Williams v. Superior Court

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.

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 , 66 A.L.R.3d 984 ], 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, original italics, 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 that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.’ . . . [Citations.]’’ (Id. at p. 796.) The Supreme Court held that in exercising its discretion, the trial court is required to review the entire record, analyzing the objective and subjective factors in appointing indigent defense counsel. The court concluded that the trial court had abused its discretion in declining to appoint counsel requested by defendants in that case.

In People v. Chavez (1980) 26 Cal.3d 334 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ], after the public defender had declared a conflict of interest, the defendant requested the same conflict attorney who had represented him at the preliminary examination. The superior court summarily denied that request, stating, “. . . we don’t do that, Mr. Chavez. We appoint our own counsel at the Superior Court level.” (Id. at p. 341, original italics.) Finding an abuse of discretion, the Supreme Court held that the superior court had “improperly adhered to a fixed policy of appointing its ‘own’ counsel in every case. The exercise of the court’s discretion in the appointment of counsel should not have been restricted by an inflexible rule, but rather should have rested upon consideration of the particular facts and interests involved in the case before it. By refusing to give defendant Chavez an opportunity to explain why he preferred that his former counsel represent him at trial, the court effectively foreclosed consideration of any arguments which defendant may have marshalled in support of continuing Attorney Ingber’s appointment.” (Id. at p. 346).

In People v. Daniels (1991) 52 Cal.3d 815 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ], defendant objected to the appointment of the public defender because he did not trust the public defender’s office. He told the court that a deputy public defender who represented him in a previous case did not inform him that the deputy was negotiating for a position with the district attorney. Defendant requested a specific attorney, whom he trusted, to represent him. The court refused his request and appointed the public defender, who represented the defendant through the preliminary examination before declaring a conflict. Again, the trial court refused to appoint private counsel of defendant’s choice. On appeal, the Supreme Court held that the trial court did not abuse its discretion in appointing the public defender initially, because “the public defender whose competence might have been under attack was no longer with that office,” and defendant had “not shown any personal or professional relationship suggestive of a conflict of interest between the deputies actually representing him in this case and the departed deputy who had represented him . . . .” (Id. at p. 843.) As to the trial court’s refusal to appoint counsel of choice after the public defender declared a conflict, the court, utilizing the abuse of discretion standard, held that the trial court acted within its discretion in refusing to appoint defendant’s counsel of choice. (Id. at p. 845.)

The cases we have discussed, all involved the trial court’s exercise of its discretion in the appointment of private counsel after the public defender declared a conflict. However, in Charlton v. Superior Court (1979) 93 Cal.App.3d 858 [ 156 Cal.Rptr. 107 ], the court addressed the issue before us, whether such trial court discretion exists when the public defender has not declared a conflict.

argument as to a reasonable length of time for preparation and on any reasons why counsel could not be prepared in the set time.”

While the public defender carefully distinguishes between an attorney being “available” for appointment under section 987.2 and being “ready for trial” under section 987.05, we find no such distinction. These sections should be read to be compatible with one another. If an attorney cannot be ready for trial within the prescribed time, it matters not that he or she is “available” in court. Whether an attorney can be ready for trial and in court on the trial date designated by the court is the standard we use in determining whether an attorney is available for appointment. That same standard should be used by the trial court.

When counsel represents to the court that he or she is available for appointment, that is, that he or she will be in court and ready for trial on the appointed date, the court may, in its discretion, accept that representation. Such representation by counsel, as an officer of the court, should not be made lightly or without due consideration. An attorney has a duty “[t]o employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by any artifice or false statement of fact or law.” (Bus. & Prof. Code, § 6068, subd. (d).) Further, a member of the State Bar “[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” (Rules Prof. Conduct, rule 5-200(B).) “ ‘Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.’ ” (Paine v. State Bar (1939) 14 Cal.2d 150 , 154 [ 93 P.2d 103 ]; see also Di Sabatino v. State Bar (1980) 27 Cal.3d 159 , 162-163 [ 162 Cal.Rptr. 458 , 606 P.2d 765 ]; Garlow v. State Bar (1982) 30 Cal.3d 912 , 917 [ 180 Cal.Rptr. 831 , 640 P.2d 1106 ].) “Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.” (Furlong v. White (1921) 51 Cal.App. 265 , 271 [ 196 P. 903 ].)

Representations of readiness as required by section 987.05 are clearly intended to be made carefully. The statute allows counsel a reasonable time to familiarize himself or herself with a case before representing to the court that he or she can be ready for trial. The measure of an attorney is by his or her word. Frequent misrepresentations to the court, although the result of hasty miscalculations, can undermine an attorney’s credibility and justifiably cause a court to give little weight to counsel’s representations of availability for appointment.

Although the court may accept counsel’s representation of availability, our review of the relevant law leads us to conclude that a trial court is not obligated to accept an attorney’s representation at face value. Section 987.05 allows for presentation of evidence in the determination of readiness. This implies that the court may make an independent evaluation in finding whether counsel can be ready at the time of trial, regardless of his or her representation to the court. Moreover, as the Supreme Court stated in Drumgo, “We have repeatedly held that constitutional and statutory guarantees are not violated by the appointment of an attorney other than the one requested by defendant. [Citations.] The additional factor that requested counsel has indicated his willingness and availability to act does not raise any constitutional compulsion requiring his appointment. . . .’’ (Drumgo v. Superior Court, supra, 8 Cal.3d at p. 934; Alexander v. Superior Court, supra, 22 Cal.App.4th at p. 915.)

In deciding whether counsel will be ready, the court may consider several factors, such as the number and trial age of cases an attorney already has, the expected length of those trials and their scheduled dates, as well as those of related pending motions. One other significant factor is the reliability of counsel’s representation of readiness based upon past experience. These examples are given by way of illustration only; our intention is to allow the court sufficient flexibility to consider whatever factors it deems relevant to its determination. What the court may not do, however, is improperly adhere to a fixed policy for appointment in every instance. The court should be sufficiently flexible to consider factors other than the two cited by the court in this case, particularly if counsel represents that those factors will not interfere with trial readiness. “The exercise of the court’s discretion in the appointment of counsel should not have been restricted by an inflexible rule, but rather should have rested upon consideration of the particular facts and interests involved in the case before it. . . . ” (People v. Chavez, supra, 26 Cal.3d at p. 346.) Moreover, the court should not be swayed by extraneous factors which divert the court from its obligation to exercise proper judgment. For example, in Craig S. v. Superior Court (1979) 95 Cal.App.3d 568 [ 157 Cal.Rptr. 285 ], Division Three of this court determined that the court abused its discretion in not appointing the public defender by finding her “unavailable” after the court received notice that she would make a late appearance. The public defender’s appearance was recorded as 35 minutes after the court appointed another attorney. “To hold that the trial court’s conduct in the fact situation before us did not constitute an abuse of discretion would be to acquiesce in a state of affairs fraught with the opportunity for ' “capricious disposition or whimsical thinking” ’ [citation]. Here, there is a strong inference that the trial court was annoyed with the public defender for being late, and was not exercising the required ‘ “discriminating judgment” ’ [citation] in taking into consideration all the relevant factors that should have been part of the decision as to whether to

The exercise of discretion in this case is tested by the entire statutory and constitutional scheme pertinent to speedy trial rights and appointment of the public defender. In construing provisions of the Constitution and statutes an appellate court applies the following standard of review: “We begin with the fundamental rule that our primary task is to determine the lawmakers’ intent. [Citation.] In the case of a constitutional provision adopted by the voters, their intent governs. [Citations.] To determine intent, ‘ “The court turns first to the words themselves for the answer.” ’ [Citations.] ‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).’ [Citation.]” (Delaney v. Superior Court (1990) 50 Cal.3d 785 , 798 [ 268 Cal.Rptr. 753 , 789 P.2d 934 ]; accord, Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821 , 826 [ 25 Cal.Rptr.2d 148 , 863 P.2d 218 ].) However, the literal meaning of a statute must be in accord with its purpose as our Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644 , 658-659 [ 25 Cal.Rptr.2d 109 , 863 P.2d 179 ], as follows: “We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word

or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute.] . . .’ [Citation.]” In Lungren v. Deukmejian (1988) 45 Cal.3d 727 , 735 [ 248 Cal.Rptr. 115 , 755 P.2d 299 ], our Supreme Court added: “The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation] . . . .” In evaluating the issues of statutory interpretation raised by the parties, an appellate court may not second-guess the wisdom of the policy decisions made by the voters. (Rhiner v. Workers’ Comp. Appeals Bd. (1993) 4 Cal.4th 1213 , 1226 [ 18 Cal.Rptr.2d 129 , 848 P.2d 244 ]; Delaney v. Superior Court, supra, 50 Cal.3d at p. 805.)

Subject to the foregoing rules of constitutional and statutory interpretation, the petition should be denied because: of the adoption of Proposition 115 by the voters in the June 5, 1990, primary election; the respondent court had the duty to ensure the prompt trial of the present case; the respondent court had inherent power to control the proceedings; and the public defender was not available to try the present case within 60 days. The first pertinent body of constitutional and statutory law is Proposition 115. The preamble to Proposition 115 stated: “Section 1. (a) We the people of the State of California hereby find that the rights of crime victims are too often ignored by our courts and by our State Legislature, that the death penalty is a deterrent to murder, and that comprehensive reforms are needed in order to restore balance and fairness to our criminal justice system. [][] (b) In order to address these concerns and to accomplish these goals, we the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions as set forth in the statutes of this state. These decisions and statutes have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth. [][] (c) The goals of the people in enacting this measure are to restore balance to our criminal justice system, to create a system in which justice is swift and fair, and to create a system in which violent criminals receive just punishment, in which crime victims and witnesses are treated with care and respect, and in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools. [f] (d) With these goals in mind, we the people do hereby enact the Crime Victims Justice Reform Act.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (June 5, 1990) Text of Proposed Law, Prop. 115, p. 33.) As part of the initiative,

the voters enacted article I, section 29 of the California Constitution which states, “In a criminal case, the People of the State of California have the right ... a speedy . . . trial.” Further, Proposition 115 enacted section 1049.5 which requires trials be commenced within 60 days of the arraignment absent a showing of good cause and which states: “In felony cases, the court shall set a date for trial which is within 60 days of the defendant’s arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time. If the court, after a hearing as prescribed in Section 1050, finds that there is good cause to set the date for trial beyond the 60 days, it shall state on the record the facts proved that justify its finding. A statement of facts proved shall be entered in the minutes.” As will be noted, section 1049.5 is directly pertinent to the determination of public defender availability in this case.

Moreover, when a case is set beyond the 60-day time period set forth in section 1049.5, the voters provided for expedited extraordinary writ review in section 1511 which states: “If in a felony case the superior court sets the trial beyond the period of time specified in Section 1049.5, in violation of Section 1049.5, or continues the hearing of any matter without good cause, and good cause is required by law for such a continuance, either party may file a petition for writ of mandate or prohibition in the court of appeal seeking immediate appellate review of the ruling setting the trial or granting the continuance. Such a petition shall have precedence over all other cases in the court to which the petition is assigned, including, but not limited to, cases that originated in the juvenile court. If the court of appeal grants a peremptory writ, it shall issue the writ and a remittitur three court days after its decision becomes final as to that court if such action is necessary to prevent mootness or to prevent frustration of the relief granted, notwithstanding the right of the parties to file a petition for review in the Supreme Court. When the court of appeal issues the writ and remittitur as provided herein, the writ shall command the superior court to proceed with the criminal case without further delay, other than that reasonably necessary for the parties to obtain the attendance of their witnesses. FjQ The Supreme Court may stay or recall the issuance of the writ and remittitur. The Supreme Court’s failure to stay or recall the issuance of the writ and remittitur shall not deprive the respondent or the real party in interest of its right to file a petition for review in the Supreme Court.”

Finally, in terms of the initiative, the Legislative Analyst’s discussion in the voter pamphlet for Proposition 115 indicated: the proposition made “numerous significant and complex changes in criminal law and in the judicial procedures that must be followed in criminal cases”; provided the “people of California with the right to ... a speedy . . . trial”; required

trial judges “to assign felony cases only to defense attorneys who will be ready to proceed within specified time limits”; and required “felony trials to be set within 60 days of the defendant’s arraignment except upon a showing of good cause.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (June 5, 1990) p. 32.)

Apart from the provisions of Proposition 115, there are other provisions of law that are applicable to a determination as to whether there was an abuse of discretion in the present case. Section 1050 states: “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. To this end the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings.” Rule 227.7 of the California Rules of Court provides that continuance motions in criminal cases are “disfavored.” Canon 3(B)(8) of the California Code of Judicial Conduct provides, “A judge shall dispose of all judicial matters fairly, promptly, and efficiently.”

Moreover, California judges have inherent powers to control proceedings. Code of Civil Procedure section 177 provides that judges have the authority to “preserve and enforce order” in her or his presence when engaged in official duties. Code of Civil Procedure section 128 subdivision (a) states in part: “(a) Every court shall have the power to do all of the following: (1) To preserve and enforce order in its immediate presence. [U (2) To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority. [‘jQ (3) To provide for the orderly conduct of proceedings before it, or its officers. . . . [^Q (5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” Our Supreme Court has described the inherent power of the judicial branch as follows: “We have

services for indigent defendants, and if the quality of representation provided by the second public 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.” (Italics added.) The second exception, which is contained in the third sentence of section 987.2, subdivision (e), involves the existence of a conflict of interest. The third sentence of section 987.2, subdivision (e) states, “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.” The present case is controlled by the first or unavailability exception to the requirement that the public defender be appointed.

The respondent court could reasonably conclude that the public defender would not be available. To begin with, no other member of the public defender’s office would be available to try the case. There is no dispute about that issue; defendant admits such. Further, the respondent court was obligated to set the case for trial within the 60 days. Section 1049.5 required the respondent court to set the case for trial “within 60 days of the defendant’s arraignment” in the absence of good cause. Our Supreme Court has described section 1049.5 as follows, “. . . § 1049.5 . . . which provides felony trials shall take place within 60 days of arraignment.” (Tapia v. Superior Court (1991) 53 Cal.3d 282 , 299 [ 279 Cal.Rptr. 592 , 807 P.2d 434 ].) On another occasion, our Supreme Court described section 1049.5 as follows: “Section 1049.5 is added to the Penal Code to provide for a trial of felony cases within 60 days of arraignment unless good cause is shown (and stated on the record) for lengthening the time.” (Raven v. Deukmejian (1990) 52 Cal.3d 336 , 345 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ].) There is no issue concerning the absence of good cause, Mr. Swarth indicated he expected to try the case within the 60 days. Section 1049.5 was part of the Proposition 115 which the Legislative Analyst described as making “significant and complex changes in criminal law and in the judicial procedures that must be followed in criminal cases . . . .” Simply stated, this case was required by law to be tried within 60 days absent good cause which would permit trial beyond the statutory 60-day time period. There is not even any substantial evidence of good cause. Also, Mr. Swarth was assigned to try 21 cases to completion within the next 59 days. There was no evidence any of those cases were settleable without trial. There was no evidence a single case would be continued. In fact when asked how the cases would be tried, he responded, “But I’m ready to go. We’re going to try them boom, boom, boom.” When the respondent court calculated that the 21 cases could not be tried to completion within the 59-day time period, Mr. Swarth candidly admitted, “If that is your calculation, I’m not fast enough to do the math

abuse of discretion exists under the following circumstances: “That discretion, however, ' “is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ [Citations.]” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 , 898 [ 187 Cal.Rptr. 592 , 654 P.2d 775 ]; accord, People v. Warner (1978) 20 Cal.3d 678 , 682 [ 143 Cal.Rptr. 885 , 574 P.2d 1237 ].) I cannot find the cautious and deliberate effort to comply with the statutory requirement that this case be tried within 60 days by ensuring that the public defender’s office have a lawyer who would be available was: “capricious or arbitrary”; discretion exercised “ex gratia”; a decision rendered adverse to the spirit of the law; or a ruling which impeded or defeated the ends of substantial justice. Contrary to defendant’s contention, that never happened.

For these reasons, I would deny the petition on the merits as well as on mootness grounds.

A petition for a rehearing was denied June 24, 1996, and petitioner’s application for review by the Supreme Court was denied September 25, 1996.