Williams v. Superior Court

• Decision Date: 06 June 1996
• Docket Number: No. B101152,B101152
• Citation: 46 Cal.App.4th 320,53 Cal.Rptr.2d 832
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 4088, 96 Daily Journal D.A.R. 6596 Michael WILLIAMS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

Page 832

53 Cal.Rptr.2d 832

46 Cal.App.4th 320, 96 Cal. Daily Op. Serv. 4088,

96 Daily Journal D.A.R. 6596

Michael WILLIAMS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The PEOPLE, Real Party in Interest.

No. B101152.

Court of Appeal, Second District, Division 5, California.

June 6, 1996.

Rehearing Denied June 24, 1996.

Review Denied Sept. 25, 1996.

Michael P. Judge, Public Defender of Los Angeles County, Steven H. Hough, Head Deputy Public Defender, Peter C. Swarth and John Hamilton Scott, Deputy Public Defenders, for Petitioner.

Benedon & Serlin and Gerald M. Serlin, Douglas G. Benedon, Woodland Hills, for Respondent.

No appearance for Real Party in Interest.

GODOY PEREZ, Associate Justice.

Defendant and petitioner Michael Williams, also known as Michael Antoine Price, challenges an order of the respondent court refusing to appoint the Los Angeles County Public Defender to represent him. We hold that a trial court is required to appoint the public defender to represent an indigent defendant when the public defender is "available," meaning that the public defender can be ready for trial and in court on the designated trial date. In determining the public defender's availability, the court may either rely on the public defender's representation that he or she is available, or may elicit additional information from counsel which will aid the court in making that determination. A finding of unavailability, however, may not be based solely upon the number and age of the public defender's pending caseload where counsel represents it will not interfere with his or her trial readiness. Penal Code section 987.05 allows a court to impose substantial sanctions for counsel's failure to be ready, without good cause, as initially represented to the court. ¹

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged with possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)), and with two prior felony convictions, within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). Deputy Public Defender Peter C. Swarth represented defendant through the preliminary examination. Defendant was held to answer and his arraignment in superior court was set for April 2, 1996.

Defendant and Mr. Swarth appeared for arraignment before respondent court. According to defendant, respondent court maintains a list of all pending felony cases, the length of time which has passed since arraignment, and the attorneys assigned to represent the defendants in each case. That list indicated that Mr. Swarth was representing 21 clients whose cases were beyond the 60-day statutory time for trial following arraignment, ² with 16 of [46 Cal.App.4th 325] those cases older than 120 days from their arraignment. ³ At defendant's arraignment, the court asked Mr. Swarth how he could "possibly handle this case in the next 60 days" in light of the other cases on his calendar. Mr. Swarth indicated there were no cases calendared for trial at the time of defendant's anticipated trial date which would interfere with his representation of defendant. Mr. Swarth added that the only thing he could foresee affecting his ability to handle this case would be the People's failure to timely comply with discovery. Mr. Swarth told the court, "I believe I can be ready and available." Respondent court disagreed, stating, "It does not appear from this court's reading of the number of cases that you have that you can be prepared in a timely fashion since obviously the other matters that you already have should get priority over this one." The court opined that each of the other 21 cases would take three days to try, putting defendant's case well beyond the 60-day limitation of section 1382, subdivision (a)(2). Again, Mr. Swarth told the court he could be ready for trial.

The court instructed Mr. Swarth to contact his office and inquire whether another deputy public defender could try the case; if there was no one from that office available, the court would appoint a private panel attorney to represent defendant. (§ 987.2.) When the hearing resumed, Mr. Swarth reported that the Public Defender determined he should try defendant's case, and asserted it would be in defendant's best interest for him to do so. The court disagreed, and appointed a panel attorney who said he could try defendant's case in 60 days. ⁴

Defendant's trial began on May 30, 1996, while this petition was pending. Defendant was represented by the court-appointed panel attorney. Since defendant's objective in filing the petition was to have Mr. Swarth appointed as his counsel, the petition was rendered moot by the commencement of defendant's trial. However, because the petition raises issues of significant public concern which are likely to recur, we exercise our discretion to resolve those issues. (See In re William M. (1970) 3 Cal.3d 16, 23-24, 89 Cal.Rptr. 33, 473 P.2d 737.)

DISCUSSION

A. Appointment of the Public Defender

An indigent defendant has the right to a court-appointed attorney at the time of his arraignment. Section 987, subdivision (a), provides: "In a noncapital case, if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ counsel the court shall assign counsel to defend him or her." (Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 910, 27 Cal.Rptr.2d 732.) ⁵

Trial courts in Los Angeles County are required to appoint the public defender, subject to availability and in the absence of a conflict of interest. Section 987.2, subdivision (e) describes the process as follows: "In a county of the first, second, or third class,[ ⁶] the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county has created a second public defender and contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, and if the quality of representation provided by the second public Government Code section 27706, subdivision (a) specifies the obligations of the public defender: "The public defender shall perform the following duties: [p] (a) Upon request of the defendant or upon order of the court, the public defender shall defend, without expense to the defendant, except as provided by Section 987.8 of the Penal Code, 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 the person 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 the opinion of the public defender, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction." Again, the statute requires the public defender to defend those indigent clients who request its services.

                defender is comparable to the quality of representation provided by the public defender, the court shall next utilize the services of the second public defender and then the services of the county-contracted attorneys prior to assigning any other private counsel.  Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest.  In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the second public defender or a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record."   This provision allows for a deviation in the requisite order of appointment of the second public defender or the county-contracted attorney, but not for the requirement that the public defender be utilized first
                

Cases addressing the issue of whether an indigent defendant is entitled to private counsel of his or her choice have held that although the appointment of counsel under section 987.2 rests within the sound discretion of the trial court, the court's discretion may not be restricted by any fixed policy. (See People v. Horton (1995) 11 Cal.4th 1068, 1098, 47 Cal.Rptr.2d 516, 906 P.2d 478.) In Harris v. Superior Court (1977) 19 Cal.3d 786, 795, 140 Cal.Rptr. 318, 567 P.2d 750, after the public defender had declared a conflict of interest, both petitioners requested the appointment of specific private attorneys. After conducting a hearing and inquiring into the reasons for the requests, the trial court refused to make such appointments. The Supreme Court, reaffirming its holding in Drumgo v. Superior Court (1973) 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007, held that "[a]n indigent defendant's preference for a particular attorney, while it is to be considered by the trial court in making an appointment [citation] is not a determinative factor requiring the appointment of that attorney--even in combination with other relevant factors such as the subject attorney's competence and availability. As we have indicated, the matter rests wholly within the sound discretion of the trial court." (Harris v. Superior Court, supra, 19 Cal.3d at pp. 795-796, 140 Cal.Rptr. 318, 567 P.2d 750, italics in original, fn. omitted.) The court defined judicial discretion as " '... that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies...