Drumgo v. Superior Court

506 P.2d 1007, 8 Cal. 3d 930, 106 Cal. Rptr. 631, 66 A.L.R. 3d 984, 1973 Cal. LEXIS 271

• Court: California Supreme Court
• Decided: March 5, 1973
• Docket: S.F. 22953
• Status: Published

Opinions

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 (Pen. Code, § 187),¹ one count of conspiracy to commit murder (§ § 182,187), and one count of assault while serving a state prison sentence for less than life (§ 4501). Five other inmates are charged with the same murder counts and the count of conspiracy. Each of the other inmates is charged with additional felony counts. The trial court, determining that conflicts existed among the codefendants, appointed the public defender to represent one of them and separate counsel to represent each of the others.² This proceeding concerns only the appointment of counsel to represent petitioner.

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 proceedings in another county. On October 15 he sought and was granted permission to consult another attorney, Richard A. Hodge. On October 29, petitioner, an indigent, requested the appointment of Mr. Hodge, who advised the court that he was ready, willing and able to represent petitioner. The court rejected the request, appointed Richard H. Breiner, a local attorney, solicited a memorandum of points and authorities from Mr. Hodge and stated it would change the appointment if it concluded that it had acted in error. Petitioner purported to refuse the services of Mr. Breiner.

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, [f] 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 suggestion therein that an indigent defendant may force selection of a particular attorney who, in the defendant’s opinion, can provide the best representation. We have repeatedly held that constitutional and statutory guarantees are not violated by the appointment of an attorney other than the one requested by defendant. (People v. Hughes (1961) 57 Cal.2d 89, 98-99 [17 Cal.Rptr. 617, 367 P.2d 33]; see, e.g., People v. Aikins (1969) 70 Cal.2d 369, 378 [74 Cal.Rptr. 882, 450 P.2d 258]; People v. Massie (1967) 66 Cal.2d 899, 910 [59 Cal.Rptr. 733, 428 P.2d 869]. See also People v. Taylor (1968) 259 Cal.App.2d 448, 450-451 [66 Cal.Rptr. 514].) The additional factor that requested counsel has indicated his willingness and. availability to act does not raise any constitutional compulsion requiring his appointment. Our established rule conforms with those of the federal courts (e.g., Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1170; United States v. Burkeen (6th Cir. 1966) 355 F.2d 241, 245; Tibbett v. Hand (10th Cir. 1961) 294 F.2d 68, 73; United States ex rel. Mitchell v. Thompson (S.D.N.Y. 1944) 56 F.Supp. 683, 688-689) and, at least absent a statute expressly providing to the contrary, of our sister state courts (e.g., Martinez v. People (1971) 173 Colo. 515, 519 [480 P.2d 843]; People v. Gray (1965) 33 Ill.2d 349, 353-355 [211 N.E.2d 369]; State v. Fagerstrom (1970) 286 Minn. 295, 299 [176 N.W.2d 261]; Rahhal v. State (1971) 52 Wis.2d 144, 147-148 [187 N.W.2d 800]). (See generally ABA Project on Min. Standards for Crim. Justice, Providing Defense Services (Tent. Draft 1967) § 2.3, com. (b), pp. 29-30.)

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 requst 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 always, in the sound discretion of the trial court, and there can be no abuse of that discretion when the court appoints competent counsel who is uncommitted to any position or interest which would conflict with providing an effective defense.³ The record fails to demonstrate or even to suggest in any way an abuse of discretion based on Mr. Bremer’s competency. The record shows only that at the time of the appointment petitioner purported to reject Mr. Bremer’s services. It does not appear that petitioner had even consulted with Mr. Breiner prior to such rejection. In an affidavit filed three weeks later in conjunction with the motion for substitution, petitioner claimed that he lacked confidence in and would not cooperate with Mr. Breiner. Petitioner had every opportunity to explain his lack of confidence. (See People v. Marsden (1970) 2 Cal.3d 118, 123-126 [84 Cal.Rptr. 156, 465 P.2d 44]; Brown v. Craven, supra, 424 F.2d 1166, 1169-1170.) The only justification ever suggested, a lack of any knowledge of Mr. Breiner, is patently inadequate. A clear inference to be drawn from the record is that petitioner would have made similar claims about any lawyer except Mr. Hodge, There is no claim of disagreement as to trial tactics or that Mr. Breiner refused or was unable to act after the appointment. No basis for the lack of confidence and refusal of services, other than lack of a prior relationship, has ever been given. Under these circumstances, petitioner’s claims are most unconvincing and fall far short of demonstrating an abuse of discretion by the trial court.

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) 1 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 circumstance does not create a situation which entitles an indigent defendant to the appointment or substitution of a particular attorney selected by defendant. (See People v. Floyd, supra, 1 Cal.3d 694, 705.) We do not preclude, however, the substitution of Mr. Hodge or any other attorney in the event petitioner wishes to substitute counsel retained by him pursuant to such arrangements as he may be able to make.

The alternative writ of mandate is discharged and the petition for a peremptory writ denied.

McComb, J., Burke, J., and Sullivan, J., concurred.

1 Unless otherwise indicated, all statutory references are to sections of the Penal Code.

2 The unquestioned right of indigent defendants to the effective assistance of competent counsel (see Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733]) is accomplished in California by the statutory provision for the assignment of counsel by the court. (§ 987.) In several jurisdictions, the public defender offices bear the principal burden of fulfilling the state’s obligation. (Gov. Code, § 27700 et seq.) Provision is made for the compensation of counsel, other than the public defender, assigned when “there is no public defender” or “the court finds that because of conflict of interest or other reasons the public defender has properly refused to represent the person accused.” (§ 987.2, subd. (a).)

3 We do not discourage the practice of soliciting the views of both defendant and counsel before making an appointment for the defense of an indigent, but the weight to be accorded these views must, as the appointment itself, rest within the sound discretion of the trial court.

4 We suggest no criticism of Mr. Hodge. The recitation of qualifications in the record indicates that he, too, is a competent attorney.