*1 Dist., Five. June Second Div. 1996.] B101152. [No. WILLIAMS, Petitioner, v.
MICHAEL COUNTY, Respondent; OF LOS ANGELES SUPERIOR COURT THE PEOPLE, Party THE Real Interest.
Counsel Defender, Michael P. Public Judge, Steven H. Peter C. Swarth and Hough, Scott, John Defenders, Hamilton Public for Petitioner. Deputy Serlin, Benedon & Gerald M. Serlin and G. Benedon for Douglas Respondent.
No for Real appearance in Interest. Party
Opinion Williams, Defendant and also PEREZ, petitioner Michael GODOY J. Price, order of the court challenges Michael Antoine an known as the Los Public Defender to Angeles County represent refusing appoint defender to him. hold that a trial is public We “available,” defendant when the defender indigent represent public in court on can be for trial and ready that the public meaning availability, defender’s trial date. In designated determining that he or she defender’s representation either on may rely available, will aid which information from counsel or elicit additional may however, unavailability, A finding the court in that determination. making defender’s number age not be based solely upon with his it will not interfere caseload where represents pending court to impose her Penal Code section 987.05 allows a trial readiness. cause, as failure without ready, substantial sanctions for counsel’s the court.1 initially represented History
Factual and Procedural of a firearm an ex-felon Defendant charged possession convictions, (a)(1)), and within the (§ felony subd. with two prior *5 1170.12, (a) (d), and subdi- through of sections subdivisions meaning (b) (i). visions Peter C. Swarth through Public Defender Deputy represented held to Defendant was through defendant examination. preliminary answer and his in was set for 1996. court arraignment superior April Defendant and Swarth before arraignment respondent Mr. appeared defendant, a of all court. court maintains list According cases, the has since length arraignment, of time which pending felony passed case. That list and the the defendants in each attorneys assigned represent were indicated that Mr. 21 clients whose cases Swarth was representing 16 of for trial with beyond 60-day statutory following arraignment,2 statutory 1All Penal indicated. further references are to the Code unless otherwise shown, court, “(a) good contrary shall provides: 2Section 1382 unless cause to the cases: [H FI a following order the action to be ... When defendant dismissed finding brought superior days to trial a within 60 after the indictment court filing of the . .” information . . cases, provides: felony within Section “In the court shall set a date for trial which is 1049.5 unless, days good arraignment superior upon showing defendant’s in the court, hearing lengthens cause as time. after a prescribed Section the court If beyond the prescribed in Section finds there is cause to set the date for trial that days, finding. A proved justify state record statement it shall on the the facts that its proved facts shall be entered in the minutes.” older than those cases from their days arraignment.3 At defendant’s the court asked Mr. Swarth how he arraignment, could handle this case in next 60 “possibly days” light other cases on his calendar. Mr. Swarth indicated there were no cases calendared for trial at the time of defendant’s date which would interfere with anticipated his of defendant. Mr. Swarth added that the he representation only could thing foresee to handle be the this case would failure affecting ability People’s court, Mr. “I timely Swarth told believe I can comply discovery. and available.” “It ready stating, does not Respondent disagreed, from this court’s of the number of appear reading cases you can be in a you fashion since the other matters prepared timely obviously that you have should already get over this one.” The court priority opined that each of the other 21 cases would take 3 defendant’s days try, putting case well beyond 60-day (a)(2). limitation of section subdivision Mr. Again, Swarth told the court he could be ready trial.
The court instructed Mr. Swarth to contact his office and whether inquire another case; defender deputy public could try if there was no one from available, that office the court would private panel attorney 987.2.) resumed, defendant. represent (§ When the Mr. hearing Swarth that the reported case, determined he should defendant’s try and asserted it would be in defendant’s best interest for him to do so. The court disagreed, and appointed who said he could panel attorney defendant’s case in 60 days.4 30, 1996,
Defendant’s trial on began May while this pending. Defendant was represented by court-appointed Since panel attorney. *6 defendant’s the objective was to have filing petition Mr. Swarth appointed counsel, as his the was rendered petition moot the commencement by of However, defendant’s trial. because the raises issues of significant recur, concern public which are we our likely exercise discretion to (See resolve those issues. In re William M. 23-24 [89 737].) P.2d calculations, disputed 3Mr. Swarth According this number. beyond to his he had cases days, days. with 15 over 120 This minor difference in numbers is not essential to our discussion. 4Although the court did inquire attorney’s on panel pending the record about the caseload, argument defendant’s counsel stated at activity oral that considerable occurred off the record in an panel attorney effort to locate a who would be available to the case.
Discussion Public A. the Appointment Defender of the has to a at attorney
An defendant the right court-appointed indigent (a), “In a non- Section subdivision provides: his arraignment. time of counsel, case, he or the without if defendant appears arraignment capital it her the is his or counsel right she shall be informed or she the before and shall be asked if he desires assistance being arraigned, of If he and is unable to counsel the court counsel. or she desires employ (Alexander shall defend him or her.” counsel to assign 732].)5 (1994) 22 Cal.App.4th Cal.Rptr.2d are the in Los Angeles County public Trial courts defender, in the of a of interest. absence conflict subject availability 987.2, (e) “In a subdivision as follows: county Section describes process first, second, class,[6] third first utilize the services of or court shall defender to criminal defense services for defend indigent public provide has ants. In the event that the defender is unavailable and the county public created a second defender and contracted one or more public responsi criminal ble with a defense attorneys panel attorneys provide defendants, if the indigent representation provided services for quality the second defender public comparable quality representation defender, next utilize the services shall provided by public the second defender and then the services of the county-contracted public this Nothing other counsel. private attorneys prior assigning any shall be construed of counsel subdivision to require appointment In case which the has a conflict of interest. the interest justice, appointment a court from may depart portion procedure requiring of the defender or after county-contracted attorney making second public therefor on the This cause and reasons record.” finding stating allows for a deviation in the order of provision requisite but not for the second defender or county-contracted attorney, public first. that the defender be utilized requirement (a) Government specifies obligations Code section subdivision “The shall the following defender: perform court, (a) duties: of the defendant or order of Upon upon request [H *7 Alexander, superior authority 5In we that the counsel determined the court has arraignment by appointment for an not bound made indigent defendant at the time of and is an again opinion. for the examination. We not that issue in this preliminary need address designation County, separates by population; Angeles 6The class Los counties Code, (Gov. population county 4 28022- of over million is considered a of the first class. §§ 28024.)
327 defend, defendant, without defender shall as expense except public Code, the Penal who is not any Section 987.8 of by person provided and who with the commission charged able to counsel financially employ in justice or offense triable the courts any municipal contempt superior, all the examination. The including at stages proceedings, preliminary shall, and such counsel advice to give person public upon request, the which the defender is any against about charge person upon public defense, the and court or higher shall all conducting prosecute appeals convicted, where, courts of who been in has person opinion defender, the will or be to result in appeal might reasonably expected the reversal or modification of the judgment conviction.” Again, statute defender to defend those requires clients who indigent its services. request
Cases
an
issue
whether
defendant is
addressing
indigent
entitled to
or her
private
of his
choice have held
although
that
of counsel under section
within the
appointment
987.2 rests
sound discretion
court,
trial
the court’s discretion
restricted
fixed
by any
(See
1068,
(1995)
Horton
11
policy.
People
Cal.4th
Cal.Rptr.2d
[47
478].)
906 P.2d
In
Harris v. Superior Court
Cal.3d
750],
567 P.2d
after
Cal.Rptr.
defender had declared a
[140
interest,
conflict of
both
petitioners
requested
appointment
specific
After
private attorneys.
conducting
and
into the
hearing
inquiring
reasons
the trial court refused to make such
requests,
The
appointments.
Court,
Supreme
its
in
reaffirming
Court
holding Drumgo
Cal.3d
984],
held
A.L.R.3d
that
defendant’s
indigent
for a
while
preference
“[a]n
it is to
particular attorney,
be considered
the trial court in
by
is not a
making
appointment [citation]
determinative factor
of that
requiring
attorney—even
combination with other relevant factors such
com
subject attorney’s
as
indicated,
petence
As we have
availability.
the matter rests wholly
Court,
within the
(Harris
sound discretion of the trial court.”
v. Superior
795-796,
italics,
omitted.)
19 Cal.3d at
supra,
fn.
The court
pp.
original
“
defined
discretion
. .
judicial
decision exercised to the
power
end of
necessary
based
for which
awarding justice
reason
law but
upon
decision there is no
rule.
special
statute or
Discretion
governing
implies
in the absence of positive law or fixed rule the
is to decide a
judge
question
his view of
or of the
expediency
demand
. . .
equity
justice.’
(Id. at
796.) held that
its
p.
exercising
[Citations.]’’
discretion,
record,
to review the entire
analyzing
objective and
factors
defense counsel.
subjective
appointing indigent
The court concluded that the trial court had
its
abused
discretion
declining
to appoint counsel
defendants
case.
requested
in that
*8
762, (1980)
Cal.Rptr.
In People Chavez
interest,
had declared a conflict
401],
defender
after
public
at
had
him
attorney
represented
who
same conflict
defendant requested
denied
summarily
The
court
superior
examination.
the preliminary
that,
our own
appoint
Mr.
We
“. . . we don’t do
stating,
Chavez.
request,
italics.)
(Id.
original
Finding
Court level.”
at p.
counsel at the Superior
discretion,
held that the
court had
Court
Supreme
superior
an abuse of
‘own’ counsel in
to a fixed
its
appointing
adhered
“improperly
policy
discretion in the
exercise of the court’s
appointment
case. The
every
rule, but rather
have been restricted
an inflexible
counsel should not
facts and interests
consideration of
should have rested upon
particular
it.
defendant Chavez
the case before
By refusing
give
involved in
he
former counsel represent
his
why
opportunity
explain
preferred
trial,
arguments
at
foreclosed consideration of
effectively
any
him
Attorney
continuing
which defendant
have marshalled
support
(Id.
346).
at p.
Ingber’s appointment.”
122, 802 P.2d
v. Daniels
In People [277 906], defender because the public defendant objected appointment He court that a trust defender’s office. told the deputy he did not the public did not inform him him in a case defender who represented previous public with the district attorney. that the deputy negotiating position trusted, to him. whom he attorney, represent Defendant requested specific defender, who the public The court refused request appointed before de examination defendant represented through preliminary counsel of the trial court refused to claring Again, appoint private conflict. On held that the defendant’s choice. Court appeal, initially, defender did abuse its discretion appointing public have been under might because “the defender whose competence office,” attack was no with that and defendant had “not shown longer of a conflict of interest personal professional relationship suggestive between him in this case and the departed the deputies actually representing (Id. 843.) . . As to the trial who had him . .” at p. deputy represented court’s refusal defender de counsel choice after appoint standard, court, conflict, clared a of discretion held the abuse utilizing that the trial court acted within discretion in defend its refusing 845.) (Id. ant’s of choice. at counsel p. discussed, its we the trial court’s exercise of cases all involved after the defender
discretion in the private However, declared a conflict. in Charlton us, 107], the issue before the court addressed
Cal.App.3d has not when whether such trial court discretion exists the public declared a conflict. *9 Charlton, murder, the convicted of first a
In filed petitioner, degree cause, writ of habeas an order to corpus for obtained show court, to validity returnable to the into the superior inquire contention that counsel in his murder case was trial Petitioner incompetent. requested that the who filed the habeas attorney corpus petition appointed at him the The trial court refused to do evidentiary hearing. so and represent the defender public him available. The appointed upon finding Charlton that court first determined the statutory implementation indigent right defendant’s counsel in context of criminal trial appointed 987.2, in habeas section equally applicable corpus proceedings. Citing that, then concluded “in habeas in which an corpus proceedings counsel, is entitled to and indigent desires the court petitioner appointed one, defender if there appoint public provided defender does not have a conflict public of interest or cannot represent (Charlton Court, for other good case.” petitioner supra, 93 863.)7 at Cal.App.3d p.
Our review of the statutes causes us to with the applicable agree Harris, our Charlton. As Court analysis Supreme suggested supra, exercise discretion in “in may its counsel absence appointing Court, law or positive (Harris, fixed rule . . . .” v. Superior supra, 19 case, however, 796.) Cal.3d at In this p. there is law. The laws positive governing priority appointment defender are public clearly set forth in 987.2, Government Code section and Penal Code section eliminating any void compelling discretion. Those statutes application that provide a court must first utilize the services of the defender public criminal providing defendants, defense services for if indigent defender is available to the matter.
B. Availability the Public Defender
Directing ourselves to the of whether the question case, was available for in this note we trial court is obligated only those who will be attorneys ready for on given date. Section 987.05 “In provides: assigning defense counsel felony cases, counsel, whether it is the or public defender the court shall private record, only assign counsel who on the he represents, or she will be trial, be, ready proceed with preliminary as case hearing within the time provisions in this prescribed code .... Both the prosecut ing and defense attorney counsel shall have a evidence and right present Daniels, People supra, 7In page 52 Cal.3d at acknowledged our conflict whether allowing discretionary appointment Harris and other cases indigent applicable counsel were where situations for appoint defender was available ment. It chose not to that question. decide on reasonable length preparation to a argument in the set time.” could not be prepared why reasons *10 between an attorney carefully distinguishes While the for under and being “ready for section 987.2 appointment “available” being 987.05, we such distinction. These sections under section find no trial” If an cannot be with one another. attorney be read be compatible should time, that he or she is it matters not for trial within the prescribed ready be trial and court an can for attorney ready in court. Whether “available” use in determin- the standard we date is designated by on the trial standard That same for attorney appointment. whether an is available ing by be the trial court. should used or is court that he she available
When counsel represents is, for trial on the or will be in court and ready that that he she appointment, discretion, date, that in its may, accept representation. appointed court, counsel, should not be an of as officer by Such representation a duty An has attorney or without due consideration. made lightly confided to him or of the causes maintaining for the employ, purpose “[t]o truth, with and never to seek as are consistent only her such means of artifice or false statement any or officer by mislead the judge judicial Further, Code, 6068, (d).) (Bus. subd. a member or law.” & Prof. fact § officer, or judicial jury not to mislead the judge, the State Bar seek “[s]hall Conduct, (Rules fact law.” Prof. rule or false statement of by an artifice “ the courts 5-200(B).) is ‘Honesty dealing paramount importance, ” motives, (Paine is, a serious offense.’ misleading regardless judge 103]; also Di Sabatino (1939) v. Bar 14 Cal.2d P.2d see State [93 (1980) Bar 27 Cal.3d 162-163 Cal.Rptr. State [162 831, 640 765]; Bar Garlow State [180 court, 1106].) not that are officers of they P.2d “Counsel should forget clients, and defend the interests their duty and while it is their protect and in to aid the court in error avoiding obligation imperative equally and the rules the cause in accordance with established determining justice 903].) P. v. White practice.” (Furlong Cal.App. are clearly of readiness as section 987.05 required by Representations statute allows counsel reasonable intended to be made The carefully. to the court to familiarize himself or herself with case before representing an his or attorney by he or can measure of she be trial. ready court, the result although her word. Frequent misrepresentations miscalculations, an attorney’s credibility justifiably can undermine hasty give availability cause a court to little to counsel’s weight representations for appointment. the court counsel’s of availabil may accept representation
Although our review of the relevant law leads us conclude a trial court is ity, at face value. Section attorney’s obligated accept representation allows of evidence the determination of readiness. 987.05 for presentation This that the court make an evaluation in finding implies independent trial, can at the time of or her whether counsel ready regardless Moreover, to the court. Court stated in representation “We held that constitutional and Drumgo, statutory repeatedly guaran tees are not violated of an other than the one attorney defendant. The additional factor that requested [Citations.] requested *11 counsel has indicated his and act willingness does not raise availability constitutional his . . (Drumgo .’’ compulsion requiring appointment. 934; Court, Court, 8 Cal.3d at Superior supra, p. Alexander Superior 915.) 22 at supra, Cal.App.4th p.
In deciding whether counsel will be ready, the court consider may several factors, has, such as the number and trial age of cases an attorney already dates, of those expected length trials their scheduled as well as those of related motions. One other pending factor is the significant reliability counsel’s of readiness representation based past These upon experience. are examples given by way illustration our intention only; allow the court sufficient to consider flexibility whatever factors it deems relevant to do, however, its determination. What the court may not adhere improperly to a fixed for policy appointment in every instance. The court should be sufficiently flexible to consider factors other than two cited court case, in this if particularly that represents those factors will not interfere with trial readiness. “The exercise of the court’s discretion in the of counsel rule, should not have been restricted an inflexible but rather should have rested upon consideration the particular facts and ” Chavez, interests involved in the case it. . . before . (People v. 26 supra, 346.) Moreover, Cal.3d at p. court should not be swayed by extraneous factors which divert the court from its obligation exercise proper judg ment. For S. v. example, Craig Superior 568 Cal.App.3d 285], Division Three of this court determined that the court abused its discretion not appointing the defender her by finding “unavailable” after the court received notice that she would make a late appearance. defender’s recorded appearance was as minutes after the court appointed another “To hold that attorney. the trial court’s conduct in the fact situation before us did not constitute abuse of discretion would be to in a acquiesce state of affairs with the fraught ' ’ opportunity for “capricious disposition or whimsical thinking” [citation]. Here, there is a inference that the trial strong court was annoyed with ‘ late, public defender for being and was not “dis exercising ’ criminating judgment” into all consideration the rele taking [citation] vant factors that should have been part decision to whether to Court, S. v. (Craig counsel.” private
appoint omitted.) at fn. Cal.App.3d p. supra, case, in viewing court would have been justified
In present he that could defendant’s try Mr. Swarth’s representation skepticism that had over admittedly the fact Mr. Swarth days, given case within However, correctly defendant more than 120 old. days cases which were based Mr. Swarth erred when it refused that the court contends do not cases. Numbers age of his age pending on the numbers solely ability in court’s determination of information relevant always provide reveal, set those cases were Numbers do not example, to be ready. cause and date or have to be continued beyond present do Numbers also not indicate with this trial in any way. will not interfere trials, trials, cases for one day multiple which cases are possible pleas, Moreover, once Swarth indicated violations. Mr. one defendant or probation caseload, set, existing he case within the despite could this If, if that were case. the court further determine inquired should it could Mr. Swarth’s explanation, after hearing persuaded, of Mr. for its and declined the appointment have stated reasons decision *12 Swarth. fact that courts are and function busy
While we are trial sympathetic and accommodate those awaiting judicial under cases expedite pressure evalu- for an inflexible the facts before us to have allowed process, appear Mr. Swarth an give oppor- ation of counsel’s trial readiness. By refusing would him from he believed his calendar not tunity prevent to explain why date, foreclosed consideration effectively on the trial the court being ready in this case. making of factors relevant in an decision impartial who that a court has discretion remove noting It bears (See, v. Stevens e.g., cannot his or her client’s case at time. appointed 94]; (1988) v. People 932 Court 198 Superior Cal.App.3d Cal.Rptr. [244 (1986) Lucev 188 551 Cal.Rptr. Cal.App.3d [233 222] [counsel’s (1993) 20 People Cal.App.4th scheduled caused v. delays]; repeated Strozier 55, not but could 62 continuance Cal.Rptr.2d requested 362] [counsel [24 continuance]; (1991) v. Court show cause for the Maniscalco Superior 846, emergency 234 850-851 Cal.App.3d Cal.Rptr. 795] [285 [medical defendant].) which renders representing counsel incapable adequately Further, trial on that he or she will be for represents ready an who attorney certain, time, from but at that risks removal only a date is not not prepared of not being the case but severe sanctions as well.8 The consequences an assess for trial should counsel to honest prepared inspire give ment of counsel’s case. ability timely try provides for 8Section 987.05 substantial sanctions.
Conclusion conclude that court should have allowed Mr. Swarth an We further evidence on to be for trial ability ready present opportunity whether Mr. case and considered that evidence duly determining this Swarth was available appointment.9
Disposition for writ of is denied moot. mandate Respondent’s request fees Procedure Code Civil section 1021.5 attorney pursuant denied. J., concurred.
Armstrong, J.,P. TURNER, Concurring Dissenting. I agreewholeheartedly those of my that: the portions colleagues’ conclusions case involves present counsel, an issue of (Alexander assignment v. relieving attorney 901, (1994) Court Superior 732]); Cal.App.4th Cal.Rptr.2d [27 resolution of the present petition subject deferential abuse of 1068, discretion standard v. Horton (People (1995) 11 Cal.4th 1099 [47 478]; 906 P.2d Cal.Rptr.2d People (1990) 51 Cal.3d Ortiz 547]; 800 P.2d Cal.Rptr. People [275 Chavez 401]; Harris v. *13 786, 750]; Cal.3d 799 567 P.2d Drumgo 935 [106 Cal.Rptr. 984]); A.L.R.3d the aof defender falls within the deputy public 987.051; assignment counsel in Penal language Code section and standing alone, section 987.05 does not authorize a trial to someone judge assign 9Both defendant provided virtually and day-by-day update us with of Mr. Swarth’s impacted Although schedule and how it would have this case. that information was of some benefit because progress it allowed us to the follow defendant’s case, here, it is irrelevant to our presented resolution of the issues since the court must availability evaluate counsel’s based on information to at available the court the time of arraignment. Obviously, a court cannot base such may may a decision on events which or not occur. cases, provides: 1Penal Code section assigning felony 987.05 “In defense counsel in counsel, public whether it is private the defender only or the court assign shall counsel who record, represents, on the he ready hearing that or she be proceed preliminary will to with the trial, be, may or the case provisions as within the prescribed preliminary time in this for code trials, hearings except that, and in those unusual where cases the court finds due to the nature case, of the reasonably expected counsel cannot ready be to prescribed period be within the if begin he preparing or she were to the case and diligent forthwith continue to make and I concur in at the of the arraignment. defender the public than
other as moot. to dismiss the mandate of my colleagues determination that However, that majority opinion I dissent from portion respectfully that concluding its discretion court abused the respondent concludes case within try present would not be available defender 2, 1996, I believe arraignment. days April mandated 60 statutorily construed, is scheme statutory constitutional and the entire when properly this is faced with the facts presented when an arraigning judge such that case, to be unavailable appoint to find a decision discretion. within the allowable judicial counsel scope private hearing ready. preparation preliminary for to be In the case where the time constant efforts time, statutory period set a reasonable time greater than the court shall or trial is deemed determination, making not consider counsel’s conve- In this the court shall preparation. for nience, conflicts, may or other The court allow counsel calendar counsel’s business. counsel’s whether he or she the case in order to determine reasonable time become familiar with counsel, ready making representations he be ready. or she will can be In cases where after set, trial, ready good on the date preliminary or and without cause not examination counsel, including, may impose upon case sanctions relieve counsel from the fine, court, to, finding imposing a assigned contempt but not limited counsel prosecuting denying any compensation funds as for counsel’s services. Both the right argument attorney evidence and present and defense counsel shall have a be why could not length preparation of time for and on reasons reasonable indicated, statutory references are to prepared in the set time.” Unless otherwise all further Penal Code. colleagues’ respondent court on agree my summary 2I of what occurred before the also accuracy emphasis to the of under-oath April point One warrants and this relates 1996. April petition, which was filed on allegations appearing petition. in the mandate The verified Court, 9, 1996, 56(c) California Rules of stated comply in an effort to with rule ready following: inquired Deputy Public Defender Swarth would “The court whether days light of cases in petitioner’s petitioner’s arraignment, older matter within presumably asked Deputy question which Public Defender Swarth was counsel. This 987.05, pursuant although the court was faced at that time with Penal Code section obligation represented petitioner was then the Public Defender. counsel since Deputy replied to which court had referred Public Defender Swarth that all the cases [cfn Moreover, cause, unavailability delayed of counsel. had been not due arraignment. already beyond petitioner’s days some of the cases had been set a date 60 after Further, period days petitioner’s after approximately there were no cases set in the time Thus, arraignment, petitioner’s probably when counsel advised the court case would be tried. *14 representation petitioner, there were no which of and that that cases would interfere [<]Q prepared petitioner’s days. be to trial within 60 he would both and available commence willing fully of Deputy Public Defender Swarth stated he be to more discuss the status would reference, demonstrating why of 17 the none of those each the cases to which court had made days. being would with his within 60 The prepared petitioner’s cases interfere matter noted, explanation problem has court refused to hear such a further . . As will be the . .” defender, Swarth, had deputy public arisen relates to the latter under oath claim that Peter the provide background concerning pending respondent court offered to the 21 cases and the any explanation. justice, stay request indicating I presiding refused to hear As the denied a 56(c) a brief the compliance order it was unclear whether there had been with rule of requires detailing the California Rules Court which a declaration what occurred in case is the entire and statutory The exercise of discretion in this tested by and rights to speedy constitutional scheme pertinent Constitution statutes an defender. In the construing provisions with the the standard of review: “We following begin appellate applies the rule that our task is to determine lawmakers’ intent. fundamental primary voters, the constitutional the adopted by In case a provision [Citation.] ‘ intent, their intent To determine “The court turns first governs. [Citations.] ’ ‘If themselves for the answer.” the is language words [Citations.] construction, there no nor is clear and need for it unambiguous necessary statute) (in case of a to resort indicia of the intent of the the Legislature voters).’ (in of the voters the case of a the provision adopted by [Citation.]” 785, 753, v. Superior Court (1990) (Delaney [268 934]; accord, Orange Freedom Inc. P.2d Newspapers, County Employ- ees Retirement System 6 Cal.4th Cal.Rptr.2d 218].) However, P.2d the literal of a must be in accord with meaning statute Court noted in Lakin v. Watkins Associated its as our purpose Industries 6 Cal.4th Cal.Rptr.2d 658-659 [25 179], as follows: “We are not the prohibited determining ‘from whether literal of a meaning statute with its or whether such a comports purpose construction of one is consistent with other provision the provisions statute. The a meaning of statute not determined from a word may single respondent court accompany petition, reporter’s the writ transcript contemporane- unless 12, 1996, ously matters, the petition. April clarify filed with writ On promptly an effort to deputy public petition defender other than the one who verified the filed an under-oath 12,1996, April declaration. explained the description declaration of what occurred in 2, 1996, respondent the on April body petition the of the verified was intended to 56(c) comply with rule of the California Rules of Court. The under-oath declaration also added points several minor fully comply what was related in the so petition verified Later, 56(c) 16, 1996, with rule April the reporter’s transcript court rules. on 2, April proceedings transcript was filed with this court. That revealed that the cases, respondent pending court exercised its discretion based on 21 not to in adverted body petition verified under oath deputy public importantly, defender. More reporter’s transcript reveals that the court never cut off Mr. Swarth or otherwise refused to explanation concerning hear an argument, the 21 cases. At oral question why verified which was intended to serve as the California Rules of 56(c) Court rule transcript declaration differed from the deputy public was raised. The candidly it indicated was an prepare inadvertent error made in haste to and file petition. prepared, given I totality am the circumstances the commendable deputy However, argument, candor of explanation. defender at oral accept contents, petitions verified writ are filed under oath and particularly their factual when rules, presented 56(c) comply in an entirely effort with rule of the court must be without exception rule, complete exceptions Practicing truth. are no There to that none. law is an uncompromisingly profession. Conflicting obligations difficult demands of time and to clients However, personal professional batter the lawyers. press lives of of business is never lawyer’s excuse for inaccuracies in a I completely declaration. am satisfied what occurred here was an inadvertence professionals, two conscientious an effort mislead the otherwise, financial, thought court. If I professional, then legal and other sanctions *15 been in order. context, sentence; relating in and provisions construed words must be the to the extent possible. must be harmonized matter
to the same subject if it is to the contrary not prevail construction should Literal [Citation.] In Lungren . . .’ in the intent legislative apparent [statute.] [Citation.]” 299], 45 Cal.3d Deukmejian [248 letter, the the and letter “The intent over Court added: prevails our Supreme of to the act. will, be so read as conform spirit [Citations.] if possible, must be avoided related nugatory that renders provisions An interpretation but of the light be not in isolation in [citation]; must read each sentence the issues statutory . . . .” In evaluating scheme statutory [citation] second-guess by raised the parties, appellate interpretation (Rhiner v. Workers’ by decisions made voters. wisdom the policy 129, 848 (1993) 4 Cal.4th Cal.Rptr.2d Bd. Appeals Comp. Court, 805.) at 244]; Delaney supra, p. P.2d and statutory rules constitutional foregoing interpreta Subject tion, of the adoption Proposition be denied because: should election; 5, 1990, in the June the voters by primary case; the respondent trial of the had the to ensure the duty prompt present and control the the public court had inherent proceedings; power first within 60 The days. pertinent case not available present 115. The preamble and law statutory Proposition of constitutional body (a) We of the State of stated: “Section 1. the people Proposition ignored crime victims are too often find that the rights California hereby is a courts State death by penalty our and our Legislature, murder, are in order to deterrent to and that reforms needed comprehensive (b) our In order to restore balance and fairness to criminal justice system. [][] we these these further address concerns and accomplish goals, people find that it is to reform law in numerous necessary developed as forth in the of this state. California Court decisions as set statutes and statutes have expanded rights These decisions unnecessarily criminals far that which is the United States beyond accused Constitution, cases, to the costs of criminal and thereby unnecessarily adding (c) from function for truth. diverting judicial its process quest [][] in this measure are to restore balance to our goals enacting people fair, in system criminal to create which is swift justice system, justice create a just which violent criminals receive system punishment, which crime victims and witnesses are treated with care and respect, homes, whole in our society which as a can free from fear crime mind, (d) and schools. With these we neighborhoods, goals people [f] (Ballot do Act.” enact the Crime Victims Justice Reform hereby Pamp., voters, (June Amends. to Const. Gen. Elec. Cal. Proposed arguments Law, initiative, Text 1990) 33.) As Proposed p. part Prop. *16 I, the voters enacted article section 29 of California Constitution which states, case, “In a of California criminal State have the People Further, a . ... . . trial.” 115 enacted section Proposition right speedy be 1049.5 which trials commenced within days requires arraign- cases, a states: “In showing good ment absent cause which felony a court shall set date for trial which is within 60 of the defendant’s days unless, in the cause as arraignment showing good superior upon court, in Section prescribed lengthens the time. If the after a in Section that there to set hearing good finds cause prescribed the date for trial the 60 on beyond it shall state the record the facts days, its A in proved justify statement of facts shall be entered finding. proved noted, will minutes.” As section 1049.5 is directly pertinent determination of in this case. availability
Moreover, when a case is set set forth in beyond 60-day period 1049.5, section the voters for provided writ review expedited extraordinary in section 1511 which states: “If in a case the court sets the felony superior 1049.5, of time beyond period in Section specified violation 1049.5, cause, Section or continues the of any matter without hearing good continuance, cause law for required by such a either party may file a writ mandate or petition in the court of prohibition appeal seeking immediate review the appellate the trial or ruling setting granting the continuance. Such a shall petition over all other precedence cases the court to to, which the petition is assigned, including, but not limited cases that originated in the juvenile court. If the court of appeal grants writ, peremptory it shall issue the writ and a remittitur three court after days its decision becomes final as to that court if such action is necessary mootness prevent or to frustration of prevent the relief granted, notwith- standing right file a parties for review in the Supreme Court. When the court of issues the writ and appeal remittitur as provided herein, the writ shall command the superior court to with the proceed criminal case without delay, further other than that necessary for reasonably parties obtain the attendance FjQ of their witnesses. The Supreme Court may stay or recall the issuance of the writ and remittitur. The Supreme Court’s failure to or recall the stay issuance of the writ and remittitur shall deprive or the real in interest of party its to file a right petition for review in the Court.”
Finally, initiative, in terms of the Legislative Analyst’s discussion the voter pamphlet Proposition 115 indicated: the made proposition “numerous significant and in criminal law complex changes judicial procedures cases”; that must be followed in criminal provided the “people trial”; California with right . ... . . speedy *17 be to who will cases defense only attorneys assign felony “to judges limits”; to trials “felony and to within specified ready proceed showing except upon of defendant’s arraignment set within 60 days to with Amends. Cal. Const. (Ballot Proposed cause.” Pamp., voters, 32.) (June 1990) Gen. to Elec. p. arguments there are other of Proposition provisions from the provisions Apart was an abuse are to determination as to whether there law that applicable of the Section states: “The welfare of discretion in the case. present criminal State of that all in proceedings California requires people at the for trial and heard and determined earliest possible cases shall be set becoming are finds that the criminal courts Legislature time. To this end the welfare with adverse to resulting consequences increasingly congested substan- Excessive continuances contribute and the defendant. people other to and to this and cause substantial victims congestion hardship tially confine- longer presentence witnesses. Continuances also lead periods and overcrowding in and the concomitant custody ment those defendants increased of local It is therefore that the recognized people, expenses jails. defendant, have to an and the victims and other witnesses the right and and to that end it of all courts duty shall be expeditious disposition, defense, counsel, all both for officers and of and judicial prosecution these consistent greatest expedite proceedings degree this shall be the ends of In accordance with criminal cases justice. policy, over, for trial and heard without precedence regard set given of, civil or Rule 227.7 of the California matters pendency any proceedings.” criminal in cases are Rules Court that continuance motions provides Conduct 3(B)(8) “disfavored.” Canon of the California Code Judicial “A shall of all matters provides, judge judicial fairly, promptly, dispose efficiently.”
Moreover, California judges inherent control proceedings. powers Code of Civil Procedure section authority have the provides judges her or in and enforce order” in when “preserve engaged presence (a) official duties. Code Civil Procedure section 128 subdivision states (1) “(a) court shall have the to do all of the part: Every power following: (2) To and enforce order in To enforce preserve its immediate presence. [U it, in the order or before before proceedings person persons empowered [‘jQ(3) conduct a under its To judicial investigation authority. provide it, [^Q(5) conduct of To orderly before or its officers. . . . proceedings officers, control furtherance of justice, conduct of its ministerial of all other manner with a persons judicial connected proceeding it, before matter Our Court has every thereto.” pertaining described inherent branch as follows: “We have power judicial often the ‘inherent the court... to insure the recognized powers orderly (1940) (Hays administration of Cal.2d justice.’ ; . . . . see also Paine Cal.3d 635-636 . . Bauguess or administrative which all courts [discussing ‘supervisory powers possess duties’]; enable them to out their Millholen v. 211 Cal. carry Riley .) ([Code . 33-34. . some of these are set out statute Although powers *18 Proc.,] 128, (a)), it Civ. subd. is established that the inherent the powers § VI, (art. courts are derived from the Constitution 1 [reserving judicial § Millholen, 34; courts]; see supra, 211 Cal. at Rice v. power p. Superior 81, (1982) .), Court 136 . . by 89 and are confined or Cal.App.3d 635-636; (see, on e.g., statute 22 Cal.3d at dependent Bauguess, supra, pp. Marwick, Peat, (1988) 272, & Mitchell Co. v. Court 200 Superior Cal.App.3d , (1978) 169, . . . cf. James H. v. Court Superior 77 Cal.App.3d , . 175-175 . . has inherent hold power competency hearing [court absence of authorization for despite express statutory hearing].)” such (Walker 257, (1991) Court Superior Cal.3d 266-267 Cal.Rptr. [279 576, accord, 418]; 807 P.2d (1969) v. Roloson Bloniarz 221]; 147-148 Lyons [74 681];
Cal.2d 757-758 P.2d v. State Bar Brydonjack [278 1507].) Cal. P. 66 A.L.R. view, case,
In my given the body of law and the facts in the foregoing this court did respondent not abuse its discretion that the concluding Office the Los Angeles Public County Defender was in this one case unavailable to represent defendant within the mandated for statutorily trial. Section 987.2, which, (e)3 note, subdivision as my is colleagues the correctly provi- sion of law which creates the duty to the defender in Los public Angeles County provides two The first exists when exceptions. exception the 987.2, defender is unavailable. public (e) Section subdivision states in “In the event that part, the public is unavailable and the has county defender created a second defender and public contracted with one or more responsi- ble or attorneys with a panel attorneys to criminal defense provide 987.2, (e) first, second, class, 3Section subdivision “In county states: a or third court shall first utilize public provide the services of the defender to criminal defense services indigent In public defendants. the event that the is county defender unavailable and the has created a public second responsible defender and attorneys contracted with one or more panel defendants, with a of attorneys provide indigent criminal defense services for and if quality of representation provided by public comparable second defender to the defender, quality representation provided by public the court shall next utilize the public services of the second county-contracted defender and then the services of the attorneys prior assigning any private Nothing other counsel. this subdivision shall require construed to appointment any of counsel case in which the counsel has a conflict of In the justice, interest. interest of may depart portion from that procedure requiring appointment public county-contracted the second defender or attorney making finding after stating cause the reasons therefor on the record.” defendants, if the provided indigent quality representation services for to the of representation defender is comparable quality the second public defender, next the court shall utilize services public provided of the county-contracted defender and then services second (Italics added.) The other counsel.” private assigning any attorneys prior 987.2, of section in the third sentence which contained exception, second third conflict of interest. The (e), existence of a subdivision involves 987.2, (e) states, in this subdivision “Nothing sentence of section subdivision which of counsel in case in require shall be construed is controlled by has a conflict of interest.” The case present defender first or unavailability exception requirement be appointed. could conclude that the reasonably *19 with, To other
would not be available. no member begin to the There is office be available case. no dispute defender’s would try Further, issue; court was about that defendant admits such. respondent within 1049.5 to set the case for trial the 60 Section obligated days. required of the defend- court to set the case trial “within 60 days respondent has ant’s absence of cause. Our Court arraignment” good Supreme follows, section as “. 1049.5 . . . which provides described 1049.5 . . § 60 arraignment.” (Tapia trials shall take within felony place days P.2d 53 Cal.3d 807 Cal.Rptr. 299 [279 occasion, 434].) as On another our Court described section 1049.5 Code trial of follows: “Section is added to the Penal to for a 1049.5 provide (and is cases within 60 unless cause shown felony days arraignment good record) (Raven Deukmejian stated on the the time.” lengthening 1077].) There issue 345 P.2d is no cause, he to absence Mr. Swarth indicated concerning good expected the case within the 60 Section try days. Proposition 1049.5 part “significant which described Legislative Analyst making must be in criminal law and complex changes judicial procedures stated, cases . . this case was by followed criminal . .” Simply law to be tried cause which would days good permit within absent is any time There not even substantial beyond statutory 60-day period. Also, to evidence of cause. Mr. Swarth was to 21 cases assigned try next no those within the There was evidence completion days. case cases were settleable without trial. was no a single There evidence tried, he would be In fact when asked how the cases would be continued. boom, boom, “But I’m to We’re them responded, ready go. going try not be When the 21 cases could boom.” court calculated respondent candidly tried within Mr. Swarth 59-day time completion period, admitted, calculation, do math “If that fast enough I’m not your court then now. So I cannot that.” respondent requested right speak try that Mr. Swarth determine if another could deputy public after Mr. Swarth stated no other Only case within 60 days. deputy public limit did the defender could the case within try 60-day make its final determination of coun- unavailability assign private his right sel. It bears defendant never offered waive to have his emphasis, time limit imposed trial commence within the section 60-day (a)(2). subdivision record,
Given this I cannot find abuse of discretion.4 This not a case who relied on “numbers alone” exercise discretion. Such judge number of cases could not been large tried within 60 possibly days which included weekends and the Memorial holiday. Day Despite given so, full to do Mr. responsibility Swarth could not contradict the respondent court’s mathematical calculation which indicated that trials felony could within mandate of the States and competently, United California Constitutions, be conducted in 60 professionally calendar Not a days. single other defender would be deputy public available to the case—not a one. try scenario, This when confronted highly experienced knowledgeable who is a judge former criminal litigator, is not the utilization of numbers Rather, alone make a decision. it is the exercise of discretion. An judicial 4There is authority concerning power decisional *20 to remove counsel who cannot 109, appointed example, (1928) case at the People time. For v. Dowell 204 Cal. 113-114 1050, 807], 1927, 600, 1, (Stats. 1036) P. section p. [266 as it was in effect at that time ch. § required days entry that case be tried within 30 plea. of the of the defendant’s In this regard, it to provisions is similar current section Supreme 1049.5. The Court held: the of then duty section 1050 created a set statutorily to the case for trial days; within the mandated 30 counsel, there was “no merit whatsoever” to the contention that other who properly case; prepared, try should not be initially to of and absence retained attorney injuriously (204 not did affect rights substantial of the pp. defendant. Cal. at 113-114.) pertinent Dowell is period specified because it holds a the Penal Code trying a duty case creates a sodo and that no of abuse discretion occurs when retained Further, counsel was Appeal upheld relieved. Court of relieving decisions have orders defense counsel because an inability try People of appointed (E.g., case at the time. v. Strozier 55, (1993) 20 Cal.App.4th Cal.Rptr.2d 62 [24 court had discretion to remove 362] [trial privately continuances”]; retained counsel Superior after “numerous Maniscalco v. Court (1991) 846, Cal.App.3d 234 Cal.Rptr. [injury 849-850 to defense counsel warranted [285 795] trial]; year delay bringing (1988) removal after seven the case to Stevens 932, Cal.App.3d Cal.Rptr. [appointed 936-937 counsel’s trial schedule caused [244 94] 551, (1986) repeated delays]; People v. Lucev Cal.App.3d Cal.Rptr. 556-557 [233 222] delay [one-and-one-half-year arraignment congested deputy after because calendar defender].) statutorily Each of these cases involves removal counsel rather than the duty subject mandated exceptions body trial court to the two in the this described Nonetheless, dissenting opinion they defender. are relevant insofar as they power relate the attorney. of a court when counsel is unavailable to relieve the None of foregoing authority decisional power arraigning judge undercuts the refuse to appoint a deputy public defender when she or he be will unable to case within the statutorily period mandated in section 1049.5. circumstances: “That discre following exists under the abuse of discretion ' discretion,
tion, however, but arbitrary an impartial “is a capricious discretion, its It legal principles. exercise fixed controlled guided discretion, discretion, but a gratia, legal a exercised ex is not mental law in manner to with the spirit in conformity be exercised ’ not to or defeat the ends substantial justice.” subserve and impede Laboratories, (Carroll v. Abbott Inc. [Citations.]” accord, 775]; 654 P.2d Warner People Cal.Rptr. [187 1237].) I cannot find the Cal.3d and deliberate effort to with the comply statutory requirement cautious defender’s office this case be tried within 60 that the days by ensuring would be was: or arbitrary”; who available lawyer “capricious exercised “ex a decision rendered adverse gratia”; spirit discretion law; or a which or defeated ends substantial ruling impeded contention, that to defendant’s never justice. Contrary happened. reasons, For I as on these would on the merits well deny petition mootness grounds. 24, 1996,
A June rehearing was denied petitioner’s for review Court was denied application September 1996.