Harris v. Superior Court, S.F. 23595

• Decision Date: 24 August 1977
• Docket Number: S.F. 23595
• Court: California Supreme Court
• Parties: , 567 P.2d 750 Emily Montague HARRIS et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Page 318

140 Cal.Rptr. 318

19 Cal.3d 786, 567 P.2d 750

Emily Montague HARRIS et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

S.F. 23595.

Supreme Court of California, In Bank.

Aug. 24, 1977.

Leonard I. Weinglass, Mark D. Rosenbaum, Jill Jakes, Fred Okrand, Gary Sowards, Los Angeles, Susan B. Jordan, Cumings & Jordan, Charles C. Marson, Margaret C. Crosby and Alan L. Schlosser, San Francisco, for petitioners.

Michael E. Ballachey, Berkeley, Lincoln N. Mintz, Oakland, James J. Brosnahan, Stanley J. Friedman, Lucy K. McCabe and Gordon H. Armstrong, San Francisco, as amici curiae on behalf of petitioners.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein and Herbert F. Wilkinson, Deputy Attys. Gen., for respondent and for real party in interest.

Richard J. Moore, County Counsel, James E. Jefferis, Asst. County Counsel, and Adam Seth Ferber, Deputy County Counsel, Oakland, as amici curiae on behalf of real party in interest.

MANUEL, Justice.

Petitioners Emily Montague Harris and William Taylor Harris, defendants in a pending criminal proceeding wherein they are charged with multiple felony violations, seek a writ of prohibition and/or mandate compelling respondent superior court to vacate its appointment of certain attorneys to represent them in the said proceeding and to appoint as assigned counsel certain other attorneys of their own choosing. Under the circumstances here presented, we have determined that the writ should issue.

On April 14, 1976, a complaint was filed in the Municipal Court for the Berkeley-Albany Judicial District, County of Alameda, charging petitioners with two counts of aggravated kidnaping (Pen.Code, § 209), three counts of robbery (Pen.Code, § 211), twelve counts of assault with a deadly weapon (Pen.Code, § 245), and two counts of felony false imprisonment (Pen.Code, §§ 236, 237). On September 23, 1976, the date set for arraignment on the complaint, petitioners appeared in the municipal court and, after entering pleas of not guilty to all counts, requested the court to appoint Attorneys Susan B. Jordan and Leonard I. Weinglass, then present in court by way of 'special appearance' with the court's permission, to represent them in the proceedings. The court, Judge Wilmot Sweeney presiding, advised petitioners that he would consider their request for the appointment of specific counsel for municipal court proceedings in the event that a conflict were declared by the public defender, and he referred petitioners to that officer for interview.

On September 29, 1976, Judge Sweeney, having received an affidavit of conflict as to both petitioners on the part of the public defender, appointed Susan B. Jordan to represent petitioner Emily Montague Harris and Leonard I. Weinglass to represent petitioner William Taylor Harris in all municipal court proceedings. On the same date, however, the Alameda County Grand Jury returned a bill of indictment charging petitioners with one count of aggravated kidnaping with bodily harm (Pen.Code, § 209), one count of simple kidnaping (Pen.Code, § 207), one count of robbery (Pen.Code, § 211), nine counts of assault with a deadly weapon (Pen.Code, § 245), and one count of felony false imprisonment (Pen.Code, §§ 236, 237). In view of this the People declined to proceed with the presentation of evidence in the municipal court and moved that the complaint be dismissed pursuant to Penal Code section 871; the motion was granted by order dated October 7, 1976.

Prior to this date, on October 1, 1976, petitioners had made their first appearance in the superior court. They were accompanied by Attorneys Jordan and Weinglass, who were purporting to represent them under the municipal court appointment of September 29. It appearing that the public defender had filed affidavits of conflict in the matter, petitioners were advised that they were entitled to have counsel appointed for the superior court proceedings. Petitioners thereupon requested that Attorneys Jordan and Weinglass be so appointed, and the attorneys in question were also permitted to address the court on this matter. Attorney Weinglass indicated that he would be willing to waive any extraordinary expenses arising from the fact that his practice is located in Los Angeles, and petitioner Emily Montague Harris stated that in her opinion no conflict would arise out of the fact that Attorney Weinglass, who had represented her in other related proceedings in Los Angeles County, would represent her husband in the instant proceedings. Judge Lindsay, however, while expressing his intention to take petitioners' preferences and the qualifications of the suggested attorneys into account, declined to make a present ruling in the matter and continued the proceedings to October 7, when he indicated that counsel would be appointed. Attorneys Jordan and Weinglass were permitted to advise petitioners on a Pro bono basis in the interim.

On October 7, 1976, Judge Lindsay appointed Attorney Michael Ballachey to represent petitioner Emily Montague Harris and Attorney Lincoln Mintz to represent petitioner William Taylor Harris in the superior court proceedings. He indicated that among the factors which he had considered important to his selection was the reputation of the appointed attorneys among the local bench and bar, their experience in the trial of capital cases, ¹ and the fact that both were certified as criminal law specialists by the State Bar. Petitioners strenuously objected to the appointments, pointing out that they had developed a relationship of trust and confidence with Attorneys Jordan and Weinglass and were convinced that they would afford the best possible defense to the charges. Although knowing nothing about Attorneys Ballachey and Mintz beyond what the court had related concerning them, petitioners suggested that as 'total strangers' they could not provide as adequate a defense as Attorneys Jordan and Weinglass. The court thereupon continued the matter to October 13 for arraignment.

On October 13, 1976, the date set for arraignment, petitioners appeared with Attorneys Ballachey and Mintz, the attorneys appointed by the court to represent them. At this time both of the said attorneys joined in petitioners' request that Attorneys Jordan and Weinglass be appointed. Attorney Mintz, appearing for petitioner William Taylor Harris, moved that an evidentiary hearing be held for the purpose of establishing the reasons why the court's discretion should be exercised in favor of appointing Attorney Weinglass in his stead. Attorney Ballachey, appearing for petitioner Emily Montague Harris, took the position that Attorney Jordan had been appointed by the municipal court to represent Mrs. Harris and that that appointment should be continued in the superior court. The court, addressing itself to Attorney Mintz' motion, indicated its willingness to hold a hearing of the general nature requested ² at a future date.

On December 2, 1976, following other proceedings concerning an unsuccessful motion by petitioners to disqualify Judge Lindsay for cause (Code Civ.Proc., § 170, subd. 5), ³ the inquiry relative to appointment of counsel was held. Pursuant to prior order of the court the parties had previously submitted memoranda relative to the appropriate scope of the inquiry, and at the outset of the hearing the court announced that, following 'the procedures set forth in Drumgo v. Superior Court ((1973) 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007 (and) . . . People v. Marsden ((1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44),' it would 'afford opportunity to the defendants to state specific reasons and argument for request of discharge of appointed counsel.' Because the proceedings were to be nonadversarial, the People were not permitted to participate, but the district attorney was allowed to remain at the counsel table as an observer.

Before beginning with the substance of the inquiry, Judge Lindsay also stated for the record that he, as the judge assigned to the master criminal calendar, would neither preside at the trial nor rule upon any pretrial motions under Penal Code sections 995 and/or 1538.5.

As a final preliminary matter the court acknowledged its receipt of several documents filed since the last hearing by Attorneys Jordan and Weinglass, who were present in the courtroom, in which they characterized themselves as making a 'special appearance' on the issue of their 'reinstatement.' The court rejected this characterization but filed the documents as if they had been prepared by petitioners themselves. The court als addressed itself to a letter from petitioners, dated November 24, 1976, in which it was indicated that Attorneys Jordan and Weinglass would appear specially on their behalf during the inquiry. Viewing this letter as a motion by petitioners to have Attorneys Jordan and Weinglass on a Pro bono basis for purposes of the inquiry, the court denied it.

These preliminary matters disposed of, Judge Lindsay commenced the hearing proper by a review of the documents and considerations which he had relied upon in making his appointments of Attorneys Ballachey and Mintz. These included materials relating to the qualifications of all four of the attorneys in question, as well as transcripts of the prior proceedings in the matter. He then called upon petitioners to proceed with their presentation. At this point, however, Attorneys Mintz and Ballachey renewed the motion that the inquiry be conducted on petitioners' behalf by Attorneys Jordan and Weinglass, reiterating the close contact of the latter attorneys with petitioners in other related proceedings, the willingness of the latter attorneys to appear on a Pro bono basis for purposes of the inquiry, and the desire of petitioners to be represented by them. It was also indicated that Attorneys Jordan and...