In Re Noday

Procedural History

Defendant Noday and codefendant Smart were by indictment each charged with seven counts, including grand theft, conspiracy to commit *510 grand theft, conspiracy to cheat and defraud, and conspiracy to commit murder. Noday’s codefendant Maldonado was charged in two of the seven counts; Noday’s codefendant Jones was charged in three of the counts.

Severance was granted to codefendants Smart and Jones; defendant Noday was tried with codefendant Maldonado. Both defendant and Maldonado were represented throughout the proceedings by Attorney Stephen Gillis. The matter of the joint representation of defendant and Maldonado was brought to the attention of two different trial judges by the prosecution. Twice, prior to trial, defendant Noday and codefendant Maldonado indicated, in response to questioning by the court, that they did not wish to retain separate counsel.

After trial codefendant Maldonado was acquitted. Defendant Noday was convicted of count III—conspiracy to commit grand theft and conspiracy to cheat and defraud, count IV—conspiracy to commit murder, and count VII—grand theft; he was sentenced to a life term in state prison. He appealed from the…

I respectfully dissent.

Traditionally, waiver has been defined as “.. . an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464 [ 82 L.Ed. 1461, 1466 , 58 S.Ct. 1019 , 146 A.L.R. 357 ].) The right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and by article I, section 15 of the California Constitution is a fundamental right. “‘It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights . . ..’ [Citation.]” (People v. Douglas (1964) 61 Cal.2d 430, 434-435 [ 38 Cal.Rptr. 884 , 392 P.2d 964 ].) In discussing whether a defendant had waived his right to counsel, the Supreme Court stated that : ‘a finding of waiver is not lightly to be made.’ [Citation.]” (Id., at p. 434.) The Douglas court explained, “Not only must the waiver be unqualified, but it may be made only by a defendant who has been apprised of his rights and who has ‘an intelligent conception of the consequences of his act.’ [Citation.]” (Id., at p. 435.)

The majority relies on United States v. Garcia (5th Cir. 1975)…

HANSON (Thaxton), J. —

Defendant Noday and codefendant Smart were by indictment each charged with seven counts, including grand theft, conspiracy to commit grand theft, conspiracy to cheat and defraud, and conspiracy to commit murder. Noday's codefendant Maldonado was charged in two of the seven counts; Noday's codefendant Jones was charged in three of the counts.

Severance was granted to codefendants Smart and Jones; defendant Noday was tried with codefendant Maldonado. Both defendant and Maldonado were represented throughout the proceedings by Attorney Stephen Gillis. The matter of the joint representation of defendant and Maldonado was brought to the attention of two different trial judges by the prosecution. Twice, prior to trial, defendant Noday and codefendant Maldonado indicated, in response to questioning by the court, that they did not wish to retain separate counsel.

After trial codefendant Maldonado was acquitted. Defendant Noday was convicted of count III — conspiracy to commit grand theft and conspiracy to cheat and defraud, count IV — conspiracy to commit murder, and count VII — grand theft; he was sentenced to a life term in state prison. He appealed…