Iraheta v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: NOTT, J., and ZEBROWSKI
• Citation: Iraheta v. Superior Court, 83 Cal.Rptr.2d 471, 70 Cal.App.4th 1500 (Cal. App. 1999)
• Decision Date: 31 March 1999
• Docket Number: No. B126581,B126581
• Parties: , 99 Cal. Daily Op. Serv. 2397, 1999 Daily Journal D.A.R. 3107 Vladmir IRAHETA et al., Petitioners, v. SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County District Attorney's Office et al., Real Parties in Interest.

Page 471

83 Cal.Rptr.2d 471

70 Cal.App.4th 1500, 99 Cal. Daily Op. Serv. 2397,

1999 Daily Journal D.A.R. 3107

Vladmir IRAHETA et al., Petitioners, v. SUPERIOR COURT of Los Angeles County, Respondent Los Angeles County District Attorney's Office et al., Real Parties in Interest.

No. B126581.

Court of Appeal, Second District, Division 2, California.

March 31, 1999.

Review Denied June 16, 1999.

Michael P. Judge, Public Defender, Laurence Sarnoff, Albert J. Menaster, Alex Ricciardulli and Mark Harvis, Deputy Public Defenders, for Petitioners.

No appearance for Respondent.

James K. Hahn, City Attorney, Debbie Lew and Candice I. Horikawa, Deputy City Attorneys, Gil Garcetti, District Attorney, and Natasha S. Cooper, Deputy District Attorney, for Real Parties in Interest.

Joan R. Gallo, City Attorney (San Jose), George Rios, Assistant City Attorney, and Glenn D. Schwarzbach, Senior Deputy City Attorney, as Amicus Curiae on behalf of Real Parties in Interest.

BOREN, P.J.

Petitioners, Vladmir Iraheta and Pedro Monico, alleged street gang members, claim a constitutional right to the appointment of legal counsel, at public expense, in a civil action for injunctive relief to abate a public nuisance. We hold that due process does not require such an appointment.

I. FACTUAL AND PROCEDURAL HISTORY

The People filed a civil lawsuit seeking an injunction to abate a public nuisance, naming as defendants the 18th Street Gang, 92 individuals and 200 "Does." The complaint, which sought a preliminary and permanent injunction, alleged that petitioners and the other defendants, as members of the 18th Street Gang, were actively contributing to the nuisance in two target areas. It was alleged that the defendants have "waged a gang war, including engaging in drug dealing, shootings, robberies, drinking and urinating in public, threatening residents, vandalizing and defacing with graffiti public and private property, trespassing on property, and other injurious activities against the residents who live and work within [the two target areas]." The People requested the issuance of an injunction barring the defendants from engaging in these activities.

After the preliminary injunction issued, The Los Angeles County Public Defender's Office ("Public Defender") filed a motion asking the superior court to appoint counsel for petitioners "for the trial which will determine whether a permanent injunction will issue." The Public Defender pointed out that petitioners are indigent and cannot afford to pay for counsel, and argued that due to the unique and extraordinary circumstances of the case, petitioners should have the right to court-appointed counsel. The superior court denied petitioners' request, and this petition followed.

II. CONTENTIONS

Petitioners contend that "due process of law requires [the appointment of counsel] to represent the indigent defendants named in the complaint."

III. DISCUSSION

A. Generally, the right to counsel exists only where a litigant's physical liberty may be lost.

"The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a) of the California Constitution ensure that an individual may not be deprived of life, liberty or property without due process of law. Central to this constitutional right is the guarantee that 'absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' [Citations.]" (Salas v. Cortez (1979) 24 Cal.3d 22, 26-27, 154 Cal.Rptr. 529, 593 P.2d 226 (Salas ).) This has been held to include the right of a defendant to appointed counsel in civil actions, but only in restricted circumstances. (Ibid.) Generally, "the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation." (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116, 264 Cal.Rptr. 825, 783 P.2d 184.)

B. Salas and Lassiter

Petitioners, relying primarily on Salas and Lassiter v. Department of Social Services (1981) 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 [70 Cal.App.4th 1504] (Lassiter ), claim that due process of law requires the appointment of counsel for indigent defendants in a trial to determine whether a permanent injunction should be issued to abate a public nuisance--because the defendants may, at some later, undefined date, lose their physical liberty.

In Salas, the California Supreme Court held that indigent defendants in paternity proceedings prosecuted by the state are constitutionally entitled to appointed counsel. The Salas court articulated the test to be applied in determining whether due process requires the appointment of counsel in a particular case as follows: "To determine the weight of appellants' claims to appointed counsel in the present cases, this court must examine the nature and magnitude of the interests involved, the possible consequences appellants face and the features which distinguish paternity proceedings from other civil proceedings. These factors must then be balanced against the state's interests." (Salas, supra, 24 Cal.3d at p. 27, 154 Cal.Rptr. 529, 593 P.2d 226.)

The Salas court never compared the nature of the right at stake in paternity actions to the right to physical liberty at stake in criminal cases. Instead, Salas's conclusion rested on a number of factors, none of which justifies appointment of counsel in the instant case. First, the Salas case involved, "the most basic biological relationship, that of parent and child." (Salas, supra, 24 Cal.3d at p. 28, 154 Cal.Rptr. 529, 593 P.2d 226.) Second, the consequences of the paternity action had probate consequences "beyond the grave." (Ibid., fn. 3.) Third, the failure to support a child can be prosecuted under Penal Code section 270, during which time the prior judgment would be admissible to prove the most significant element of the crime--paternity. (Id. at pp. 28-29, fn. 5, 154 Cal.Rptr. 529, 593 P.2d 226.) Fourth, in paternity actions, the district attorney's office steps into what has traditionally been a private dispute between the mother and father to marshall its resources in favor of one private party against another. (Id. at pp. 29-30, 154 Cal.Rptr. 529, 593 P.2d 226.) Fifth, paternity proceedings are extremely complex, involving scientific evidence, expert witnesses and unreliable testimony. (Id. at pp. 31-32, p. 31, fn. 7, 154 Cal.Rptr. 529, 593 P.2d 226.) Based on these factors, the Salas court held that indigent defendants are entitled to appointed counsel in proceedings to determine paternity in which the state appears as a party or appears on behalf of a mother or child. (Id. at p. 34, 154 Cal.Rptr. 529, 593 P.2d 226.)

Three dissenting justices criticized the Salas majority opinion as an expansion of due process by judicial fiat, without "any decisional precedent or statutory support," and "directly contrary to the United States Supreme Court's recent expression on the matter of appointed counsel in Scott v. Illinois (1979) 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383." (Salas, supra, 24 Cal.3d at pp. 34-35, 154 Cal.Rptr. 529, 593 P.2d 226 (dis. opn. by Richardson, J.).)

Two years later, in Lassiter, the United States Supreme Court applied the same rationale to reach the same result urged by the dissent in Salas. The Lassiter court held that the trial court's refusal to appoint counsel for an indigent parent in parental status termination proceedings did not violate the due process clause of the Fourteenth Amendment. (Lassiter, supra, 452 U.S. at pp. 24-32, 101 S.Ct. 2153.) Given the different standards applied by the Salas court and the Lassiter court, a different outcome was understandable.

In Lassiter, the United States Supreme Court reviewed the historical underpinnings of the right to counsel premised on the due process clause and recognized the general rule that the right to appointed counsel attaches only when there is a risk of loss of physical liberty. "In sum, the Court's precedents speak with one voice about what 'fundamental fairness' has meant when the Court has considered the right to appointed counsel, and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured." (Lassiter, supra, 452 U.S. at pp. 26-27, 101 S.Ct. 2153.)

Unlike the court in Salas, the Lassiter court incorporated this presumption into its due process balancing test. The Lassitercourt impliedly recognized that applying this "general rule" will not always preclude appointment of counsel where a defendant's physical liberty is not at stake. However, the general rule clearly establishes a benchmark against which all due process interests must be measured. "Significantly, as a litigant's interest in personal liberty diminishes, so does his right to appointed counsel." (Lassiter, supra, 452 U.S. at p. 26, 101 S.Ct. 2153.) Thus, where there is little or no possibility that a defendant will be deprived of his physical liberty, he must demonstrate an extremely important interest which is sufficiently compelling to overcome the presumption that appointment of counsel is not required unless a litigant may be deprived of his physical liberty.

The court in Lassiter held that whether a parent has a personal liberty interest that requires appointment of counsel during termination proceedings must be determined on a case-by-case basis, by applying a two-prong test. First, the court must apply the three factors set forth in Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, i.e., "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." (Lassiter, supra, 452 U.S. at p. 27, 101 S.Ct. 2153....