GRESSETT v. SUPERIOR COURT No. A127100.
185 Cal.App.4th 114 (2010)
109 Cal. Rptr. 3d 919
MICHAEL GRESSETT, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; THE PEOPLE et al., Real Party in Interest.
Court of Appeals of California, First District, Division One.
May 28, 2010.
Michael J. Kotin for Petitioner.
Meyers, Nave, Riback, Silver & Wilson and Joseph M. Quinn for Respondent.
Edmund G. Brown, Jr., Attorney General, and Peter E. Flores, Jr., Deputy Attorney General, for Real Party in Interest the People of the State of California.
Sharon L. Anderson, County Counsel, and Rebecca J. Hooley, Deputy County Counsel, for Real Party in Interest County of Contra Costa.
Petitioner, Michael Gressett, a former senior deputy district attorney in Contra Costa County, is the named defendant (hereafter defendant) in a criminal indictment charging four counts of forced sodomy (Pen. Code, § 286, subd. (c)(2)), four counts of forced sexual penetration (Pen. Code, § 289, subd. (a)(1)), two counts of forced rape (Pen. Code, § 261, subd. (a)(2)), one count of forced oral copulation (Pen. Code, § 288a, subd. (c)(2)), one count of false imprisonment (Pen. Code, § 236), and one count of making criminal threats (Pen. Code, § 422). By this petition for writ
Following our summary denial of the petition, the Supreme Court directed us to vacate our order and issue an alternative writ.
When the petition was initially filed in this court, defendant appropriately named and served the People of the State of California as real party in interest. (§ 987.05; Sonoma County Nuclear Free Zone '86 v. Superior Court (1987) 189 Cal.App.3d 167, 173 [234 Cal.Rptr. 357]; and see Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750] (Harris).) His petition for review to the Supreme Court, however, was answered by the superior court, at the high court's invitation. When the matter was returned to this court, we named the County of Contra Costa as a real party in interest in addition to the People. Funds for payment of assigned counsel are to be paid out of the general fund of the county (§ 987.2, subd. (a)), so that the County of Contra Costa has a direct and special interest in the outcome of this writ proceeding.
The County of Contra Costa and the superior court have filed returns to the alternative writ, to which defendant has replied. (Cal. Rules of Court, rule 8.487(b).)
The crimes charged in the indictment are alleged to have occurred May 8, 2008. The indictment names a deputy district attorney as the alleged victim. The People are represented below by the Attorney General, the Contra Costa District Attorney's Office being recused from the case. And, the members of the Contra Costa County Superior Court have also recused themselves. The challenged ruling was made by the judge assigned by the Chief Justice. (Cal. Const., art. VI, § 6.)
Defendant was originally charged by criminal complaint (§ 859) filed November 21, 2008. He was dismissed from the Contra Costa District Attorney's Office following the filing of the complaint, and two private attorneys, Michael Cardoza and Daniel J. Russo (Russo), served as his counsel around that same time. The case did not proceed to preliminary hearing, however, as the Contra Costa County Grand Jury returned an indictment against defendant filed on October 19, 2009. (§§ 940-951.)
On August 17, 2009, prior to the filing of the indictment, defendant requested appointment of Attorney Russo as assigned counsel at public expense. (§ 987.2, subd. (d).) That motion was denied November 5, 2009, without prejudice. Among the reasons for the superior court's analytical decision were defendant's failure to prove his indigency, and the fact that the Contra Costa County Public Defender and the county's alternative defender had not declared themselves unavailable.
Subsequently, defendant was found eligible for the services of the public defender. Thereafter, that office and the alternative defender declared conflicts of interest. He was then referred to the Contra Costa County Criminal Conflicts Panel. The panel selected Attorney Michael J. Kotin, a retired chief assistant public defender of Contra Costa County, to represent him, and Attorney Kotin appeared with him on November 30, 2009. During this proceeding, Attorney Kotin acknowledged several times he was prepared to represent the defendant. However, on December 2, 2009, through Attorney Kotin, defendant once again moved to have Attorney Russo appointed as his assigned counsel. The renewed motion was denied December 7, 2009, the trial court again articulating the reasons for exercising its discretion. This petition followed.
Defendant contends that he established good cause requiring the superior court to appoint Attorney Russo rather than a county-contracted conflicts panel attorney. In doing so, he relies primarily on Harris to argue that the superior court abused its discretion when it denied his motion.
"In exercising its discretion, the trial court should take into account not only the foregoing subjective factors, but also objective factors such as previous representation of defendant by the requested attorney in the underlying or in any other proceeding, any extended relationship between defendant and the requested attorney, the familiarity of the requested attorney with the issues and witnesses in the case, the duplication of time and expense to the county of appointing an attorney other than the requested attorney, and the timeliness of the request." (Alexander v. Superior Court, supra, 22 Cal.App.4th 901, 916.)
Defendant strenuously likens his case to the defendants in Harris. He stresses the fact that he has developed trust and confidence in Attorney Russo during the 10 months that Russo was his retained counsel. (Harris, supra, 19 Cal.3d 786, 798; see also id. at p. 793; People v. Chavez, supra, 26 Cal.3d 334, 346.) He also argues that Russo does not frequently appear in Contra Costa County, pointing out that witnesses in the case will likely include members of the Contra Costa District Attorney's and Public Defender's Offices as well as members of the superior court bench, so a conflict of interest is less likely.
The trial court was also required to consider whether failure to appoint Attorney Russo would necessitate substantial expense and duplication of effort. (Harris, supra, 19 Cal.3d 786, 799.) Either Attorney Kotin or Attorney Russo would be paid at an hourly rate set by the county.
Defendant argues that appointment of any attorney other than Russo will require additional expense and duplication of effort. The County appears to have accepted this argument; however, we find it unsupported by the record. Attorney Russo represented in his declaration in the Harris motion that he has already reviewed existing discovery, listened to "countless hours of audio taped interviews," and has devoted 200 unpaid hours to the case.
Upon our detailed review of Harris, where the California Supreme Court found an abuse of discretion in the superior court's failure to appoint Attorneys Susan Jordan and Leonard Weinglass to represent defendants Emily and William Harris, we find the circumstances presented in the case before us patently distinguishable. Charged by grand jury indictment in Alameda County with the kidnapping of Patty Hearst (§ 209), and facing life in prison, the indigent Harris defendants had asked for the specific appointment of Jordan and Weinglass. The Harris defendants were allegedly members of the Symbionese Liberation Army, and had been the subject of related prosecutions. Attorneys Jordan and Weinglass made the following specific and detailed showing in support of the motion to appoint them:
"Attorney Weinglass stated inter alia that he was appointed in October 1975 by the Los Angeles Superior Court to represent petitioner Emily Montague Harris in a proceeding brought on an eleven-count indictment involving in general the robbery of a Los Angeles sporting goods store; that that representation continued for approximately ten months, including numerous pretrial motions and a six-week trial, and concluded with sentencing in August 1976; that he currently represents both petitioners on appeal from that judgment; that his professional time has been almost exclusively devoted to the representation of the Harrises since October 1975; that in connection with his defense in the Los Angeles case it was necessary for him to coordinate facts and trial strategies with attorneys for eight other persons then and now subject to criminal proceedings for activities in connection with the so-called Symbionese Liberation Army, which activities were of some two years in duration and involved a large number of people; that many of the defense strategies and motions made in the Los Angeles proceeding will have to be renewed in modified form in the instant proceeding; that in the course of the Los Angeles prosecution he became familiar with vast amounts of documentary material involved in the case, including an F.B.I. report of over 800 pages concerning a part of the investigation, and that representation of petitioners in the instant case will also require familiarity with these materials; and that there will be many witnesses in common in the two cases.
"It also appears that Attorneys Jordan and Weinglass have familiarized themselves with the transcript in the federal case of United States v. Hearst (presently pending on appeal), in which the alleged victim of the aggravated kidnaping charged in the indictment was convicted of bank robbery and other federal offenses." (Harris, supra, 19 Cal.3d 786, 797-798, fn. 10.)
As we have seen, Attorney Russo represented defendant for 10 months from the filing of the complaint until filing of the indictment. But nothing in the record suggests that his work during that time was comparable to the extensive involvement of the attorneys in Harris in related jury trials, appeals and other proceedings. (People v. Cole, supra, 33 Cal.4th 1158, 1186.)
The Harris standard is appropriately an exacting one. Representing an alleged capital homicide defendant for 11 months and interviewing witnesses in other states was found insufficient to establish an abuse of discretion under Drumgo-Harris. (People v. Cole, supra, 33 Cal.4th 1158, 1187.) In our case the trial court properly noted and thoroughly considered the Harris factors, and denied the appointment of Attorney Russo in the exercise of its discretion. To adopt defendant's view in this case would require us to establish a
CONCLUSION AND DISPOSITION
Margulies, Acting P. J., and Banke, J., concurred.
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