represent a petitioner seeking habeas relief, in which case the court must appoint alternate
counsel.
In Reed’s case, respondent superior court determined that he had made a prima
facie showing of entitlement to relief, and the court issued an order to show cause and set
an evidentiary hearing. After Reed’s retained counsel withdrew, the court appointed the
Riverside County Public Defender (the Public Defender) to represent Reed, but the
Public Defender attempted to decline the appointment.1 The court determined that the
Public Defender was required to accept the appointment under Government Code section
27706, subdivision (a) (section 27706(a)), unless he was unavailable. (Unlabeled
statutory citations refer to the Government Code.) The court further concluded that the
Public Defender had not made such a showing of unavailability, and the court therefore
compelled the Public Defender to represent Reed. The Public Defender filed the instant
petition for writ of mandate challenging the court’s order.
1 We use “the Public Defender” to refer to the Public Defender of Riverside County and use the uncapitalized version of the term to refer to public defenders in general.
2
We hold that section 27706, subdivision (g) (section 27706(g)) governs public
defenders’ representation of habeas petitioners like Reed, not section 27706(a). Under
section 27706(g), public defenders have discretion to decline to represent a petitioner,
and they need not make any showing of unavailability. We accordingly issue a writ of
mandate directing the trial court to vacate its order compelling the Public Defender to
represent Reed.
BACKGROUND
In August 2020, a jury convicted Reed of pimping, pandering, human trafficking,
and rape involving two victims.2 (Pen. Code, §§ 236.1, subd. (b), 261, subd. (a)(2),
266h, subd. (a), 266i, subd. (a).) The jury also found that he committed a qualifying sex
offense against multiple victims under the one strike law. (Id., § 667.61, subd. (e)(4).)
The trial court sentenced him to a determinate term of 21 years four months in prison,
plus an indeterminate term of 30 years to life.
Reed is African American. In June 2024, he filed the petition for writ of habeas
corpus seeking relief under the RJA. The trial court issued an order to show cause “why
relief should not be granted on the ground that [Reed] suffered a violation of the [RJA]
because the prosecutor and law enforcement witnesses who testified as experts used
‘racially discriminatory language’ during [his] trial, specifically by referring to [Reed] as
a ‘gorilla pimp.’”
2 We take judicial notice of the record in Reed’s direct appeal from the judgment, People v. Reed (Nov. 7, 2022, E075783) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
3
In April 2025, the court set an evidentiary hearing on the matter. That same
month, Reed’s retained counsel filed an “ex parte motion to appoint counsel for indigent
defendant.” (Capitalization and boldface omitted.) According to counsel’s declaration,
her fee agreement with Reed excluded representation in any evidentiary hearing, and he
had not paid her to represent him in an evidentiary hearing. In addition, her husband had
just been released from the hospital, and she needed to care for him during the ensuing
six-week rehabilitation period. She stated that the emotional and mental stress caused by
her husband’s medical condition would make it difficult for her to focus on Reed’s case.
The court treated counsel’s ex parte motion as a motion to withdraw and granted
the motion. Reed indicated that he did not have the ability to retain new counsel and
asked the court to appoint counsel, and the court appointed the Public Defender to
represent Reed. The Public Defender made “a quasi attempt at asking to be relieved” as
counsel. The court then ordered the Public Defender “to submit briefing . . . addressing
[his] position that the trial court did not have the authority to appoint the Office of the
Public Defender to prosecute a petition for writ of habeas corpus.” The court further
ordered the Public Defender to (1) explain his position in light of Bemore v. Superior
Court (2025) 108 Cal.App.5th 1125 (Bemore) and Charlton v. Superior Court (1979) 93
Cal.App.3d 858 (Charlton) and (2) “address the interplay between” section 27706 and
Penal Code section 987.2.
The Public Defender filed a brief arguing that under section 27706(g), he had
discretion to decline appointments in postconviction habeas proceedings and other
4
proceedings “beyond the core mission of trial work.” He asserted that the decision to
decline appointment in this case was “not a reflection on the merits” of Reed’s petition.
Rather, the decision was based on the office’s “current resources and obligations to [its]
current clients,” the “lack of funding for habeas defense,” and the office’s “mandatory
mission of representing indigent people facing charges in trial court, consistent with
[section] 27706.” He further argued that Penal Code section 987.2 did not affect his
discretion, because it merely governed the order of priority for appointed counsel. That
is, the statute gives the Public Defender priority of appointment, but if the Public
Defender is unavailable for appointment, then the court must select from other options.
The court heard argument on the issue in June 2025. The People took no position
on the issue. Supervising public defender Aimee Vierra appeared for the Public
Defender. Vierra acknowledged that the Public Defender was obligated to accept
appointments to represent defendants who were “pre-conviction,” with some limited
exceptions. But she reiterated that the Public Defender had discretion to decline
appointments for postconviction habeas proceedings under section 27706(g). She
explained: “What we’re talking about here is RJA which is a habeas writ, right. And we
have 13,000 people that are sentenced from this county either in state prison or through
[Penal Code section 1170, subdivision (h),] still with the Sheriff’s Department. That
group of people sends me a habeas writ about five times a day related to conditions of
confinement and other such things.” Vierra asserted that the Public Defender was unable
to represent all of the habeas petitioners asking the office for help. She alternatively
5
argued that Reed was “in an appellate position,” and under the second sentence of section
27706(a), the Public Defender could choose whether to accept an appellate appointment.
Vierra observed that the Public Defender had chosen to represent some petitioners
for purposes of RJA habeas petitions. That was because the office had recently
represented those petitioners for purposes of resentencing under Senate Bill No. 483
concerns the court’s selection of appointed counsel. (Pen. Code, § 987.2, subds. (d), (e).)
The first sentence of section 27706(a) concerns “the trial phase of the case.”
(Mowrer v. Appellate Department (1990) 226 Cal.App.3d 264, 267 (Mowrer).) It states:
“Upon request of the defendant or upon order of the court, the public defender shall
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 courts at all stages of the proceedings, including the preliminary
examination.” (§ 27706(a).) The first sentence thus requires public defenders to “defend
. . . at all stages of the proceedings” indigent individuals who are charged with an offense,
9
and public defenders “shall” provide that defense at the individual’s request or if so
ordered by the court. (Ibid.) Public defenders generally have no “power to decline” an
appointment or a request to defend an indigent person charged with a criminal offense.
(Ligda v. Superior Court (1970) 5 Cal.App.3d 811, 827; Williams v. Superior Court
(1996) 46 Cal.App.4th 320, 327 [“the statute requires the public defender to defend those
indigent clients who request its services”].) They are “employed by the people to render
such services.” (Ligda, at p. 827.) But the court may relieve public defenders if they
have a conflict of interest or otherwise show that they are unavailable.3 (Pen. Code,
§ 987.2, subds. (a)(3), (d), (e); People v. Chavez (1980) 26 Cal.3d 334, 344-345; Aceves
v. Superior Court (1996) 51 Cal.App.4th 584, 592.)
The second sentence of section 27706(a) further addresses public defenders’ duties
in the trial phase. It states: “The public defender shall, upon request, give counsel and
advice to such person about any charge against the person upon which the public
defender is conducting the defense . . . .” (§ 27706(a).)
The remainder of the second sentence of section 27706(a) concerns appeals in
criminal cases. In relevant part, it states: “The public defender . . . shall prosecute all
appeals to a higher court or courts of any person who has been convicted, where, in the
3 When assessing availability for that purpose, the court may “appropriately consider the relative ability of proposed counsel to prepare for a proceeding.” (Bemore, supra, 108 Cal.App.5th at p. 1154.) “The court may consider several factors, such as the number and trial age of cases an attorney already has, the expected length of those trials and their scheduled dates, as well as those of related pending motions. One other significant factor is the reliability of counsel’s representation of readiness based upon past experience.” (Williams v. Superior Court, supra, 46 Cal.App.4th at p. 331.)
10
opinion of the public defender, the appeal will or might reasonably be expected to result
in the reversal or modification of the judgment of conviction.” (§ 27706(a).) The second
sentence “vests the office of the county public defender with the broad discretion to
choose which clients it wishes to represent on appeal.” (Mowrer, supra, 226 Cal.App.3d
at p. 267.) Although the statute uses the phrase “‘shall prosecute all appeals,’” nothing in
the statute requires public defenders “to make any determination of the merit of the
proposed appeal,” which is what may trigger the duty to prosecute an appeal. (Ibid.)
Section 27706(a) therefore “is intended to . . . (a) clothe the office of the county public
defender with the discretion to prosecute any appeals that its staff of attorneys believe to
be meritorious, and (b) ward off the blows of those seeking to improperly interfere with
the exercise of that discretion.” (Mowrer, at p. 267.)
The foregoing provisions of section 27706(a) have existed in a similar form since
1921, when the Legislature enacted them as part of a general enabling statute permitting
cities and counties to establish public defender offices. (Stats. 1921, ch. 245, § 5, p. 355;
see Ingram v. Justice Court (1968) 69 Cal.2d 832, 836, fn. 1 (Ingram), superseded on
another ground by § 27707.) Over the years, the Legislature has added subdivisions to
section 27706 that authorize public defenders to represent indigent parties in other
circumstances.
The Legislature added subdivision (g) to section 27706 in 1975. (Stats. 1975, ch.
1125, § 2, p. 2744; Sen. Bill No. 1018 (1975-1976 Reg. Sess.); In re Brindle (1979) 91
Cal.App.3d 660, 679.) That subdivision states: “Upon the order of the court or upon the
11
request of the person involved, the public defender may represent any person who is not
financially able to employ counsel in a proceeding of any nature relating to the nature or
conditions of detention, of other restrictions prior to adjudication, of treatment, or of
punishment resulting from criminal or juvenile proceedings.” (§ 27706(g).)
While section 27706 governs public defenders’ duties, Penal Code section 987.2
governs the court’s selection of counsel to represent an indigent person “in a criminal
trial, proceeding, or appeal.” (Id., subd. (a).) That includes the court’s selection of
counsel to represent a habeas petitioner in noncapital cases. (Bemore, supra, 108
Cal.App.5th at p. 1148.) The statute directs the court to “first utilize the services” of the
county public defender when selecting counsel for appointment. (Pen. Code, § 987.2,
subds. (d), (e).) If the county public defender is “‘unavailable,’” then “the statute permits
appointment of alternate defense counsel according to a specific order of priority.”
(Bemore, at p. 1152.) Alternate counsel includes the second public defender or alternate
public defender, someone from a panel of contract attorneys, and any other private
counsel. (Pen. Code, § 987.2, subds. (d), (e); Bemore, at p. 1152.) Additionally, the
statute provides that alternate counsel shall be compensated from the county general fund
“[i]n a case in which the court finds that, because of a conflict of interest or other reasons,
the public defender has properly refused” to represent the indigent person. (Pen. Code,
§ 987.2, subd. (a)(3).)
12
II. Applicability of section 27706(g) to representation of habeas petitioners
The Public Defender argues that representation of an indigent person in
prosecuting a habeas petition falls under section 27706(g), not section 27706(a). He
contends that the court therefore erred by compelling him to represent Reed under the
first sentence of section 27706(a). We agree.
The first sentence of section 27706(a) refers to “defend[ing]” an indigent person in
proceedings in which they are charged with an offense. In a similar vein, the second
sentence addresses public defenders’ provision of counsel and advice about charges on
which they are “conducting the defense.” (Ibid.) But section 27706(g) refers more
broadly to “represent[ing]” an indigent person “in a proceeding of any nature.” The
petitioner seeking a writ of habeas corpus is not defending a criminal action—they are
prosecuting the writ. (Pen. Code, § 1473, subd. (a) [“A person unlawfully imprisoned or
restrained of their liberty, under any pretense, may prosecute a writ of habeas corpus to
inquire into the cause of the imprisonment or restraint”].) Moreover, habeas petitions are
“separate actions” (Briggs v. Brown (2017) 3 Cal.5th 808, 839) and “special
proceeding[s]” that are “not entirely analogous to either” civil or criminal proceedings (In
re Scott (2003) 29 Cal.4th 783, 815, fn. 6). Habeas petitions thus fit squarely within the
language of section 27706(g) providing for public defenders to represent individuals (not
defend them) in a proceeding of any nature.
13
This court’s decision in Polakovic v. Superior Court (1972) 28 Cal.App.3d 69
(Polakovic) is instructive. Private counsel in that case sought compensation under Penal
Code section 987.2 for representing an indigent person in prosecuting two petitions for
writ of prohibition. (Polakovic, at pp. 71-72.) We held that Penal Code section 987.2
authorized the compensation. (Polakovic, at p. 76.) Our conclusion was based in part on
then-recent changes to the statutory language. (Id. at pp. 72-73.) The former version of
the statute authorized compensation “‘[i]n any case in which counsel is assigned in the
superior court to defend a person . . . who is charged therein with the commission of a
crime.’” (Id. at p. 72.) The amended statute changed the “wording from one appointed to
‘defend’ an indigent ‘charged therein’ to one appointed to ‘represent’ an indigent in a
‘criminal trial, proceeding or appeal.’” (Id. at pp. 72-73.) We concluded that the
amendment “clearly broaden[ed] the scope of the statute,” and counsel “was representing
his client in a ‘criminal trial, proceeding or appeal’” when he prosecuted the writ
petitions. (Id. at p. 73.) Counsel’s request for compensation therefore was “consistent
with the statutory language.” (Ibid.)
Consistent with Polakovic, our interpretation of section 27706 gives effect to the
Legislature’s decision to use different terms to describe public defenders’ roles in
different circumstances. The statute uses “defend” when describing public defenders’
duty to provide a defense in the superior court but not when describing their authority to
act beyond providing a defense. In that instance, they are “prosecut[ing]” appeals
(§ 27706(a)) or “represent[ing]” petitioners in other “proceeding[s]” (§ 27706(g)). “It is
14
a cardinal rule of construction that the several parts of a statute must be read together and
harmonized, when reasonably possible, so as to discover and give effect to the intent of
the Legislature.” (Ingram, supra, 69 Cal.2d at p. 839.)
Habeas petitions also fit within the further description of proceedings in section
27706(g). The subdivision applies to proceedings “relating to the nature or conditions of
detention, of other restrictions prior to adjudication, of treatment, or of punishment
resulting from criminal or juvenile proceedings.” (§ 27706(g).) That list describes
challenges properly brought in habeas proceedings.
A “necessary prerequisite for issuance of the writ [of habeas corpus] is the custody
or restraint of the petitioner by the government.” (People v. Villa (2009) 45 Cal.4th
1063, 1068.) An “individual in custody for a crime (or alleged crime) may—within
limits—challenge the legality of that detention on habeas corpus. A petitioner in custody
can also challenge the conditions of confinement, a challenge related not to the
petitioner’s underlying conviction but instead to his or her actual confinement.” (Id. at
p. 1069.) In addition, habeas jurisdiction lies to challenge “‘alleged mistreatment or
illegal treatment of prisoners inside penal institutions’” (In re Williams (2015) 241
Cal.App.4th 738, 743) or the claimed failure to provide proper treatment to defendants
declared mentally incompetent (In re Lerke (2024) 107 Cal.App.5th 685, 696). Habeas
review also is available to challenge a purportedly illegal sentence. (In re Harris (1993)
5 Cal.4th 813, 839, disapproved on another ground by Shalabi v. City of Fontana (2021)
11 Cal.5th 842, 855 & fn. 5.)
15
Challenges to the legality of a petitioner’s detention and the conditions of their
confinement are proceedings “relating to the nature or conditions of detention.”
(§ 27706(g).) Challenges to a petitioner’s alleged improper treatment are proceedings
“relating to the nature or conditions . . . of treatment.” (Ibid.) And challenges to a
petitioner’s sentence are proceedings “relating to the nature or conditions . . . of
punishment.” (Ibid.)
Moreover, challenges “relating to the nature or conditions . . . of other restrictions
prior to adjudication” may also be brought by habeas petitions. (§ 27706(g).) According
to the legislative history for section 27706(g), “restrictions imposed prior to adjudication”
include things like the “setting of bail, travel restrictions, etc.” (Assem. Off. of Research,
3d reading analysis of Sen. Bill No. 1018 (1975-1976 Reg. Sess.), pp. 1-2.) “Habeas
corpus is an appropriate vehicle by which to raise questions concerning the legality of
bail grants or deprivations.” (In re McSherry (2003) 112 Cal.App.4th 856, 859.) And
conditions of pretrial release may also be challenged by way of a habeas petition. (See In
re Webb (2019) 7 Cal.5th 270, 272-273 [petitioner challenging a condition of release on
bail]; In re York (1995) 9 Cal.4th 1133, 1138-1139 [petitioners challenging conditions of
release on their own recognizance].)
In sum, habeas proceedings are “proceeding[s] of any nature” in which public
defenders may “represent” the petitioner, not defend the petitioner, and section 27706(g)
describes the types of challenges brought in habeas proceedings. (§ 27706(g).) The plain
16
language of the statute demonstrates that the Public Defender’s representation of a habeas
petitioner falls under section 27706(g), not section 27706(a).
The trial court relied on Charlton to conclude otherwise. To the extent that
Charlton can be read to require a contrary conclusion, we disagree with Charlton.
The indigent habeas petitioner in Charlton wanted his privately retained counsel to
continue to represent him by court appointment. (Charlton, supra, 93 Cal.App.3d at
pp. 860, 863.) The trial court determined that it had to appoint the county public
defender to represent the habeas petitioner, and the public defender was available to
accept the appointment. (Id. at pp. 860, 863.) The petitioner then sought a writ of
mandate compelling the trial court to appoint his private counsel. (Id. at p. 860.) The
Charlton court denied the petition for writ of mandate, holding: “[I]n habeas corpus
proceedings in which an indigent petitioner is entitled to and desires appointed counsel,
the court is required to appoint the public defender if there is one, provided the public
defender does not have a conflict of interest or cannot represent the petitioner for other
good cause.” (Id. at p. 863.)
Charlton reasoned that Penal Code section 987.2 “applies to habeas corpus
proceedings by implication,” because “it refers to the appointment of assigned counsel
for indigents ‘in a criminal trial, proceeding or appeal.’” (Charlton, supra, 93
Cal.App.3d at p. 862.) Moreover, under Penal Code section 987.2, the trial court had no
authority to assign private counsel unless the county had no public defender or “the
public defender is unable because of a conflict of interest or other reasons to act.”
17
(Charlton, at p. 863.) But the county public defender was available in Charlton, so those
exceptions did not apply. (Ibid.) The court also reasoned: “Government Code section
27706, subdivision (a) requires that the public defender must upon request represent any
indigent ‘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.’ The habeas corpus
hearing is necessarily a proceeding relating to the commission of an offense within the
courts listed.” (Id. at p. 862.) That is the only reference to section 27706 in the opinion,
and the case does not contain any further analysis of section 27706.
Charlton does not persuade us that section 27706(a) requires public defenders to
represent indigent habeas petitioners. “The scope of the ‘[l]anguage used in any
opinion’” must “‘be understood in the light of the facts and the issue then before the
court, and an opinion is not authority for a proposition not therein considered.’” (V Lions
Farming, LLC v. County of Kern (2024) 100 Cal.App.5th 412, 423.) The public defender
was not attempting to decline the appointment in Charlton, so there was no dispute about
whether the public defender had the authority to do that under section 27706 or about
which subdivision of section 27706 applied—subdivision (a) or subdivision (g). In that
respect, Charlton’s statement that a habeas hearing is necessarily a “stage[] of the
proceedings” within the meaning of section 27706(a) must be understood as limited.
Regardless of whether the court appointed the county public defender under subdivision
(a) or subdivision (g) of section 27706, Penal Code section 987.2 determined the result in
Charlton.
18
Moreover, Charlton failed to recognize that section 27706(a) requires public
defenders to “defend” an indigent person, not “represent” them. (Charlton, supra, 93
Cal.App.3d at p. 862.) It failed to acknowledge that section 27706(g) applies to the
broader circumstances in which public defenders “may represent” petitioners in “a
proceeding of any nature.” And it failed to acknowledge that section 27706(g) describes
typical habeas challenges. Charlton did not even acknowledge that section 27706(g)
exists. We consequently disagree with Charlton’s analysis to the extent that the court
concluded that section 27706(a) governs public defenders’ representation of habeas
petitioners.4
The trial court asked the Public Defender to explain his position in light of Bemore
as well. Bemore does not compel a different result. That case did not interpret section
27706, and the opinion does not cite section 27706. Rather, Bemore concerned the trial
court’s selection of appointed counsel under Penal Code section 987.2. (Bemore, supra,
108 Cal.App.5th at pp. 1134-1135.) Over the petitioner’s objection, the trial court
appointed the county public defender to represent the petitioner in prosecuting his RJA
habeas petition. (Bemore, at p. 1134.) The public defender wanted to represent the
petitioner (id. at p. 1158), but the petitioner wanted to be represented by private counsel
4 We are similarly unpersuaded by the concurring opinion, which relies on Charlton to conclude that the first sentence of section 27706(a) governs the Public Defender’s duty to represent Reed. (Conc. opn., post, at pp. 1, 5-7.) We also note that the concurring opinion appears to be inconsistent with this court’s opinion in Gardner v. Appellate Division of Superior Court (2019) 41 Cal.App.5th 1139 (Gardner). Gardner concluded that the first sentence of section 27706(a) “applies only in ‘the trial phase’” of a case. (Gardner, at p. 1145.)
19
who had represented him in prior habeas proceedings. (Id. at pp. 1133-1134.) Bemore
vacated the order appointing the county public defender and directed the court to appoint
the requested private counsel on the basis of various provisions in Penal Code section
987.2. (Bemore, at p. 1135.) The case has no bearing on which subdivision of section
27706 governs public defenders’ representation of habeas petitioners.
Finally, Ingram is the only California Supreme Court case to address the
applicability of section 27706 to writ proceedings, and our interpretation of section 27706
is consistent with Ingram. Our high court decided Ingram before the Legislature added
subdivision (g) to section 27706 in 1975. The case involved a postconviction motion to
set aside the judgment, “i.e., a petition for writ of error coram nobis.” (Ingram, supra, 69
Cal.2d 832 at p. 843.) The county public defender was representing the movant and
argued that the movant was denied the right to counsel when he was convicted eight
years earlier. (Id. at p. 835.) The issue in Ingram was whether the trial court had the
power to review the public defender’s determination that an accused who requested the
public defender’s services was indigent. (Id. at pp. 834-835.) Ingram held that the trial
court could not review that determination, even if the accused requests the public
defender’s services “for a collateral attack on a final judgment rather than a defense to a
pending charge.”5 (Id. at p. 835.)
5 In response to Ingram, the Legislature enacted section 27707, which provides that the court “may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender.” (§ 27707, subd. (a); Roswall v. Municipal Court (1979) 89 Cal.App.3d 467, 471.)
20
Ingram reasoned that section 27706(a) did not preclude the public defender from
representing an indigent person in writ proceedings attacking the final judgment.
(Ingram, supra, 69 Cal.2d at p. 843.) The court observed that the statute “directs the
public defender to represent indigents ‘charged with the commission of any . . . offense’;
but it also directs him to do so ‘at all stages of the proceedings,’ and in particular to
prosecute on behalf of such persons ‘all appeals to a higher court . . . where, in his
opinion, the appeal will or might reasonably be expected to result in the reversal or
modification of the judgment of conviction.’” (Ibid.) The court explained that a coram
nobis petition is “‘“part of the proceedings”’” in a criminal case, and “‘the questions that
may be raised on coram nobis are as crucial as those that may be raised on direct
appeal.’” (Ibid.) The court accordingly concluded that if “the public defender reasonably
believes that a judgment, although final, is so defective as to be subject to a successful
collateral attack, whether by coram nobis or habeas corpus, it does no violence to the
statute to allow him to represent such an indigent at the latter’s request.” (Ibid.)
According to Ingram, public defenders were “allow[ed]” to represent coram nobis
and habeas petitioners, because those proceedings were analogous to direct appeals.
(Ingram, supra, 69 Cal.2d at p. 843; see Gardner, supra, 41 Cal.App.5th at p. 1146
[Ingram held that “by using the word ‘appeals,’ the Legislature did not intend to exclude
collateral attacks that are the functional equivalent of appeals”].) But the court did not
conclude, like the trial court in this case, that public defenders are required to represent
petitioners under the first sentence of section 27706(a). Moreover, because our high
21
court decided Ingram before section 27706(g) existed, the court had no occasion to
consider whether that subdivision applies to public defenders’ representation of writ
petitioners seeking postconviction relief. Ingram consequently does not change our
interpretation of section 27706.
For all of these reasons, we conclude that the Public Defender’s representation of
an indigent person in prosecuting a habeas petition falls under section 27706(g), not
section 27706(a). The trial court erred by ordering the Public Defender to represent Reed
under the first sentence of section 27706(a).
III. Discretion to decline representation under section 27706(g)
The Public Defender also argues that under section 27706(g), he had discretion to
decline to represent Reed. We agree, and we accordingly conclude that the trial court’s
reliance on section 27706(a) was prejudicial.
Public defenders have no power to decline an appointment to defend an indigent
person in the trial phase of a case, but they may be relieved if they have a conflict of
interest or make some other showing of unavailability. That is because the first sentence
of section 27706(a) states that public defenders “shall defend” indigent individuals.
“Ordinarily, the term ‘shall’ is interpreted as mandatory and not permissive. Indeed, ‘the
presumption [is] that the word “shall” in a statute is ordinarily deemed mandatory and
“may” permissive.’” (People v. Standish (2006) 38 Cal.4th 858, 869.)
22
The distinction between “shall” and “may” is “particularly acute when both words
are used in the same statute.” (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th
421, 433.) That is the case here. In contrast to section 27706(a), section 27706(g) uses
the term “may”—public defenders “may represent” indigent individuals in certain
proceedings, upon request or upon order of the court. No other subdivision in section
27706 uses “may” to describe public defenders’ representation of the indigent. The
subdivisions all state that public defenders shall defend, shall represent, or shall prosecute
appeals or actions for the indigent (§ 27706, subds. (b)-(f)), although some subdivisions
condition public defenders’ duty on their assessment of the case. (E.g., id., subd. (c)
[upon request, the public defender shall defend an indigent person in civil litigation if “in
the judgment of the public defender, the person is being persecuted or unjustly
harassed”].)
“May” means “you can do it if you want, but you aren’t being forced to.” (County
of Orange v. Bezaire (2004) 117 Cal.App.4th 121, 129.) That plain meaning of the term
applies to section 27706(g): Public defenders may represent the indigent in proceedings
described by section 27706(g) if they are so inclined, but they are not required to do so.
They may instead decline the request by the indigent or decline the appointment by the
court.
Our interpretation is consistent with how courts have treated the similarly
discretionary provision regarding appeals in section 27706(a). For instance, in Mowrer,
the public defender declined to represent the defendant on appeal from the judgment in a
23
misdemeanor case. (Mowrer, supra, 226 Cal.App.3d at p. 266.) The public defender
failed to opine that the appeal would not “reasonably be expected to result in the reversal
or modification of the judgment of conviction” (§ 27706(a)), and the appellate division
refused to relieve the public defender unless he made a statement to that effect. (Mowrer,
at p. 266.) Mowrer held that the appellate division could not compel the public defender
to prosecute the appeal or file a “declaration of no merit.” (Id. at pp. 267-268.) Rather,
section 27706(a) “vests the office of the county public defender with the broad discretion
to choose which clients it wishes to represent on appeal.” (Mowrer, at p. 268.) The court
had no “power to appoint the public defender in an appeal against his or her will.”6
(Gardner, supra, 41 Cal.App.5th at p. 1145.)
Because section 27706(g) empowers the Public Defender to decline to represent
Reed, the trial court’s application of section 27706(a) in this case was prejudicial. The
6 The concurring opinion states that “[e]xcept for subdivision (g), all of the other provisions of section 27706 relate to situations in which a statutory or constitutional right to counsel exists.” (Conc. opn., post, at p. 4.) That is incorrect. For example, subdivision (b) of section 27706 relates to “prosecut[ing] actions for the collection of wages and other demands . . . where the sum involved does not exceed one hundred dollars,” and subdivision (c) relates to defending any indigent person “in any civil litigation.” We are unaware of any statutory right to counsel in the cases described by subdivisions (b) and (c), and there generally is no constitutional right to counsel in civil cases. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) The concurring opinion further states that section 27706(g) “is the only subdivision for which the public defender’s duties to an indigent person are not mandatory.” (Conc. opn., post, at p. 4.) That too is incorrect. For example, section 27706(a) gives public defenders discretion to decline to represent defendants on direct appeal (Mowrer, supra, 226 Cal.App.3d at p. 268), even though defendants have a constitutional right to counsel “on the first appeal granted as a matter of right from a criminal conviction” (People v. Delgadillo (2022) 14 Cal.5th 216, 224). Public defenders have no mandatory duty to represent indigent defendants on appeal.
24
Public Defender tried to decline the appointment to represent Reed. The court could not
have compelled the Public Defender to accept the appointment if it had properly applied
section 27706(g). Indeed, the court acknowledged as much when it described an
appointment under section 27706(g) as “permissive” and explained its application as
follows: “The Court appoints and then the Public Defender’s Office has the ability to
accept or decline appointment. There’s nothing mandatory about it.” But the court
determined that section 27706(g) did not apply to this case. It thus is reasonably probable
that the Public Defender would have obtained a more favorable result in the absence of
the court’s error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We therefore vacate the
court’s order compelling the Public Defender to represent Reed.
To summarize, the first sentence of section 27706(a) concerns public defenders’
duty to defend indigent individuals in the trial phase of a case, but it does not apply to
public defenders’ representation of indigent individuals in habeas proceedings. Section
27706(g) applies to those circumstances. And under section 27706(g), public defenders
have discretion to decline a request for representation or an order of appointment. Reed
is entitled to counsel for purposes of his RJA habeas petition, but the court must appoint
someone other than the Public Defender. The Public Defender has “properly refused” the
appointment and consequently is “unavailable.” (Pen. Code, § 987.2, subds. (a)(3), (d),
(e).)
25
DISPOSITION
The previously ordered stay is dissolved. The petition for writ of mandate is
granted. Let a peremptory writ of mandate issue directing the superior court to (1) vacate
its order compelling the Public Defender to represent Reed for purposes of his habeas
petition and (2) appoint someone other than the Public Defender to represent Reed for
that purpose.
CERTIFIED FOR PUBLICATION
MENETREZ J.
I concur:
MILLER J.
26
[E086720 Harmon v. SC; People]
RAMIREZ, P. J., Concurring.
The majority holds that the right to counsel for a petitioner seeking a writ of
habeas corpus pursuant to the California Racial Justice Act of 2020 (RJA; Stats. 2020,
ch. 317, § 1), is governed by subdivision (g) of Government Code1 section 27706, and
that the public defender has discretion to decline representation. (Maj. opn., p. 2.) I
respectfully disagree. In my opinion, the issuance of the order to show cause (OSC)
automatically triggered the provisions of Penal Code section 1473, subdivision (e), the
right to appointment of counsel, which, in turn, triggered the public defender’s duty to
accept the appointment pursuant to section 27706, subdivision (a), absent unavailability
or a conflict of interests. I concur, however, with the result, remanding the matter to the
superior court, to determine if the public defender has a conflict of interests, as indicated
in the lower court proceedings, or is unavailable, within the meaning of Penal Code
section 987.2.
The case is governed by Penal Code section 1473, subdivision (e), which provides,
“[t]he petition shall state if the petitioner requests appointment of counsel and the court
shall appoint counsel if the petitioner cannot afford counsel and either the petition
alleges facts that would establish a violation of subdivision (a) of Section 745, or the
State Public Defender requests counsel be appointed.” Here, an OSC was issued so the
appointment of counsel was required, not permitted.
1 All further statutory references are to the Government Code unless otherwise indicated.
1
Because a defendant has a statutory right to appointment of counsel upon the
issuance of an OSC respecting a petition for writ of habeas corpus filed pursuant to Penal
Code section 745, the public defender does not have discretion to decline appointment
pursuant to section 27706, subdivision (g), which applies only when there is no statutory
or constitutional right to the appointment of counsel.
When a person is entitled to appointed counsel, “the trial court must ‘first utilize
the services of the public defender to provide criminal defense services for indigent
defendants’ unless the public defender is unavailable or a conflict exists.” (Joshua P. v.
Superior Court (2014) 226 Cal.App.4th 957, 964; see Pen. Code, § 987.2, subd. (e)
[authorizes the superior court to appoint private counsel upon a finding of “good cause” if
the public defender is “unavailable”]; Williams v. Superior Court (1996) 46 Cal.App.4th
320, 326; Cain v. Superior Court (2025) 110 Cal.App.5th 639, 654 [disqualification of
the public defender’s office was error because the office no longer possessed confidential
information regarding its prior defense of another person, tried for the same murder with
which defendant was charged, and there was no evidence of an actual or potential conflict
of interests].)
In Bemore v. Superior Court (2025) 108 Cal.App.5th 1125 (Bemore), the
reviewing court concluded that Penal Code section 987.2 applied to RJA proceedings and
required the superior court to give priority to the primary public defender when selecting
counsel for court appointment in superior court. (Bemore, supra, at p. 1152.) I agree
with that conclusion and therefore disagree that the provisions of section 27706,
2
subdivision (g), govern in cases where an OSC has issued and the right to counsel has
been triggered. I explain further.
Subdivision (g) of section 27706 applies to cases where no statutory or
constitutional right to counsel yet exists. It states, “Upon the order of the court or upon
the request of the person involved, the public defender may represent any person who is
not financially able to employ counsel in a proceeding of any nature relating to the
nature or conditions of detention, of other restrictions prior to adjudication, of
treatment, or of punishment resulting from criminal or juvenile proceedings.” The
subdivision refers specifically to conditions of confinement, to which the RJA does not
apply, and, by extension, to initial petitions for which there is no statutory right to counsel
and no OSC has issued. (See In re Brindle (1979) 91 Cal.App.3d 660, 679–680 [habeas
corpus granted to allow the public defender to consult with two inmates suspected of a
crime, but who had not been charged].)
I interpret the legislative references to “detention, of other restrictions prior to
adjudication, of treatment, or of punishment” (§ 27706, subd. (g)) to refer to conditions of
pretrial confinement as well as postconviction conditions in prison (or, as in the case of
mentally disordered offenders or sexual offenders, state hospitals) which violate the right
or privileges retained by persons in custody, which present actual or potential deprivation
of civil rights or conditions which render a punishment cruel or unusual. As for that
genre of petition, there is an extensive and detailed administrative process for inmates to
seek redress for complaints, and an administrative appeal procedure, that must be
exhausted before judicial relief may even be initiated. (See Wright v. State of California
3
(2004) 122 Cal.App.4th 659, 664–665.) In such cases, there is no ripe right to counsel so
representation by the public defender is discretionary.
Subdivision (g) of section 27706 does not apply to persons who are entitled by
statute or constitutional provision to the appointment of counsel. Except for subdivision
(g), all of the other provisions of section 27706 relate to situations in which a statutory or
constitutional right to counsel exists,2 and in which the Legislature has provided that
“upon request, the public defender shall” perform certain duties. (Italics added.)
Section 27707, subdivision (a), added in 2021 (Stats. 2020, ch. 92; Assem. Bill
No. 1869), further explains that “The court in which the proceeding is pending may make
the final determination in each case as to whether a defendant or person described in
Section 27706 is financially able to employ counsel and qualifies for the services of the
public defender. The public defender shall, however, render legal services as provided in
subdivisions (a), (b) and (c) of Section 27706 for any person the public defender
determines is not financially able to employ counsel until such time as a contrary
determination is made by the court.” (Italics added.) Thus, subdivision (g) of section
27706 is the only subdivision for which the public defender’s duties to an indigent person
are not mandatory.
In 2022, the Legislature amended section 1473, subdivision (e), “to require trial
courts to appoint habeas counsel upon request ‘if the petitioner cannot afford counsel,’
and ‘either the petition alleges facts that would establish a violation of [the RJA] or the
2 See Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 200, reaffirming Payne v. Superior Court (1976) 17 Cal.3d 908, 922–923 [addressing § 27706, subd. (c)].
4
State Public Defender requests counsel be appointed.”’ (Bemore, supra, 108 Cal.App.5th
at p. 1133; see People v. Wilson (2024) 16 Cal.5th 874, 945; McIntosh v. Superior Court
(2025) 110 Cal.App.5th 33, 46.)
In fact, the California Rules of Court require that, “On issuing an order to show
cause, the court must appoint counsel for any unrepresented petitioner who desires but
987.2 refers to the appointment of assigned counsel for indigents “in a criminal trial,
proceeding, or appeal.” (Italics added.) “A hearing on a petition for a writ of habeas
corpus is a proceeding within that provision of the Penal Code. Furthermore, [section
27706], subdivision (a) requires that the public defender must upon request represent any
indigent ‘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.” (Charlton v.
Superior Court (1979) 93 Cal.App.3d 858, 862 (Charlton).)
The majority disagrees with the analysis of Charlton (maj. opn., p. 19), although
the Supreme Court has, on at least two occasions, declined to decide whether the trial
court has discretion to appoint private counsel when the public defender is available,
without criticism or limitation of the holding. (See People v. Cole (2004) 33 Cal.4th
1158, 1186; People v. Daniels (1991) 52 Cal.3d 815, 844–845.)
In footnote 4 of the majority opinion, the majority refers to this court’s decision in
Gardner v. Appellate Division of the Superior Court (2019) 41 Cal.App.5th 1139
(Gardner), incorrectly indicating that my concurrence is inconsistent with my earlier
opinion. Only if apples are oranges. It is true that in Gardner we recounted the two
5
sentences of section 27706, subdivision (a), noting that “[t]he first sentence of section
27706[, subdivision] (a) allows a court to appoint the public defender to represent a
defendant ‘at all stages of the proceedings.’ Erwin [v. Appellate Department (1983) 146
Cal.App.3d 715], however, necessarily implied that this does not include a defendant's
appeal from a misdemeanor conviction. Moreover, Mowrer [v. Appellate Department
(1990) 226 Cal.App.3d 264] came right out and held that the first sentence applies only in
‘the trial phase.’” (Gardner, supra, at p.1145.) We agreed with those observations
(ibid.), but they were not the ratio decidendi or holding of the case.
Instead, we acknowledged that, pursuant to the Supreme Court’s holding in
Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, “a pretrial
prosecution appeal of a suppression order also qualifies as a critical stage of the
prosecution at which the defendant has a right to appointed counsel as a matter of state
constitutional law.” (Id. at p. 1005.) We further noted that the appeal was not
interlocutory (which would pertain to the second sentence of subdivision (a) of section
27706), and that a felony defendant in such a situation “an indigent defendant would
normally be represented by appointed counsel other than the public defender. We see no
reason for a different outcome in a misdemeanor case.” (Gardner, supra, 41 Cal.App.5th
at p. 1147.)
This instant case is on much different procedural footing because the defendant
filed a postconviction petition for which he is entitled to appointment of counsel pursuant
to Penal Code section 1473, subdivision (e), upon a proper showing. In short, the
Gardner decision is completely inapposite. Here, having made the requisite showing,
6
resulting in the issuance of the OSC; he is entitled by statute to appointment of counsel.
(Charlton, supra, 93 Cal.App.3d at p. 862.) Subdivision (g) of section 27706 does not
provide the public defender with the discretion to decline appointments where the right to
counsel exists. Such a holding in this case would result in a fiscal tsunami for counties
throughout the state.
Notwithstanding my disagreement with the analysis by the majority, I also noted
that in the present case, the public defender’s petition for extraordinary relief indicated he
filed a declaration in the superior court indicating the existence of a conflict of interests,
in addition to his reliance on the provisions of section 27706, subdivision (g), to decline
the appointment. Apparently the declaration did not indicate the public defender was
unavailable, although it was not appended to the petition for writ of mandate. Because a
conflict of interests is one of the situations recognized by Penal Code section 987.2, as a
valid reason for the public defender to decline an appointment which it would otherwise
have a duty to accept, I agree that remand is needed to permit the public defender to
clarify whether a conflict exists. For this reason, I concur in the result.
RAMIREZ P. J.
7
AI Brief
AI-generated · verify before citing
Holding. Government Code section 27706, subdivision (g) governs the appointment of public defenders to represent indigent habeas corpus petitioners, granting public defenders the discretion to decline such appointments without a showing of unavailability.
Issues
Whether a public defender has the discretion to decline an appointment to represent an indigent petitioner seeking habeas corpus relief.
Whether Government Code section 27706, subdivision (a) or subdivision (g) governs the appointment of public defenders in habeas corpus proceedings.
Disposition. Petition granted.
Quotations verified verbatim against the opinion
“We hold that section 27706, subdivision (g) (section 27706(g)) governs public defenders’ representation of habeas petitioners like Reed, not section 27706(a).”
“Under section 27706(g), public defenders have discretion to decline to represent a petitioner, and they need not make any showing of unavailability.”