*1 No. 24309. Feb. [S.F. 1982.] KEENAN, Petitioner,
MAURICE JOHN THE SUPERIOR COURT OF THE CITY AND OF COUNTY FRANCISCO, SAN Respondent.
Counsel M. Gerald Schwartzbach and J. John Brosnahan for Petitioner. George Agnost, City and G. Leanette Attorney, Flentroy, Deputy City Attorney, Respondent. General, Philibosian,
George Deukmejian, Robert Attorney H. Chief General, Stein, Assistant Attorney P. O’Brien and William Edward D. General, Lenk, Assistant Attorneys Ann K. Jensen and Morris Deputy General, as Attorneys Amici Curiae.
Opinion Keenan, MOSK, J. Maurice an indigent charged with a offense, seeks a writ of mandate to compel respondent superior court to his motion for funds to for the services grant public pay to assist iii the He his defense. relies on For the reasons for this authority request.1 Penal Code section 987.9 as follow, denying abused its discretion that the trial court hold should be that the appointment additional counsel but (b), provi and that section 987.9’s made under section subdivision such motions. by analogy sions for are confidentiality applicable with murder and charged Defendant was in October 1979 arraigned circumstances were also Special alleged, and six other counts.2 felony 190.2, subds. (§ death sentence. thus him to a subjecting possible to re (a)(17)(i), (a)(17)(vii).) appointed M. Gerald Schwartzbach had some defendant on October 1980.3 Schwartzbach present his of Linda representation with the case as a result of familiarity Keenan, after the fact to of being who was accused of accessory *4 defendant.4 Two after Schwartzbach’s days fenses against 1980, 24, his despite plea trial was set for November appointment, he could not be before 1981. ready January set, at an in defendant made a motion after the trial date was
Shortly allocated to section 987.9 pursuant camera that funds be hearing defendant, indigent case the capital “In trial of a provides: 1Section 987.9 the counsel, specific payment of court for funds for through may request the trial his of the defense. The presentation or investigators, preparation others for the experts, and funds are rea specify that the by affidavit and shall application for such funds shall be that such defense. The fact presentation or of the sonably necessary preparation application of the and the contents shall be confidential application has been made an shall be the trial court, other than judge of the receipt application, of such Upon confidential. reasonable rule on the question, case in shall judge presiding over the money to defendant’s appropriate an amount request and shall disburse ness of the attorney. be made at an camera request shall ruling the reasonableness The on provide a guided the need to ruling, court shall be hearing. making such a full defense for the defendant. complete and a com- attorney furnish to the court shall proceedings, “At the termination to this section.” moneys pursuant disbursed accounting all received and plete to the Penal Code. statutory hereinafter are references specified, otherwise all Unless I, 187); (§ count murder following seven felonies: count charged the 2The information IV, robbery V, (§ 644); II, robbery count 459); attempted (§ III and burglary counts VII, VI, (§ 12020); possession shotgun count (§ 211); possession of a sawed-off count (§ 12021). gun by a felon public de arraignment after the assigned counsel at private 3Defendant had been between (§ 987.2). a conflict arose Subsequently interest declared a conflict of fender counsel; appointed. was thereupon Mr. Schwartzbach original and his might any conflict of interest specifically Keenan waived 4Defendant and Linda joint representation them. Linda Keenan’s arise as a result of Schwartzbach’s that of defendant. has since been severed from 428
provide and expert in the help and investigatory presenta tion of the defense.5 funds were Specifically, requested for a private investigator, serology expert, psychiatric neurological testing, jury $16,000 selection The experts. court granted for these purposes.6 Funds were also for a requested on that the ground issues, presented complex factual and but this was de nied. Counsel then unsuccessfully continuance sought of the trial date. A renewed motion for funds for a second de subsequently nied. seeks a writ of mandate to the trial compel court to Defendant allocate such funds.
The
to counsel of a
right
with a
person charged
crime is guar
(U.S.
anteed
both the
Const.,
federal and state Constitutions.
6th
Amend.;
Const.,
I,
15.)
Cal.
art.
To
meet
constitutional standard
§
the defendant must be provided effective legal assistance in the prepara
(Powell
tion and
(1932)
trial of the case.
45,
v. Alabama
287 U.S.
71
158, 171-172,
55,
L.Ed.
53 S.Ct.
conducting argument publication opinion. oral before this court and of this The re record, however, mainder of the remains confidential. $7,000 granted, investigation making 6Another was later for the total allocated $23,000. experts to authorize not purport We held in Jackson that section 1095 “does expense, counsel at public of additional or mandate the appointment (28 counsel.” Cal.3d the case two argument but the permit only the claim was no merit to 285-286.) to hold there We went on pp. at of a second compelled appointment that equal protection principles because an capital simply defendant in a torney indigent for 1095 was entitled his under section right affluent defendant exercising that precise equality his case. We reasoned to have two attorneys argue are satis demands protection is not and concluded that required, “equal discretion, court, additional fied in its by permitting case ap in a particular counsel at if the circumstances public expense (Id. 287.)7 at p. such an pear require appointment.” its In Jackson we refused to find that the trial court had abused had failed to discretion in this the defendant regard. Noting a second at reasons for present any specific, compelling issues .. . torney, concluded that “neither facts nor of addi appealed] to have been so as to the assistance complex require Nevertheless, (28 288.) tional counsel as a matter of law.” Cal.3d at p. Jackson stands for the that in circumstances an proposition appropriate defendant in a case should have a second indigent capital court-appoint ed attorney. Jackson discretion,
As for the trial this authority court to exercise seen, cited section 987.9. As we have under the terms of that section the defense make a confidential for funds for application “investiga- tors, and others” experts reasonably necessary
defense of an
in a
case. The section does not
indigent
refer to
expressly
appointment of an additional
its
attorney,
though
ap-
Here, however,
was assumed in Jackson.
plicability
purpose
*6
General,
curiae,
as
that
Attorney
applicabil-
amicus
contests
appearing
out
ity, pointing
that funds to
section 987.9 must be
implement
wholly
(Rev.
Code,
2207,
provided
2231),
the state
&
whereas the
Tax.
§§
state reimburses counties for no more than 10
of the cost of
percent
ap-
987.6).
pointed
(§
counsel
(9th
7The Ninth Circuit reached a similar conclusion in Mason v. Arizona
Cir.
1974) supra,
represented by appointed
counsel after the The defendant defender’s office declared a conflict of interest. requested had he been private investigator, arguing funds for a have had that he would access to one represented by public equal protection The held that defender. court discretionary power standards were met because the court had to an inves tigator. public operated The court under a restricted stressed that the defender’s office budget and thus also was forced to make choices about how to allocate resources. 430 987.9,
The of section its wording history, with together legislative lead us to conclude that it to pro was intended supplement preexisting visions for of defense counsel at employment making public expense by for provision services to of ancillary those counsel.8 987, (b), Section . .. provides subdivision capital “[i]n counsel, the defendant is unable court shall employ assign [i]f section, provisions counsel to defend him.” That with other for together (see 987.2-987.8), counsel court-appointed provides ample authority §§ for of an additional shown to be de appointment for necessary fense of capital case. To avoid undue disclosure of defense is to the strategy, analogy, entitled of section application, by 987.9’s provisions for and confidentiality making hearing (See (1979) motion such Puett v. 96 appointment. Court Superior 936, 940, Faxel, fn. 2 Cal.App.3d Cal.Rptr. 266]; v. People supra, [158 327, 330, 1.) 91 The Cal.App.3d fn. is not an abso however, lute and the right, decision as to whether an additional attor ney should be remains within the sound appointed discretion of the trial court. discretion, course,
That must “guided of be and by legal principles policies to the appropriate matter at issue.” particular (People v. Russel (1968) 187, 210, Cal.2d 69 195 Cal.Rptr. 794]; 443 P.2d Bullis v. [70 (1978) 801, 22, Pac. Nat. Bank 21 Security Cal.3d 815 Cal.Rptr. [148 109, 582 P.2d 642].) 7 A.L.R.4th The United Supreme States Court has expressly death recognized that is different kind of punishment other, from any both terms of severity Because finality. life stake, courts must be sensitive to insure particularly safe every guard designed guarantee defendant a full be defense observed. (Gardner Florida U.S. L.Ed.2d chapter 8Section 987.9 was enacted as: of Legislative the 1977 Statutes. The digest chapter “Existing Counsel’s of provides assignment law states: of capital counsel in employment cases and for public expense counsel at if the de fendant employ is unable to provide counsel. This bill for payment would [$] investigators, experts, and others for the presentation or of in the defense digent $1,000,000 defendants in appropriate cases. bill would from the [1Í] General Fund the State Controller for agencies. allocation disbursement to local statute, This bill would immediately take effect urgency opera as an would [1Í] but *7 only chaptered.” tive if SB 155 is 155, 1048, Senate Bill No. referred chapter legisla- in was enacted at the same 316, tive chapter (former session and providing became penalty the death 190- §§ 190.5; 190.6).
431 153, (1976) 187 428 U.S. 401-402, v. 1197]; Gregg Georgia 97 S.Ct. Thus, a balance 859, 882-883, in 2909].) striking 96 S.Ct. L.Ed.2d [49 defendant, it is gener- the state and those of between the interests of who is of a defendant rights more carefully ally necessary protect (9th 1974) (United Cir. 505 States v. See with a crime. charged capital Alabama, 71 845, 853, 13; 287 U.S. p. F.2d fn. Powell v. supra, [77 171-172].) L.Ed at pp. case that a defendant in a capital has also Legislature recognized to one with an of need certain not
may protections granted this a Section 987.9 demonstrates carrying penalty.9 fense lesser funds for “the or concern its broad language authorizing in a defen of the defense” and its direction that on presentation ruling “the need to a provide dant’s the court must be guided by and full complete defense.”10
Another factor the trial court must in exercising its discretion weigh is the this court has importance pretrial preparation pro attached viding criminal defendant effective assistance. Part of counsel’s legal to a client the fac responsibility is to become familiar with thoroughly tual and circumstances of the case to trial. v. prior (People (1979) 142, 281, Frierson 25 587]; Cal.3d 163 599 P.2d Cal.Rptr. [158 (1979) 412, 732, v. 23 Cal.3d 424-425 590 People Pope Cal.Rptr. [152 859, also, P.2d 2 A.L.R.4th see 1 1]; ABA Standards for Crim. Justice (2d 1980) Function, ed. 4-42.) The Defense p. “Representation (In accused murderer (1981) is a mammoth re Hall 30 responsibility.” 408, 223, Cal.3d 434 637 In Cal.Rptr. 690].) P.2d a murder pros [179 ecution that factually complex, the task of legally effectively for trial preparing places substantial burden on the defense attorney. 9Examples Legislature’s include capital different treatment of cases sections 1095, 1070, 1095, earlier, argument by permits and 1018. Section as discussed two challenges capital peremptory counsel for both sides in a case. Section 1070 allows 26 prosecution penalty the defense or in a in which the defendant faces the death imprisonment, challenges Sec or life while fewer are allowed for less serious offenses. prohibits plea guilty penalty may imposed tion 1018 when the death be unless Legisla agreed plea. applying defense counsel we noted the has section noncapital emphasized ture’s “careful cases” and distinction between against independent safeguard imposi the statute erroneous was intended as a “further 739, 747, tion death v. 28 Cal.3d (People sentence.” Chadd Cal.Rptr. 837].) 621 P.2d provided noncapital pursuant to a 10Similar services to section 987.2, (Puett necessary expenses. appointed which allows counsel reimbursement of v. Court, Faxel, 936, 939; Superior supra, Cal.App.3d People supra, Cal.App.3d 327, 330.) *8 case, This is true particularly of since the of a possibility death raises additional penalty fabtual and issues. This burden legal may lightened by employment and investigators experts, but the ultimate the responsibility and the re- coordinating investigation assimilating sults must remain with an sensitive to the issues potential legal involved. Because the tasks involved in many preparation for trial cannot be delegated to the court nonattorneys, cannot assume that au- thorization of funds for an makes investigator Rather, in the need unnecessary. assessing for another attorney the court involved, must focus on the of the issues complexity keeping in mind the critical role that pretrial in preparation may the even- play tual outcome of the prosecution.
In the instant presented trial court with spe cific facts and Jackson, of the argument found in type lacking to support his motion for a second The declarations attorney. accompany ing motion stressed the factual and legal of the complexity case. Counsel stated that it would be necessary interview approximately 120 witnesses in order to and dbvelop prepare meritorious potentially defenses, and that he extensive anticipated scientific and psychiatric trial, would be testimony all produced of which would require ex addition, traordinary preparation him. In defendant was in five other court, criminal cases periding before superior counsel had been informed that the intended prosecution to offer at some phase of the trial evidence related to all those cases. Counsel pointed out that this would necessitate his with the facts and familiarity issues in involved those asi well as the charges immediate homicide case. difficulty compounded, counsel argued, by the inherent in problem present any capital case of simultaneous prep- aration for a and a guilt penalty phase trial. He noted that the issues and evidence to be in order to developed support mitigation possible death sentence were different from those substantially likely be considered during guilt phase. Counsel acknowledged some of this task would be trained but contended investigators, undertaken supervision assimilation of the results were of ne- investigative cessity responsibility perform. for an thq Counsel also informed court that he intended to make numerous pretrial part motions as of the defense effort and that re anticipated hearing camera Subsequent counsel discovered four more criminal inci dents evidence of which be introduced at trial. *9 view of some of these motions be He asserted that might only necessary. the assistance of another would be useful in qualified attorney prepara tion and of these argument motions.12
Counsel’s funds final contention was that his for a second should attorney have been considered in of the date set for light early seen, trial. As we have trial was set to seven weeks after counsel’s begin his appointment despite protest that he could not adequately prepare the defense in that time. the the denying motion court did not the factual asser- question
tions made defendant but declared instead that a criminal attorney, alone, should be working capable of adequately defending and that Schwartzbach could that “ably competently perform task.” The court also stated that Schwartzbach had time to be- ample come familiar with the issues in the case as a result his earlier involvement as counsel for Linda Keenan and thus had no need for an- other to aid in trial preparations.
These reasons are as inadequate a matter of law to denial of justify defendant’s motion. The demands of for a murder case when preparing the defendant faces the death cannot be penalty compared to the much more limited task of defending against charge being accessory after the fact. While it is true that Schwartzbach have acquired some of the knowledge facts and general case, issues involved in this it is unreasonable to expect he could have performed the careful pre- investigation and preparation we have deemed essential the representation of a capital defendant. Because the crime with which Linda Keenan was involved circumstances occurring after only homicide, actual it was unlikely counsel would necessarily familiar with the factual specific or legal defenses available to this Furthermore, defendant. counsel was faced with the of investi- necessity gating the other crimes with which defendant had been as well charged, as preparing for the penalty phase trial. These tasks were differ- ent both in nature and scope from the matters involved in the defense of Linda Keenan.
As above, indicated the court declared that a criminal attorney should be capable defending capital case without the assistance of denied, 12After the motion for a counsel made two additional pretrial motions in the sought trial court and review when both motions failed. a second But this view fails to take into account the lawyer. showing made by Schwartzbach of reasons a second why justified issues, under the facts of this e.g., complexity particular witnesses, the other criminal acts number of alleged, large com *10 plicated scientific and and the psychiatric testimony, extensive pretrial motions, as to some of which review would be in the event sought of ad verse the court rulings.13 Thus abused its discretion in to address failing reasons specific advanced Schwartzbach in of the support motion.
Moreover, 987.9, section not for though providing counsel, reflects a intent that the court be legislative; guided aby capital intent, defendant’s need for and full defense.” “coniplete That togeth- er with the mandated distinction constitutionally between death and other penalties, requires that the trial court standard apply higher than bare to a adequacy defendant’s for additional counsel. If it appears that a second lend attorney may important assistance in prepar- ing case, for trial or the court presenting should rule on favorably Indeed, the request. in need, under a general, showing genuine in circumstances certainly as as pervasive those offered attorney in this a presumption arises that a second is attorney required. The trial court should have found that the presumption was not rebut- ted here.
Let a writ peremptory of mandate issue directing respondent court to appoint a second for defendant. *
Bird, J., Newman, J., Kaus, J., Broussard, C. J., Tobriner, J., concurred.
RICHARDSON, J . view, dissent. In I respectfully the trial my court did not abuse its broad discretion in petitioner the denying services of a second court-appointed public expense. 13Respondent denigrates problem by declaring defendant’s practice that the prosecutor in San Francisco only have one handle the point case. That toj large attorneys overlooks staff of People readily available both for trial as motions; sistance and process for the review pretrial after denial of defendant must trial, pursue review preparing such while prosecutor whereas the has the assistance Attorney General’s office for purpose. this *Retired Supreme Associate Justice of the sitting Court assignment under by the
Chairperson of the Judicial Council. Cal.Rptr. v. Jackson 28 Cal.3d People the trial in a case has 618 P.2d court 149], explained if the cir expense discretion “to additional counsel at public in such an appear require appoint cumstances a particular indicated, however, to make a We that the defendant is required ment.” that, “‘substantial other ‘the cause of showing’ among things, justice (Ibid.) will be served.’ thereby Finally, upholding [Citations.]” Jackson, we “the trial court’s denial of additional counsel in noted that ex trial court had full to observe counsel in the course of opportunity its argument tensive on matters . .. and pretrial prior ruling was well to evaluate counsel’s accordingly positioned ability.” 287-288.) (Pp.
The now discards Jackson's that defendant majority requirement make a “substantial of his need for a second showing” attorney, substi in its tuting a of such need whenever a place “presumption” arising (Ante, 434.) need” is authorities are cited “genuine p. established. No support creation of such a majority’s presumption. Jackson,
In had present as in the trial court an ample op- for a portunity that determining court-appointed attorney to assure a full and defense. Justice unnecessary petitioner complete observed, Rouse in his in this case “we opinion for Court of Appeal have reviewed the sealed documents and thoroughly transcripts bearing upon petitioner’s of a second request employment public expense, and we have also conducted our own in camera hearing. contend, us, Defendant does not nor was there indication to any counsel to the case is not and presently assigned qualified capable fully both in the a fair and defense to the conducting adequate charges, substantive, and, if of trial. necessary, penalty, phase Many tasks for which seeks from an additional involve help lawyer These, and are in nature. pretrial preparation essentially investigative submit, qualified investiga- can be more carried out appropriately tive under the direction and personnel experts acting other counsel. Funds have been supervision assigned already provided determination defense counsel It is that respondent for this our purpose. court superior did not abuse its discretion in denying petitioner’s for funds for the of a second and that said court’s employment order of denial was and must be entirely proper upheld.”
I concur in In addition to the fully Justice Rouse’s careful analysis. counsel, that, services of his I competent further observe follow- present granted in the trial court the in November hearing camera ing criminalist, selection jury an investigator, petitioner’s request for service, and I testing, neurological psychological and psychiatric, would additional deny the trial court have no reason believe defense. necessary petitioner’s if prove funds for other services they these trusted its sensitive watch over The trial court can be to continue Jackson, that a the court becomes convinced sec- If under proceedings. Our intervention not appointed. is needed can be ond counsel one; required. I dis reasoning, with the my disagreement majority’s addition to well. The directs the majority unconditionally with its result as
agree (ante, 434). p. court a second for defendant” “to it for reconsideration of petitioner’s At best should remand the cause The record discloses that more motion light majority opinion. first Sure since motion was denied. year petitioner’s than a has passed completed have been the course during some trial must ly, no the services of a second at longer require Petitioner year. of torney. be renewed to conducted should hearings previously assistance, pursu ascertain need additional petitioner’s present which are now created wholly judicially ant to new guidelines *12 the majority. being fairly generously
Because I conclude that defendant deny I sustain its action and treated the trial court would system, writ. peremptory Richardson, J.,
A for a was denied June 1982. petition rehearing granted. that the should be opinion petition