Abandoning the effort to conduct a defense at trial is not a competent tactical choice, whatever the reason. Even if counsel believed, for example, that the court’s earlier rulings had made the penalty trial unfair, they could not competently abandon their client in the hope of securing a reversal on appeal. Once assigned to represent a criminal defendant, an attorney “is bound to do so to the best of his abilities under the circumstances,” even in the face of adverse rulings counsel believes are incorrect. (People v. McKenzie, supra, 34 Cal.3d at p. 631.) “A refusal to participate in formulating or conducting a defense is not generally among the available strategic options.” (Ibid.)
The trial court’s first instinct was correct: faced with appointed defense attorneys who refused, without any explanation and against defendant’s expressed wishes, to perform as advocates for the life of their client, the court should have relieved them and appointed a new attorney. (See Code Civ. Proc., § 284, subd. 2 [attorney in action “may be changed” at any time “upon the application of [the] client”]; Smith v. Superior Court (1968) 68 Cal.2d 547, 558 [quoted statute applies in criminal cases].) On the defendant’s motion, substitution of attorneys is compelled when there is “ ‘a sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if his request was denied.’ ” (People v. Clark (1992) 3 Cal.4th 41, 104; People v. Stankewitz (1990) 51 Cal.3d 72, 87-88.) That a capital defendant’s right to counsel is substantially impaired through continued representation by attorneys who, against the defendant’s wishes and for no apparent tactical or strategic reason, refuse to argue for the defendant’s life, is, I believe, too clear to require further discussion.
As nothing before the trial court reasonably indicated either defendant’s concurrence in counsel’s waiver or a legitimate reason (ethical, strategic, or tactical)—indeed, everything before the court refuted both—the court erred in