response (id. at pp. 629-630) and that the court erred by instead “allowing this defendant to proceed to trial without the assistance of counsel” (id. at p. 627).
The Court of Appeal reached the same conclusion in People v. Shelley (1984) 156 Cal.App.3d 521. There, the defense attorney, dissatisfied with certain trial court rulings, announced during trial that he would continue to be present but would no longer participate in any way. (Id. at pp. 524-525.) Although the prosecutor suggested counsel was trying to create “a ground for appeal,” counsel later stated he was only trying “to show the court the depth of my conviction” that its rulings were wrong. (Id. at pp. 525, 529.) The court allowed the trial to proceed to a jury verdict without counsel’s participation. (Id. at p. 527.)
Whatever the reason for counsel’s choice, the Court of Appeal held, the trial court should not have acceded to counsel’s inaction on the ground that it was or could be described as a “tactic.” If defense counsel absolutely refuses to participate in the trial, the court “must appoint substitute counsel.” (People v. Shelley, supra, 156 Cal.App.3d at p. 531.) The court’s failure to do so “breached its duty to safeguard appellant’s right to the effective assistance of counsel and to ensure the orderly administration of justice.” (Id. at p. 532.) Shelley, like McKenzie, was a weaker case than this one, because the defendant there said he agreed with counsel’s nonparticipation (Shelley, supra, at p. 527), whereas here, of course, defendant instead asked for another lawyer to be appointed to do what his current lawyers refused to do.
The majority suggests defendant may, contrary to his express and unambiguous statement on the record, have harbored a desire to dispense with argument, a desire the majority speculates appointed counsel inferred from defendant’s behavior at his first trial (eight years earlier, in 1982) and his asserted lack of cooperation in investigating his family background. While anything is possible, nothing in the record of the present trial—and more important, nothing