Hetrick

Terry Allen Hetrick appeals his conviction (order granting probation) of a charge of assault with a deadly weapon (Pen. Code, § 245) arising out of a barroom brawl. Hetrick contends reversible error (1) regarding his motion for substitution of counsel and (2) because he was tried before a jury in jail garb. In our view the second contention has merit, requiring a retrial in civilian clothing.

I

Motion for Substitution of Counsel

Although Hetrick tried unsuccessfully to inform the trial court of his dissatisfaction with his attorney before trial, for reasons not here relevant the motion to substitute counsel was not heard until the day set for trial. Responding to the motion, the trial court agreed to substitute a new attorney provided Hetrick would waive time and consent to a continuance so that the new attorney could prepare for trial. The court indicated a standard continuance for this purpose would be 55 days. Hetrick said he did not want to waive time nor agree to a continuance. The court asked, “Then you prefer to go to trial at this time?” to which he responded “I don’t prefer to go to trial with Mr. Newton. But I don’t have no choice, I guess.” After…

I respectfully dissent.

The teaching of Estelle v. Williams (1976) 425 U.S. 501 [ 48 L.Ed.2d 126 , 96 S.Ct. 1691 ], reflected in People v. Hernandez (1979) 100 Cal.App.3d 637 [ 160 Cal.Rptr. 607 ], and People v. Williams (1979) 93 Cal.App.3d 40 [ 155 Cal.Rptr. 414 ], is that it is inconsistent with the Fourteenth Amendment to compel an accused to stand trial in jail clothing. A violation of this proscription, however, is not automatically reversible error. The rule is grounded upon the presumption the finder of fact will be influenced adversely by viewing the defendant throughout the trial in garb which constantly suggests his need for incarceration. Where the particular circumstances of the case indicate such prejudice did not result from use of the jail clothing, no error, or at best only harmless error, is found.

For instance, where the alleged crime being tried occurred in prison, the jury will necessarily be advised of the confined status of the defendant, and the sight of him in jail clothing is not deemed prejudicial. (Estelle v. Williams, supra, 425 U.S. 501, 507 [ 48 L.Ed.2d 126, 132 ].) Admonishment by the trial judge or voir dire by defense counsel on the subject of…

STANIFORTH, Acting P.J.

Terry Allen Hetrick appeals his conviction (order granting probation) of a charge of assault with a deadly weapon (Pen. Code, § 245) arising out of a barroom brawl. Hetrick contends reversible error (1) regarding his motion for substitution of counsel and (2) because he was tried before a jury in jail garb. In our view the second contention has merit, requiring a retrial in civilian clothing. [1]

(1) Although Hetrick tried unsuccessfully to inform the trial court of his dissatisfaction with his attorney before trial, for reasons not here relevant the motion to substitute counsel was not heard until the day set for trial. Responding to the motion, the trial court agreed to substitute a new attorney provided Hetrick would waive time and consent to a continuance so that the new attorney could prepare for trial. The court indicated a standard continuance for this purpose would be 55 days. Hetrick said he did not want to waive time nor agree to a continuance. The court asked, "Then you prefer to go to trial at this time?" to which he responded "I don't prefer to go to trial with Mr. Newton. But I don't have no choice, I guess." After ascertaining Mr.…