Ligda v. Superior Court

• Decision Date: 24 March 1970
• Citation: 85 Cal.Rptr. 744,5 Cal.App.3d 811
• Parties: Paul LIGDA, as Public Defender of Solano County, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent; George Washington JOHNSON, Real Party in Interest. Civ. 27804.
• Court: California Court of Appeals Court of Appeals

Page 744

85 Cal.Rptr. 744

5 Cal.App.3d 811

Paul LIGDA, as Public Defender of Solano County, Petitioner, v. SUPERIOR COURT OF SOLANO COUNTY, Respondent George Washington JOHNSON, Real Party in Interest.

Civ. 27804.

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

March 24, 1970.

Paul Ligda, Public Defender, County of Solano, Fairfield, for petitioner.

Milton Goldinger, County Counsel, John M. Powers, Asst. County Counsel, County of Solano, Fairfield, for respondent.

DAVID, Associate Justice Pro Tem. ^*

The Public Defender of Solano County seeks a writ of prohibition to annul an order that a designated deputy public defender, Stephen R. Camden, attend the trial of defendant, George Washington Johnson, to assist him through sentencing. Camden sought a writ of habeas corpus, contending the court's order illegally deprived him of his freedom.

Johnson was represented initially by the public defender and his deputy, Stephen R. Camden (People v. Johnson, No. 6303 on respondent's calendar). This representation lasted from October 31, 1969, until January 6, 1970 (the date set for trial), when Johnson successfully urged the court to be allowed to proceed Pro per in his own defense. The cause came up for trial on January 27, 1970, and just prior to trial, the court made the second order assailed, over the objection of the public defender. The deputy public defender petitioned this court for a writ of habeas corpus, which was denied (1 Crim. No. 8563, this court). The reasons for such denial are embraced in this opinion. While impliedly recognizing the power of the court to assign counsel as an advisor to assist a pro per defendant in a criminal case (People v. Mattson (1959) 51 Cal.2d 777, 789, 336 P.2d 937; People v. Black (1962) 205 Cal.App.2d 406, 23 Cal.Rptr. 141), he asserts that in any such assignment, the consent of a public defender so assigned must be secured; and in making the order without consent of the public defender or his deputy, there is an excess of jurisdiction which can be prohibited. The contention as reflected in the petition for writ of habeas corpus is 'The Court's Order that I remain as an adviser during the course of the trial in the matter of Peo v. Johnson deprives me of my liberto (sic) to attend to my regular duties. That deprivation of liberty is illegal in that the Court has no authority to Order the Public Defender to appear as an 'adviser' to anyone without consent or to order a specific Deputy Public Defender to abandon his other duties to act as 'adviser' without consent.' It is broadly claimed that a public defender is no more subject to a court's control than any other attorney practicing before the court.

In People v. Wade (1968) 266 Cal.App.2d 918, 923, 925, 72 Cal.Rptr. 538, and People v. Amstrong (1969) 274 A.C.A. 328, 79 Cal.Rptr. 223, it was held that denial of defendant's motion to have a deputy public defender sit as an adviser was not an abuse of judicial discretion. In the Wade case, it appears that the deputy objected to accepting such assignment. In Wade, the deputy assured the court that defendant (who had three previous felony convictions) was able to make an intelligent waiver of counsel. Defendant had personally and successfully argued his motion under Penal Code, section 995. In Armstrong, the court held the defendant capable to meeting the simple issues involved in prosecution for a gas station burglary.

Even assuming the public defender's consent were held to be necessary, the return to the alternative writ successfully traverses the claim that the assignment of Mr. Camden to assist Mr. Johnson was without his consent. Under the facts, such 'consent' was not necessary.

On January 6, 1970, at the time set for trial, defendant Johnson was interrogated by the court relative to his request to relinquish his representation by the public defender's office. Being charged with some 15 counts charging robbery, kidnapping for robbery and attempted murder, the interrogation by the court disclosed serious doubts that Johnson could adequately handle his own defense. The following extracts of the proceedings are pertinent:

'THE COURT (to defendant Johnson): Well, you mentioned one other thing. You indicated you would like to be in charge of your own defense, but you also made reference to the fact that you, if possible, would like to have some attorney available to provide legal assistance or advice? THE DEFENDANT: Yes. * * * THE COURT: Mr. Camden, what is the position of the Public Defender's Office in the matter, particularly on this point raised of the request for legal assistance rather than representation or service as counsel for trial? MR. CAMDEN: Well, your Honor, the defendant is right, in that I have had only one consultation with him and I believe that was last Friday. At that time he told me that it was his desire that he would discharge my office in its entirety, the entire legal staff, and he was going to hire his own counsel. In the meantime, we proceeded to appear, however. If Mr. Johnson's motion is granted and he is allowed to proceed pro per, I would at any time he asked me for legal advice, I would be glad to give him the information he requests or any of my legal knowledge that he may need in preparing for his trial.'

The defendant advised the court he had no faith in the public defender's office, and Mr. Aye of that office advised the court of Mr. Johnson's lack of cooperation with the public defender's office in preparing for his defense, placing them in an awkward position.

'THE COURT: I am satisfied it would put any counsel in an awkard position. I have already advised Mr. Johnson that the Court does not at this juncture propose to impose upon other counsel by discharging the Public Defender's Office and assigning a private attorney to represent him. However, the motion to relieve the Public Defender's Office as your attorney is granted * * *.'

A speedy trial is enjoined in criminal cases (Pen.Code, §§ 686, subd. 1; 1381--1383, inc.).

The district attorney protested vigorously at postponement of the trial; but the court granted a three-week's continuance, stating 'The strong possibility remains that this, as the record would seem to indicate, may be deemed nothing more than a tactic for delay or prevention of the prosecution for a brief interim. Be that as it may, the Court is obligated to afford every defendant all possible consideration and to acknowledge each of his rights.' (Cf. People v. Adamson (1949) 34 Cal.2d 320, 210 P.2d 13; United States v. Plattner (2 Cir. 1964) 330 F.2d 271.) There was a further statement, upon fixing the time of trial on January 27, 1970, that no further continuances would be granted; and then the court stated to Mr. Johnson: 'The public defender will turn over to you at this time the transcript of the proceedings before the Grand Jury and any and all investigation reports, statements of witnesses or other material pertinent to the defense, in the possession of the public defender.

'Furthermore, if you wish legal assistance you may make a date with Mr. Camden. At this time he has indicated his willingness to provide any continuing counsel if you wish his assistance during trial, to be present, and you may have that.

'THE DEFENDANT: Thank you, your Honor. MR. CAMDEN: Thank you, your Honor. * * * THE COURT: Do you have anything further, Mr. Johnson? THE DEFENDANT: Just that the power to subpoena witnesses be granted. THE COURT: I am sure that Mr. Camden will be willing to process any subpoenas that you wish, and if there are a large number of them the Court may require a showing, or the District Attorney may require a showing in advance of their names and the gist of their testimony, in order that we can be sure that no further delays or waits will be entailed in the case. THE DEFENDANT: All right. Thank you, your Honor.'

At this point the option of assigning other counsel from the bar existed if the court found 'the public defender has properly refused to represent the person accused.' (Pen.Code, § 987a; Avan v. Municipal Court (1965) 62 Cal.2d 630, 43 Cal.Rptr. 835, 401 P.2d 227.) But Mr. Camden did not refuse the limited assignment made on January 6, and was still with defendant as he appeared on January 27, the time to which the trial was postponed, under an order the case was to proceed in all events. For all the record shows, the public defender's improper refusal was only then made apparent, the refusal proceeding from Mr. Ligda, the county public defender, as Mr. Camden's superior.

It would obviously have been too late to secure private counsel for assignment, a matter we apprehend to be of some difficulty any time in Solano County, ¹ which has 81 attorneys, with only 18 in Fairfield, the county seat, and one in Suisun (Records, State Bar). The public defender and his staff constitute some 7 of these, and the district attorney and his staff, and the county counsel must approximately aggregate the same number or more. This accentuates the reasonableness of the orders of the court involved here.

On January 27, 1970, the postponed trial commenced. Mr. Johnson appeared and was accompanied by Mr. Camden, deputy public defender, as adviser. In chambers, Johnson requested that his sister be subpoenaed. 'THE COURT: All right, Mr. Camden, this will be a recess assignment for you. MR. CAMDEN: Yes, Your Honor. This is unexpected.' The district attorney indicated it would be some five days before the defense would need the witness.

'MR. CAMDEN: I didn't understand this. Now the last time I was here the Defendant made a motion to discharge the Public Defender's Office and that was done. THE COURT: That is true. You are required to stand by to give such assistance as may be required of you, but you are not obliged to manage the case, as it would be if you were attorney. But if he asks you questions about any legal matters during the course of the trial, or if you can assist him in things...