Opinion
STANIFORTH, Acting P. J. Terry Allen Hetrick appeals his conviction (order granting probation) of a charge of assault with a deadly weapon (Pen. Code, § 245) arising out of a barroom brawl. Hetrick contends reversible error (1) regarding his motion for substitution of counsel and (2) because he was tried before a jury in jail garb. In our view the second contention has merit, requiring a retrial in civilian clothing.1
I
Motion for Substitution of Counsel
Although Hetrick tried unsuccessfully to inform the trial court of his dissatisfaction with his attorney before trial, for reasons not here relevant the motion to substitute counsel was not heard until the day set for trial. Responding to the motion, the trial court agreed to substitute a new attorney provided Hetrick would waive time and consent to a continuance so that the new attorney could prepare for trial. The court indicated a standard continuance for this purpose would be 55 days. Hetrick said he did not want to waive time nor agree to a continuance. The court asked, “Then you prefer to go to trial at this time?” to which he responded “I don’t prefer to go to trial with Mr. Newton. But I don’t have no choice, I guess.” After ascertaining Mr. Newton was prepared for trial, the court ordered the trial to begin and it was tried without further objection to counsel. Defendant does not suggest counsel was not competent during the trial.
In the nature of things, Hetrick could not have what he asked, both an effective, prepared attorney and an immediate trial. The granting of [852]a substitution conditioned on a continuance was approved in People v. Mason (1973) 34 Cal.App.3d 281, 289 [109 Cal.Rptr. 867]. The trial court acted within its discretion in imposing the condition, and, upon Hetrick’s choice, electing to begin the trial with present counsel.
II
Trial in Jail Garb
The record shows on the first day of trial, July 15, 1981, at 1:45 p.m., after the motion for substitution of counsel had been argued and denied, Hetrick’s attorney said to the court: “Your Honor, may we send him down to jail to get civilian clothing? He has a stencil across the back of his shirt.” The court responded: “Do you have clothes down there that you would like to wear?” Hetrick replied: “I was extradited from Oregon. My clothes were wet when I was arrested in Oregon. They sat for three months, and they smell of mildew. This is all I have got.” The court responded: “Very well. We will proceed with the trial at this time.” A recess was taken, followed by an amendment of the information and another recess; and at 2:45 p.m. that same day, the jury panel was sworn and voir dire begun.
The Attorney General disingenuously argues, first, the record described above does not establish Hetrick was actually tried in jail garb. In response, Hetrick tenders an affidavit swearing he was in jail garb throughout the proceedings, but the Attorney General objects to the taking of original evidence on appeal. The record shows Hetrick was in jail garb at 1:45 p.m. and was observed by the jury panel at 2:45 p.m. that same day. After the above colloquy, the court did not grant leave to Hetrick to return to the jail to obtain civilian clothes. The record further shows the defendant was wearing a “blue shirt and Levis” during trial. Such record establishes the trial jury saw Hetrick in his jail clothing. We examine next the legal consequences flowing from these facts.
The state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes. (Estelle v. Williams (1976) 425 U.S. 501, 512 [48 L.Ed.2d 126, 135, 96 S.Ct. 1691]; People v. Williams (1979) 93 Cal.App.3d 40, 66-67 [155 Cal.Rptr. 414].)
The specific constitutional evil is pointed out by the Estelle court in this language: “Courts have, with few exceptions, [fn. omitted] deter[853]mined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption [of innocence] so basic to the adversary system. [Citations.]” (Op. cit. supra, at p. 504 [48 L.Ed.2d at p. 130].)
The Court of Appeal in People v. Zapata (1963) 220 Cal.App.2d 903, 911 [34 Cal.Rptr. 171], was more explicit as to the reasons for the rule: “There are considerations here other than possible bias.... One is equality before the law. A defendant who can afford bail appears for trial in the best array he can muster. He may be a veritable satyr clad like Hyperion himself. Imposition of jail clothing on a defendant who cannot afford bail subjects him to inferior treatment. He suffers a disadvantage as a result of his poverty. Our traditions do not brook such disadvantage. [Fn. omitted.] The second consideration is psychological. Some defendants may be callous; others confused and embarrassed by prison garb to the point where they may be handicapped in presenting or assisting their defense. Presumed to be innocent, the prisoner is entitled to as much dignity and respect as safety allows. As one court tersely put it: ‘The presumption of innocence requires the garb of innocence, .. .’ (Eaddy v. People, 115 Colo. 488 ....)”
Next the Attorney General argues the right to be tried in civilian garb is waivable, and Hetrick waived it by not specifically requesting the court to furnish other clothing. The United States Supreme Court in Estelle v. Williams, supra, 425 U.S. 501, 508 [48 L.Ed.2d 126, 133], held: “Courts have therefore required an accused to object to being tried in jail garments, just as he must invoke or abandon other rights. The Fifth Circuit has held: ‘A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.’ Hernandez v. Beto, 443 F.2d [634], at 637 [cert, den., 404 U.S. 897 (30 L.Ed.2d 174, 92 S.Ct. 201)]. The essential meaning of the Court of Appeals’ decision in Hernandez has been described by that court as follows: ‘We held [in Hernandez] that the defendant and his attorney had the burden to make known that the defendant desired to be tried in civilian clothes before the state could be accountable for his being tried in jail clothes ...'.’ United States ex rel. Stahl v. Henderson, 472 F.2d, at 557.” (Fns. omitted.) And the Supreme Court noted: “Significantly, in the Henderson case the Fifth Circuit interpreted Hernandez as requiring the accused to take affirmative steps to apprise the trial court of his desire to be tried in civilian clothes. The Hernandez court had simply found, [854]under the circumstances presented there, that the defendant ‘had met his burden.’ [Citation.]” (Id., at p. 509, fn. 4 [48 L.Ed.2d at p. 133].)2
The court explained the reason for the rule requiring an objection: “The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation.” (Id., at p. 508, fn. 3 [48 L.Ed.2d at p. 133].) And this court in People v. Du Bose (1970) 10 Cal.App.3d 544, 549 [89 Cal.Rptr. 134], observed: “A defendant who is unable to provide himself with suitable clothing, and does not wish to be tried in jail attire may, no doubt, apply to the court for relief. (See People v. Zapata, 220 Cal.App.2d 903, 910-911 .. ..) Manifestly, if the application is to serve any useful purpose, it should have been made before the trial begins. If, in fact, appellant believed he would be prejudiced before the jury because of his jail clothing, he should have requested the court’s aid before the jury had seen him dressed in it.”
One further germane principle must be established. The United States Supreme Court looks with “general disfavor” on inferred waiver of constitutional rights. {Estelle v. Williams, supra, at p. 515 [48 L.Ed.2d at p. 137], conc. opn. of Powell, J.) The right should not be lost unless the people demonstrate “an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 146 A.L.R. 357]; Barker v. Wingo (1972) 407 U.S. 514, 525-529 [33 L.Ed.2d 101, 113-116, 92 S.Ct. 2182].)
Hetrick’s counsel made a specific request for the defendant to be returned to the jail to obtain civilian garb. Certainly he “called the matter to the court’s attention.” Certainly he “requested the court’s aid” and “apprised the court of his desire to be tried in civilian clothes.” Hetrick meets every articulated standard for preserving his right to complain on appeal.
There is no showing Hetrick owned any other clothes or that he knew he was entitled to have civilian clothes supplied to him. In fact the oral [855]exchange with the judge strongly suggests Hetrick had no idea of the extent of such rights. The above-quoted colloquy is no more a waiver than the act of a homeless pauper is a choice to sleep under a bridge. We find no waiver in these facts.
The United States Supreme Court has stated it is a violation of equal protection to compel a defendant who cannot make bail to be tried in jail garb; however, prejudice must be shown to obtain reversal on that ground. (Estelle v. Williams, supra, 425 U.S. 501, 507 [48 L.Ed.2d 126, 132]; see also People v. Chacon (1968) 69 Cal.2d 765, 778 [73 Cal.Rptr. 10, 447 P.2d 106]; People v. Zapata, supra, 220 Cal.App.2d 903, 911.) However, the possible denial of the fundamental right to a fair trial in such matters calls for close judicial scrutiny. (People v. Williams (1979) 93 Cal.App.3d 40, 67 [155 Cal.Rptr. 414] (exhibition of codefendants in jail garb).)
Here, the facts developed at trial show a fast moving restaurant altercation. The victim and his wife testified against Hetrick, claiming Hetrick assaulted the victim with a knife and threatened to kill the victim if the latter did not release a codefendant. The wife claims to have seen Hetrick threaten the victim with a knife. Hetrick, however, claims he picked up the codefendant’s knife but made no gesture with it. Thus, witness credibility was crucial in this matter. Further, since three defendants were actually present and involved in the fight, there is the possibility of false identification.
Our final concern is the test to be used in assessing prejudice: “The quantum of error cannot be measured in terms of tipping the scales of justice. ‘Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of . .. [the prison garb worn by the defendant] on the minds of an average jury.’ Harrington v. California, 1969, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728 .... Before ‘a federal constitutional error can be held harmless the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct. 824, 828 ...; cf. United States v. Manning, 5 Cir. 1971, 440 F.2d 1105; Simpson v. Wainwright, 5 Cir. 1971, 439 F.2d 948.)” (Hernandez v. Beto, supra, at p. 637.)
We conclude permitting the jury to see Hetrick in jail clothes must have been prejudicial under these circumstances, not harmless beyond a reasonable doubt.
[856]Order reversed.
Wiener, J., concurred.
Hetrick was sentenced on August 18, 1980, to three years’ probation conditioned on local custody of one year, with credit for two hundred sixty-one days already served (including eighty-seven days’ credit under Pen. Code, § 4019). He therefore had only 104 days to serve in jail and has long since been released on probation. These facts do not moot the appeal, since he remains on probation with suspended sentence for the offense, but it is regrettable the reversal of his conviction for constitutional error could not occur in time to prevent service of the jail time imposed.
Factually, trial counsel in Hernandez did not object to the jail clothing because, from past experience, he thought a motion for change of attire would have been treated as frivolous. The court held: “We cannot accept this as a voluntary waiver by Hernandez.” (Hernandez v. Beto (5th Cir. 1971) 443 F.2d 634, 637; italics added.)