Drumgo v. Superior Court of Marin County
| Decision Date | 30 June 1972 |
| Citation | 103 Cal.Rptr. 100,26 Cal.App.3d 647 |
| Parties | Fleeta DRUMGE, Petitioner, v. SUPERIOR COURT, COUNTY OF MARIN, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 31049. |
| Court | California Court of Appeals Court of Appeals |
Richard H. Breiner, San Rafael, for petitioner (Under appointment of Court of Appeal).
Evelle J. Younger, Atty. Gen., of the State of California, Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty., Gen. Writs Sec., Joyce F. Nedde, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest.
National Lawyers Guild, Mario Obledo, Alfred H. Sigman, Mexican American Legal Defense and Educational Fund, San Francisco, John E. Thorne, San Jose, amicicuriae in support of contentions of petitioner.
This is a petition for writs of mandate and prohibition. 1
1. Does mandate lie?
2. Did the trial court abuse its discretion in refusing to appoint counsel of petitioner's choice?
Petitioner is charged in the Superior Court of Marin County in an indictment including five counts of murder, one count of conspiracy, and one count of assault while serving a state prison sentence of less than life. The indictment charges five other inmates of San Quentin Prison with the same five counts of murder and the count of conspiracy. In addition, each of the inmates has been charged with various other felonies, some in conjunction with the other codefendants and others alone. The trial court determined that conflicts existed among the codefendants and appointed separate counsel for each defendant, the Marin County public defender to represent only one of them. This proceeding is concerned only with the appointment of counsel for petitioner.
On October 5, 1971, petitioner appeared before respondent court for the first time and requested that he be allowed to confer with several named attorneys. The respondent court allowed petitioner to consult with attorney Richard Silver, who at the time was representing petitioner in other legal proceedings in another county. On October 15, 1971, petitioner requested the court to allow him to consult with attorney Richard Hodge. On October 29, 1971, petitioner requested the appointment of Richard Hodge, who advised the court at that time that he was ready, willing and able to represent petitioner, and joined in petitioner's request that he be appointed. On October 29, 1971, the court denied this request and appointed Richard H. Breiner, an attorney practicing in San Rafael, California. The court said Richard Hodge could prepare a memorandum of points and authorities, and, if it had erred in the appointment of counsel for petitioner, the error would be corrected. Petitioner at this time stated for the record that he refused the appointment of Richard H. Breiner as his attorney.
On November 18, 1971, petitioner caused to be filed a 'Notice of Motion for Order Relieving Richard H. Breiner as Counsel for the Defendant Fleeta Drumgo and for the Appointment of Richard Hodge.' The motion was denied on November 24, 1971. 2 Petitioner properly proceeded in first moving the court to reconsider before seeking a writ in this court.
The Attorney General contends that the remedy of mandate does not lie because the duty of appointing an attorney for an indigent defendant rests solely with the trial court and cannot be delegated to some other agency or individual (In re Johnson (1965) 237 Cal.App.2d 463, 465-466, 47 Cal.Rptr. 17; In re Lopez (1970) 2 Cal.3d 141, 146, 84 Cal.Rptr. 361, 465 P.2d 257), and that the selection of such attorney is a matter of discretion (People v. Hughes (1961) 57 Cal.2d 89, 98-99, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Jackson (1960) 186 Cal.App.2d 307, 315, 8 Cal.Rptr. 849).
While it has been held that mandamus cannot control discretion 'except in those rare instances when under the facts it can be legally exercised in but one way' (Hilmer v. Superior Court (1934) 220 Cal. 71, 73, 29 P.2d 175, 176), '[t]he writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law' (Witkin, California Procedure (2d ed.) Extraordinary Writs, § 91, p. 3867).
There is no such remedy in the instant matter. Appeal does not lie from the order appointing the attorney. Obviously, to require that the review of the order await the completion of the trial (and, in the event of a judgment of guilt, the appeal therefrom) is neither a plain, speedy nor adequate remedy. Appropriate here is the following language from Smith v. Superior Court (1968) 68 Cal.2d 547, 558, 68 Cal.Rptr. 1, 8, 440 P.2d 65, 72 (quoting from Maine v. Superior Court (1968) 68 Cal.2d 375, 378-379, 66 Cal.Rptr. 724, 438 P.2d 372): 'It is neither novel nor inappropriate, therefore, for this court to review through a mandate proceeding a pretrial order which is likely to substantially affect a defendant's right to a fair trial.' Therefore, it appears that the only proper remedy under the circumstances is provided by mandamus.
Under the peculiar circumstances presented in this case, we hold that the denial of petitioner's request for appointment of the attorney of his choice was an abuse of discretion.
It is clear that a defendant does not have the absolute right to be represented by a particular attorney. (People v. Manchetti (1946) 29 Cal.2d 452, 458, 175 P.2d 533.) In Manchetti, the court upheld the denial of a motion for continuance made on the ground that the attorney of defendant's choice was engaged in another trial when the lower court had given the defendant adequate time to obtain other counsel. The court quoted from People v. Dowell (1928) 204 Cal. 109, 113, 266 P. 807, 'that the courts cannot in every case await the convenience of some attorney before they can function.' (29 Cal.2d at p. 458, 175 P.2d at p. 537.) In People v. Crovedi (1966) 65 Cal.2d 199, 206, 53 Cal. Rptr. 284, 417 P.2d 868 the California Supreme Court held that an accused has a constitutional right to appear and defend with retained counsel of his own choice. However, the court observed that his right was not absolute and must be weighed against other values of substantial importance--orderly and expeditious judicial administration. However, these cases dealt with the issue of continuances, and recognized that the failure of the accused to exercise diligence in retaining private representation is a justification for denying further continuances for obtaining counsel. (See also Ungar v. Sarafite (1964) 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921; People v. Byoune (1966) 65 Cal.2d 345, 54 Cal.Rptr. 749, 420 P.2d 221; People v. Chessman (1959) 52 Cal.2d 467, 491, 341 P.2d 679; People v. Doebke (1969) 1 Cal.App.3d 931, 939, 81 Cal.Rptr. 391.)
All the cases which have held that the court has sole discretion to choose the private attorney to represent an indigent are factually distinguishable from the case before us. These cases fall into either or both of two categories: (1) the defendant did not wish to be represented by the public defender's office or had become dissatisfied with the representation he was receiving; and (2) the defendant's request for a particular attorney was made late in the proceedings and the substitution would have disrupted the court proceedings and calendar.
One statement that occurs often in cases dealing with an indigent's right to counsel is that '[t]he defendant had absolutely no right to the service of a particular attorney' (People v. DeLosa (1960) 184 Cal.App.2d 681, 684, 7 Cal.Rptr. 753, 754). However, it is necessary to consider the fact situations of the cases that have made statements similar or identical to the quoted sentence from DeLosa to determine if this statement is applicable to the fact situation before the court. Many times a defendant will refuse to be represented by the public defender and will demand that a private attorney be appointed by the court. People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, cert. den. 401 U.S. 919, 91 S.Ct. 903, 2 L.Ed.2d 821; People v. Massie (1967) 66 Cal.2d 899, 59 Cal.Rptr. 733, 428 P.2d 869; People v. Hughes (1961) 57 Cal.2d 89, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Chessman (1959) 52 Cal.2d 467, 341 P.2d 679, and a host of other cases are of this type. In these cases the courts have refused to remove the public defender and appoint private counsel to represent the defendant.
The courts are concerned with administering justice in an orderly manner, fairly, quickly and efficiently. These interests are justifiably advanced by refusing to give an indigent an absolute right to select counsel when a public defender is able to defend the indigent. The public defender's office is designed to provide experienced counsel in the field of criminal law and procedure at a low cost to the state. The state has an interest in the orderly administration of the court system which outweighs the indigent's right to select a particular attorney when a public defender is available to defend him.
Indigents have often requested the court to remove the public defender or court appointed counsel when they have become dissatisfied with the method in which their case is being handled. However, the courts have held that '[t]here is . . . 'no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant's whims.'' (People v. Bourland (1966) 247 Cal.App.2d 76, 84-85, 55 Cal.Rptr. 357, 363, cert. den. 388 U.S. 920, 87 S.Ct. 2142, 18 L.Ed.2d 1367; see also People v. Williams, supra, 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Glover (1969) 270 Cal.App.2d 255, 75 Cal.Rptr. 629; People v. Foust (1968) 267 Cal.App.2d 222, 72 Cal.Rptr. 675; People...
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Drumgo v. Superior Court
...purposes I agree with the conclusion of Justice Bray in the opinion he prepared for the Court of Appeal in this case (26 Cal.App.3d 647, 103 Cal.Rptr. 100, 106), concurred in by Presiding Justice Devine and Justice Rattigan: 'An indigent defendant is not entitled as a matter of law to the a......
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