Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

Fleeta DRUMGE, Petitioner, v. SUPERIOR COURT, COUNTY OF MARIN, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 31049.

Decided: June 30, 1972

Richard H. Breiner, San Rafael, for petitioner (Under appointment of Court of Appeal). Evelle J. Younger, Atty. Gen., of the State of California, Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty., Gen. Writs Sec., Joyce F. Nedde, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest. National Lawyers Guild, Mario Obledo, Alfred H. Sigman, Mexican American Legal Defense and Educational Fund, San Francisco, John E. Thorne, San Jose, amicicuriae in support of contentions of petitioner.

This is a petition for writs of mandate and prohibition.1

Questions Presented

1. Does mandate lie?

2. Did the trial court abuse its discretion in refusing to appoint counsel of petitioner's choice?


Petitioner is charged in the Superior Court of Marin County in an indictment including five counts of murder, one count of conspiracy, and one count of assault while serving a state prison sentence of less than life. The indictment charges five other inmates of San Quentin Prison with the same five counts of murder and the count of conspiracy. In addition, each of the inmates has been charged with various other felonies, some in conjunction with the other codefendants and others alone. The trial court determined that conflicts existed among the codefendants and appointed separate counsel for each defendant, the Marin County public defender to represent only one of them. This proceeding is concerned only with the appointment of counsel for petitioner.

On October 5, 1971, petitioner appeared before respondent court for the first time and requested that he be allowed to confer with several named attorneys. The respondent court allowed petitioner to consult with attorney Richard Silver, who at the time was representing petitioner in other legal proceedings in another county. On October 15, 1971, petitioner requested the court to allow him to consult with attorney Richard Hodge. On October 29, 1971, petitioner requested the appointment of Richard Hodge, who advised the court at that time that he was ready, willing and able to represent petitioner, and joined in petitioner's request that he be appointed. On October 29, 1971, the court denied this request and appointed Richard H. Breiner, an attorney practicing in San Rafael, California. The court said Richard Hodge could prepare a memorandum of points and authorities, and, if it had erred in the appointment of counsel for petitioner, the error would be corrected. Petitioner at this time stated for the record that he refused the appointment of Richard H. Breiner as his attorney.

On November 18, 1971, petitioner caused to be filed a ‘Notice of Motion for Order Relieving Richard H. Breiner as Counsel for the Defendant Fleeta Drumgo and for the Appointment of Richard Hodge.’ The motion was denied on November 24, 1971.2 Petitioner properly proceeded in first moving the court to reconsider before seeking a writ in this court.

1. Mandate lies.

The Attorney General contends that the remedy of mandate does not lie because the duty of appointing an attorney for an indigent defendant rests solely with the trial court and cannot be delegated to some other agency or individual (In re Johnson (1965) 237 Cal.App.2d 463, 465–466, 47 Cal.Rptr. 17; In re Lopez (1970) 2 Cal.3d 141, 146, 84 Cal.Rptr. 361, 465 P.2d 257), and that the selection of such attorney is a matter of discretion (People v. Hughes (1961) 57 Cal.2d 89, 98–99, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Jackson (1960) 186 Cal.App.2d 307, 315, 8 Cal.Rptr. 849).

While it has been held that mandamus cannot control discretion ‘except in those rare instances when under the facts it can be legally exercised in but one way’ (Hilmer v. Superior Court (1934) 220 Cal. 71, 73, 29 P.2d 175, 176), ‘[t]he writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law’ (Witkin, California Procedure (2d ed.) Extraordinary Writs, § 91, p. 3867).

There is no such remedy in the instant matter. Appeal does not lie from the order appointing the attorney. Obviously, to require that the review of the order await the completion of the trial (and, in the event of a judgment of guilt, the appeal therefrom) is neither a plain, speedy nor adequate remedy. Appropriate here is the following language from Smith v. Superior Court (1968) 68 Cal.2d 547, 558, 68 Cal.Rptr. 1, 8, 440 P.2d 65, 72 (quoting from Maine v. Superior Court (1968) 68 Cal.2d 375, 378–379, 66 Cal.Rptr. 724, 438 P.2d 372): ‘It is neither novel nor inappropriate, therefore, 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.’ Therefore, it appears that the only proper remedy under the circumstances is provided by mandamus.

2. Abuse of discretion.

Under the peculiar circumstances presented in this case, we hold that the denial of petitioner's request for appointment of the attorney of his choice was an abuse of discretion.

It is clear that a defendant does not have the absolute right to be represented by a particular attorney. (People v. Manchetti (1946) 29 Cal.2d 452, 458, 175 P.2d 533.) In Manchetti, the court upheld the denial of a motion for continuance made on the ground that the attorney of defendant's choice was engaged in another trial when the lower court had given the defendant adequate time to obtain other counsel. The court quoted from People v. Dowell (1928) 204 Cal. 109, 113, 266 P. 807, ‘that the courts cannot in every case await the convenience of some attorney before they can function.’ (29 Cal.2d at p. 458, 175 P.2d at p. 537.) In People v. Crovedi (1966) 65 Cal.2d 199, 206, 53 Cal. Rptr. 284, 417 P.2d 868 the California Supreme Court held that an accused has a constitutional right to appear and defend with retained counsel of his own choice. However, the court observed that his right was not absolute and must be weighed against other values of substantial importance—orderly and expeditious judicial administration. However, these cases dealt with the issue of continuances, and recognized that the failure of the accused to exercise diligence in retaining private representation is a justification for denying further continuances for obtaining counsel. (See also Ungar v. Sarafite (1964) 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921; People v. Byoune (1966) 65 Cal.2d 345, 54 Cal.Rptr. 749, 420 P.2d 221; People v. Chessman (1959) 52 Cal.2d 467, 491, 341 P.2d 679; People v. Doebke (1969) 1 Cal.App.3d 931, 939, 81 Cal.Rptr. 391.)

All the cases which have held that the court has sole discretion to choose the private attorney to represent an indigent are factually distinguishable from the case before us. These cases fall into either or both of two categories: (1) the defendant did not wish to be represented by the public defender's office or had become dissatisfied with the representation he was receiving; and (2) the defendant's request for a particular attorney was made late in the proceedings and the substitution would have disrupted the court proceedings and calendar.

One statement that occurs often in cases dealing with an indigent's right to counsel is that ‘[t]he defendant had absolutely no right to the service of a particular attorney’ (People v. DeLosa (1960) 184 Cal.App.2d 681, 684, 7 Cal.Rptr. 753, 754). However, it is necessary to consider the fact situations of the cases that have made statements similar or identical to the quoted sentence from DeLosa to determine if this statement is applicable to the fact situation before the court. Many times a defendant will refuse to be represented by the public defender and will demand that a private attorney be appointed by the court. People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, cert. den. 401 U.S. 919, 91 S.Ct. 903, 2 L.Ed.2d 821; People v. Massie (1967) 66 Cal.2d 899, 59 Cal.Rptr. 733, 428 P.2d 869; People v. Hughes (1961) 57 Cal.2d 89, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Chessman (1959) 52 Cal.2d 467, 341 P.2d 679, and a host of other cases are of this type. In these cases the courts have refused to remove the public defender and appoint private counsel to represent the defendant.

The courts are concerned with administering justice in an orderly manner, fairly, quickly and efficiently. These interests are justifiably advanced by refusing to give an indigent an absolute right to select counsel when a public defender is able to defend the indigent. The public defender's office is designed to provide experienced counsel in the field of criminal law and procedure at a low cost to the state. The state has an interest in the orderly administration of the court system which outweighs the indigent's right to select a particular attorney when a public defender is available to defend him.

Indigents have often requested the court to remove the public defender or court appointed counsel when they have become dissatisfied with the method in which their case is being handled. However, the courts have held that ‘[t]here is . . . ‘no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant's whims.’' (People v. Bourland (1966) 247 Cal.App.2d 76, 84–85, 55 Cal.Rptr. 357, 363, cert. den. 388 U.S. 920, 87 S.Ct. 2142, 18 L.Ed.2d 1367; see also People v. Williams, supra, 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Glover (1969) 270 Cal.App.2d 255, 75 Cal.Rptr. 629; People v. Foust (1968) 267 Cal.App.2d 222, 72 Cal.Rptr. 675; People v. Austin (1968) 260 Cal.App.2d 658, 67 Cal.Rptr. 391; In re Luna (1968) 257 Cal.App.2d 754, 65 Cal.Rptr. 121; People v. Lee (1967) 249 Cal.App.2d 234, 57 Cal.Rptr. 281, cert. den. 389 U.S. 876, 88 S.Ct. 173, 19 L.Ed.2d 163; People v. Shields (1965) 232 Cal.App.2d 716, 43 Cal.Rptr. 188; People v. Terry (1964) 224 Cal.App.2d 415, 36 Cal.Rptr. 722; People v. Ortiz (1961) 195 Cal.App.2d 112, 15 Cal.Rptr. 398; People v. Jackson (1960) 186 Cal.App.2d 307, 8 Cal.Rptr. 849.

With the exception of three cases in the cases discussing motions to have the public defender removed as counsel and another attorney substituted, the motion to remove was made either on the eve of trial or after it had commenced. In People v. Tomita (1968) 260 Cal.App.2d 88, 66 Cal.Rptr. 739, and People v. Austin (1968) 260 Cal.App.2d 658, 67 Cal.Rptr. 391, it is unclear when the motion was made. In the third case, People v. Taylor (1968) 259 Cal.App.2d 448, 66 Cal.Rptr. 514, the defendant asked for a private attorney three weeks before trial. An accused must exercise diligence in obtaining counsel even if the accused is financially able to retain counsel. An indigent must be held to the same standard. (People v. Dowell, supra, 204 Cal. 109, 133, 266 P. 807.)

The case at bar does not fall within any of the above categories. Here, petitioner Drumgo requested that attorney Hodge be appointed as his counsel before the court had appointed any attorney to represent petitioner. This is not a case where a defendant has become dissatisfied with the representation he is receiving but where he merely sought to have an attorney appointed in whom he had full confidence at the beginning of the legal proceedings.

From the above analysis of California cases dealing with the subject of an indigent's right to counsel of his own choosing, it can be seen that there is no authority opposing the view that when a defendant makes a timely motion to have the court appoint a particular attorney who is ready, willing and able to defend that defendant, it may be an abuse of discretion to deny that motion. A study of the cases shows that an indigent defendant does not have the constitutional right to be provided with counsel of his choice (see Davis v. Stevens (S.D.N.Y.1971) 326 F.Supp. 1182) nor does a court have the absolute right to refuse to appoint such counsel. The question is one of the proper exercise of the court's discretion under all the circumstances.

In the case at bench defendant moved promptly for the appointment of Hodge and again moved promptly for a reconsideration of the appointment of Breiner. In neither event was there a need for a continuance of the trial (it had not yet been set) nor for any delay. Hodge joined in petitioner's request that he be appointed petitioner's counsel and advised the court in the beginning that he was ready, able and willing to represent petitioner. It would have required no additional continuances, no loss of time, and no unnecessary duplications of effort to appoint Hodge at that time instead of appointing Breiner. There was no evidence before the court that Hodge was incompetent or not qualified.

None of the interests that the state has in orderly administration of justice has been abused in this case. The court determined, under Penal Code section 987.2, that a conflict of interest existed among the defendants and that the public defender of Marin County should represent only one of the six defendants, private counsel the other five. No reason was presented by the court as to why it refused to appoint Hodge. The court's sole reason given was that it knew Breiner to be a competent, experienced and effective trial lawyer. The court's judgment in this respect has been amply confirmed by Mr. Breiner's excellent presentation in this proceeding. The court nowhere stated that it did not know Hodge's qualifications. Hodge had been a deputy district attorney of Contra Costa County for two years and in the last year had been involved in the trial of two first degree murder cases and on of attempted murder. The motion to appoint Hodge was timely made. If the court had any question about Hodge's ability to handle a criminal case, it could have made inquiry. Although, as we have stated, a defendant does not ordinarily have the right to counsel of his choice, this case is unique; under the circumstances presented here where all else appears to be equal, it was an abuse of discretion not to appoint the qualified and willing attorney petitioner desired.

Several opposing arguments have been raised. One, it has been suggested that the trial court is a better judge of the competency and quality of attorneys. This no doubt is true. However, the duty of the trial court is not to appoint the most qualified person available, but to appoint a qualified person. If the duty were the former, few appointments would ever be made as there would often be someone more qualified who is willing to take the case. The duty of the trial court can as easily be accomplished by appointing the attorney of defendant's choice, if he is qualified. Further, an eminently qualified attorney in whom defendant has no trust or confidence will not be as valuable to defendant as would a somewhat less qualified attorney who does have defendant's trust and confidence.

Two, the Attorney General also suggests that there may have been other reasons for not appointing Hodge. However, no such reasons appear in the record, and it is only to the record that this court can look. Moreover, it must be presumed from the fact that Hodge has been admitted to practice in California that the state deems him competent to undertake the practice of law before all of our courts, in all types of action. (Smith v. Superior Court, supra, 68 Cal.2d 547, 559, 68 Cal.Rptr. 1, 440 P.2d 65.)

Three, it has been posited that requiring the court to state a reason for not appointing the attorney of choice would put it in the uncomfortable position of having to tell the attorney he is incompetent, and would put the attorney in the uncomfortable position of having to be so told. In a small county such a disqualification might severely hamper the attorney's practice, and the court would be loath to do this. However, an attorney asking for appointment is laying his qualifications on the line. The court need not fine an attorney incompetent to handle a serious case. Dilatoriness in a previous case, lack of experience, attitude toward the court, and other matters which the court might find existed would justify the court's refusal to appoint the particular attorney.

As before stated, an indigent defendant is not entitled as a matter of law to the appointment of a willing attorney of defendant's own choice, nor as a matter of law may such appointment be denied. The totality of the circumstances applicable to the situation at the time of the defendant's request is the criterion upon which the court's discretion should rest. The mere refusal of a court to appoint the defendant's choice does not determine an abuse of discretion. We emphasize that our determination that the court's refusal in the instant case to appoint defendant's choice of counsel was error is based upon the unusual and peculiar circumstances evident here and is not necessarily a precedent to be followed in different circumstances.

Let a writ of mandamus issue commanding respondent court to vacate its order appointing Richard H. Breiner and to enter an order appointing Richard Hodge as counsel for petitioner.



1.  Amicus curiae briefs have been filed herein by National Lawyers Guild, Mexican American Legal Defense and Educational Fund, and attorney John E. Thorne.

2.  On December 6, 1971, petitioner requested the court to set forth its reasons for denying petitioner's motion. The respondent court issued its order, dated December 14, 1971, stating the following:‘[T]he Court hereby declares that its reasons for said action included the following:‘(a) That at the time of the court-appointment of Richard Breiner on November 2, 1971 as attorney for defendant Drumgo, said attorney was personally known to the Court to be competent, effective and experienced trial lawyer with years of experience in the field of criminal law. Professional services rendered to date by said attorney in this case confirms the Court's evaluation of said attorney's professional status.‘(b) That said attorney had previously served as court-appointed counsel in the County of Marin.‘(c) The declaration of defendant Drumgo filed in support of said motion to the effect that (1) he did not know Mr. Breiner, he did not want him to represent him, did not have confidence in him and would refuse to cooperate with him, and (2) that he wanted attorney Richard Hodge appointed, had confidence in and would cooperate with said attorney, was not a legal basis for the Court to terminate the appointment of Mr. Breiner and to appoint Mr. Hodge.’

BRAY*, Associate Justice. FN* Retired Presiding Justice of the Court of Appeal sitting under appointment of the Chairman of the Judicial Council.

DEVINE, P. J., and RATTIGAN, J., concur.

Copied to clipboard