[9] There is, however, "no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant's whims." ( People v. Nailor (1966) 240 Cal.App.2d 489, 494 [ 49 Cal.Rptr. 616]; and see People v. Hughes, supra, 57 Cal.2d 89, 98-99; People v. Stewart (1966) 240 Cal.App.2d 1, 6 [ 50 Cal.Rptr. 26]; People v. Evans (1963) 211 Cal.App.2d 534, 538-539 [ 27 Cal.Rptr. 304]; People v. McFerran (1962) 211 Cal.App.2d 4, 6-8 [ 26 Cal.Rptr. 914]; People v. Jackson (1960) 186 Cal.App.2d 307, 315 [ 8 Cal.Rptr. 849]; and People v. Mitchell (1960) 185 Cal.App.2d 507, 512 [ 8 Cal.Rptr. 319] .) [10] "A defendant's right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused." ( People v. Mitchell, supra, 185 Cal.App.2d 507, 512; and see People v. Evans, supra, 211 Cal.App.2d 534, 539; People v. McFerran, supra, 211 Cal.App.2d 4, 6; and People v. Jackson, supra, 186 Cal.App.2d 307, 315.)
.2d 892]), to not present mitigating evidence at the penalty phase of a capital trial ( People v. Deere (1991) 53 Cal.3d 705, 717 [ 280 Cal.Rptr. 424, 808 P.2d 1181]), and to present a diminished capacity defense when that is the sole defense available in a capital case ( People v. Frierson, supra, 39 Cal.3d at p. 814). Conversely, counsel's authority to control trial strategy has been upheld as to selection of witnesses ( People v. Williams (1970) 2 Cal.3d 894, 903-906 [ 88 Cal.Rptr. 208, 471 P.2d 1008]), requests for continuances ( Townsend v. Superior Court, supra, 15 Cal.3d at p. 780), choice of defense when more than one defense is available ( People v. Carlyon (1961) 191 Cal.App.2d 617, 622 [ 12 Cal.Rptr. 813]), whether certain evidence should be introduced ( People v. Murphy (1972) 8 Cal.3d 349, 366-367 [ 105 Cal.Rptr. 138, 503 P.2d 594]), whether an objection should be imposed ( People v. Lanphear, supra, 26 Cal.3d at p. 828), and whether a trial judge should be challenged ( People v. Jackson (1960) 186 Cal.App.2d 307, 317-318 [ 8 Cal.Rptr. 849]). (5b) The decision whether to file a suppression motion is analogous to the decisions in the latter category.
[1] Every defendant in a criminal case has the constitutional right to counsel and also to represent himself if he so elects. (Cal. Const., art. I, § 13; People v. Harmon, 54 Cal.2d 9, 14 [ 4 Cal.Rptr. 161, 351 P.2d 329]; People v. Mattson, 51 Cal.2d 777, 788-789 [ 336 P.2d 937]; People v. Jackson, 186 Cal.App.2d 307, 317 [ 8 Cal.Rptr. 849]; People v. Marcus, 133 Cal.App.2d 579, 583 [ 284 P.2d 848]; People v. White, 115 Cal.App.2d 828, 830 [ 253 P.2d 108]; People v. Ansite, 110 Cal.App.2d 38, 39 [ 241 P.2d 1036]; People v. Mayfield, 85 Cal.App. 77, 79 [ 259 P. 75].) [2] However, before he may be permitted to represent himself, the trial court is duty bound to determine whether he is making a competent, intelligent and complete waiver of his constitutionally guaranteed right to be represented by counsel. ( People v. Kemp, supra, 55 Cal.2d 458, 463; People v. Mattson, supra, 51 Cal.2d 777, 794; People v. Chesser, 29 Cal.2d 815, 821-824 [ 178 P.2d 761, 170 A.L.R. 246]; People v. Jackson, supra, 186 Cal.App.2d 307, 316; People v. O'Ward, 168 Cal.App.2d 127, 131 [ 335 P.2d 762].)
A stipulation to trial by a court commissioner in no way impairs the defendant's right to a hearing. (Compare Linsk v. Linsk, supra, 70 Cal.2d at p. 278.) Just as counsel has authority to decide whether to challenge a judge under Code of Civil Procedure section 170.6 ( People v. Jackson (1960) 186 Cal.App.2d 307, 317 [ 8 Cal.Rptr. 849], cited with approval in People v. Frierson, supra, 39 Cal.3d at p. 813), we think that counsel has authority to enter the stipulation at issue here, without an on the record admonition of the defendant, or the defendant's express, on the record waiver of the right. We need not decide what should be the court's response to an express conflict between the defendant and his or her attorney on the stipulation, since no such conflict appeared in this case.
ltimate control (see, e.g., People v. Holmes (1960) 54 Cal.2d 442 [ 5 Cal.Rptr. 871, 353 P.2d 583] [right to jury trial]; Townsend v. Superior Court (1975) 15 Cal.3d 774, 781 [ 126 Cal.Rptr. 251, 543 P.2d 619] [right to speedy trial]; People v. Gauze (1975) 15 Cal.3d 709, 717 [ 125 Cal.Rptr. 773, 542 P.2d 1365] [right of competent defendant to refuse to enter insanity plea]), suggests that this case is analogous to the many decisions which have upheld an attorney's control over matters of ordinary trial strategy, such as whether a particular witness should be called (see, e.g., People v. Beagle (1972) 6 Cal.3d 441, 458 [ 99 Cal.Rptr. 313, 492 P.2d 1]), whether certain evidence should be introduced (see, e.g., People v. Murphy (1972) 8 Cal.3d 349, 366-367 [ 105 Cal.Rptr. 138, 503 P.2d 594]), whether an evidentiary objection should be interposed ( People v. Lamphear (1980) 26 Cal.3d 814, 828 [ 163 Cal.Rptr. 601, 608 P.2d 689]), or whether a particular trial judge should be challenged. ( People v. Jackson (1960) 186 Cal.App.2d 307 [ 8 Cal.Rptr. 849].) In this regard, the Attorney General stresses that defense counsel's decision to withhold any evidence of diminished capacity until the penalty phase was quite clearly based on counsel's assessment of the best trial tactics to pursue.
We have held that the right to the discharge or substitution of court-appointed counsel is not absolute, and is a matter of judicial discretion unless there is a sufficient showing that the defendant's right to the assistance of counsel would be substantially impaired if his request was denied. ( People v. Marsden, supra, 2 Cal.3d 118, 123; People v. Williams, 2 Cal.3d 894, 904 [ 88 Cal.Rptr. 208, 471 P.2d 1008]; People v. Johnson, 271 Cal.App.2d 616, 625-627 [ 76 Cal.Rptr. 768]; People v. Foust, 267 Cal.App.2d 222, 228 [ 72 Cal.Rptr. 675]; People v. Jackson, 186 Cal.App.2d 307, 315 [ 8 Cal.Rptr. 849]; People v. Mitchell 185 Cal.App.2d 507, 512 [ 8 Cal.Rptr. 319]; see In re Banks, 4 Cal.3d 337, 342 [ 93 Cal.Rptr. 591, 482 P.2d 215].) In People v. Marsden, supra, 2 Cal.3d 118, the case upon which defendant relies, we held that the trial court had abused its discretion by refusing to listen to the reasons for which defendant had made a request for substitution of counsel.
Both Marcus and Looney not only ignore the phrase "and with counsel" following "in person" in the constitutional language, but also ignore the comma which precedes the whole phrase "in person and with counsel." The earliest decision of this court which is cited for the proposition that by "constitutional provision and statute an accused is guaranteed the right to be represented by counsel or to represent himself" ( People v. Jackson (1960) 186 Cal.App.2d 307, 315 [ 8 Cal.Rptr. 849]), is People v. Mattson (1959) 51 Cal.2d 777 [ 336 P.2d 937]. Mattson, however, correctly quotes the constitutional language and notes various code sections which, the court states, implement the constitutional language.
. . . (4) `The right of a defendant in a criminal case to have the assistance of counsel for his defense . . . may include the right to have counsel appointed by the court . . . discharged or other counsel substituted, if it is shown . . . that failure to do so would substantially impair or deny the right . . ., but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing . . . that the right to the assistance of counsel would be substantially impaired . . . in case the request is not granted, and within these limits there is a field of discretion for the court.'" ( People v. Mitchell (1960) 185 Cal.App.2d 507, 512 [ 8 Cal.Rptr. 319], quoting 157 A.L.R. 1225, 1226; see People v. Foust (1968) 267 Cal.App.2d 222, 228 [ 72 Cal.Rptr. 675]; In re Bunker (1967) 252 Cal.App.2d 297, 311 [ 60 Cal.Rptr. 344]; People v. Bourland (1966) 247 Cal.App.2d 76, 84-85 [ 55 Cal.Rptr. 357]; People v. Jackson (1960) 186 Cal.App.2d 307, 315 [ 8 Cal.Rptr. 849].) Defendant properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request.
For example, it has already been held that it is within the sound discretion of the trial judge to appoint advisory counsel in a proper case. (See People v. Linden (1959) 52 Cal.2d 1 [ 338 P.2d 397]; People v. Mattson (1959) 51 Cal.2d 777 [ 336 P.2d 937]; see also People v. Jackson (1960) 186 Cal.App.2d 307, 317 [ 8 Cal.Rptr. 849].) [3b] This determination involves an exercise of discretion by the trial judge which, in the absence of a showing of abuse, will not be disturbed on appeal.
" (Emphasis added.) (See also People v. Jackson, 186 Cal.App.2d 307, 317 [ 8 Cal.Rptr. 849].) [5] The record fairly reveals that in the instant case the court left the matter open for counsel to make the "substantial showing" necessary to entitle defendant to participate in the proceedings.