FLEETA DRUMGO, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 22953
In Bank
Mar. 5, 1973
Rehearing Denied April 4, 1973
8 Cal.3d 930 | 106 Cal.Rptr. 631 | 506 P.2d 1007
WRIGHT, C. J.
Richard H. Breiner for Petitioner.
Ben Margolis, William B. Murrish, Charles C. Marson, Peter E. Sheehan, Floyd J. Silliman, William Bennett Turner, Julian J. Fowles, William R. Higham, Public Defender (Contra Costa), John E. Thorne, Gordon Gaines, Peter Tague, Arthur W. Simon, Mario Obledo and Alfred H. Sigman as Amici Curiae on behalf of Petitioner.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., and Herbert L. Ashby, Chief Assistant Attorneys General, William E. James, and Doris H. Maier, Assistant Attorneys General, Joyce F. Nedde, Derald E. Granberg and Herbert F. Wilkinson, Deputy Attorneys General, for Real Party in Interest.
OPINION
WRIGHT, C. J.—Fleeta Drumgo petitions for a writ of prohibition to restrain further proceedings in a pending criminal action wherein he is charged with multiple offenses and for a writ of mandate compelling the respondent court to vacate its order denying his motion to relieve his appointed counsel and to appoint as assigned counsel an attorney personally selected by petitioner.
Petitioner, an inmate at San Quentin Prison, is charged by indictment with five counts of murder (
Petitioner first appeared in pretrial proceedings before respondent court on October 5, 1971. He was not then represented by counsel. In response to his request to consult with numerous members of the bar, he was allowed to confer with an attorney who then represented him in proceed-
On November 18, petitioner moved to have Mr. Breiner relieved and Mr. Hodge appointed because: “I know Attorney Hodge, and I have consulted with him concerning this case; I respect the competence and ability of Attorney Hodge and have confidence in him as my attorney; because of the foregoing, I will cooperate with Attorney Hodge and heed his advice to me as my attorney. [¶] I do not want Attorney Breiner to represent me since I do not know him; I do not have the confidence in him as is vital in a capital case, such as this case; and I will not cooperate with him.” The motion was denied on November 24. A motion for reconsideration was denied on December 14 and the court simultaneously gave its reasons for the refusal: the court knew Mr. Breiner to be competent, he had previously served as court-appointed counsel, and the matters asserted in support of the motion did not provide a legal basis for termination of the appointment. This proceeding ensued.
The People urge that mandate is not an appropriate remedy. “It is neither novel nor inappropriate . . . for this court to review through a mandate proceeding a pretrial order which is likely to substantially affect a defendant‘s right to a fair trial.” (Maine v. Superior Court (1968) 68 Cal.2d 375, 379 [66 Cal.Rptr. 724, 438 P.2d 372].) Orders concerning the designation or substitution of appointed counsel are subject to such review. (Smith v. Superior Court (1968) 68 Cal.2d 547, 558 [68 Cal.Rptr. 1, 440 P.2d 65].) In Smith we explored the pitfalls facing a judge seeking to remove, over the defendant‘s objection, a counsel already appointed. Here we are confronted with the refusal of the trial court to appoint originally or to substitute a particular attorney requested by an indigent defendant. Mandate is a proper remedy when the trial court does not properly appoint or substitute counsel. As will be seen, however, petitioner has not met the heavy burden imposed in stating a claim for relief cognizable on mandate.
Section 987 unequivocally provides that counsel is to be assigned by the court in case a defendant is unable to employ counsel. There is no sug-
Petitioner seeks to distinguish the established California authority as involving situations where the denial of particular counsel was deemed justified either because the public defender was available, because the request for a specific attorney was first made at trial or was made late in pretrial proceedings. The services of the public defender in the instant case were deemed unavailable to petitioner and his request for Mr. Hodge was first made before counsel was appointed. We do not perceive, however, that these are relevant factors compelling an exception to such a widely recognized rule. Federal trial courts, indeed, have adopted rules expressly providing that under similar circumstances defendants have no right or power to select an attorney from the available panel. (See Davis v. Stevens (S.D.N.Y. 1971) 326 F.Supp. 1182, 1184.) If, as is the case, an indigent defendant who is necessarily represented by the public defender may not select the particular deputy who will represent him (People v. Stroble (1951) 36 Cal.2d 615, 629 [226 P.2d 330]), then an indigent defendant for whom assigned counsel must be appointed should likewise not be entitled to be represented by a particular attorney.
The appointment of counsel to represent an indigent rests, as
The performance of Mr. Breiner to date demonstrates competence of the highest level.4 Even were there evidence of a disagreement as to trial tactics, however, substitution of counsel would not necessarily be required. (People v. Williams (1970) 2 Cal.3d 894, 905-906 [88 Cal.Rptr. 208, 471 P.2d 1008]; see People v. Floyd (1970) 2 Cal.3d 694, 704-705 [83 Cal.Rptr. 608, 464 P.2d 64].) On rare occasions a disagreement as to tactics affecting some fundamental right “may signal a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.” (People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710].) But we are not here confronted with such a case.
Petitioner has established only that he has announced that he will refuse to cooperate with appointed counsel in the preparation of a defense. Such
The alternative writ of mandate is discharged and the petition for a peremptory writ denied.
McComb, J., Burke, J., and Sullivan, J., concurred.
MOSK, J.—I dissent.
The singular circumstances of this proceeding go farther than to pique one‘s curiosity; they clearly reveal an abuse of discretion. The indigent defendant, charged with multiple counts of murder and other offenses, requested the appointment of Richard A. Hodge as his attorney. Mr. Hodge, who has experience in trying murder cases, was and is willing to serve.1 The court nevertheless declined to appoint Mr. Hodge and instead designated Richard H. Breiner as counsel. Mr. Breiner, though unquestionably an able advocate, has never tried a murder case, and expressed reluctance to undertake a trial of the length here involved. Indeed, on behalf of the defendant he petitions for a writ of mandate.2
In the foregoing factual context, how is the administration of justice served by the dogged insistence that Mr. Breiner and not Mr. Hodge represent the defendant? Phrasing the question another way: what compelling state interest is served by denying appointment of the qualified and willing attorney of defendant‘s choice? The obvious answer is: none. While I concede that ordinarily if competent counsel is appointed to represent a defendant no constitutional issue emerges, I fail to see in these facts any lofty and immutable principle justifying the trial court in planting its feet in concrete instead of tolerantly exercising discretion and expediting a trial that is not only fair but gives the appearance of being fair.
The events which transpired in open court in the first instance are of
Justice Douglas recently wrote, “The starting point of a decision usually indicates the result.” (EPA v. Mink (1973) 410 U.S. 73, 105 [35 L. Ed. 2d 119, 142, 93 S. Ct. 827] (dissenting opinion).) In this case mere recitation of the facts points unerringly to what the result should be.
Contrary to the opinion of the majority, there is no cited authority which compels their conclusion. Indeed, the cases upon which they rely are not apposite to the narrow issue before us. No one questions the right of the court to deny defendant the choice of private counsel if the public defender is available to defend him (People v. Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733, 428 P.2d 869]; People v. Hughes (1961) 57 Cal.2d 89 [17 Cal.Rptr. 617, 367 P.2d 33]; People v. Taylor (1968) 259 Cal.App.2d 448 [66 Cal.Rptr. 514]) or if the request for appointment comes at a time when it would of necessity cause a substantial delay in the proceedings (People v. Aikins (1969) 70 Cal.2d 369, 378 [74 Cal.Rptr. 882, 450 P.2d 258]; People v. Stewart (1966) 240 Cal.App.2d 1, 6 [50 Cal.Rptr. 26]; United States v. Thompson (S.D.N.Y. 1944) 56 F.Supp. 683) or if a change is made subsequent to an original appointment by the court (People v. Stroble (1951) 36 Cal.2d 615, 629 [226 P.2d 330], affd. 343 U.S. 181 [96 L. Ed. 872, 72 S. Ct. 599]; but see Smith v. Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65]) or if the chosen attorney is not readily available to undertake the defense (Tibbett v. Hand (10th Cir. 1961) 294 F.2d 68; People v. Aikins, supra; People v. Manchetti (1946) 29 Cal.2d 452, 458 [175 P.2d 533]). Nor is the majority‘s reliance on other federal authority well advised. Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, found an abuse of discretion when the
The majority also refer to the American Bar Association Project on Minimum Standards for Criminal Justice, Providing Defense Services (Tent. Draft 1967) section 2.3, commentary (b), pages 29-30. While the ABA report expresses a preference for a strict rotational system for the appointment of counsel to assure “the even-handed distribution of assignments,” it also declares that where there is no rotational system, as here, “permitting the defendant to select the lawyer he wishes to represent him is one method for increasing his confidence that he is being provided competent counsel and of providing as early as possible the same conditions for the professional relation that obtain when counsel is retained by a defendant of means.” Moreover, the ABA report states that “Ad hoc appointment of counsel, lacking any predetermined rationale, is inadequate” (id. at p. 4), and asserts “This view is substantiated in the survey of state practice, which indicates that the worst inequities, to both the defendant and the bar, occur in those areas where no organized or systematic approach to the problem has been taken.” (Id. at p. 15.) The goal, states the ABA, is “to provide counsel who have the same freedom of action as the lawyer whom the person with sufficient means can retain. Inequalities . . . are quickly perceived by those who are being provided representation and may encourage cynicism toward the justness of the legal system and, ultimately of society itself.” (Id. at p. 19.)
In the instant case, the appointed attorney was selected by the judge with no stated or predetermined rationale, in the absence of a programmed system of selection, and without acceding to defendant‘s request for a ready, willing and able counsel. Given these facts, it is clear that the authors of the ABA report on defense services would criticize rather than approve the trial court‘s order.
Effective advocacy involves more than vigor, experience and familiarity with the law. The attorney-client relationship contemplates trust and mutual cooperation, particularly when the attorney is defending the client‘s liberty. (Smith v. Superior Court (1968) supra, 68 Cal.2d 547, 561.) The desirability of a relationship of trust and confidence between an indigent defendant and his attorney has been elevated to indispensability as a result of this court‘s recent decision in People v. Sharp (1972) 7 Cal.3d 448
The majority refer to defendant‘s refusal to cooperate with Mr. Breiner; they point out he has had no actual disagreement as to trial tactics with counsel and has failed to indicate any basis for lack of confidence other than absence of a prior relationship. Whether defendant‘s conduct is justified or not, these circumstances arose after the court‘s refusal to appoint his counsel of choice. Defendant‘s intransigence subsequent to the trial court‘s abuse of discretion is irrelevant in this proceeding.
The Attorney General, employing artful alliteration, also alludes to the “initial indigent implacability.” It is possible, of course, that some cunning or disturbed defendants will become implacable in irrational insistence upon counsel of their choice. Courts can deal with such circumstances when they arise. There is nothing in this record to indicate the request of the defendant and the willingness of Mr. Hodge to serve were other than in good faith.
There is an implication in these proceedings that because defendant is indigent and counsel is appointed, the need for trust and confidence between attorney and client is somewhat less significant. We firmly rejected a similar implication in Smith v. Superior Court, supra, 68 Cal.2d at pages
Several amici curiae, in briefs replete with quotations from Powell v. Alabama (1932) 287 U.S. 45 [77 L. Ed. 158, 53 S. Ct. 55, 84 A.L.R. 527], Gideon v. Wainwright (1963) 372 U.S. 335 [9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733], Tehan v. Shott (1966) 382 U.S. 406 [15 L. Ed. 2d 453, 86 S. Ct. 459], and similar landmark authorities, argue that indigent defendants have an unqualified right to select their counsel. While it might be desirable to recognize such a right as an abstract principle, its application in the real world of criminal courts procedure is fraught with complications. Many a defendant charged with a commonplace violation, in the dreary solitude of his jail cell, contemplates his case as a cause celebre deserving representation by a Clarence Darrow or a Jerry Geisler. Understandably he would choose counsel who is the most celebrated, the best publicized, the more politically oriented, or counsel who may subtly solicit the assignment, regardless of four factors, inter alia, which the appointing judge must consider: the necessity for appointment of private counsel, qualifications of the preferred counsel for the specific case at hand, his availability for a prompt trial, and his willingness to serve for the regrettably meager compensation permitted by the public treasury.
For present purposes I agree with the conclusion of Justice Bray in the opinion he prepared for the Court of Appeal in this case (103 Cal.Rptr. 100, 106), concurred in by Presiding Justice Devine and Justice Rattigan: “[A]n indigent defendant is not entitled as a matter of law to the appointment of a willing attorney of defendant‘s own choice, nor as a matter of law may such appointment be denied. The totality of the circumstances applicable to the situation at the time of the defendant‘s request is the criterion upon which the court‘s discretion should rest.” One caveat might be added. As we said in People v. Crovedi (1966) 65 Cal.2d 199, 208 [53 Cal.Rptr. 284, 417 P.2d 868], the cases “demonstrate a conviction that the state should keep to a necessary minimum its interference with the individual‘s desire to defend himself in whatever manner he deems best
Under the circumstances revealed by this record it seems abundantly clear that the court erroneously denied defendant the appointment of the counsel he requested. I would issue the writ.
Tobriner, J., concurred.
Petitioner‘s application for a rehearing was denied April 4, 1973. Tobriner, J., and Mosk, J., were of the opinion that the application should be granted.