ROBERT CORENEVSKY, Petitioner, v. THE SUPERIOR COURT OF IMPERIAL COUNTY, Respondent; THE PEOPLE, Real Party in Interest. In re DAVID A. TITSWORTH, as Auditor-Controller, etc., on Habeas Corpus.
L.A. Nos. 31723, 31724, 31722
Supreme Court of California
July 5, 1984
August 9, 1984
36 Cal. 3d 307 | 204 Cal. Rptr. 165 | 682 P.2d 360
MOSK, J.
Ephraim Margolin, under appointment by the Supreme Court, Nicholas C. Arguimbau, Sandra Coliver, Steven E. Feldman, Edward Zinter, Public Defender, George Siddell and Walter Lundstein, Deputy Public Defenders, Thomas M. Fries and James H. Harmon, County Counsel, Steven D. Zimmer, Chief Assistant County Counsel, Efren N. Iglesia, Assistant County Counsel, and Steven M. Basha, Deputy County Counsel, for Petitioners.
No appearance for Respondent Court.
John K. Van de Kamp, Attorney General, Harley D. Mayfield, Sanford H. Feldman, Jay M. Bloom, Keith I. Motley and Steven V. Adler, Deputy Attorneys General, for Real Party in Interest and Respondent.
OPINION
MOSK, J.—In these three consolidated cases we address claims regarding the necessity, funding and enforcement of court-ordered ancillary defense services for indigent defendants. The issues have been briefed by all three parties with fervor: not one supplemental brief, petition, or letter to the court has escaped speedy and spirited response by opposing counsel.
Petitioner Corenevsky, an indigent criminal defendant, requests a writ of mandate to review superior court orders denying him state-funded ancillary defense services and the assistance of a second appointed counsel. He also requests a writ of mandate to compel the dismissal of all charges against him because the county has refused to comply with superior court orders granting and denying him county-funded ancillary defense services. Petitioner Titsworth, the Auditor-Controller of Imperial County, seeks a writ of habeas corpus to review a superior court order holding him in contempt for his failure to disburse sufficient county funds to cover court-ordered defense services.
In the course of these determinations we emphasize that an indigent defendant has specific statutory rights to certain court-ordered defense services at county expense; that an indigent defendant has a constitutional right to other defense services, at county expense, as a necessary corollary of the right to effective assistance of counsel; that such rights must be enforced, and a court‘s order directing payment for such services must be obeyed, even if a county has no specifically appropriated funds for those purposes.
We are aware of the burden these determinations may impose on some financially strapped counties. Nevertheless, relief, should counties deem it necessary, must come through statewide legislation designed to ease such burdens on local government; relief cannot be attained through retreat from established rules designed to implement indigent defendants’ constitutional right to effective assistance of counsel, nor through methods that intrude on the exclusive power of the judiciary to determine the due process rights of indigent defendants. We therefore conclude that when, as in the present case, insufficient funds are budgeted by the county to cover court-ordered defense services, the superior court may order the county auditor to adopt other means of compliance without prior approval from the county board of supervisors. The board does not have the power to veto a court order.
In this situation, the auditor‘s duty—like that of any other person—is clear: the order of a court is to be obeyed, not ignored. Of course, the auditor may challenge the propriety of that order, but only in the courts. In those cases in which the county auditor willfully refuses to comply with the court‘s order, the auditor may be held in contempt until compliance is achieved.
I. Factual and Procedural Background1
Since July 14, 1981, Corenevsky has been in custody in Imperial County on a pending charge of murder with special circumstances and robbery.
Because the district attorney originally sought the death penalty, and although Corenevsky was already represented by the public defender, Corenevsky filed a motion under
In May 1982 we filed our modified decision in Keenan. In that opinion we declared that the appointment of second counsel was not among those matters within the compass of
It appears that the Imperial County Board of Supervisors, advised of the above aspect of Keenan, refused payment of the attorney fees requested by Sheela on the ground that such payment would allegedly “bankrupt” the county. The superior court made no attempt to enforce payment. In early December 1982 the court granted Sheela‘s motion to be relieved, denied Corenevsky‘s motion for dismissal and, apparently in the interest of expediting trial of the case, ordered that the prosecutor not be permitted to seek the death penalty; the possibility of a life sentence without possibility of parole, however, remained. Neither Corenevsky nor the People sought extraordinary relief at this point.
B. L.A. 31723: Rulings and Actions Taken Pursuant to Other Statutes
While simultaneously pursuing the foregoing proceeding in the Court of Appeal, on December 22 and 23, 1982, Corenevsky moved for additional funds in the superior court: he sought and was granted county funds for four expert witnesses, including a jury selection expert; he requested, but was denied, funds for investigators and law clerks.4 These motions and orders were made pursuant to
In early January 1983 Corenevsky filed a second petition for writ review in the Court of Appeal. He urged that he was constitutionally entitled to investigators and other ancillary services at public expense, and that to deny him funds for such purposes was to deny him equal protection, due process, and the effective assistance of counsel. The Court of Appeal denied both this petition and the preceding petition urging that
In mid-January 1983, Corenevsky filed a third petition—for a writ of mandate—in the Court of Appeal. Respondents named were the Imperial Superior Court and the People. He urged in that petition that a fair trial had become impossible, and that the only appropriate remedy was dismissal of the charges against him, because the county refused to pay even the $13,314 ordered for appointed experts. The petition apparently sought no order directing the disbursal of the previously ordered funds; the county auditor was not named as a party. The People, however, filed briefs arguing that dismissal was inappropriate, and that, instead, the order of payment should be enforced.
Accordingly, the Court of Appeal issued an order directing petitioner Titsworth to disburse $13,314 to Corenevsky before January 31 or show cause before the superior court why he should not be held in contempt for failing to do so. Titsworth sought rehearing on the ground that the appellate court lacked jurisdiction over him, a nonparty. On the same day the Court of Appeal issued the following order: “The petition for rehearing has been read and considered and is denied. ‘The board shall approve [a] claim and the auditor shall issue [a] warrant for [an] expenditure . . . upon an order of a court of competent jurisdiction . . . as . . . provided by law.’ (
Titsworth did not seek a hearing in this court. But neither did he make payment of the $13,314. On January 31, the deadline for disbursal set in the Court of Appeal‘s show-cause order, the superior court ordered defense counsel to prepare contempt papers against Titsworth. On the following day, defense counsel filed a request in the Court of Appeal asking that the superior court be ordered to initiate contempt proceedings because defendant was not a party to that proceeding. The Court of Appeal responded by directing the superior court to order the matter on calendar February 4, and to itself “prepare the papers and have them served on the Auditor.”
The superior court judge then appointed counsel to represent the court, and following the February 4 hearing Titsworth was found in contempt. He was ordered to pay a fine of $500 and go to jail until he complied with the December 23 order to disburse. Execution was stayed until February 9. Titsworth thereupon filed a petition for habeas corpus and application for stay in the Court of Appeal. That court took no action before expiration of the trial court‘s stay, and on the evening of February 9, Titsworth took up residence at the Imperial County jail.
On February 11, we stayed both (1) enforcement of the order holding Titsworth in contempt, and (2) the imminent trial of Corenevsky, pending determination of all three petitions for hearing. We thereafter granted hearings in all three matters, and subsequently issued alternative writs of mandate in L.A. 31724 and L.A. 31723; we also issued an order to show cause directed to the Imperial Superior Court in L.A. 31722.
We note parenthetically that in the course of these procedural maneuvers Corenevsky has been represented by no less than eight different attorneys, including three public defenders who later were hired by the district attorney‘s office. The district attorney subsequently recused himself because of the conflict; and the new county public defender, conceding inter alia that he had abandoned Corenevsky‘s defense, joined Corenevsky‘s motion in propria persona for appointment of new trial counsel and recusal of the public defender. New counsel was appointed to represent Corenevsky at trial, and we appointed appellate counsel to represent him in this court. The Attorney General has replaced the district attorney in the trial court, and also represents the People in these proceedings. Titsworth has at all times been represented by county counsel.
II. Contentions
A. Section 987.9 Funds
1. Appointment of Second Counsel
Our decision in Keenan, supra, 31 Cal.3d 424, 430, clearly forecloses Corenevsky‘s claim that
2. Court-ordered Experts
Similarly, our decision in Sand forecloses Corenevsky‘s argument that the trial court erred in failing to order state funds for experts or other defense services pursuant to
B. Funds for Ancillary Defense Services Ordered Pursuant to Other Statutes and Authority
The thrust of Corenevsky‘s petition in L.A. 31723 may be simply summarized: assuming that state funding under
1. Propriety of the Orders Regarding Defense Services
Both Corenevsky and the People observe that
However, as we observed in Sand, the right to such services is to be inferred from at least two statutes respecting an indigent defendant‘s statutory right to legal assistance;9 and more fundamentally, such court-ordered defense services may be required in order to assure a defendant his constitutional right not only to counsel, but to the effective assistance of counsel.
It cannot be doubted that the right to counsel guaranteed by both the federal and state Constitutions10 includes, and indeed presumes, the right to effective counsel (United States v. Cronic (1984) — U.S. —, [80 L.Ed.2d 657, 669, 104 S.Ct. 2039, 2044]; Strickland v. Washington (1984) — U.S. —, — [80 L.Ed.2d 674, 693 104 S.Ct. 2052, 2064]; McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [25 L.Ed. 2d 763, 773, 90 S.Ct. 1441]; People v. Fosselman (1983) 33 Cal.3d 572, 581-583 [189 Cal.Rptr. 855, 659 P.2d 1144]; Keenan v. Superior Court (1982) supra, 31 Cal.3d 424, 428; People v. Pope (1979) 23 Cal.3d 412, 423-425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]),11 and thus also includes the right to reasonably necessary ancillary defense services. (Keenan, supra, 31 Cal.3d at p. 428 [“The right to effective counsel also includes the right to ancillary services necessary in the preparation of a defense“]; In re Ketchel (1968) 68 Cal.2d 397, 399-400 [438 P.2d 625] [“‘A fundamental part of the constitutional right of an accused to be represented by counsel is that his attor-
A right to ancillary defense services will thus arise if Corenevsky has demonstrated the need for such services by reference to “‘the general lines of inquiry he wishes to pursue, being as specific as possible.‘” (Faxel, supra, 91 Cal.App.3d at p. 330; People v. Worthy (1980) 109 Cal.App.3d 514, 520-521 [167 Cal.Rptr. 402].)12 Although such motions can be granted only if supported by a showing that the investigative services are reasonably necessary (Puett, supra, 96 Cal.App.3d at p. 939), it has been recognized that because of the early stage at which the request typically arises, it will often be difficult for counsel to demonstrate a clear need for such funds. (Mason v. State of Arizona, supra, 504 F.2d at p. 1352.) Therefore the trial court should, in appropriate circumstances, “view with considerable liberality a motion for such pre-trial assistance.” (Ibid.)13
In the present case the trial court granted Corenevsky‘s requests for expert witnesses and a jury selection expert, and denied his request for law clerks. Although the record is ambiguous, it reveals that the court also initially denied, but subsequently granted, some funds for investigative services. Neither party has directly questioned the propriety, amount, or enforcement of the latter order; moreover, the current state of the record would not permit us to resolve any issues arising from that order. We there-
The People claim that the trial court erred in granting Corenevsky‘s request for a jury selection expert. Corenevsky, on the other hand, claims the court erred in denying his request for law clerks.14
Of course, a trial court‘s order may be set aside only if it constitutes an abuse of discretion. An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].)
Although Corenevsky‘s motion was entitled to have been heard in camera, and would therefore not normally be subject to disclosure, we note that former defense counsel consented to a hearing in open court. Moreover, the record indicates that former counsel also supplied the People with copies of the written motion for defense services, apparently as an appendix to one of the myriad other motions filed in this case. We therefore refer to and quote from those transcripts and written motions in determining whether the trial court erred in granting and denying the requested defense services.
Corenevsky‘s request for $8,740 for a jury selection expert was based on his former counsel‘s belief “that the difficulty of selecting a jury in a murder case with special circumstances alleged demands the assistance of an expert.” The record also contains other confidential information, not disclosed to the People, but which was known to the trial court, and which indicates the necessity for special attention to jury selection in this case. Although we should not be interpreted as generally approving of public funds being paid for a so-called jury selection expert, in this instance the trial court had ample basis on which to grant Corenevsky‘s request; we conclude that it was well within its discretion in doing so.
Defendant also set out in great detail the basis for his request for continuing funding of two law clerks. His written motion for funds declared:
“The need for two law clerks: Ms. Judith A. Descalso has clerked for the Public Defender on this matter for several months and is very familiar with the legal aspects of the pretrial matters and has assisted in preparing several of the trial motions. She has also been researching and preparing
“First, she will ready and make available to counsel pleadings and transcripts tabbed to specific pages from the voluminous materials required at trial. This includes five trial index binders, an index to those binders, the trial motions and notes for factual argument, and the case boxes of discovered reports and memoranda.
“Second, she will conduct legal research as needed during the trial and prepare copies of cases and memoranda as needed. As this is a very complex case in re the expected testimony, the lack of this performance would [impair counsel‘s adequacy].
“Mr. Steven Joffe has clerked on this matter for about four months. He has continually worked on the research and preparation of memoranda and written objections to the multitude of tangible and intangible evidence that is expected to be offered by both the People and the defendant. His detailed knowledge of this is an invaluable asset at trial.
“His primary assignment will be to provide further memoranda as needed regarding specific research needing elaboration for argument on which he completed work.
“The remainder of his primary assignment will be to study the daily transcripts with counsel during evening sessions so that needed research may be completed.
“It is expected that various motions will be made during trial that will arise only as trial is ongoing. These matters will need research and preparation and this will be Mr. Joffe‘s secondary assignment to be worked with Ms. Descalso. It is expected these motions will include motions to strike the testimony of witnesses, dismissal and mistrial. The motions may also be as to exclusion or suppression of tangible or intangible evidence as facts unfurl.
“Both law clerks will be expected to apportion the task of arranging the travel and accommodations of witnesses and expert witnesses. The clerks will be expected to brief the witnesses on the proceedings and conduct an initial interview with the witnesses. A report will then be made to counsel who will cover the important aspects with each witness and individually prepare the experts as well.”
Counsel also argued that the volume of documents generated by both parties required the assistance of the law clerks in order to sort and organize
This showing would be sufficient to support a trial court‘s conclusion that the requested services would be not merely convenient but reasonably necessary. (Puett, supra, 96 Cal.App.3d 936, 939; Mason v. State of Arizona, supra, 504 F.2d 1345, 1352.) The question posed by Corenevsky, however, is whether the trial court erred in denying such funds. If the court had explicitly found the requested services were not reasonably necessary, we would not now second-guess that determination; as the People observe, an appellate court will reverse such an order only when “the circumstances shown compelled the [trial] court to exercise its discretion only in one way, namely, to grant the motion.” (Puett, supra, 96 Cal.App.3d at p. 941.) The record, however, demonstrates on its face that the trial court denied Corenevsky‘s motion, not on the basis of lack of need, but because the court felt the request related to “staffing problems[,] and that is something that you should be taking up with your public defender and his budget instead of the court simply saying that in addition to whatever budget you already have the court is going to expand that budget. Whether you like it or not . . . there are budgetary constraints.”
The record clearly demonstrates that such an attempt through the public defender‘s office would have been futile. Moreover, the court‘s order is suspect because it fails to address the key issue posed by defendant: whether such ancillary services are reasonably necessary. Furthermore, the record reveals that the court made its order under the assumption—perhaps reasonable at the time, but as we shall explain, mistaken—that the court could order funds for expert witnesses under
2. The Auditor‘s Power to Comply With the Trial Court‘s Orders
Titsworth was apparently advised by county counsel that he could not disburse funds to cover court-ordered services unless there existed suf-
As we shall explain, Titsworth‘s position ignores provisions of the Government Code that allow the auditor, on his own, to issue a warrant to cover the services ordered in this case. Furthermore, his argument is premised on an erroneous view of both the auditor‘s and the board of supervisors’ role with respect to court-ordered defense services.
As previously observed, both the statutes and the constitutional right to effective counsel authorize the court to appoint experts and order other defense services. In all such cases the court-ordered services are “expenses necessarily incurred in the support of persons charged with or convicted of crime and committed to the county jail . . . and for other services in relation to criminal proceedings for which no specific compensation is prescribed by law. . . .” (
This raises the question of what role the board of supervisors, and hence the auditor, may play in regard to court-ordered defense services. Titsworth asserts that the separation of powers doctrine (
Pursuant to the separation of powers doctrine the trial court alone has authority to determine—in camera—whether reasonable need for defense services has been shown, and the county is powerless to review confidential defense requests or to modify or veto that determination. (Cf. Ex parte Widber (1891) 91 Cal. 367, 370 [27 P. 733] [“The act of the board of supervisors in auditing such demands would be an idle thing, purely pro forma; for it would have no authority to reduce or increase the amount of the demand as certified by the judge“]; Mandel, supra, 29 Cal.3d at p. 547 [“Our Constitution assigns the resolution of such specific controversies to the judicial branch of government (
For similar reasons we reject Titsworth‘s contention that he lacked authority to disburse funds in excess of specific budget appropriations therefor, or that mandated compliance with such orders would violate the separation of powers doctrine. The cited statutes that prohibit disbursement in excess of appropriations expressly except their application to situations “otherwise provided by law.” As we have explained above,
First, we note that
C. Propriety of the Order of Contempt
In L.A. 31722 both Titsworth and the People argue that the order of contempt in this case was premature. Titsworth also claims that in any event the order finding him in contempt was error because, inter alia, the elements of contempt were not proved.
We cannot agree that contempt was premature. It is true, as the parties have observed, that we formerly required an auditor in this situation to be made a party to a mandate action before he could be subject to contempt. (Sargent v. Cavis (1869) 36 Cal. 552, 558; Ex parte Widber, supra, 91 Cal. 367, 370-371; Ex parte Truman (1899) 124 Cal. 387, 388 [57 P. 223].) These 19th-century cases, however, are inapposite today. They are premised on an assumption that the auditor would not be allowed to fully defend his action on the merits in a contempt proceeding—a view we clearly rejected in In re Berry (1968) 68 Cal.2d 137, 148-149 [65 Cal.Rptr. 273, 436 P.2d 273] (under California law, a person may disobey an order and raise his defenses when he is sought to be held in contempt for such disobedience). (See also Fortenbury v. Superior Court (1940) 16 Cal.2d 405, 407-408 [106 P.2d 411]; Brady v. Superior Court (1962) 200 Cal.App.2d 69, 73 [19 Cal.Rptr. 242]; Grant v. Superior Court (1963) 214 Cal.App.2d 15, 19-20 [29 Cal.Rptr. 125].) We therefore hold that the contempt proceeding in this case was not premature.
It is established that “[i]n reviewing an adjudication of contempt, ‘the sole question before us is one of jurisdiction of the trial court to render the judgment under review, and in such a case the review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court.’ [Citations.] More recently we said that ‘the responsibility of the reviewing court is merely to ascertain whether there was sufficient evidence before the trial court to sustain the judgment and order. The power to weigh the evidence rests with the trial court.‘” (In re Buckley (1973) 10 Cal.3d 237, 247 [110 Cal.Rptr. 121, 514 P.2d 1201, 68 A.L.R.3d 248].)
Many of Titsworth‘s initial contentions have been resolved today against his view. We have explained that he did indeed have the present
The gist of Titsworth‘s defense is that he was denied due process in the contempt proceeding. As we have explained above, however, he was before the court in the hearing on the order to show cause re contempt and had a full opportunity to raise any issue he saw fit. Indeed, he filed briefs and argued the merits of the impending contempt order. Nor do we label improper the fact that the trial court both commenced and adjudicated the proceeding; there is absolutely no evidence that the judge was ““so ‘personally embroiled’ with the [alleged contemner] as to make [him] unfit to sit in judgment on the contempt charge.’ ” (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 131 [116 Cal.Rptr. 713].) Neither are we compelled to overrule the court‘s contempt order simply because the judge‘s declaration was based on information and belief. First, we are not convinced that such allegations are impermissible under the circumstances of this case. (Freeman v. Superior Court (1955) 44 Cal.2d 533, 537 [282 P.2d 857]; Bridges v. Superior Court (1939) 14 Cal.2d 464, 478-479 [94 P.2d 983].) Second, even if a technical defect occurred, Titsworth has not claimed—and indeed, on this record he could not show—that such deficiencies in the affidavit prejudiced any “substantial right” or resulted in a “miscarriage of justice.” (
We therefore conclude that Titsworth was properly found in contempt. Accordingly, his petition for habeas corpus in L.A. 31722 is denied. Reinstatement of the contempt order is stayed for 10 days from the date of finality of this opinion, however, so that Titsworth may voluntarily comply with the order. In L.A. 31723 and L.A. 31724 the alternative writs are discharged and the petitions for writs of mandate are denied.
BIRD, C. J.—I respectfully dissent for the reasons set forth in my opinion in Sand v. Superior Court (1983) 34 Cal.3d 567, 576 [194 Cal.Rptr. 480, 668 P.2d 787].
The application of petitioner Corenevsky for a rehearing was denied August 9, 1984.