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Court of Appeal, Third District, California.

Marcus INGRAM, Petitioner and Respondent, v. JUSTICE COURT FOR the LAKE VALLEY JUDICIAL DISTRICT, COUNTY OF EL DORADO, Respondent and Appellant; The PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 11833.

Decided: April 29, 1968

Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., Sacramento, for respondent-real party in interest-appellant. Paul Ligda, Public Defender, Placerville, for petitioner and respondent.

Appeal by People of the State of California, real party in interest, from judgment of El Dorado Superior Court ordering issuance of a peremptory writ of mandamus, compelling the Justice Court for the Lake Valley Township, County of El Dorado, to hear petitioner's motion to vacate a 1959 judgment of conviction presented by the public defender of El Dorado County without questioning petitioner's indigency or the public defender's right to represent petitioner on his motion to set aside judgment.


May the court in which motion to set aside judgment has been filed review the public defender's determination of petitioner's indigency and right to representation by the public defender?


On May 27, 1959, petitioner, without counsel, entered in respondent justice court a plea of guilty to violation of section 270, Penal Code (failure to provide for minor child), a misdemeanor, and was admitted to probation.

On August 21, 1967, the public defender of El Dorado County filed, on behalf of petitioner, a notice of motion to set aside petitioner's 1959 judgment of conviction upon the sole ground that petitioner had not waived his right to appointed counsel in the 1959 proceeding.   On September 14, 1967, the public defender and the assistant district attorney appeared in respondent justice court to argue said motion.   The court requested that the public defender furnish an affidavit of financial inability of petitioner to employ counsel.   The public defender stated that he had no such affidavit and that he was satisfied that petitioner was eligible for the public defender's services.   The court continued the hearing for two weeks to allow time to permit the presentation of information upon which the court could rule upon the public defender's right to represent petitioner upon the motion.

Petitioner then filed a petition for writ of prohibition or mandate in the El Dorado Superior Court to compel the respondent justice court to proceed with the hearing of the motion without questioning the public defender's right to represent petitioner at such hearing.   On October 3, 1967, the superior court entered judgment directing that a peremptory writ of mandate issue commanding respondent justice court to proceed to determine petitioner's motion upon its merits and that respondent justice court allow the public defender “to represent petitioner without raising any question of the public defender's right to do so or of petitioner's indigency.”   The People of the State of California, as the real party in interest, appeal.

 1. The public defender's determination of indigency is subject to judicial review.

Section 27706, Government Code, provides, in part:  “The public defender shall * * * upon request of the defendant or upon order of the court * * * defend, without expense to the defendant, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior, municipal or justice courts at all stages of the proceedings, including the preliminary examination.  * * * ”  (Emphasis added.)

 There can be no question but that indigence, i.e., financial ability to employ counsel, is a qualification required for representation by the public defender at public expense.  (People v. Ferry 91965) 137 Cal.App.2d 880, 47 Cal.Rptr. 324;  In re Johnson 91965) 237 Cal.App.2d 463, 467, 47 Cal.Rptr. 17.)   In other words, neither can the public defender of his own determination defend, nor the court order him to defend, a person who is not an indigent.

When an accused is brought before a magistrate on a felony charge, or upon arraignment in the superior court, the court must assign counsel to defend him, if he desires and is unable to employ counsel.  (Pen.C., §§ 859, 987.)

 “ * * * Under these sections it is the duty of the magistrate to initiate an inquiry into the desire of a defendant to be represented by counsel, to inquire into his ability to procure counsel, and in the event of his inability so to do, to assign competent counsel to conduct his defense.”   (Emphasis added.)  (People v. Diaz (1962) 206 Cal.App.2d 651, 24 Cal.Rptr. 367, 372.)

The public defender takes the position that as section 27706 of the Government Code states that the public defender's representation shall be either “upon request of the defendant or upon order of the court,” the public defender alone is entitled to determine whether the defendant is or is not indigent and is or is not entitled to collaterally attack a judgment, and that it is only where the court orders the public defender to act that the court may inquire into the defendant's financial situation and into the right of the public defender to represent the petitioner on the collateral attack.

 As pointed out by the public defender, there are two ways in which an indigent person may obtain the services of the public defender:  one, by direct application to him, the other by court action.   Here we are dealing only with the first method.   When a person who is charged with a crime applies to a public defender for defense, the latter must first make a determination of whether such person is entitled to his services, i.e., is he indigent?   Determining that such person is indigent, then, if the person “is charged with the commission of any contempt or offense,” the public defender must defend him “at all stages of the proceedings, including the preliminary examination.”   The indigent has a constitutional right thereto, even through, in fact, he does not have a real defense.   But, as held in People v. Shipman (1965) 62 Cal.2d 226, 42 Cal.Rptr. 1, 397 P.2d 993, his right to have the services of an attorney at public expense in collateral attack proceedings, such as habeas corpus, coram nobis, and the motion in the case at bench, depends not only on his being indigent but also on his having grounds for such a proceeding.

 The question which the public defender raises in the instant case is whether his determination affirmatively of both matters is subject to judicial review.   We will consider first his finding of indigency.   There can be no question that when approached by the claimed indigent, whether it be for assistance in the original criminal action or in collateral proceedings, the public defender must investigate and make a determination of the indigency question.   If he finds the defendant not to be an indigent, the defendant has the right to have that determination judicially reviewed.   The public defender concedes this.   On the other hand, he contends that if he finds indigency, there can be no judicial review of his finding.   If this were true, the public defender's power would be greater than that of the court whose determination of indigency when application is made to it rather than to the public defender is subject to review whether the court finds indigency or nonindigency.

If the public defender's determination is not subject to judicial review, there could be a situation in which there would be no uniformity on the subject throughout the state.   Each public defender could very well have different criteria of indigency.

 The public defender's determination of indigency is merely preliminary, requiring him to proceed unless and until that determination is challenged, at which time the court will make a final determination of the matter.

It must be remembered that the People have a stake in this matter;  their money must not be used to defend a person who is “financially able to employ counsel” (Gov.Code, § 27706).   it would be ridiculous to hold that public defender's determination of this matter is sacrosanct and not subject to judicial review.

As said in Williams v. Superior court (1964) 226 Cal.App.2d 666, 672, 38 Cal.Rptr. 291, the question of whether or not a person charged with crime is in a position to hire an attorney “is frequently a complex one.”   The court further said in considering whether persons charged with crime are indigent, “Obviously, this situation is one which should be handled by the judges who have charge of the courts where preliminary examinations and trials are held.   Trial judges are in the best possible position administratively to decide the question involved, because the facts involved in each case must determine the answer.”  (p. 672, 38 Cal.Rptr. p. 294.)

In In re Smiley (1967) 66 Cal.2d 606, 619–620, 58 Cal.Rptr. 579, 427 P.2d 179, the court set forth the above quotation from Williams, stating that “it is clear” that the determination of indigency is one to be made by the courts.

The report of the Assembly Interim Committee on Criminal Procedure in 1959–61, recommending against the adoption of Assembly Bill 1852, which would have amended Government Code section 27706 directing the court or the public defender to require from a defendant seeking representation by the public defender an affidavit of his financial status, nowise indicates that the public defender's determination of the defendant's indigency was not subject to review.1  In making the report, the committee solicited attitudes from 21 public defenders in the state.   Most of those responding said they already used a questionnaire similar to that proposed.   The report states (p. 99):  “ * * * This committee is of the opinion that the nature and extent of this problem do not require legislative action.   It appears that public defenders make a real effort to avoid taking cases which do not qualify for their services.   If abuses develop in individual cities or counties of the state, it appears to us that the proper avenue of appeal is to the judicial council or the county board of supervisors.”   Analyzed, this report merely indicates that the Assembly did not desire to lay down guidelines as to what constitutes indigency.   Although the report refers to appeals to judicial council or boards of supervisors in case of abuses developing, it does not exclude the right to review by a court of a particular case.

In a tentative draft of “Standards Relating to Providing Defense Services” recommended by the Advisory Committee on the Prosecution and Defense Functions of the American Bar Association Project on Minimum Standards for Criminal Justice appear (pp. 56–57) the following statements, which we endorse:

“A preliminary and tentative determination of eligibility should be made as soon as feasible after a person is taken into custody.   The formal determination of eligibility should be made by the judge or an officer of the court selected by him.   A questionnaire should be used to determine the nature and extent of the financial resources available for obtaining representation.   If at any subsequent stage of the proceedings new information concerning eligibility becomes available, eligibility should be redetermined.

* * * * * *

“ * * * A more thorough determination can be made by the committing magistrate when the accused first appears before him.   The cost to the system in providing counsel immediately on the basis of the preliminary determination to persons who are later determined by the magistrate not to be eligible will be minimal, in light of the brevity of the period of representation.

* * * * * *

“ * * * an over-zealous or under-staffed defender may be tempted to bend the standards to extend or restrict the services he is providing.   It is important that the formal determination of eligibility for assistance be made by a judge or other public official so that the public and the bar can be confident that the determination does not mask the desire of counsel to obtain or avoid the opportunity to act as counsel for the defendant whose eligibility is in question.   Greater uniformity and adherence to announced standards can be achieved by reliance on the court or an official designated by the court to make the determination.”

 This brings us to the second portion of what appears to be the public defender's contention, namely, that his determination that the indigent has grounds for a collateral proceeding is likewise not subject to court review except at a hearing of the petition which the public defender may file for the indigent, in other words, that the court cannot determine the indigent's right to a hearing on the petition filed by the public defender.  People v. Shipman, supra, 62 Cal.2d at page 230, 42 Cal.Rptr. 1, 397 P.2d 993, in effect, holds otherwise.   It requires that before appointment of counsel may be made in a collateral proceeding and a hearing had, “substantial legal or factual issues” must be set forth, and that the court must determine the sufficiency of such showing.  “Unless we make the filing of adequately detailed factual allegations stating a prima facie case a condition to appointing counsel, there would be no alternative but to require the state to appoint counsel for every prisoner who asserts that there may be some possible ground for challenging his conviction.   Neither the United States Constitution nor the California Constitution compels that alternative.   Accordingly, in the absence of adequate factual allegations stating a prima facie case, counsel need not be appointed either in the trial court or on appeal from a summary denial of relief in that court.”  (p. 232, 42 Cal.Rptr. p. 5, 397 P.2d p. 997.)

 A reasonable application to the situation at bench of section 27706 and Shipman, supra, is that upon petitioner's application to the public defender for assistance in attacking the validity of the judgment against him, the public defender was required to determine preliminarily, one, that he was indigent, and two, that he had grounds for relief.   Having determined both matters in favor of the petitioner, the public defender was then required to petition the court to set aside the judgment.   It was then the duty of the court to determine whether the petition stated a prima facie cause for relief.   If it did not, then it was the court's duty to deny relief and order the petition dismissed (Shipman, supra, p. 232, 42 Cal.Rptr. 1, 397 P.2d 993).   If the court determined that the petition stated such a cause, it was its duty to set the petition for hearing and if it found the petitioner to be indigent to appoint an attorney to represent him (Shipman, p. 232, 42 Cal.Rptr. 1, 397 P.2d 993) and, as the public defender was already temporarily representing the petitioner, to authorize his continuance to so represent him.   Absent an appointment by the court, the public defender, like any other attorney not previously retained, is without authority to further represent the petitioner.

 That the court before whom a colateral proceeding is brought must necessarily have the final determination of whether the public defender may continue to represent the petition is illustrated by the following situation.   Assume that the public defender brings a petition to set aside a prior judgment on the contention that the petitioner prior to the trial on which the judgment is based was denied the constitutional right to have his attorney present at the lineup, which right was declared in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.   The public defender insists that a hearing be held on the petition despite the fact that in People v. Feggans, 67 A.C. 447, 451, 62 Cal.Rptr. 419, 432 P.2d 21, it was held that Wade and Gilbert are not to be applied retrospectively.   A mere examination of the petition by the court would disclose that in the petition there was an “absence of adequate factual allegations stating a prima facie case” (Shipman, p. 232, 42 Cal.Rptr. p. 5, 397 P.2d p. 997), and the court would have to deny further participation by the public defender and dismiss the petition, the public defender to the contrary notwithstanding.

Our determination of the main questions on this appeal makes it unnecessary to determine other contentions of the People.

 The superior court order directed the lower court to hear the case on its merits.   As the justice court had not passed upon the sufficiency of the petition to state a cause for hearing 2 nor the timeliness of the petition,2 the superior court had no jurisdiction to order a hearing on the merits.

On remand, the justice court shall determine the questions of indigency, sufficiency and timeliness of the petition.

Judgment reversed.


1.   Committee on Criminal Procedure, Assembly Interim Committee Reports (1959–61) Vol. 22, No. 1, p. 96.

2.   For example, a petition to set aside a conviction on the ground of denial of counsel must clearly allege facts showing that in the proceeding leading to that conviction, the petitioner was neither represented by counsel, nor waived the right to be so represented.  (See In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420.)

2.   A frequent ground of denial of a petition of the kind presented here is lack of diligence in seeking the remedy (Witkin, Cal.Criminal Procedure (1963) § 632, p. 621).   Some eight years passed between the entry of the judgment granting petitioner probation and the filing of this petition.   Undoubtedly, petitioner must have long since finished his probationary period.   However, it was not until Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that petitioner could have known that he could attack his conviction by a collateral attack on the ground her asserted.   Gideon was decided March 18, 1963.   The petition here was filed August 21, 1967.   Whether or not the more than four years elapsing between Gideon and the filing of the petition here constituted such a delay as to deny petitioner relief is a judicial question which should be passed upon by the court in which the petition is filed.

BRAY, Associate Justice (assigned).

BRAY, J. Assigned. FRIEDMAN Acting P.J., and REGAN, J., concur.