Sparks v. Superior Court

[535]

Opinion

KINGSLEY, J.

Petitioner is charged in respondent court with a violation of section 245 of the Penal Code. He retained Stephen N. Cool as his trial counsel. The case was partially tried and resulted in a mistrial. When the case was again called, the trial court made an order relieving Mr. Cool as counsel for petitioner on the ground that Mr. Cool was employed as a part-time city attorney for the City of Grover City.

The only issue before this court is whether the lower court had the authority to remove a privately retained attorney over the defendant’s objection, where that attorney is also a city attorney with prosecutorial responsibilities.

I

The case of

People

v.

Rhodes

(1974) 12 Cal.3d 180, 183 [115 Cal.Rptr. 235, 524 P.2d 363], held that the “vital interests of criminal defendants and the criminal justice system are adversely affected when public prosecutors are permitted to defend or assist in the defense of persons accused of crime,” and “it was contrary-to public policy” to appoint the city attorney to represent defendant. Based on the decision in this case, the lower court removed Mr. Cool as defense attorney.

It is arguable that

Rhodes

is distinguishable from the situation before us because

Rhodes

involved a court-appointed city attorney, and the instant case involves a privately retained city attorney. It is true that special rules have evolved regarding a defendant’s right to a privately retained attorney of his choice. The case of

People

v.

Crovedi

(1966) 65 Cal.2d 199, 207 [53 Cal.Rptr. 284, 417 P.2d 868], held that, although a defendant has no absolute right to a lawyer of his choice, the court should make all reasonable efforts to insure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney. The