P. v. CLIFTON
Filed 4/24/06
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. 95CM5500
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Continued from Part I ……..
Defendant further argues that if he had been present at the bench conference and heard that his attorney considered him to be a violent person and was afraid of him, he might have claimed that an irreconcilable conflict existed between him and his attorney requiring appointment of new counsel. (See People v. Fierro (1991) 1 Cal.4th 173, 204.) But as we have explained, a defendant has a right to be present at a proceeding only if the proceeding is critical to the outcome of the case and the defendant's presence would contribute to the fairness of the proceeding; he has no right to be present a routine procedural discussions that could not affect the outcome of the trial. (Ante, at p. 10.) Defendant's argument is inconsistent with these settled principles, because it implies that a defendant has the right to be present at any proceeding in which his attorney might say something that could lead the defendant to request new counsel, even if, as here, the proceeding involves a routine procedural matter not critical to the outcome of the case.
Furthermore, if defendant had sought new counsel based on what his counsel said at the bench conference, the trial court would have had no basis to grant the motion. There is no showing on the record here that defendant's counsel was providing ineffective representation, that there was any conflict between client and counsel concerning the defense of the case, that counsel's fear of his client was hampering the defense, or that any replacement counsel would not also view defendant as dangerous.
Finally, defendant asserts that his counsel's view of him as a dangerous and threatening person led counsel to present an inadequate penalty phase defense. But defendant acknowledged at oral argument that this contention cannot be raised on appeal, but only by petition for habeas corpus.
3. Defendant's claim that his counsel abandoned him
Defendant contends that defense counsel violated his duty of loyalty to his client and, in effect, abandoned his client. Defendant relies on King v. Superior Court, supra, 107 Cal.App.4th 929. There, at a hearing on whether the defendant through misbehavior had forfeited his right to counsel, defense counsel offered no argument in support of his client's right to counsel, but instead presented evidence of additional violent conduct. (Id. at p. 950.) The Court of Appeal concluded that because counsel was advocating against his client, the latter was in effect unrepresented at the forfeiture hearing and thus deprived of his right to counsel and to due process of law. (Ibid; see Rickman v. Bell (6th Cir. 1997) 131 F.3d 1150, 1157 [counsel â€
