Stewart

In People v. Fosselman (1983) 33 Cal.3d 572 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ], our Supreme Court held that a trial court may consider inadequate assistance of trial counsel as a basis for a motion for a new trial. (Id., at pp. 582-583.) Because in that case the motion was presented by newly retained counsel (id., at p. 578), the Supreme Court was not obliged to concern itself with the conflict that usually will arise when a defendant unable to retain a new attorney requests the one who represented him at trial to argue his own incompetence as a ground for new trial. This is the problem we address in this case.

Statement of the Casé

On May 13, 1983, appellant was charged with escape from the county jail (Pen. Code, § 4532, subd. (a)). A jury found him guilty as charged. Appellant filed a motion for new trial on the following grounds: “1) Errors in decision of questions of law; [¶] 2) Verdict was contrary to the evidence and the law, and [¶] 3) Incompetence of counsel.” The motion was denied. On September 21, 1983, the trial court sentenced appellant to imprisonment in the county jail “for the term of 270 days, to run consecutive to other sentence being served.…