Mandell v. Superior Court of L.A. Cty.

[3]

Opinion

FILES, P. J.

This is a proceeding brought by an attorney seeking a writ of mandate to compel the superior court to grant his motion to be relieved as counsel of record for a defendant in a felony prosecution. Because of the importance of the issue, arising out of the firm devotion of the trial judge to an untenable concept, we issued an order to show cause. The county counsel has filed a return on behalf of the superior court. The essential facts are not in dispute.

Petitioner was employed by a defendant to represent him at a preliminary examination upon a felony charge. Petitioner did appear and serve as counsel at the preliminary. At the conclusion of the preliminary, the defendant was held to answer, and was ordered to appear in the superior court on August 25, 1976, for arraignment. Defendant appeared in the superior court on August 25, as directed, but petitioner was absent. Upon inquiry by the judge, the defendant told the court that he had to “drop” his attorney because he could not afford the fee. The court then directed the clerk to telephone petitioner’s office. The arraignment was put over to the following day.

The next morning petitioner and the defendant were present in the superior court. Petitioner explained that the reason he had not been present for the arraignment was that he had been retained for the preliminary only. He then asked the superior court to relieve him. The superior court judge then stated that if counsel had made a “general appearance” at the preliminary, he would not be relieved. Petitioner said he could not remember whether he had stated at the preliminary that his appearance was for that hearing only. The superior court judge then said he would, give counsel an opportunity to show, if he could, from the minutes of the municipal court or from the reporter’s transcript, that he had made a “special appearance” at the preliminary. The arraignment was then put over to September 14.

On that day petitioner advised the superior court that he could not find any written proof that he had used the words “special appearance” at the preliminary hearing, and he again asked the court to relieve him. The court responded that since petitioner had evidently failed to announce a limited appearance at the preliminaiy, he was “on the hook, so to speak.” The court said: “And in that regard if you do not make a special appearance that would limit it up to the time of the arraignment as far as I know and the historic cases so have held that you have made a