Ingram v. Justice Court for Lake Valley Judicial Dist. of El Dorado County

Decision Date11 December 1968
Citation69 Cal.2d 832,73 Cal.Rptr. 410,447 P.2d 650
CourtCalifornia Supreme Court
Parties, 447 P.2d 650, 36 A.L.R.3d 1391 Marcus INGRAM, Plaintiff and Respondent, v. The JUSTICE COURT FOR the LAKE VALLEY JUDICIAL DISTRICT OF EL DORADO COUNTY, Defendant and Appellant; The PEOPLE, Real Party in Interest and Appellant. Sac. 7831.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., for defendant and appellant and for real party in interest and appellant.

Paul Ligda, Public Defender, for plaintiff and respondent.

John D. Nunes, Public Defender (Alameda), James R. Jenner, Asst. Public Defender, William R. Higham, Public Defender (Contra Costa), and Melvin W. Nitz, Public Defender (Fresno), as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

On this appeal from a judgment ordering issuance of a writ of mandate, we are called upon to decide whether the trial court has the power to review the determination of a public defender that an accused who requests his services is 'not financially able to employ counsel' (Gov.Code, § 27706, subd. (a)). We conclude that such a determination is not subject to judicial, as distinguished from political, review and that this rule is applicable although the public defender's services are sought for a collateral attack on a final judgment rather than a defense to a pending charge.

In 1959 Marcus Ingram (hereinafter called petitioner) appeared without counsel in the Justice Court of the Lake Valley Judicial District, County of El Dorado, to answer to a misdemeanor charge of failing to provide for a minor child. (Pen.Code, § 270.) He pleaded guilty, was admitted to probation, and did not appeal.

On August 21, 1967, the Public Defender of El Dorado County, representing petitioner, filed a notice of motion in respondent justice court to set aside petitioner's 1959 judgment of conviction on the ground of an asserted denial of his right to counsel in that proceeding.

When the matter was called for hearing on September 14, 1967, the court on its own initiative asked the public defender for an affidavit of indigence to establish petitioner's financial inability to employ private counsel. The public defender replied that he had no such affidavit and was not required by law to have one; after some discussion, he nevertheless declared as an officer of the court that he was satisfied petitioner was indigent and hence eligible for the services of the public defender's office. The court ruled, however, that it had the power and duty to make a final determination of the issue of petitioner's indigence, and over the objection of the public defender continued the matter to allow preparation of evidence on the point.

Petitioner thereupon filed an application for writ of prohibition or mandate in the El Dorado Superior Court, alleging that 'Unless restrained, respondent Court will proceed to rule on the Public Defender's right to represent me' and that such a ruling would be in excess of jurisdiction. On October 3, 1967, judgment was entered ordering that a peremptory writ of mandate issue to compel respondent court to 'proceed to determine, on its merits, petitioner's motion to set aside the judgment of his conviction of a violation of Section 270 of the California Penal Code; and to permit the Public Defender of El Dorado County to represent petitioner in these proceedings without raising any question of the Public Defender's right to do so or of petitioner's indigency.' The People, as real party in interest, appeal.

For half a century the office of public defender has been a creature of statute. 1 The code provides that the salary and expenses of the public defender are county charges (Gov.Code, §§ 27708, 27709, 27711), and prescribes in detail the powers and duties of the office. Government Code, § 27706, subdivision (a), provides that 'Upon request of the defendant or upon order of the court, (the public defender) shall defend, without expense to the defendant, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior, municipal or justice courts At all stages of the proceedings, including the preliminary examination. The public defender shall, upon request, give counsel and advice to such person about any charge against him upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in his opinion, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.' (Italics added.) The remaining subdivisions of section 27706 are set forth in the margin. 2

Under the foregoing statutory scheme, 'indigence is a qualification required for such representation at public expense.' (People v. Ferry (1965) 237 Cal.App.2d 880, 886, 47 Cal.Rptr. 324, 330.) The issue before us is, simply stated, in whom has the Legislature vested the power to determine whether a given defendant is in fact indigent?

We begin our inquiry by carefully distinguishing between the two ways in which an indigent charged with crime may obtain the services of the public defender: one, by applying directly to the public defender himself, and the other by appearing unrepresented at arraignment and receiving a court-ordered appointment of counsel.

It is the latter sequence, doubtless the more common, with which the statutes and cases relied on by the People are concerned. Thus if a defendant makes his first appearance on a criminal charge without counsel, the court is mandated by provisions of the Penal Code to advise him of his rights and to inquire if he desires to be represented, and to make such an appointment if the defendant so desires but 'is unable to employ counsel' (Pen.Code, §§ 859, 987). Construing the cited sections, the cases have made clear that in such event it is the power and duty of the trial court to inquire into the defendant's financial condition and determine whether he is eligible for the public defender's assistance. (See, e.g., People v. Diaz (1962) 206 Cal.App.2d 651, 661, 24 Cal.Rptr. 367.) This is the precise situation which we have said "should be handled by the judges who have charge of the courts where preliminary examinations and trials are held. Trial judges are in the best possible position administratively to decide the question involved, because the facts involved in each case must determine the answer." (In re Smiley (1967) 66 Cal.2d 606, 620, 58 Cal.Rptr. 579, 588, 427 P.2d 179, 188, quoting from Williams v. Superior Court (1964) 226 Cal.App.2d 666, 672, 38 Cal.Rptr. 291, 294.) The People find solace in the foregoing language, but overlook the fact that the distinction we there drew was between trial courts and appellate courts, not between trial courts and the public defender. 3 Nothing in Smiley should be taken as implying that the public defender is not as 'administratively' well equipped as the trial courts to determine this preliminary question of fact.

Indeed, the People concede that the public defender has the power and duty to make this determination in the alternate situation here envisaged, i.e., when the person charged with crime comes directly to him for assistance rather than awaiting his first court appearance. This authority is implicit in the command of subdivision (a) of section 27706 that 'Upon request of the defendant' the public defender shall represent any indigent accused 'at all stages of the proceedings.' The period prior to arraignment must be deemed such a 'stage'; as recent decisions have recognized, it is a period in which the right to counsel is often of critical importance. (See, e.g., Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) Such an accused has not yet been brought before a judicial officer, and it therefore devolves by necessity upon the public defender to initiate the inquiry into his financial status and decide whether he qualifies for representation. If the decision is favorable to the applicant, an attorney-client relationship may be established without more ado. 4

We next consider whether a public defender's determination that a person applying for his services is 'not financially able to employ counsel' is subject to review by the trial court. Considerations both of statutory construction and of policy require a negative answer to this question.

Turning first to the statute, we observe that subdivision (a) of section 27706 directs the public defender to represent indigent persons either 'Upon request of the defendant Or upon order of the court' (italics added). But if a defendant's successful request for assistance can be nullified by a court because it disagrees with the public defender on the question of indigence, that officer can act in effect only 'upon order of the court.' To so hold, of course, would be to read the 'request' alternative wholly out of the statute.

That the disjunctive form of subdivision (a) was deliberately chosen by the Legislature, moreover, is demonstrated by comparing the language of subdivisions (b) through (d) of the same statute. (Ante, fn. 2.) In subdivisions (b) and (c) it is provided that the public defender shall prosecute and defend certain civil actions only 'Upon request' of the indigent applicant; the statute gives the court no authority to order the public defender to act on behalf of such applicants, and hence his determination of their indigence is final. On the other hand, in subdivisions (d) and (e) it is provided that the public defender shall represent indigent persons involved in mental health or juvenile proceedings only ...

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