Motion for New Trial Based on Lawyer's Incompetence in California

In People v. Stewart (1985) 171 Cal.App.3d 388, defendant's trial attorney moved for a new trial on the basis of counsel's own ineffective assistance. (Id. at p. 393.) As in this case, defense counsel failed to specify the factual basis for the allegation of deficient representation. (Ibid.) The trial court in Stewart held an in-camera hearing in which the court learned that the allegation related to counsel's failure to call three witnesses: defendant's personal doctor and two percipient witnesses. (Id. at p. 394.) The trial court declined to appoint a new attorney to investigate the allegations and denied the motion for new trial on the basis that the claims were "totally unsupported and frivolous." (Ibid.) Defendant appealed, and the Court of Appeal reversed. (Id. at pp. 398-399.) As the Stewart court noted, "it is for analytical purposes useful to emphasize at the outset that the question whether to appoint new counsel to present a motion for new trial is distinct from the question whether new trial is warranted." (Stewart, supra, 171 Cal.App.3d at p. 394.) In that case, the defendant told his attorney to file a motion for new trial based on incompetence of counsel. Defense counsel filed the motion but did not state the basis for the defendant claiming incompetence of counsel. At the motion hearing, defense counsel requested the court to appoint new counsel to argue the motion because defense counsel could not argue his own incompetence. (Id. at p. 393.) The trial court refused to do so. During an in camera hearing with the defendant and his attorney, the defendant told the court his attorney provided inadequate representation because he did not call the defendant's personal doctor and two witnesses. The court denied the defendant's motion, concluding it was totally unsupported and frivolous. (Id. at p. 394.) The Stewart court noted that the issue of whether to appoint new counsel to present a motion for new trial is distinct from the question whether new trial is warranted. The issue addressed in Stewart, supra, 171 Cal.App.3d 388, was whether the trial court should have appointed new counsel to argue the defendant's motion for new trial. The Stewart court explained that, "in hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendant's reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent. If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence. New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings." (Id. at pp. 396-397.) In Stewart, supra, 171 Cal.App.3d 388, the court concluded that it was unnecessary for the trial court to appoint new counsel to argue ineffective representation based on defense counsel not calling the defendant's personal doctor, because the doctor's testimony was not relevant to any material issue. (Id. at p. 397.) The Stewart court, however, reversed and remanded the matter to the trial court, with instructions to ask the defendant what he anticipated the two other witnesses would state and why their testimony was necessary. (Id. at p. 398.) The reviewing court reasoned: "The trial court did not inquire into the substance of the witnesses' expected testimony, but instead denied the motion without endeavoring to learn whether the testimony might have been material or even crucial and without appointing new counsel to assist the court in this regard. We believe this constituted error. 'A trial judge is unable to intelligently deal with a defendant's request for a new trial on the basis of trial counsel's incompetence or for substitution of attorneys unless he is cognizant of the grounds which prompted the request.' A denial of appellant's motion for new trial based on ineffective representation without careful inquiry into the defendant's reasons for claiming incompetence '"is lacking in all the attributes of a judicial determination."" (Ibid.)