Groce

Appellant was charged with two counts of assault with a deadly weapon (Pen. Code, § 245), i.e., for the stabbing of one John Arriola and a Mrs. Elizabeth Dillard. The jury returned a verdict of guilty of the assault on Mrs. Dillard but not guilty of the count charging him with assault on Arriola.

Appellant makes two diaims of reversal for error: first, the court erred in refusing to instruct on simple assault and battery as a lesser included offense, and, second, the court failed to make inquiry as to the adequacy of his representation by the public defender.

The facts: For several months appellant and Mrs. Dillard had been living together. This relationship had been severed just prior to September 21, 1969. On that date, appellant observed Mrs. Dillard, her young son and three adults sitting in a parked car near a Doggie Diner in Alameda. County. The appellant walked to the car and an altercation occurred involving Mrs. Dillard, two of the male occupants of the automobile on one side and appellant on the other. Appellant was wounded twice by a gun fired by John Arriola, one of the occupants, who stated he fired the shot in defense of Mrs. Dillard. Arriola and Mrs.…

I dissent.

Of course, we are governed by the Supreme Court decision (People v. Marsden, 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ]). But in that case, the trial judge flatly refused defendant’s request to “bring up specific instances” of the claimed shortcomings of trial counsel. As I read the decision, it but holds that the trial court could not exercise its discretion “without listening to his [defendant’s] reasons for requesting a change of attorneys.” To me, it was the refusal of defendant’s offer to relate specific instances of misconduct which, alone, required reversal. Here, the court neither interrupted nor limited appellant’s statement of his reasons for dissatisfaction. It has not been suggested that Marsden requires affirmative solicitation of additional complaints or of amplification of those stated.

The majority, however, holds that the trial court was under some duty to inquire as to whether counsel’s omission to produce evidence suggested by defendant’s complaint “was a matter of discretion or the result of neglect.” I am at a loss to know how such inquiry can be made. The complementary privileges of the Fifth Amendment and the attorney-client relationship…

BROWN (H.C.), J.

Appellant was charged with two counts of assault with a deadly weapon (Pen. Code, § 245), i.e., for the stabbing of one John Arriola and a Mrs. Elizabeth Dillard. The jury returned a verdict of guilty of the assault on Mrs. Dillard but not guilty of the count charging him with assault on Arriola.

Appellant makes two claims of reversal for error: first, the court erred in refusing to instruct on simple assault and battery as a lesser included offense, and, second, the court failed to make inquiry as to the adequacy of his representation by the public defender.

The facts: For several months appellant and Mrs. Dillard had been living together. This relationship had been severed just prior to September 21, 1969. On that date, appellant observed Mrs. Dillard, her young son and three adults sitting in a parked car near a Doggie Diner in Alameda County. The appellant walked to the car and an altercation occurred involving Mrs. Dillard, two of the male occupants of the automobile on one side and appellant on the other. Appellant was wounded twice by a gun fired by John Arriola, one of the occupants, who stated he fired the shot in defense of Mrs. Dillard.…