22 Cal.App.5th 840
Cal. Ct. App.2018Background
- Defendant Eudoro Magana was charged with two counts of rape; retained counsel Daniel Everett represented him and the trial was continued multiple times.
- On the fifth trial setting Everett repeatedly arrived late, left the courtroom without explanation, and sought last-minute continuances based on a newly emphasized impeachment witness (Benito Zapata) and an expert on false confessions/language issues.
- Everett had prior notice of Zapata months earlier, had not subpoenaed him, and filed a belated, boilerplate expert motion that did not address false confessions.
- Everett used a peremptory challenge to disqualify one assigned judge, attempted further challenges (one for cause he later withdrew, a second the court found untimely), and accused the judge of bias without adequate factual support.
- The trial judge granted a continuance, then the prosecution moved to remove Everett as counsel; after hearing, the court removed Everett for lack of preparedness and for risking impairment of the proceedings and the parties’ speedy-trial rights.
- Petitioner sought writ relief challenging (1) the court’s refusal to disqualify the judge (second challenge) and (2) removal of his retained counsel; the Court of Appeal denied the petition and referred Everett to the State Bar.
Issues
| Issue | Petitioner’s Argument (Magana/Everett) | Respondent/State’s Argument | Held |
|---|---|---|---|
| Whether the trial judge erred in striking/denying the second statement of disqualification as untimely | The second statement was properly presented and the clerk’s "received" stamp was defective; judge should have been disqualified | The second statement repeated earlier facts and was filed well after discovery of the grounds, so it was untimely and properly struck | Denied: challenge was untimely; judge properly struck/denied it |
| Whether the court lacked jurisdiction because of prior (withdrawn) disqualification filings | Prior withdrawn challenge divested court of jurisdiction | Withdrawal and failure to press the earlier challenge waived any jurisdictional claim; proceedings continued properly | Denied: no jurisdictional defect; forfeited/meritless argument |
| Whether the trial court could remove retained defense counsel for incompetence/unpreparedness | A defendant has a right to chosen counsel and courts cannot remove retained counsel absent narrow circumstances | Court may remove counsel to ensure competent representation, prevent disruption, and protect speedy-trial rights (Pen. Code § 987.05; case law) | Denied: court did not abuse discretion in removing Everett for inadequate preparation and impairment of proceedings |
| Whether Everett’s conduct warranted professional discipline/referral to State Bar | Removal alone suffices; no Bar referral necessary | Everett’s conduct (lateness, ex parte communications, false or unsupported recusal claims, lack of diligence) suggests violations of professional rules | Court ordered referral: misconduct warranted State Bar notification |
Key Cases Cited
- United States v. Gonzalez-Lopez, 548 U.S. 140 (U.S. 2006) (Sixth Amendment includes right to chosen counsel but right is not absolute)
- Wheat v. United States, 486 U.S. 153 (U.S. 1988) (trial court balancing defendant’s choice of counsel against other concerns is permissible)
- People v. Strozier, 20 Cal.App.4th 59 (Cal. Ct. App. 1993) (trial court may remove counsel who admits inability to proceed and threatens orderly process)
- People v. Richardson, 43 Cal.4th 959 (Cal. 2008) (court may remove counsel to eliminate conflicts or ensure adequate representation)
- People v. Cole, 33 Cal.4th 1158 (Cal. 2004) (trial court’s removal of counsel reviewed for abuse of discretion; prior continuances and counsel assurances are relevant)
- People v. Mungia, 44 Cal.4th 1101 (Cal. 2008) (removal of counsel justified where court concludes counsel will not bring case to trial within reasonable time)