Public Defender’s Removal for RJA Violation upheld

Sanchez v. Superior Court of San Bernardino County (Cal. Ct. App., Oct. 22, 2024, No. E083015) 2024 WL 4717472, at *1–2

Summary: Sanchez filed for a writ of mandate ordering respondent superior court to vacate its order directing the San Bernardino County Public Defender (public defender) to assign a new attorney from its office to represent him in his criminal proceedings. The trial court issued the order after receiving evidence that the deputy public defender currently assigned to represent him made remarks citing Sanchez’s race as a factor to consider during plea negotiations, potentially in violation of the Racial Justice Act (RJA) (Pen. Code,1 § 745). The Court held that Sanchez failed to establish an abuse of discretion calling for reversal of the trial court’s order and denied  the petition.

Background

In October 2023, the People filed an information alleging petitioner committed multiple criminal offenses arising out of an incident that occurred on January 7, 2023. The public defender was appointed as defendant’s counsel to handle his case.

On December 4, 2023, the prosecutor filed a “Motion to Disclose Exculpatory Evidence to Defendant & Evaluate [deputy public defender’s] Conflict of Interest.” The motion was accompanied by a declaration from a prosecutor, stating that she engaged in a plea negotiation with the deputy public defender and, in the course of that negotiation, the deputy public defender became frustrated and stated: “ ‘I really don’t care.’ … [R]ead between the lines …. I am a white man. What do I care? It’s not my people we are incarcerating.’ ” When the prosecutor asked for clarification about the remarks, the deputy public defender stated that he expected the prosecutor to show more leniency because the prosecutor and defendant appeared to be the same race, stating: “ ‘[Y]ou are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.’ ”  The prosecutor requested that the deputy public defender’s remarks be disclosed to Sanchez and that the trial court evaluate whether a conflict existed requiring removal of the deputy public defender from petitioner’s representation.

On December 12, 2023, the trial court held a closed hearing and directed that the prosecutor’s declaration be read to Sanchez on the record and requested that he indicate whether he wanted the public defender and the specific deputy public defender identified in the declaration to continue representing petitioner. Sanchez expressed his desire that the public defender and deputy public defender assigned to his case continue to represent him. The transcript of the hearing does not disclose that petitioner was notified of any potential conflict of interest or potential claim for relief under the RJA. The transcript does not reflect that Sanchez offered to enter a waiver of any conflict or any claims.

On January 4, 2024, the trial court held a hearing on the prosecutor’s motion and qqordered that (1) the public defender’s office assign a new attorney to handle defendant’s case, and (2) the public defender take steps to isolate any persons who have worked on defendant’s case thus far from further involvement in the case. In making its order, the trial court concluded that the deputy public defender assigned to defendant’s case made comments that “at least trigge[r] the potential of an issue with the Racial Justice Act”; the failure to raise such a claim could potentially constitute ineffective assistance of counsel; any appointed appellate counsel would be bound to investigate and raise the claim in a future proceeding; and that it would be reasonable to take steps to avoid this necessity in future proceedings.

On January 16, 2024, defendant filed a petition for writ of mandate requesting that the Court of Appeal direct the trial court to vacate its order.

General Legal Principles, Standard of Review, and Issues Presented

Mandate is an appropriate method to seek review of orders concerning the designation or substitution of appointed counsel . “Generally, it is either the defendant or his counsel who requests the removal of counsel.” (People v. Cole (2004) 33 Cal.4th 1158, 1187 (Cole).) However, “[c]ounsel may also be relieved on the trial court’s own motion, over the objection of the defendant or his counsel” (ibid.), or at the urging of the prosecution (People v. Avila (2009) 46 Cal.4th 680, 694). “

The Trial Court Did Not Abuse Its Discretion in Removing Defense Counsel

The trial court’s decision to remove counsel was motivated in large part on the desire to insulate the criminal proceedings from issues arising under the RJA. However, because the RJA is “novel in concept and expansive in scope” (Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 828, 318 Cal.Rptr.3d 226), the impact of its provisions have yet to be fully applied or understood in the numerous contexts that the statute may apply. The  trial court’s  discretion in this case must be viewed in the context of the unique issues raised by the RJA law.

The RJA

The RJA, “effective January 1, 2021, added section 745 to the Penal Code. The Legislature enacted the [RJA] with the express intent ‘to eliminate racial bias from California’s criminal justice system’ and ‘to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.’ ” (Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 123.) The RJA includes a mandatory provision providing that “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (§ 745, subd. (a); Stats. 2020, ch. 317, § 3.5.) It also provides a procedural mechanism for a criminal defendant to seek relief for a violation of the statute. (§ 745, subd. (b).) Where a violation of the RJA has occurred, any resulting conviction or sentence may be rendered legally invalid, requiring retrial of an entire case after declaration of a mistrial, empaneling of a new jury, or vacatur of a judgment. (§ 745, subds. (e)(1)(A), (e)(1)(B), (e)(2).)

The RJA Created an Actual Conflict of Interest in This CaseQ

“Criminal defense counsel has the duty to investigate carefully all defenses of fact and of law that may be available to the defendant…. ‘The defendant can reasonably expect that before counsel undertakes to act, or not to act, counsel will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.’ ” (In re Hill (2011) 198 Cal.App.4th 1008, 1016-1017. This duty extends to investigation and evaluation of potential claims under the RJA, since the failure to timely raise an RJA violation can constitute ineffective assistance of counsel. (People v. Simmons (2023) 96 Cal.App.5th 323, 337 [failure to raise a known RJA violation at the first opportunity constitutes ineffective assistance of counsel].)

The nature of any investigation in this case includes an assessment of whether a specific deputy public defender may harbor an unintentional or unconscious implicit bias, it is simply not an inquiry which that specific deputy public defender is equipped to conduct. Implicit bias includes unconscious assumptions and the specific deputy public defender cannot reasonably be expected to even recognize its existence absent input from another, objective attorney. The tension between Sanchez’s right to have counsel fully investigate and pursue any potentially meritorious RJA claim and the specific deputy public defender’s inability to objectively perform this task— creates the conflict in this case.

The record in this case shows that an actual conflict of interest exists, the trial court did not abuse its discretion in ordering that a specific deputy public defender be removed from the case.

The Trial Court Could Also Remove the Deputy Public Defender To Prevent a Risk of Substantial Impairment of the Proceedings

Tqhe trial court also stated that its order was intended to forestall any potential future RJA claim. Indeed, petitioner concedes that the trial court was concerned with insulating the proceedings from a future RJA claim, and further acknowledges that this was a legitimate concern, separate and apart from any conflict of interest. Removal of counsel to prevent a potential violation of the RJA was also within the trial court’s discretion under the circumstances presented in this case.

Our Supreme Court has repeatedly reaffirmed that a trial court has authority to remove appointed counsel to ‘prevent substantial impairment of court proceedings.’

Disposition

The petition for writ of mandate is denied. The previously ordered stay is vacated upon issuance of the remittitur. (Cal. Rules of Court, rule 8.490(d).)

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