeal; Loo, acting in good faith pursuant to rules formally promulgated by the State Bar, rendered a competent performance; as a result defendant incurred no prejudice which would justify the reversal of the conviction. Finally, the record on appeal fails to support defendant’s claim that he did not knowingly consent to Loo’s appearance or that the police improperly failed to preserve evidence.
1. Proceedings in the courts below.
Following defendant’s arrest for burglary, the trial court appointed the public defender as defendant’s counsel. Defendant consented in writing to representation by Jack Loo, a certified law student, actually at this time a law school graduate awaiting the result of the bar examination, acting under the supervision of Edward Zinter, a deputy public defender. At trial Loo conducted the examination of witnesses and presented the argument to the jury. Zinter, who was present throughout the trial, interposed objections to evidence, approved jury instructions and verdict forms, participated in conferences with the court and prosecution counsel, and in other ways actively participated in the defense. Defendant [137]raises no question as to the competency of the defense; indeed at the close of trial the court stated in front of the jury that “Mr. Loo did what I consider for a law student an outstanding job ... a better job than some I’ve seen with ... people who are full-fledged lawyers.”2
The evidence presented at trial clearly supports the conviction. Calexico police officers testified that they heard the sound of glass breaking, pulled up in front of Durazo’s Men’s Store, and saw that the glass door was shattered. They then noticed defendant walking away rapidly carrying paper bags. When they detained defendant, they observed that the bags contained new merchandise with price tags from Durazo’s; they noted also that defendant had scratches and glass particles on his hands, arms, and the soles of his shoes.
Defendant denied committing the burglary, and claimed he discovered the bags on the sidewalk and picked them up only as the officers arrived. The defense further argued that the police failed to preserve the glass particles or to obtain fingerprint evidence of the crime.
The jury found defendant guilty of second degree burglary. On appeal, defendant raised two contentions: (1) that the police failure to preserve the glass particles denied him due process, and (2) that he did not knowingly' waive his right to counsel or consent to be represented by a law student. The Court of Appeal, however, inquired further into the representation of defendant by a certified law student, and concluded that such representation abridged defendant’s right to assistance of counsel and constituted the unauthorized practice of law. We granted a hearing to consider those issues.
[1382]. Participation of a certified law student under the Rules does not abridge a defendant’s right to competent assistance of counsel.
The State Bar drafted the Rules with special care to the end that defendants represented by attorneys and certified students pursuant to those Rules would receive competent assistance. (See Ann. Rep. of Bd. of Governors (1969) 44 State Bar J. 616, 631.) The law student must have completed three semesters or equivalent of legal education. (Rule III, part B.) The dean of the law school or the judge or attorney under whom the student is studying must certify to his competence. (Rule IV.) The student may appear on behalf of a client in a trial only to the extent approved by the court. (Rule VI.) Finally, the client must expressly consent in writing to the student’s appearance, which consent must be filed with the court. (Rule VI.)
Of particular importance in the present appeal, the entire process of student participation, from initial client interview through trial, is actively supervised by an experienced attorney who incurs personal responsibility for the student’s performance. Rule VI provides that a certified student may appear in court “only with the approval [and] under the direct and immediate supervision and in the personal presence of the supervising lawyer.” That lawyer must be an active member of the State Bar of California who has “actively practiced law in California or elsewhere as a full time occupation for at least two years” (Rule V); the supervising attorney assumes “personal professional responsibility for any work undertaken by the student while under his supervision” (Rule V). The defendant, in other words, is not merely represented by a student who has not been admitted to the bar; he is represented by an experienced member of the bar who serves as counsel of record, undertakes personal and immediate supervision of the student’s performance, and assumes responsibility for the conduct of the defense.
By so limiting the program to approved and qualified students, and by requiring the personal and immediate supervision of experienced counsel,. the Rules provide reasonable assurance that the defendant will receive competent representation. Defendant does not dispute the practical efficacy of the safeguards provided in the Rules. Neither does he contend that he received inadequate representation, nor that student performance under the Rules is so frequently inadequate that the program itself must be overthrown on that ground. Instead, he pitches his argument on a high theoretical ground; adopting the position of the Court of Appeal, he maintains that even if he and all other defendants represented under the Rules receive reasonably competent representation, in contemplation of law participation by one not yet a member of the bar is an abridgment of the right to assistance of counsel.
[139]The issue defendant raises is one of first impression in California, but it has been considered by the courts of two other states with rules similar to the California Rules. Both states held that the participation of a supervised law student did not violate the defendant’s right to assistance of counsel. (State v. Daniels (La. 1977) 346 So.2d 672, 674; People v. Masonis (1975) 58 Mich.App. 615, 619 [228 N.W.2d 489]; cf. State v. Cook (1974) 84 Wn.2d 342 [525 P.2d 761], upholding prosecution conducted by student intern working for district attorney.)
Defendant, however, ignores the cases upholding law student trial participation and instead cites a bizarre collection of decisions in which defendants were represented by imposters or impersonators. We find these cases clearly distinguishable. In Huckelbury v. State (Fla.App. 1976) 337 So.2d 400, the most noted case, defendant was represented by a man who had been refused admission to the Florida bar on moral grounds, but by deception had secured a position with the public defender. In reversing the conviction, the court observed that the case was not analogous to “the Florida Bar Program of allowing senior law students to appear as interns. The intern program requires a degree of supervision far beyond that which a Public Defender would be expected to maintain over his professional staff.” (337 So.2d 400, 403.) In People v. Cox (1957) 12 Ill.2d 265 [146 N.E.2d 19, 68 A.L.R.2d 1134], People v. Washington (1976) 87 Misc.2d 103 [384 N.Y.S.2d 691], and Baker v. State (1912) 9 Okla.Crim. 62 [130 P. 820], the person who represented the defendant acted without supervision from qualified counsel; moreover, those decisions rest on the fact that defendant did not know that his representative was not a member of the bar. Finally, Harrison v. United States (D.C.Cir. 1965) 359 F.2d 214, involved not only unsupervised but plainly incompetent representation by an ex-felon who impersonated an absent member of the bar.3
None of these cases remotely resemble the case at bar. The imposter cases do, however, point up the importance of state standards fashioned to ensure that persons appointed to represent defendánts are competent to do so. But we perceive no constitutional requirement that prevents a state from recognizing degrees of competence. The State Bar Rules here rest on the premise that although only a member of the bar is competent [140]to undertake to represent a defendant without supervision, an advanced law student is competent to do so if he receives immediate supervision from experienced counsel. If such Rules in fact serve to provide defendants with competent defense, we find no abridgment of constitutional protections.
We must bear in mind the high objective of the constitutional provisions guaranteeing a right to assistance of counsel — that, unless he waives that right, every defendant should receive in fact reasonably competent and effective representation. A doctrinaire insistence that an appearance by one not a member of the bar is necessarily a denial of the defendant’s constitutional right to assistance of counsel would not promote that objective. Instead, such a holding would undermine the programs undertaken by the bar and the law schools to assure that newly admitted lawyers are competent to undertake the independent responsibility of conducting a criminal defense. As we shall explain, many commentators, including our Chief Justice (see generally Bird, The Clinical Defense Seminar: A Methodology for Teaching Legal Process and Professional Responsibility (1974) 14 Santa Clara Law. 246, 270), believe that law school clinical training, including courtroom experience, is a prerequisite to the attainment of that level of competence.4
With the decline of the apprenticeship system of legal education in the latter part of the 19th century, many law students graduated and obtained admission to the bar without clinical experience. This lack of practical training had particularly serious consequences for the neophyte criminal lawyer. As described by Chief Judge Bazelon; “The ordinary law school graduate trying his first criminal case not only does not know what to do next; he does not know what to do first. Unlike his Wall Street counterpart whose firm provides a closely supervised apprenticeship period, the neophyte criminal lawyer is not apt to find such on-the-job training programs. The Wall Street litigator may take three years to argue [141]his first motion; he may never try a case entirely on his own. The criminal lawyer may have his first solo case a few weeks after passing the bar.” (Bazelon, The Defective Assistance of Counsel (1973) 42 U.Cin.L.Rev. 1,13.)5
Beginning with Colorado in 1957, state bar associations set out to remedy the deficiency in legal education by authorizing practical training for law students, analogous to the practical training given students of medicine, dentistry, and other professions. In 1969 the American Bar Association (ABA) adopted a model rule which authorized any eligible law student to appear in court on behalf of an indigent client. In criminal matters in which the defendant has a right to counsel, the ABA rule required the personal presence of a supervising attorney.6
The California Rules, which provide for closer supervision of law students than does the ABA Model Rule,7 were adopted in 1970. By the present date 47 of the 48 states in which a law school is located authorize practical training of law students; the majority permit such students to conduct the defense of criminal cases.8 In response to the permission extended by state court and bar rules, virtually all American law schools, including all 15 accredited law schools in California, have adopted clinical programs. (See Leleiko, State and Federal Rules Permitting the [142]Student Practice of Law: Comparisons and Comments, in Bar Admission Rules and Student Practice Rules, op. cit. supra, page 913.) The adoption of rules authorizing practical legal training throughout the United States, and the rapid response of the law schools to that authorization, attests in our opinion to the recognized need for such programs.
We share defendant’s concern over the risks posed by representation by inexperienced counsel. Every trial attorney, however, is inexperienced when he tries his first case; the real question presented by this appeal is whether the attorney should begin to acquire that experience as a student pursuant to rule,s which require close supervision by experienced counsel, or only after becoming a member of the bar when no such supervision is required. A doctrinaire adherence to the fiction that admission to the bar, ,and that alone, confers competence to appear on behalf of a criminal defendant would seriously impede progress toward the objective of providing defendants with counsel who are able in fact to provide a reasonably competent defense.9 The realities of the matter thus compel the conclusion that a defendant such as the one before us today who has received reasonably competent representation pursuant to a program replete with safeguards designed to ensure the competency of representation has not been denied his constitutional right to assistance of counsel merely because one of the two persons who appeared on his behalf was not yet a member of the bar.10
3. Defendant’s charge that Loo’s representation of defendant constituted the unauthorized practice of law is immaterial to the merits of this appeal.
When the State Bar adopted the Rules, it did not submit them to this court for approval.11 The State Bar claims such approval was unnecessary because a student who appeared only under direct supervision and [143]exercises no independent judgment does not engage in the practice of law. Alternatively, the bar asserts that it adopted the Rules under its authority to make regulations to aid in the administration of justice (Bus. & Prof. Code, § 6031) and to ensure that persons admitted to the bar have received proper training (see Bus. & Prof. Code, § 6047).
Defendant, however, argues that the defense of a criminal case necessarily constitutes the practice of law. Because only this court has the power to admit persons to the practice of law (see Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 727 [147 Cal.Rptr. 631, 581 P.2d 636]; Brotsky v. State Bar (1962) 57 Cal.2d 287, 300 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310]), defendant maintains that student representation pursuant to the Rules is “unauthorized” practice of law.
We do not believe it necessary to resolve this controversy. Every violation of a rule respecting the practice of law does not require the reversal of the judgment in the case in which the violation occurred. In the present case Loo appeared on behalf of defendant in good faith, relying upon rules promulgated by the State Bar. Unlike a case in which a defendant is represented by an imposter or someone who knows he has no right to appear in court on behalf of the defendant, Loo’s conduct, gives rise to no inference of professional or moral irresponsibility. Defendant in fact received competent representation. Thus even if Loo’s conduct might be considered the unauthorized practice of law — an issue we do not decide today — defendant incurred not the slightest prejudice as a consequence.
4. Defendant’s written consent to representation by a certified law student is sufficient to comply with both constitutional requirements and the State Bar Rules.
Defendant’s counsel on appeal asserts that defendant may not have realized that Loo was a law student and that defendant did not knowingly and intelligently agree to an appearance by a person not admitted to the bar. Recognizing that defendant signed an explicit consent to student representation, counsel argues that such consent is invalid unless the record demonstrates that it was made knowingly and intelligently after having been advised of the dangers of his decision. (Cf. Faretta v. [144]California, supra, 422 U.S. 806, 835 [45 L.Ed.2d 562, 581-582, 95 S.Ct. 2525].) Counsel also points-out that defendant does not speak English.
Defendant’s argument rests on the premise that consent to representation by a certified law student under the Rules must be regarded as a waiver of defendant’s right to the assistance of counsel, and hence must comply with the standards established for waivers of constitutional rights. We reject that premise. Because defendant was at all times represented by both an actively participating supervising attorney and a certified law student, he did have representation of counsel. Accordingly, no waiver of his right to counsel was required by either state or-federal Constitution. Consequently, Faretta v. California, supra, and other cases establishing requirements for valid waivers of constitutional rights (e.g., Johnson v. Zerbst (1938) 304 U.S. 458, 464-465 [82 L.Ed. 1461, 1466-1467, 58 S.Ct. 1019, 146 A.L.R. 357]; In re Haro (1969) 71 Cal.2d 1021, 1026-1028 [80 Cal.Rptr. 588, 458 P.2d 500]) are not on point.
We are left only with the question whether the waiver complied with the Rules. Rule VI provides that a student may appear on behalf of a client only if the client “shall have approved in writing the performance of such acts by such student,” which writing must be filed with the court. Defendant executed a written consent, reproduced in the footnote,12 which on its face complies with this requirement; Mr. Zinter filed the consent with the trial court.
The State Bar Rules themselves should, of course, be read to require that any consent be knowingly and intelligently executed. But since constitutional rights are not at stake, the presumption that ‘official duty has been regularly performed” (Evid. Code, § 664) should be sufficient to place on defendant the burden of showing the invalidity of the consent. Defendant has not attempted to carry that burden; in fact, he has never expressly claimed that his consent was unknowing or unintelligent, and never described the circumstances under which he executed the consent. We therefore conclude that the written consent filed with the court is sufficient to prove compliance with Rule VI.
[1455]. The police failure to preserve the glass particles did not deny defendant due process of law.
Defendant argues that the police failed to collect and preserve the glass particles found in his hands, arms, and the soles of his shoes. He asserts these particles were potentially exculpatoiy evidence and the police’s failure to preserve them denied him due process of law.
Defendant was arrested leaving the scene of the crime shortly after its commission, with the stolen goods in hand. Under such circumstances, it would not be reasonable for the police to conduct an in-depth scientific investigation of the crime or to preserve every piece of evidence that might possibly be relevant. The police cannot be required to preserve evidence which is neither necessary to the investigation of the crime nor likely to benefit the defendant. (See People v. Beagle (1972) 6 Cal.3d 441, 450-451 [99 Cal.Rptr. 313, 492 P.2d 1].) On the facts of this case, we find no denial of due process in the police’s failure to preserve the glass particles.
6. Conclusion.
We summarize our determination respecting the issues raised by the appearance on behalf of defendant of a certified law student. First, law student participation in a criminal defense pursuant to the Rules of the State Bar does not, as a matter of law, impair the constitutional guarantee to effective assistance of counsel. Second, although under the Rules defendant must consent in writing to student participation, that consent does not involve the waiver of a constitutional right. Third, at least in the absence of a substantial deviation from the Rules, any challenge to the effectiveness of the representation afforded defendant by the supervising attorney and certified law student must be judged by the same standards as those governing cases which do not involve certified students; here defendant makes no claim that his representation was inadequate by those standards. Finally, the possibility that, owing to the bar’s failure to submit the rules to this court for approval, the student’s appearance may arguably constitute “unauthorized” practice did not prejudice defendant and does not compel reversal of the judgment.
In brief, the program confers a dual benefit: the student, under the supervision of an experienced trial lawyer, gains exposure and training in actual trial techniques instead of the mere sterile description or observation of them; the litigant obtains the participation of an enthusiastic young law student, who in all likelihood will devote more time and [146]energy to the case than the often harassed and overworked public defender.
The judgment is affirmed.
Clark, J., Richardson, J., Manuel, J., Newman, J., and Kaus, J.,* concurred.
The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” In parallel language, [136]article I, section 15 of the California Constitution states that “The defendant in a criminal cause has the right... to have the assistance of counsel for the defendant’s defense.”
The California Public Defender Association, as amicus curiae, points out that Loo and Zinter failed to object to prosecution evidence that defendant, after having been advised of his right to remain silent, exercised that right and offered no explanation of his conduct to the arresting officers. Amicus argues that such failure constitutes incompetency of counsel. Defendant’s appointed counsel on appeal has not raised or endorsed this argument, and in fact has expressly acknowledged the competency of the representation afforded defendant.
We note that at trial defendant testified expressly that he told the officers that he did not own the paper bags containing the stolen property. Although Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2440], held evidence of a defendant’s silence was generally inadmissible, it recognized an exception when, the evidence was offered to impeach testimony that the defendant offered an exculpatory explanation to the police at tne time of his arrest. (See 426 U.S. at pp. 619, 620, fn. 11 [49 L.Ed.2d at p. 98]) Arguably, in view of defendant’s testimony the prosecution evidence was admissible under that exception. In any event, since competent counsel might reasonably differ respecting the admissibility of such evidence or the desirability of objecting to its admission, the failure of Loo and Zinter to object does not demonstrate that defendant received incompetent representation.
Defendant cites Higgins v. Parker (1945) 354 Mo. 888 [191 S.W.2d 668], but that decision does not support defendant’s position. In Higgins, the defendant was represented jointly by an imposter and a member of the bar. Although the court stated in dictum that counsel under the Sixth Amendment means “a duly licensed attorney, and not a mere attorney in fact or a layman” (191 S.W.2d at p. 670), the court went on to examine the record and conclude that the defendant was not prejudiced by the imposter’s presence. The decision thus rejects the proposition that representation by one who is not a member of the bar compels reversal of the defendant’s conviction.
It has been suggested that neither mock trials in law school nor passive observation of actual trials provides adequate clinical training. As explained by Judge Wenke of the Los •Angeles Superior Court: “[I]n contrast to actual clinical experience, the mock trials are conducted under contrived circumstances. . . . Further, the effort in terms of producing a single mock trial precludes its use except as a demonstration. . . . There is really no available substitute, in terms of both authenticity and sufficient quantity, for genuine trials. As a teaching aid, the courts have no peer. [if] Observance as a passive spectator can never have the impact that comes from the immersion in a constantly moving event. . . . After twenty years in the business, I make the flat assertion that anyone who believes trial lawyers are either ‘born’ or can be developed without participating in the trial process itself simply does not know what he is talking about.” (Wenke, My View from the Bench in Clinical Education for the Law Student (Council on Legal Ed. for Prof. Responsibility (1973) pp. 293-294; see also Bazelon, Defective Assistance of Counsel (1973) 42 U.Cin.L.Rev. 1. 19.)
One of the earlier critics of the absence of clinical training from the law schools was Judge Jerome Frank of the Second Circuit. In Courts on Trial (1949) he questioned:
“If it were not for a tradition which blinds us, would we not consider it ridiculous that, with litigation laboratories just around the corner, law schools confine their students to what they can learn about litigation in books? What would we say of a medical school where students were táught surgery solely from the printed page? No one, if he could do otherwise, would teach the art of playing golf by having the teacher talk, about golf to the prospective player and having the latter read a book relating to the subject. The same holds for toe-dancing, swimming, automobile-driving, hair-cutting, or cooking wild ducks. Is legal practice more simple? Why should law teachers and their students be more hampered than golf teachers and their students? Who would learn golf from a golf instructor, contenting himself with sitting in the locker-room analyzing newspaper accounts of important golf-matches that had been played by someone else several years before? Why should law teachers be like Tomlinson? ‘ “This I have read in a book,” he said, “and that was told to me. And this I have thought that another man thought of a Prince in Muscovy.” ’ ” ((Atheneum ed. 1963) p. 229.)
ABA" Model Rule 2A provides that “An eligible law student may appear in any court. . . on behalf of any indigent person if the person on whose behalf he is appearing has indicated in writing his consent to that appearance ... in the following matters:...
“3. Any criminal matter in which the defendant has the right to the assignment of counsel. ... In such cases the supervising lawyer must be personally present throughout the proceeding.”
The ABA Model Rule, quoted in footnote 6, ante, requires personal supervision only in cases in which the defendant has a right to counsel. California Rule VI, however, requires “direct and immediate supervision” whenever the student appears “on behalf of the client in any public trial.”
The state rules regulating student clinical practice appear in Bar Admission Rules and Student Practice Rules (Klein ed. 1978) pages 996-1157.
There is another practical consequence to defendant’s contention which we cannot overlook. Since the Rules were adopted in 1970, thousands of defendants have been represented by certified law students under those rules. If law student representation is per se constitutionally inadequate, any defendant convicted in such a proceeding could contend that he is entitled to a new trial, even though he makes no claim to have received less than reasonably competent representation. (See Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733].)
Defendant and the Court of Appeal both suggest that although in their view representation by a certified law student is necessarily an abridgment of defendant’s right to assistance of counsel in felony cases, it might not be so in misdemeanor cases. Argersinger v. Hamlin (1972) 407 U.S. 25 [32 L.Ed.2d 530, 92 S.Ct. 2006], however, explicitly held that defendants charged with misdemeanors which might result in imprisonment are entitled to the same quality of representation as those charged with felonies. In light of that decision we cannot create higher standards of assistance of counsel in felony cases than in misdemeanors involving possible imprisonment.
On July 27, 1978, while the instant case was pending before this court, the State Bar petitioned for court approval of the Rules. By order of Décember 13, 1978. we approved [143]the Rules provisionally while inviting comments and suggestions for changes prior to final action on the State Bar’s request.
The consent executed by defendant reads as follows:
“I, Carlos Perez consent to allow Jack R. Loo, a California State Bar Certified Law Student, to represent me under the direct supervision of Edward Zinter, my court-appointed counsel, who will assume personal, professional responsibility in the matter entitled People of the State of California v. Carlos Perez, court docket # 10630, pending in the Superior Court of Imperial County, Department III.
“This consent extends to all matters in and outside of court, these matters being those set out by the California State Bar as proper for such Certified Law Students to engage in in a representative capacity pertaining to the practice of law.
“Consented to and signed this 6th day of September, 1977.”
Assigned by the Acting Chairperson of the Judicial Council.