ZEPEDA v. PEOPLE (1992)

OPINION AND ORDER FOR PEREMPTORY WRIT OF MANDATE

In this petition for mandate, we consider whether the trial court abused its discretion when it granted a motion to recuse the office of the public defender in a drug forfeiture case.   We find that the trial court erred in granting the motion because the district attorney (1) lacked standing to challenge the public defender's decision to provide representation, and (2) unduly delayed the filing of the motion to recuse the public defender.

On March 15, 1991, petitioner Manuel Rivera Zepeda was arrested for public intoxication.  (Pen.Code, § 647, subd. (f).)  At the time of his arrest, Zepeda was in possession of $750 in cash.   This money was seized.  (See Health & Saf.Code, § 11470 et seq.)   Five days later, the police seized his 1985 Chevrolet Blazer.   Zepeda duly filed claims for the return of the seized items.

The public defender agreed to represent Zepeda in the criminal and forfeiture matters.   On May 13, 1991, Zepeda was convicted of public intoxication and was sentenced to a year on probation.   He was then taken from the Santa Barbara County Jail and sent to San Luis Obispo County in order to serve a sentence in another case.

On July 12, 1991, the public defender served interrogatories on the district attorney, counsel for plaintiff in the forfeiture matter.   On July 24, 1991, the public defender filed an answer to the complaint in forfeiture.

On November 19, 1991, the public defender, claiming that the answers to the interrogatories were incomplete or improperly objected to, moved to compel further answers.  (Code Civ.Proc., § 2030, subd. (f)(1).)

On November 26, 1991, the prosecutor responded to this procedure by moving to recuse the public defender from representing Zepeda in the forfeiture matter.   He argued that forfeiture is a civil proceeding and not punishment for a crime (see Health & Saf.Code, §§ 11488.4, 11488.5, subd. (e);  People v. Washington (1990) 220 Cal.App.3d 912, 917, 269 Cal.Rptr. 668);  and therefore, the public defender does not have the statutory authorization to provide representation in this kind of case.  (Gov.Code, § 27706, subd. (a);  Erwin v. Appellate Department (1983) 146 Cal.App.3d 715, 717, 194 Cal.Rptr. 328;  Littlefield v. Superior Court (1979) 98 Cal.App.3d 652, 654–655, 160 Cal.Rptr. 175.)

On December 11, 1991, respondent superior court granted the motion of the district attorney to recuse the public defender.   It found that the office of the public defender may represent a defendant in a civil suit only where there is evidence of improper motives on the part of a plaintiff.   The superior court seemingly found no improper motive here.

 The public defender sought review of the ruling by way of a petition for an extraordinary writ.   Because there is a need to safeguard the relationship of attorney and client from unwarranted interference, and because an appeal would not be an adequate remedy, we have issued an alternative writ.  (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 525, 3 Cal.Rptr.2d 49;  Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273–1274, 258 Cal.Rptr. 66.)

 A trial court has the inherent authority to control the proceedings before it and “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”   (Code Civ.Proc., § 128, subd. (a)(5).)   This power includes the right to remove counsel in certain situations.  (E.g., see Maxwell v. Superior Court (1982) 30 Cal.3d 606, 619, fn. 10, 180 Cal.Rptr. 177, 639 P.2d 248 [conflict of interest];  People v. Mariposa Co. (1870) 39 Cal. 683 [whether an attorney has actually been retained by a party];  People v. Lucev (1986) 188 Cal.App.3d 551, 554, 233 Cal.Rptr. 222 [inability of defense counsel to try the case when called on calendar];  People v. Escarcega (1986) 186 Cal.App.3d 379, 397–398, 230 Cal.Rptr. 638 [incompetence];  William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, 197 Cal.Rptr. 232 [conflict of interest].)

 However, the court's power to disrupt the critical relationship between attorney and client is narrow, with all doubts resolved in favor of denial of a motion to remove counsel.  (Ingram v. Justice Court (1968) 69 Cal.2d 832, 840, 73 Cal.Rptr. 410, 447 P.2d 650;  Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 301, 254 Cal.Rptr. 853;  Conservatorship of Berry (1989) 210 Cal.App.3d 706, 716, 258 Cal.Rptr. 655;  Roswall v. Municipal Court (1979) 89 Cal.App.3d 467, 473, 152 Cal.Rptr. 337.)   Such is the case because “the involuntary removal of any attorney is a severe limitation on a defendant's right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed.”  (Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697, 122 Cal.Rptr. 778, 537 P.2d 898.)   The relationship between the public defender and his or her client is no less inviolable than if counsel had been retained.  (Ibid.;  see also Smith v. Superior Court (1968) 68 Cal.2d 547, 562, 68 Cal.Rptr. 1, 440 P.2d 65.)

We have observed that “[t]he attorney-client relationship ‘․ involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney․’  [Citation.]   In order to provide effective assistance of counsel, it is essential that a defendant have full confidence that his attorney is representing the defendant's interests with all due competence.  [Citation.]”  (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 430, 233 Cal.Rptr. 487.)   These concerns apply with equal force in those actions where the attorney, highly skilled in a specialized area of law, has gained a client's confidence and trust by agreeing to provide representation.  (Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 300, 254 Cal.Rptr. 853.)

 Here, the Attorney General does not claim there is a conflict between the public defender and Zepeda.   Nor is he claiming that the public defender is incompetent.   Rather, the Attorney General seeks to sever the attorney-client relationship upon the ground that the public defender lacks statutory authorization to provide representation to an indigent in a forfeiture case.   The Attorney General has no standing here to assert that claim.

This court held:  “The office of the county public defender is authorized to provide representation only in those classes of cases as set forth in [Government Code] section 27706.”  (Mowrer v. Appellate Department (1990) 226 Cal.App.3d 264, 267, 276 Cal.Rptr. 38.)

In Ingram v. Justice Court, supra, 69 Cal.2d 832, 73 Cal.Rptr. 410, 447 P.2d 650, the public defender agreed to provide representation to an individual in a criminal matter.   A justice of the peace requested the public defender to provide proof that the client was indigent.   The public defender refused to provide such information, and the justice of the peace then removed the public defender from the case.   The superior court granted the public defender's petition for mandamus.   The People appealed.

The Supreme Court held that the public defender had sole discretion to determine the indigency of a client and that the trial court was without authority to review this determination.  (Ingram v. Justice Court, supra, 69 Cal.2d at pp. 841–842, 73 Cal.Rptr. 410, 447 P.2d 650.)   The court ruled that, in cases where the public defender stands accused of representing those not entitled to his or her services, the sole remedy of the government is the initiation of a complaint to the county board of supervisors, pursuant to Government Code section 27703.  (Id., at p. 842, 73 Cal.Rptr. 410, 447 P.2d 650.)

Government Code section 27707, passed in response to Ingram, allows the trial court to make the final determination as to whether a defendant “is financially able to employ counsel and qualifies for the services of the public defender.”   The Attorney General asserts that Government Code section 27707 gives him standing to complain, as the statute authorizes the court to question the public defender's participation in any given case.

Such assertion overlooks that Government Code section 27707 comes into play only where there is a question of the financial ability of an indigent to retain counsel.  (Conservatorship of Berry, supra, 210 Cal.App.3d at p. 715, 258 Cal.Rptr. 655;  Roswall v. Municipal Court, supra, 89 Cal.App.3d at p. 471, 152 Cal.Rptr. 337.)   There is nothing contained in Government Code section 27707 suggesting that a trial court now has the right to question the participation of the public defender upon any grounds other than the indigency of the defendant.

Here, a recusal motion will not suffice as a vehicle for one governmental agency to question the allocation of resources by another public agency.   (Ingram v. Justice Court, supra, 69 Cal.2d at p. 842, 73 Cal.Rptr. 410, 447 P.2d 650.)  Ingram hardly stands alone for this proposition.   Citing similar policy grounds, a number of courts have been loathe to override the decision of a publicly funded entity to provide free legal services and have relegated the review of such decision to a legislative body.  (E.g., see Jarvis v. Regan (9th Cir.1987) 833 F.2d 149, 154;  Dennis v. Chang (9th Cir.1980) 611 F.2d 1302, 1308;  Brame v. Ray Bills Finance Corp. (N.D.N.Y.1977) 76 F.R.D. 25, 27;  Legal Aid Society of Nassau Co. v. Samenga (1972) 39 A.D.2d 912, 333 N.Y.S.2d 51.)

Since the Attorney General does not question whether Zepeda is “financially able to employ counsel,” and since the court cannot challenge the decision of the public defender as to the right of an indigent to be represented in a drug forfeiture case, the district attorney and the Attorney General are without standing to seek recusal of the public defender here.  (In re Brindle (1979) 91 Cal.App.3d 660, 681, 154 Cal.Rptr. 563.)

 A motion to disqualify counsel may be denied upon the ground that it was filed too late.  (River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1310, 234 Cal.Rptr. 33.)   By the same token, the review of a party's entitlement to the services of the public defender must be made at the earliest opportunity.  (See Roswall v. Municipal Court, supra, 89 Cal.App.3d at p. 475, 152 Cal.Rptr. 337.)

 Forfeiture proceedings carry with them the “inevitable burdens common to most civil proceedings:  discovery battles, depositions, seemingly endless motions, and so forth.”  (People v. Real Property (1992) 2 Cal.App.4th 787, 797, 3 Cal.Rptr.2d 577.)   Here the district attorney waited five months after the public defender's appearance in the case to bring the motion to recuse.   It was only when the motion to compel was filed by petitioner that the district attorney brought the motion to recuse.   Judges must not ignore what has become too common a practice—removal of competent counsel is sometimes sought, not to uphold the honor of the bar and to protect the county coffers, but rather to force an opponent into submission.  (See Gregori v. Bank of America, supra, 207 Cal.App.3d at p. 301, 254 Cal.Rptr. 853.)   The trial court ought to have denied the motion upon the additional ground that it was not timely filed.

We conclude that the trial court improperly granted the motion to recuse the public defender.   Let a writ of mandate issue commanding respondent superior court to set aside its order recusing the office of the public defender and to enter a new order denying the motion.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.