People v. Pope

590 P.2d 859, 23 Cal. 3d 412, 152 Cal. Rptr. 732, 2 A.L.R. 4th 1, 1979 Cal. LEXIS 207

• Court: California Supreme Court
• Decided: February 22, 1979
• Docket: Crim. 20359
• Status: Published

Opinions

Opinion

BIRD, C. J.

Appellant, Joseph Glenn Pope, appeals from his conviction for second degree robbery. His sole contention is that he was denied his constitutional right to the effective assistance of counsel at trial.

I

Late in the evening of February 24, 1976, Herman E. Brower was robbed in a parking lot outside a bar in Cotati. Brower had just left the Trade Winds bar where he had been drinking. Brower testified that he had paid for a drink with a $20 bill and that a black man, with whom Brower had been chatting, had picked up the change and put it in his pocket. This man suggested that they go out for dinner and started to leave. Brower followed.

Once outside the bar, Brower heard footsteps behind him. The black man said to Brower, “He’s coming with us.” The next thing Brower remembered was being shoved to the ground by the black man, who then held Brower’s legs for a white man, who removed Brower’s wallet. Although intoxicated at the time of the robbery, Brower later identified appellant from a photographic lineup as his black assailant. Brower could not identify appellant at trial.

The day after the robbery, Cotati police arrested appellant and seized a wallet which contained $56.¹ At the stationhouse, appellant was advised of his Miranda rights, with an additional admonition by the police: “Further, you have the right to make any statement you wish which might clarify or explain your position in this matter.” Appellant stated that he understood his rights and signed a waiver form.

After initially denying that he had even spoken to Brower at the Trade Winds bar, appellant changed his story several times, each time admitting a greater degree of involvement as the police confronted him with additional pieces of information. Ultimately, after tying to “make a deal,” appellant told police he had witnessed the robbery which he said was committed by two white men and a black. Although the two white men, Harbin and Stoker, became police suspects in the robbeiy, it appears that only appellant was charged with the crime.

Two and one-half months before trial, the Sonoma County Public Defender was appointed to represent appellant. However, it was not until four working days before trial that the ofiice assigned a deputy public defender to try the case.²

Before trial, the court appointed a psychiatrist to assist in appellant’s defense. Although the augmented record on appeal does not include the psychiatrist’s report, the record does contain two previous psychological evaluations which showed that appellant’s mental capabilities were limited. These reports, written in 1973 and 1975, placed appellant’s intelligence in the “borderline defective” category of retardation.³ The doctors who examined appellant stated that he “function[ed] intellectually like a child”; that he could not make change or drive a car; that he was gullible and suggestible; that instructions to him must be couched in “simple, concrete terms”; and that he had a “poor tolerance for ambiguity.”⁴

No evidence as to appellant’s limited intelligence was introduced at trial or used before trial to challenge the admissibility of appellant’s out-of-court statements to police. The sole defense presented by appellant’s counsel was that the robbery was committed by the two other suspects, Harbin and Stoker. There was testimony that the two men were troublemakers and that they had followed appellant and the victim out of the bar on the night of the robbery. Appellant’s counsel did not seek to subpoena Harbin and Stoker before trial.

In cross-examining a police officer, appellant’s counsel sought to elicit extrajudicial statements made by one suspect to the other. The officer had overheard Harbin tell Stoker that “we were seen leaving the Trade Winds [but the police] haven’t got any evidence and we don’t have anything to worry about.” The prosecutor objected on the grounds that such hearsay could not be admitted unless counsel made a showing that the declarant was unavailable.⁵ Trial was adjourned to give defense counsel an opportunity to subpoena Harbin and Stoker.

On the following day, the deputy public defender produced Harbin and called him as a witness. On advice of a newly appointed private counsel, Harbin invoked his Fifth Amendment privilege.⁶ Stoker, on the other hand, was not located and the prosecution questioned whether the public defender’s office had exercised “reasonable diligence” in seeking to procure Stoker’s attendance.⁷ Defense counsel acknowledged that the only efforts to obtain Stoker’s presence at trial had been made by telephone. When the court asked if counsel had reached Stoker, counsel responded: “No, your Honor, we were unable to. We did attempt to contact him last week. This case was actually assigned to an attorney on Tuesday. That particular attorney, being myself, was in hearing on Tuesday, Wednesday, Thursday and Friday, so the calls were made in the late afternoon, when he was apparently still at work, but those messages were not returned.”⁸

Counsel also offered an explanation as to why the calls were not returned: “Unfortunately, you see, Harbin’s a client of ours, and he knows we are representing Pope, and he is not answering the phone calls.”

The court accepted the deputy public defender’s explanation and held that there had been due diligence in seeking to secure Stoker’s presence. Later, Harbin’s extrajudicial statement to Stoker was admitted into evidence.

In closing argument, defense counsel argued that the only direct evidence of appellant’s participation in the robbery was the identification by the victim, who had been drinking on the night of the incident. At one point, counsel sought to minimize the significance of appellant’s inconsistent statements to the police, suggesting that the inconsistency resulted from appellant’s limited mental capacity. However, the court ordered her to discontinue that line of argument since no evidence had been introduced on that issue.

The jury found appellant guilty of second degree robbery. Following a diagnostic study and recommendation by the Department of Corrections, appellant was sentenced to state prison.

II

This court must determine whether appellant’s legal representation at trial was inadequate. Two basic grounds are advanced by appellant: (1) the failure by counsel to make use of the record of appellant’s limited intelligence; and (2) her failure to interview or subpoena the two other suspects, Harbin and Stoker, before trial commenced. In order to assess the adequacy of the legal assistance appellant received, this court must determine the proper standard by which trial counsel’s performance is to be measured.⁹

In People v. Ibarra (1963) 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487], this court articulated a strict standard to measure the constitutional right to “ ‘effective aid in the preparation and trial of the case.’ (Powell v. State of Alabama, 287 U.S. 45, 71 [53 S.Ct. 55, 77 L.Ed. 157, 171-172, 84 A.L.R. 527, 541].)” In order to obtain relief on appeal, “[i]t must appear that counsel’s lack of diligence or competence reduced the trial to a ‘farce or a sham.’ [Citations.]” (People v. Ibarra, supra, 60 Cal.2d at p. 464.)

In several cases, this court has moved away from the “farce or sham” standard. For example, some decisions of this court have held that a defendant is entitled to counsel “ ‘reasonably likely to render, and rendering reasonably effective assistance.’ [Citations.]” (In re Saunders (1970) 2 Cal.3d 1033, 1041 [88 Cal.Rptr. 633, 472 P.2d 921], original italics; In re Williams (1969) 1 Cal.3d 168, 176 [81 Cal.Rptr. 784, 460 P.2d 984].) Other decisions employ the alternative test of whether counsel “effectively supplied] to a defendant those skills and legal knowledge which we can reasonably expect from any member of the bar.” (People v. Cook (1975) 13 Cal.3d 663, 672-673 [119 Cal.Rptr. 500, 532 P.2d 148]; People v. Steger (1976) 16 Cal.3d 539, 551 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206]; People v. Camden (1976) 16 Cal.3d 808, 815 [129 Cal.Rptr. 438, 548 P.2d 1110].)¹⁰

Insofar as it survives, the “farce or sham” standard (or its alter ego, the “farce and mockery”. standard) has been widely criticized by legal scholars. (See generally, e.g., Bazelon, The Defective Assistance of Counsel (1973) 42 U.Cin. L.Rev. 1, 28; Finer, Ineffective Assistance of Counsel (1973) 58 Cornell L.Rev. 1077, 1078-1081; Note, Ineffective Representation as a Basis for Relieffrom Conviction: Principles for Appellate Review (1977) 13 Colum. J. L. & Soc. Prob. 1, 32-37.) A growing number of other jurisdictions have repudiated it outright. (E.g., Moore v. United States (3d Cir. 1970) 432 F.2d 730, 737 (en banc); United States ex rel. Williams v. Twomey (7th Cir. 1975) 510 F.2d 634, 641; State v. Harper (1973) 57 Wis.2d 543, 552, 557 [205 N.W.2d 1, 6, 9]; People v. Garcia (1976) 398 Mich. 250, 266 [247 N.W.2d 547, 553].) Significant among these jurisdictions is the federal Court of Appeals for the District of Columbia, the very court which enunciated the “farce and mockery” rule in the first instance. (See United States v. DeCoster (D.C. Cir. 1973) 487 F.2d 1197, 1201-1202; Beasley v. United States (6th Cir. 1974) 491 F.2d 687, 693-694.)

The reasons set forth by these courts and commentators for replacing the “farce or sham” standard are compelling. The standard originated in decisions which held that the right to competent representation derived solely from the due process clause of the Constitution and not from the provision guaranteeing the right to the assistance of counsel. (Diggs v. Welch (D.C. Cir. 1945) 148 F.2d 667, 668-669; Jones v. Huff (D.C. Cir. 1945) 152 F.2d 14, 15.)¹¹ This view has been thoroughly discredited, for courts now recognize that the right to competent representation at trial is grounded in the constitutional right to the assistance of counsel. (See McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [25 L.Ed.2d 763, 773, 90 S.Ct. 1443].) Accordingly, constitutionally adequate assistance can no longer be measured by the due process standard of Ibarra, but instead must be determined by a standard bottomed on the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution.¹² (See generally, Comment, The Right to Competent Defense Counsel: Emergence of a Sixth Amendment Standard of Review on Appeal and the Persistence of the “Sham and Farce” Rule in California, supra, 15 Santa Clara Law. 355.)

The constitutional right to the adequate assistance of counsel suggests a focus on the quality of the representation provided the accused, while due process concerns itself with the fairness of the trial as a whole. “One may receive ineffective assistance of counsel even though the proceedings have not been a farce or mockery. [Citation.]” (Herring v. Estelle (5th Cir. 1974) 491 F.2d 125, 128.) Indeed, a substantial portion of the obligation counsel owes is not directly connected with the trial but involves investigation and advice at pretrial and posttrial stages. (See generally, ABA Project on Standards for Crim. Justice, Stds. Relating to the Prosecution Function and the Defense Function (Approved Draft 1971) pp. 147-148, 225-228.) Thus, neither the Sixth Amendment nor article I, section 15 is satisfied by a standard which requires the trial to have been reduced to a farce or sham.

Further, the Ibarra standard is vague and subjective. As described by one federal court of appeals, “The phrase ‘farce and mockery’ has no obvious intrinsic meaning. What may appear a ‘farce’ to one court may seem a humdrum proceeding to another. The meaning of the Sixth Amendment does not, of course, vary with the sensibilities and subjective judgments of various courts. The law demands objective explanation, so as to ensure the even dispensation of justice.” (Beasley v. United States, supra, 491 F.2d at p. 692.)¹³

In McMann v. Richardson, supra, 397 U.S. at page 771 [25 L.Ed.2d at p. 773], the United States Supreme Court set forth a more objective standard for testing the adequacy of counsel’s representation. The court stated that defense counsel’s pretrial advice must be “within the range of competence demanded of attorneys in criminal cases.” (Accord, Tollett v. Henderson (1973) 411 U.S. 258, 264 [36 L.Ed.2d 235, 241-242, 93 S.Ct. 1602],) Following McMann, the Court of Appeals for the District of Columbia held that “a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” (United States v. DeCoster, supra, 487 F.2d at p. 1202, italics original.)

The DeCoster rule expresses counsel’s duty to act as “an active advocate in behalf of his client” (Anders v. California (1967) 386 U.S. 738, 744 [18 L.Ed.2d 493, 498, 87 S.Ct. 1396]), while testing counsel’s actions by the familiar and objective standard of the ordinarily prudent lawyer. (Cf. Smith v. Lewis (1975) 13 Cal.3d 349, 358-359 [118 Cal.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231] [attorney’s civil liability for malpractice measured by standard of reasonableness].) The chief virtue of this standard lies in its ability to uphold the guarantees of the Sixth Amendment and article I, section 15. Since the state is constitutionally required to provide indigent defendants with counsel (Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]; see Gordon v. Justice Court (1974) 12 Cal.3d 323, 332 [115 Cal.Rptr. 632, 525 P.2d 72, 71 A.L.R.3d 551]), a conviction may not be upheld if the state has furnished an indigent with representation of lower quality than that of a reasonably competent attorney acting as a diligent, conscientious advocate.

In addition, the standard of reasonably competent representation affords a measurable guide for evaluating the quality of trial counsel’s decisionmaking. “Defense strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent deny a criminal defendant the effective assistance of counsel, if some other action would have better protected a defendant and was reasonably foreseeable as such before trial. [Citation.]” (Beasley v. United States, supra, 491 F.2d at p. 696.) Reviewing courts should avoid second-guessing counsel’s informed choice among tactical alternatives, but a defense attorney’s freedom to make such decisions is not without limits. Every person accused of a criminal offense is entitled to constitutionally adequate legal assistance. (E.g., In re Saunders, supra, 2 Cal.3d at p. 1041.) That right is denied if trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases. This is true even if the decision were not made from ignorance of the law or a fact.

To render reasonably competent assistance, an attorney in a criminal case must perform certain basic duties.¹⁴ (See generally, ABA Project on Standards for Criminal Justice, Stds. Relating to the Prosecution Function and the Defense Function, supra, p. 141 et seq.) Generally, the Sixth Amendment and article I, section 15 require counsel’s “diligence and active participation in the full and effective preparation of his client’s case.” (People v. Vest (1974) 43 Cal.App.3d 728, 736 [118 Cal.Rptr. 84].) Criminal defense attorneys have a “ ‘duty to investigate carefully all defenses of fact and of law that may be available to the defendant ....’” (In re Williams, supra, 1 Cal.3d at p. 175.) This obligation includes conferring with the client “without undue delay and as often as necessary ... to elicit matters of defense . . . .” (Coles v. Peyton (4th Cir. 1968) 389 F.2d 224, 226.) “Counsel should promptly advise his client of his rights, and take all actions necessary to preserve them. . . . Counsel should also be concerned with the accused’s right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pretrial psychiatric examination or for the suppression of evidence. [Fns. omitted.]” (United States v. DeCoster, supra, 487 F.2d at p. 1203; People v. Whittington (1977) 74 Cal.App.3d 806, 818-819, fn. 6 [141 Cal.Rptr. 742].) If counsel’s failure to perform these obligations results in the withdrawal of a crucial or potentially meritorious defense,¹⁵ “ ‘the defendant has not had the assistance to which he is entitled.’ ” (In re Saunders, supra, 2 Cal.3d at p. 1042.)

Of course, the burden of proving a claim of inadequate trial assistance is on the appellant. (People v. Camden, supra, 16 Cal.3d at p. 816.) Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense.

Once an appellant has met these burdens, the appellate court must look to see if the record contains any explanation for the challenged aspect of representation. If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate. For example, where the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (E.g., People v. Fain (1969) 70 Cal.2d 588, 600 [95 Cal.Rptr. 562].) In contrast, where the record shows that counsel has failed to research the law or investigate the facts in the manner of a diligent and conscientious advocate, the conviction should .be reversed since the defendant has been deprived of adequate assistance of counsel. (E.g., People v. McDowell (1968) 69 Cal.2d 737 [73 Cal.Rptr. 1, 447 P.2d 97].)

In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.¹⁶ (E.g., People v. Miller (1972) 7 Cal.3d 562, 572-574 [102 Cal.Rptr. 841, 498 P.2d 1089].) Otherwise, appellate courts would become engaged “in the perilous process of second-guessing.” (Id., at p. 573.) Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel’s representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.

Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. (See Pen. Code, §§ 1483 and 1484; e.g., In re Williams, supra, 1 Cal.3d 168.) For example, counsel may explain why certain defenses were or were not presented. Having afforded the trial attorney an opportunity to explain, courts are in a position to intelligently evaluate whether counsel’s acts or omissions were within the range of reasonable competence.¹⁷

III

With these principles in mind, this court must determine whether appellant received the kind of legal assistance to be expected of a reasonably competent attorney acting as a conscientious, diligent advocate. Appellant contends that his trial counsel’s representation was inadequate because she failed to use significant evidence of his mental deficiency. He asserts that given this evidence, a reasonably competent counsel would have taken one or more of the following steps: (1) sought a pretrial hearing to determine appellant’s competence to stand trial (see Pen. Code, § 1368); (2) moved to suppress appellant’s postarrest statements to police on the ground that appellant was mentally incapable of knowingly, intelligently and voluntarily waiving his Miranda rights; (3) introduced evidence of appellant’s mental deficiency at trial—once having lost the pretrial suppression motion—in order to argue the insignificance of the inconsistent statements; and (4) developed and presented a defense of diminished capacity.

It is difficult to understand why the deputy public defender took none of these steps. Given the substantial record of appellant’s mental retardation, these defenses were certainly crucial in the sense that they had potential merit. Particularly troublesome is counsel’s failure to seek suppression of appellant’s inconsistent statements to the police. Following a standard Miranda warning, the officer suggested to appellant that he “ha[d] a right to . . . clarify or explain [his] position in this matter.” This invitation to speak and appellant’s “suggestibility” formed a strong basis for urging exclusion of the damaging statements. A reasonably competent and diligent counsel would ordinarily be expected to make such a motion.

Nonetheless, appellant’s claim of inadequate assistance cannot be resolved on appeal. The record includes neither an explanation as to why counsel did not raise any of the potential mental defenses nor an indication that she was asked for an explanation.¹⁸ This is not a case where this court can conceive of no satisfactory explanation for counsel’s omissions. For example, the report of the appointed defense psychiatrist, which is not part of the record on appeal, may have included information upon which a diligent, conscientious and reasonably competent attorney would have chosen to forego any mental defense. In addition, appellant may have instructed trial counsel that he did not want records of his mental retardation introduced into evidence.

In view of the silence of the record on the reasons why no mental defense was presented, appellant’s claim would be more appropriately made in a petition for habeas corpus. Indeed, if presented in a verified petition, appellant’s allegations concerning the substantial mental defenses which were not offered would undoubtedly present a colorable claim entitling appellant to an evidentiary hearing. (See Pen. Code, §§ 1483 and 1484; In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2 [87 Cal.Rptr. 681, 471 P.2d 1].) At such a hearing, appellant would be able to produce evidence on matters merely alleged before this court.

Appellant next contends that he was denied competent representation because counsel did not interview or subpoena before trial the two other suspects, Harbin and Stoker. Appellant points out that the question of counsel’s diligence in seeking to subpoena the two suspects was raised in the trial when counsel sought to introduce extrajudicial statements by the two men who were not'present in court. At that time, counsel had an opportunity to describe fully her efforts to contact Harbin and Stoker, and she stated that her only attempts to reach them were by telephone. Appellant claims that such limited efforts precluded his obtaining potentially exculpatory evidence.

There is no doubt from the record that appellant’s case was hastily prepared under intense time pressure. Trial counsel was assigned to the case only four working days before trial. During each of those days, she was occupied with hearings in other cases.

While it is clear that defense preparation was less than exemplary, appellant has not demonstrated constitutionally inadequate preparation on the limited facts available to this court. The trial judge found that the public defender’s office had exercised due diligence in seeking to produce Stoker at trial. The record also indicates that the office had been tiying to contact Harbin up until the time of the trial.

Further, defense counsel’s statements about trying to telephone Harbin and Stoker were made in response to questions concerning her efforts to secure the two men as witnesses. Her statements in this regard do not preclude the possibility that she or some other member of the office made more substantial efforts to interview them as part of a pretrial investigation. Indeed, it is possible that another attorney or investigator actually interviewed one or both of the other suspects before trial and found that their testimony would not be favorable to appellant. Since the appellate record is ambiguous on this issue, the court cannot conclude that appellant has established that defense counsel conducted an inadequate investigation.¹⁹

The record reveals one other disturbing suggestion regarding the public defender’s representation in this case. To explain her lack of success in tiying to reach Harbin by telephone, counsel told the trial judge, “Harbin’s a client of ours, and he knows we are representing Pope, and he is not answering our phone calls.” From this statement an inference arises that the public defender’s office may have undertaken simultaneous representation of clients with conflicting interests.

Nonetheless, there are two compelling reasons for not resolving this issue at present. First, appellant’s appointed counsel on appeal, who has vigorously challenged the other aspects of trial counsel’s representation, has made no claim of any inadequacy based on a. conflict of interest. Second, as already suggested, an evidentiary hearing is highly appropriate in this case if a verified petition for habeas corpus is filed. (See ante, p. 428.) In view of the likelihood of such a petition and the absence of any claim of conflict at trial or on appeal, this court is persuaded that resolution of this potential issue should await an evidentiary hearing in which all claims of inadequate assistance may be fully explored in a single proceeding.

The judgment is affirmed.

Tobriner, J., Richardson, J., and Manuel, J., concurred.

1 The police later showed the wallet to Brower who could not identify it. The prosecution introduced the wallet and its contents into evidence at trial without objection.

2 Trial counsel was at least the fourth attorney from the office to represent appellant in proceedings related to the case. At trial she was assisted by the head of the office.

3 These evaluations were read and considered by the trial judge after trial and before he ordered appellant committed for diagnosis pursuant to Penal Code section 1203.03. The diagnostic report and the report of another psychiatrist who examined appellant before sentencing were consistent with the conclusions of the 1973 and 1975 evaluations.

The record does not show whether trial counsel obtained copies of the 1973 and 1975 evaluations before trial, or whether she knew of their existence at that time. However, counsel was aware of appellant’s mental limitations, as indicated by her opening statement in which she asserted that “Mr. Pope has a borderline intelligence.”

4 The record does not establish that appellant suffered from any emotional illness or that he could not tell right from wrong. Before sentencing, the trial judge characterized appellant as a man “who appears to be responsible for his actions in a purely legal sense, but that’s about all.”

5 Evidence Code section 1230 provides in pertinent part: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”

6 Exercise of this privilege rendered Harbin “unavailable as a witness” within the meaning of Evidence Code section 240, which provides in part: “(a) Except as otherwise provided in subdivision (b), ‘unavailable as a witness’ means that the declarant is: (1) [exempted or precluded on the ground of privilege from testifying concerning the matter to which his statement is relevant. . . .”

7 Evidence Code section 240, subdivision (a)(5) provides that a declarant is “unavailable as a witness” if he is “[ajbsent from the hearing and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court’s process.” (Italics added.) The issue of Stoker’s unavailability arose because defense counsel indicated that hearsay statements made by Stoker might be introduced.

8 The head of the public defender’s office, who was also present at trial, added: “I might state the comment, if I may, by [the deputy public defender], although she was in hearings, I know from personal knowledge that she worked on the case mornings and evenings and then had the benefit of all the other lawyers that were involved in Mr. Pope’s case, including myself and others, and we, hopefully, were completely prepared to proceed.”

9 AppeIlant was indigent and represented by appointed counsel at trial. Thus, the present case does not involve the appropriate standard for adequate representation by a retained criminal attorney. This court need not decide whether that standard would differ from the one described herein.

10 These decisions apply this test conjunctively with the “farce or sham” standard. Still other opinions-of this court have applied the “farce or sham” standard exclusively. (E.g., People v. Jenkins (1975) 13 Cal.3d 749, 753 [119 Cal.Rptr. 705, 532 P.2d 857]; People v. McDaniel (1976) 16 Cal.3d 156, 179 [127 Cal.Rptr. 467, 545 P.2d 843].)

11 The “farce or sham” rule announced in Ibarra may be traced back to Diggs v. Welch, supra, 148 F.2d 667. (See Comment, The Right to Competent Defense Counsel: Emergence of a Sixth Amendment Standard of Review on Appeal and the Persistence of the “Sham and Farce” Rule in California (1975) 15 Santa Clara Law. 355, 377.) Further, the due process roots of Ibarra are evident in that decision’s explicit reliance on Jones v. Huff, supra, 152 F.2d 14. (See People v. Ibarra, supra, 60 Cal.2d at p. 465.)

12 Both- constitutional provisions accord defendants in criminal cases a right to the “assistance of counsel.” The California Constitution’s right to counsel provision “was adopted to secure to the accused person all the benefits which may flow from the employment of counsel to conduct his defense [citation]. . . .” (People v. Avilez (1948) 86 Cal.App.2d 289, 294 [194 P.2d 829], discussing former Cal. Const., art. I, § 13, now art. I, § 15.)

13 Case-by-case analyses confirm the disparate and inequitable results which the “farce and mockery” standard generates among different courts. (See Comment, The Right to Competent Defense Counsel: Emergence of a Sixth Amendment Standard of Review on Appeal and the Persistence of the “Sham and Farce” Rule in California, supra, 15 Santa Clara Law. at p. 362.) The reason for such disparity .is evident. “The use of a short negative statement mandating what a trial should not be offers no guidance to an appellate court trying to decide what constitutes effective representation.” (Note, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review, supra, 13 Colum. J. L. & Soc. Prob. 1, 37.)

14 The duties described herein are not meant as an exhaustive list of a lawyer’s constitutional obligations in a criminal case.

15 A crucial defense is not necessarily one which, if presented, “would result inexorably in a defendant’s acquittal.” (People v. Rodriguez (1977) 73 Cal.App.3d 1023, 1028 [141 Cal.Rptr. 118]; accord People v. Shells (1971) 4 Cal.3d 626, 631 [94 Cal.Rptr. 275, 483 P.2d 1227].) Ibarra itself teaches that by failing to obtain an adjudication of the stronger of two potential defenses, trial counsel deprived his client of constitutionally adequate assistance. (60 Cal.2d at pp. 465-466.)

16 It has been said that an appellant must prove inadequate assistance as “a demonstrable reality and not a speculative matter.” (People v. Stephenson (1974) 10 Cal.3d 652, 661 [111 Cal.Rptr. 556, 517 P.2d 820].) This formulation of the heavy burden on a party alleging inadequate assistance was intended to summarize, in concise fashion, the rules just described; in the absence of an explanation in the record, appellate courts should not speculate that trial counsel’s failure to present a particular defense resulted from incompetence. To justify relief, appellant must be able to point to something in the record showing that counsel had no satisfactory rationale for what was done or not done.

Although concise, the Stephenson formulation is subject to misinterpretation. The language demanding proof of incompetence as “a demonstrable reality and not a speculative matter” may be misunderstood to require inadequate assistance throughout the proceeding, when in fact, a single inexcusable error which withdraws a potentially meritorious defense is sufficient. (E.g., People v. Shells, supra, 4 Cal.3d 626.) To avoid such confusion, the Stephenson formulation should be replaced with the analysis of appellant’s burden set forth in this opinion.

17 To promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for habeas corpus. (See, e.g., People v. Apodaca (1978) 76 Cal.App.3d 479,489, fn. 3 [142 Cal.Rptr. 830].)

The dissent argues that resolution of claims of ineffective representation is preferable on direct appeal rather than in habeas corpus proceedings because the latter are both potentially duplicative and potentially harmful to the convicted defendant’s claim. (Dis. opn., post, p. 440.) As indicated above, however, where the record does not illuminate the reasons for counsel’s actions, reversal on appeal may often result in unwarranted retrials, a result serving neither justice nor economy.

As for the dissent’s second rationale, the fact that a habeas proceeding “is not without its potential pitfalls” for convicted defendants does not lead to the conclusion that such proceedings should be avoided. The claim of ineffective assistance does not exist as a tool for reversing validly obtained convictions, but as a means of assuring that criminal defendants receive the legal assistance to which they are constitutionally entitled. Convictions should not be reversed on appeal because it might be discovered in a habeas proceeding that, to use the dissent’s examples, the reason counsel did not call certain witnesses was either to avoid producing false testimony or to protect his client. Nonmeritorious claims of incompetent representation will be discouraged to the extent that there is an opportunity to determine the actual, as opposed to hypothesized, reasons for counsel’s acts or omissions. That habeas corpus may be “a double-edged sword” is no reason why direct appeal should be made available as a shield for defendants with nonmeritorious claims of inadequate representation.

18 This conclusion does not make “obiter dictum” of today’s holding that an indigent criminal defendant is entitled to the assistance of a reasonably competent attorney acting as his diligent, conscientious advocate. (Dis. Opn., post, p. 431.) As set forth above, an analysis of a claim of inadequate trial representation necessarily begins by measuring counsel’s performance against the applicable standard. Only where appellant identifies acts or omissions falling below that standard does an appellate court examine whether the record includes an explanation for the apparently inadequate representation. Thus, definition of the standard is a necessary element of today’s decision.

Moreover, Justice Mosk apparently approves of the standard which this opinion has derived from United States v. DeCoster, supra, 487 F.2d 1197. (Dis. opn., post, p. 438.) Interestingly, after enunciating the standard in DeCoster, Judge Bazelon did not reverse the conviction but remanded the case for an evidentiary hearing where proof could be adduced as to counsel’s explanations for his apparent inadequacy. (DeCoster, supra, at pp. 1204-1205.) Nonetheless, the dissent itself properly characterizes the DeCoster standard as the holding of that case. (Dis. opn., post, p. 438.)

19 Appellant also asserts that counsel should have sought to suppress the wallet and $56 which were seized from appellant at the time of his arrest. He contends that the wallet was (1) the fruit of an illegal search and (2) irrelevant since the victim could not identify it. However, since the victim could not identify the wallet at trial, the “[failure to object to admission of the items seized may have been ... a strategic judgment that the items were not particularly damaging.” (People v. Steger, supra, 16 Cal.3d at p. 552.)