Smith v. Superior Court of Los Angeles County

• Decision Date: 01 May 1968
• Citation: 440 P.2d 65,68 Cal.Rptr. 1,68 Cal.2d 547
• Court: California Supreme Court
• Parties: , 440 P.2d 65 Jimmy Lee SMITH, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE et al., Real Parties In Interest. L.A. 29560.

Page 1

68 Cal.Rptr. 1

68 Cal.2d 547, 440 P.2d 65

Jimmy Lee SMITH, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The PEOPLE et al., Real Parties In Interest.

L.A. 29560.

Supreme Court of California,

In Bank.

May 1, 1968.

Irving A. Kanarek, Van Nuys, for petitioner.

John D. Maharg, County Counsel, and William F. Stewart, Deputy County Counsel, for respondent.

No appearance of real parties in interest.

MOSK, Associate Justice.

Defendant Jimmy Lee Smith petitions for a writ of mandate to compel the Los Angeles Superior Court to vacate its order removing I. A. Kanarek as his attorney of record in a pending murder trial.

We adjudicate here the unprecedented issue of whether a trial judge has or should have the power to remove a court-appointed defense attorney, over the objections of both the attorney and the defendant, on the ground of the judge's subjective opinion that the attorney is 'incompetent' because of ignorance of the law to try the particular case before him. We conclude that such a ruling is beyond the statutory and inherent powers of the trial court, and hence that the writ should be granted.

In 1963 Smith and his codefendant, Gregory Ulas Powell, were charged with the murder of Los Angeles Police Officer Ian Campbell. Defendants were indigent, but a conflict prevented the public defender from representing both; Ray L. Smith, a private attorney, was therefore appointed to represent defendant Smith at the trial. Defendants were found guilty of first degree murder, and the death penalty was imposed on each. Mr. Kanarek entered the case on October 1, 1963, when on motion of defendant Smith he was appointed to represent Smith in arguing the motion for new trial. That motion was denied, and judgment was entered.

Thereafter, we appointed Mr. Kanarek to represent Smith on his automatic appeal. The appeal was successful, and on July 18, 1967, we reversed the judgments as to both defendants for violation of the Escobedo-Dorado rules. (People v. Powell (1967) 67 A.C. 25, 59 Cal.Rptr. 817, 429 P.2d 137).

Our appointment of Mr. Kanarek expired, of course, with the final determination of the appeal. Accordingly, the question of Smith's representation on the retrial was promptly raised when the cause was returned to the Los Angeles Superior Court for further proceedings. At a hearing on September 1, 1967, before Judge Mark Brandler, who had presided at the trial, the following took place:

'THE COURT: Is it your desire, Mr. Smith, that the Court appoint Mr. Kanarek who represented you in connection with the appeal of this case before the Supreme Court, that he be appointed to represent you in connection with the retrial of this case?

'DEFENDANT SMITH: Yes, your Honor.

'THE COURT: Have you given any thought to this type of appointment, Mr. Kanarek, with reference to retrial as to Mr. Smith?

'MR. KANAREK: Yes, your Honor.

'THE COURT: Are you willing and prepared to accept an appointment?

'MR. KANAREK: Yes, your Honor.

'THE COURT: I take it, in connection with the preparation of this case on appeal, You became thoroughly familiar with all of the transcripts, numerous transcripts in the case and the numerous legal points involved?

'MR. KANAREK: Yes, your Honor.

'THE COURT: All right. In view of all of that background and the fact the the defendant does not have the funds to employ private counsel, there being a conflict which heretofore existed and so certainly, the Public Defender would not be in a position to represent conflicting interests, the Court will appoint Mr. Kanarek to represent the defendant Mr. Jimmy Lee Smith pursuant to the provisions of Section 987a of the Penal Code.' (Italics added.)

Between September 1 and December 28, 1967, inclusive, Mr. Kanarek appeared for Smith at 11 hearings on various pretrial motions. He actively participated in the presentation and argument of such motions, before several different judges. On December 28 the cause was transferred for trial to Department 78, Judge Arthur L. Alarcon presiding, and continued to January 22, 1968.

On the latter date Judge Alarcon entered the case for the first time. In the course of argument on a severance motion, an abrasive colloquy arose by reason of an apparent compulsive tendency of Mr. Kanarek to interrupt before Judge Alarcon had finished speaking. The judge admonished him in this regard, and after further argument the proceedings were continued to the following day.

At 9:45 a.m. on January 23 the hearing was resumed. Friction again developed between Judge Alarcon and Mr. Kanarek, and the judge warned on three occasions that his bailiff would enforce courtroom decorum if it became necessary. When Mr. Kanarek requested a continuance to do further research on points of law raised by the prosecution in opposing the motion to sever, Judge Alarcon abruptly asked, 'Mr. Kanarek, have you ever tried a death penalty matter before as a trial lawyer?' Mr. Kanarek replied that he did not believe he had. After hearing cocounsel's similar request for a continuance, Judge Alarcon on his own motion injected the issue of Mr. Kanarek's 'competency' into the proceedings, by announcing: 'There is a question that has come up in the Court's mind which I must resolve as to whether I feel Mr. Kanarek has the experience and the ability to represent Mr. Smith in a charge as serious as this. And I want to do some research as to that problem and confer with the presiding judge And then hear from Mr. Kanarek, if he wishes to be heard, and indicate my own opinion, whether my doubt has been resolved or not. If I find that Mr. Kanarek is not, by experience or training or knowledge, capable of representing Mr. Smith, he will be relieved and a new attorney will be appointed by the Court.' (Italics added.)

Responding to the adverse implications of this totally unexpected expression of doubt as to his competency, Mr. Kanarek pointed to his representation of Smith on the motion for new trial and on the appeal, and said, 'May I inquire as to whether the Court has read the record?' He was ordered to sit down. At the close of the morning session he apparently sought to renew his objection, saying, 'Well, your Honor, I might state that your Honor's statements are denying a right to counsel to Mr. Smith. Mr. Smith has asked me to prepare an affidavit of prejudice against your Honor because of your Honor's statements to me concerning this lack of--' Judge Alarcon interrupted him at that point, calling a recess until afternoon and stating that 'I'll hear from you at that time.'

When the court reconvened, however, Judge Alarcon opened the proceedings with the following ruling:

'I placed this matter on calendar at this time so that I might further consider the question raised in the Court's mind with reference to the competency of Mr. Kanarek to continue to represent Jimmy Lee Smith in this matter. During the noon hour, I conferred with the Presiding Judge of this Court, Judge Donald Wright. I also studied a previous Superior Court case, which is the case of People against Gerald Flanagin, Superior Court No. 314,298. The Flanagin matter was a case in which Mr. Kanarek was the attorney of record as retained counsel and in that matter there was a motion for a new trial. Among the reasons indicated by Judge A. Andrew Hauk, now of the Federal District Court, for his granting the motion for a new trial was the inadequacy of the representation of Mr. Flanagin in that case. Mr. Flanagin was charged in that case with possession of marijuana, one cigarette. There was a time estimate by the People of one day. The case took some two weeks to try.

'Mr. Kanarek has indicated to this Court that he has never appeared as the attorney of record in the trial of a death penalty case. I have considered Mr. Kanarek's behavior before this Court, his attempts to urge a motion for a severance. I feel Mr. Kanarek is not capable of representing Defendant Smith. In view of the very serious nature of the charge in this case, in view of the fact that a previous jury has found this defendant guilty of murder in the first degree and recommended the death penalty, this Court has a special duty to see that Mr. Smith gets the finest representation possible. In view of Mr. Kanarek's lack of experience in any death penalty case as a trial lawyer, in view of the finding of Judge A. Andrew Hauk that Mr. Kanarek was not competent to represent a defendant in a one-day marijuana possession case, ¹ the Court at this time will vacate the order of Judge Mark Brandler appointing Mr. Kanarek pursuant to Section 987a of the Penal Code.

'Mr. Kanarek is now relieved as--

'MR. KANAREK: May I be heard, Judge?

'THE COURT: No, Mr. Kanarek, you may not.

'Mr. Kanarek is now relieved as the attorney of record. Mr. Kanarek is ordered to deliver to the clerk of the Court by Friday, January 26 by 4:00 p.m. all transcripts and all records which he has received in this matter. A violation of this direct order will be considered as a contempt matter.

'You are relieved, Mr. Kanarek.' (Italics added.)

Judge Alarcon then appointed Attorney William A. Drake, who was present in the courtroom, to represent defendant Smith. Mr. Drake accepted the appointment, but Smith was not consulted. As soon as the opportunity arose, however, Smith voiced his unqualified objection to Mr. Drake's appointment:

'THE DEFENDANT SMITH: In all respect to the Court, please, may I have one second, please?

'THE COURT: You talk to Mr. Drake.

'THE DEFENDANT SMITH: I object to this attorney being appointed and I'd like to have the record reflect that, your Honor. I have some say so, I think.

'THE COURT: Mr. Smith, the record will indicate that you are opposed to the appointment of Mr. Drake. That protects you.

'THE DEFENDANT SMITH: Yes.

'THE COURT: Fine. The matter will be continued to January 30, 1968 at 9:30.'

The remainder of the record is eloquent with respect to Smith's adamant position in this...