Ineffective Representation in a Criminal Case in California

In People v. Dennis (1986) 177 Cal. App. 3d 863, the defendant was convicted of multiple crimes and, after trial, in a proceeding from which the prosecutor was excluded, the court granted his motion for substitution of counsel on grounds of ineffective representation, made on the basis of People v. Marsden (1970) 2 Cal.3d 118. New counsel then moved for new trial on the ground that, by granting the motion for substitution, the trial court necessarily determined that the defendant had received inadequate trial representation. Without permitting the prosecutor to know the basis for the motion, or an opportunity to provide evidence or argument, the trial court granted the motion for a new trial. The People appealed and the Court of Appeal reversed and remanded, holding that the district attorney cannot be barred from meaningful participation in a hearing on a motion for new trial based on the claimed ineffectiveness of counsel. However, acknowledging that the information the defendant should have been required to disclose in support of his motion for new trial "may reveal information that would impermissibly lighten the prosecution's burden on retrial in violation of defendant's right against self-incrimination" (Dennis, at p. 874), thus forcing him "to exchange one right for another" (id. at p. 873), the Dennis court concluded that the appropriate remedy was to direct the trial court to permit the defendant to amend his motion for new trial and thereafter grant the defendant use immunity, pursuant to rules adopted by the California Supreme Court in analogous situations in People v. Coleman (1975) 13 Cal.3d 867, and other cases. (In re Wayne H. (1979) 24 Cal. 3d 595, 602; Bryan v. Superior Court (1972) 7 Cal.3d 575, 586-589; People v. Harrington (1970) 2 Cal.3d 991, 999-1000; see also, People v. Humiston (1993) 20 Cal.App.4th 460, 475; People v. Hicks (1971) 4 Cal.3d 757, 762; People v. Quinn (1964) 61 Cal.2d 551, 554; People v. Stewart (1985) 171 Cal. App. 3d 388.) Citing Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808-809, which held that use immunities are essential to the constitutional privilege against self-incrimination, and are reflected in Evidence Code section 940, the Dennis court took the position that "use immunity rules apply where there is a compulsive sanction against exercise of the privilege against self-incrimination and where the policy of law favors full disclosure or discussion by the accused. (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 810, majority opn.; and at pp. 811-812, conc. opn. of Grodin, J.)" (Dennis, supra, 177 Cal. App. 3d at pp. 875-876.) The court noted that the grant of use immunity "is also supported by Penal Code section 1180, which provides in relevant part: 'The granting of a new trial places the parties in the same position as if no trial had been had.' " (Dennis, at p. 876, fn. 7.) The Dennis court was untroubled by Gray, which it cited for the unremarkable proposition that "when the defendant asks the trial court to set aside a jury verdict on the ground of ineffectiveness of counsel, he waives his attorney-client privilege as to matters he places in issue." (Dennis, at p. 873.)