[324]Opinion
GODOY PEREZ, J. Defendant and petitioner Michael Williams, also known as Michael Antoine Price, challenges an order of the respondent court refusing to appoint the Los Angeles County Public Defender to represent him. We hold that a trial court is required to appoint the public defender to represent an indigent defendant when the public defender is “available,” meaning that the public defender can be ready for trial and in court on the designated trial date. In determining the public defender’s availability, the court may either rely on the public defender’s representation that he or she is available, or may elicit additional information from counsel which will aid the court in making that determination. A finding of unavailability, however, may not be based solely upon the number and age of the public defender’s pending caseload where counsel represents it will not interfere with his or her trial readiness. Penal Code section 987.05 allows a court to impose substantial sanctions for counsel’s failure to be ready, without good cause, as initially represented to the court.1
Factual and Procedural History
Defendant was charged with possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)), and with two prior felony convictions, within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). Deputy Public Defender Peter C. Swarth represented defendant through the preliminary examination. Defendant was held to answer and his arraignment in superior court was set for April 2, 1996.
Defendant and Mr. Swarth appeared for arraignment before respondent court. According to defendant, respondent court maintains a list of all pending felony cases, the length of time which has passed since arraignment, and the attorneys assigned to represent the defendants in each case. That list indicated that Mr. Swarth was representing 21 clients whose cases were beyond the 60-day statutory time for trial following arraignment,2 with 16 of [325]those cases older than 120 days from their arraignment.3
At defendant’s arraignment, the court asked Mr. Swarth how he could “possibly handle this case in the next 60 days” in light of the other cases on his calendar. Mr. Swarth indicated there were no cases calendared for trial at the time of defendant’s anticipated trial date which would interfere with his representation of defendant. Mr. Swarth added that the only thing he could foresee affecting his ability to handle this case would be the People’s failure to timely comply with discovery. Mr. Swarth told the court, “I believe I can be ready and available.” Respondent court disagreed, stating, “It does not appear from this court’s reading of the number of cases that you have that you can be prepared in a timely fashion since obviously the other matters that you already have should get priority over this one.” The court opined that each of the other 21 cases would take 3 days to try, putting defendant’s case well beyond the 60-day limitation of section 1382, subdivision (a)(2). Again, Mr. Swarth told the court he could be ready for trial.
The court instructed Mr. Swarth to contact his office and inquire whether another deputy public defender could try the case; if there was no one from that office available, the court would appoint a private panel attorney to represent defendant. (§ 987.2.) When the hearing resumed, Mr. Swarth reported that the public defender determined he should try defendant’s case, and asserted it would be in defendant’s best interest for him to do so. The court disagreed, and appointed a panel attorney who said he could try defendant’s case in 60 days.4
Defendant’s trial began on May 30, 1996, while this petition was pending. Defendant was represented by the court-appointed panel attorney. Since defendant’s objective in filing the petition was to have Mr. Swarth appointed as his counsel, the petition was rendered moot by the commencement of defendant’s trial. However, because the petition raises issues of significant public concern which are likely to recur, we exercise our discretion to resolve those issues. (See In re William M. (1970) 3 Cal.3d 16, 23-24 [89 Cal.Rptr. 33, 473 P.2d 737].)
[326]Discussion
A. Appointment of the Public Defender
An indigent defendant has the right to a court-appointed attorney at the time of his arraignment. Section 987, subdivision (a), provides: “In a non-capital case, if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ counsel the court shall assign counsel to defend him or her.” (Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 910 [27 Cal.Rptr.2d 732].)5
Trial courts in Los Angeles County are required to appoint the public defender, subject to availability and in the absence of a conflict of interest. Section 987.2, subdivision (e) describes the process as follows: “In a county of the first, second, or third class,[6] the court shall first utilize the services of the public defender to provide criminal defense services for indigent defendants. In the event that the public defender is unavailable and the county has created a second public defender and contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, and if the quality of representation provided by the second public defender is comparable to the quality of representation provided by the public defender, the court shall next utilize the services of the second public defender and then the services of the county-contracted attorneys prior to assigning any other private counsel. Nothing in this subdivision shall be construed to require the appointment of counsel in any case in which the counsel has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the second public defender or a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record.” This provision allows for a deviation in the requisite order of appointment of the second public defender or the county-contracted attorney, but not for the requirement that the public defender be utilized first.
Government Code section 27706, subdivision (a) specifies the obligations of the public defender: “The public defender shall perform the following duties: [H (a) Upon request of the defendant or upon order of the court, the [327]public defender shall defend, without expense to the defendant, except as provided by Section 987.8 of the Penal Code, 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, municipal or justice courts at all stages of the proceedings, including the preliminary examination. 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, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in the 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.” Again, the statute requires the public defender to defend those indigent clients who request its services.
Cases addressing the issue of whether an indigent defendant is entitled to private counsel of his or her choice have held that although the appointment of counsel under section 987.2 rests within the sound discretion of the trial court, the court’s discretion may not be restricted by any fixed policy. (See People v. Horton (1995) 11 Cal.4th 1068, 1098 [47 Cal.Rptr.2d 516, 906 P.2d 478].) In Harris v. Superior Court (1977) 19 Cal.3d 786, 795 [140 Cal.Rptr. 318, 567 P.2d 750], after the public defender had declared a conflict of interest, both petitioners requested the appointment of specific private attorneys. After conducting a hearing and inquiring into the reasons for the requests, the trial court refused to make such appointments. The Supreme Court, reaffirming its holding in Drumgo v. Superior Court (1973) 8 Cal.3d 930 [106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984], held that “[a]n indigent defendant’s preference for a particular attorney, while it is to be considered by the trial court in making an appointment [citation] is not a determinative factor requiring the appointment of that attorney—even in combination with other relevant factors such as the subject attorney’s competence and availability. As we have indicated, the matter rests wholly within the sound discretion of the trial court.” (Harris v. Superior Court, supra, 19 Cal.3d at pp. 795-796, original italics, fn. omitted.) The court defined judicial discretion as “ . . that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.’ . . . [Citations.]’’ (Id. at p. 796.) The Supreme Court held that in exercising its discretion, the trial court is required to review the entire record, analyzing the objective and subjective factors in appointing indigent defense counsel. The court concluded that the trial court had abused its discretion in declining to appoint counsel requested by defendants in that case.
[328]In People v. Chavez (1980) 26 Cal.3d 334 [161 Cal.Rptr. 762, 605 P.2d 401], after the public defender had declared a conflict of interest, the defendant requested the same conflict attorney who had represented him at the preliminary examination. The superior court summarily denied that request, stating, “. . . we don’t do that, Mr. Chavez. We appoint our own counsel at the Superior Court level.” (Id. at p. 341, original italics.) Finding an abuse of discretion, the Supreme Court held that the superior court had “improperly adhered to a fixed policy of appointing its ‘own’ counsel in every case. The exercise of the court’s discretion in the appointment of counsel should not have been restricted by an inflexible rule, but rather should have rested upon consideration of the particular facts and interests involved in the case before it. By refusing to give defendant Chavez an opportunity to explain why he preferred that his former counsel represent him at trial, the court effectively foreclosed consideration of any arguments which defendant may have marshalled in support of continuing Attorney Ingber’s appointment.” (Id. at p. 346).
In People v. Daniels (1991) 52 Cal.3d 815 [277 Cal.Rptr. 122, 802 P.2d 906], defendant objected to the appointment of the public defender because he did not trust the public defender’s office. He told the court that a deputy public defender who represented him in a previous case did not inform him that the deputy was negotiating for a position with the district attorney. Defendant requested a specific attorney, whom he trusted, to represent him. The court refused his request and appointed the public defender, who represented the defendant through the preliminary examination before declaring a conflict. Again, the trial court refused to appoint private counsel of defendant’s choice. On appeal, the Supreme Court held that the trial court did not abuse its discretion in appointing the public defender initially, because “the public defender whose competence might have been under attack was no longer with that office,” and defendant had “not shown any personal or professional relationship suggestive of a conflict of interest between the deputies actually representing him in this case and the departed deputy who had represented him . . . .” (Id. at p. 843.) As to the trial court’s refusal to appoint counsel of choice after the public defender declared a conflict, the court, utilizing the abuse of discretion standard, held that the trial court acted within its discretion in refusing to appoint defendant’s counsel of choice. (Id. at p. 845.)
The cases we have discussed, all involved the trial court’s exercise of its discretion in the appointment of private counsel after the public defender declared a conflict. However, in Charlton v. Superior Court (1979) 93 Cal.App.3d 858 [156 Cal.Rptr. 107], the court addressed the issue before us, whether such trial court discretion exists when the public defender has not declared a conflict.
[329]In Charlton, the petitioner, convicted of first degree murder, filed a petition for writ of habeas corpus and obtained an order to show cause, returnable to the superior court, to inquire into the validity of his contention that trial counsel in his murder case was incompetent. Petitioner requested that the attorney who filed the habeas corpus petition be appointed to represent him at the evidentiary hearing. The trial court refused to do so and appointed the public defender upon finding him available. The Charlton court first determined that the statutory implementation of an indigent defendant’s right to appointed counsel in the context of a criminal trial was equally applicable in habeas corpus proceedings. Citing section 987.2, the court then concluded that, “in 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 case.” (Charlton v. Superior Court, supra, 93 Cal.App.3d at p. 863.)7
Our review of the applicable statutes causes us to agree with the analysis in Charlton. As our Supreme Court suggested in Harris, supra, a court may exercise its discretion in appointing counsel “in the absence of positive law or fixed rule . . . .” (Harris, v. Superior Court, supra, 19 Cal.3d at p. 796.) In this case, however, there is positive law. The laws governing the priority appointment of the public defender are clearly set forth in Government Code section 27706 and Penal Code section 987.2, eliminating any void compelling the application of discretion. Those statutes provide that a court must first utilize the services of the public defender in providing criminal defense services for indigent defendants, if the public defender is available to try the matter.
B. Availability of the Public Defender
Directing ourselves to the question of whether the public defender was available for appointment in this case, we note that the trial court is obligated to appoint only those attorneys who will be ready for trial on a given date. Section 987.05 provides: “In assigning defense counsel in felony cases, whether it is the public defender or private counsel, the court shall only assign counsel who represents, on the record, that he or she will be ready to proceed with the preliminary hearing or trial, as the case may be, within the time provisions prescribed in this code .... Both the prosecuting attorney and defense counsel shall have a right to present evidence and [330]argument as to a reasonable length of time for preparation and on any reasons why counsel could not be prepared in the set time.”
While the public defender carefully distinguishes between an attorney being “available” for appointment under section 987.2 and being “ready for trial” under section 987.05, we find no such distinction. These sections should be read to be compatible with one another. If an attorney cannot be ready for trial within the prescribed time, it matters not that he or she is “available” in court. Whether an attorney can be ready for trial and in court on the trial date designated by the court is the standard we use in determining whether an attorney is available for appointment. That same standard should be used by the trial court.
When counsel represents to the court that he or she is available for appointment, that is, that he or she will be in court and ready for trial on the appointed date, the court may, in its discretion, accept that representation. Such representation by counsel, as an officer of the court, should not be made lightly or without due consideration. An attorney has a duty “[t]o employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by any artifice or false statement of fact or law.” (Bus. & Prof. Code, § 6068, subd. (d).) Further, a member of the State Bar “[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” (Rules Prof. Conduct, rule 5-200(B).) “ ‘Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.’ ” (Paine v. State Bar (1939) 14 Cal.2d 150, 154 [93 P.2d 103]; see also Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162-163 [162 Cal.Rptr. 458, 606 P.2d 765]; Garlow v. State Bar (1982) 30 Cal.3d 912, 917 [180 Cal.Rptr. 831, 640 P.2d 1106].) “Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.” (Furlong v. White (1921) 51 Cal.App. 265, 271 [196 P. 903].)
Representations of readiness as required by section 987.05 are clearly intended to be made carefully. The statute allows counsel a reasonable time to familiarize himself or herself with a case before representing to the court that he or she can be ready for trial. The measure of an attorney is by his or her word. Frequent misrepresentations to the court, although the result of hasty miscalculations, can undermine an attorney’s credibility and justifiably cause a court to give little weight to counsel’s representations of availability for appointment.
[331]Although the court may accept counsel’s representation of availability, our review of the relevant law leads us to conclude that a trial court is not obligated to accept an attorney’s representation at face value. Section 987.05 allows for presentation of evidence in the determination of readiness. This implies that the court may make an independent evaluation in finding whether counsel can be ready at the time of trial, regardless of his or her representation to the court. Moreover, as the Supreme Court stated in Drumgo, “We have repeatedly held that constitutional and statutory guarantees are not violated by the appointment of an attorney other than the one requested by defendant. [Citations.] The additional factor that requested counsel has indicated his willingness and availability to act does not raise any constitutional compulsion requiring his appointment. . . .’’ (Drumgo v. Superior Court, supra, 8 Cal.3d at p. 934; Alexander v. Superior Court, supra, 22 Cal.App.4th at p. 915.)
In deciding whether counsel will be ready, 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. These examples are given by way of illustration only; our intention is to allow the court sufficient flexibility to consider whatever factors it deems relevant to its determination. What the court may not do, however, is improperly adhere to a fixed policy for appointment in every instance. The court should be sufficiently flexible to consider factors other than the two cited by the court in this case, particularly if counsel represents that those factors will not interfere with trial readiness. “The exercise of the court’s discretion in the appointment of counsel should not have been restricted by an inflexible rule, but rather should have rested upon consideration of the particular facts and interests involved in the case before it. . . . ” (People v. Chavez, supra, 26 Cal.3d at p. 346.) Moreover, the court should not be swayed by extraneous factors which divert the court from its obligation to exercise proper judgment. For example, in Craig S. v. Superior Court (1979) 95 Cal.App.3d 568 [157 Cal.Rptr. 285], Division Three of this court determined that the court abused its discretion in not appointing the public defender by finding her “unavailable” after the court received notice that she would make a late appearance. The public defender’s appearance was recorded as 35 minutes after the court appointed another attorney. “To hold that the trial court’s conduct in the fact situation before us did not constitute an abuse of discretion would be to acquiesce in a state of affairs fraught with the opportunity for ' “capricious disposition or whimsical thinking” ’ [citation]. Here, there is a strong inference that the trial court was annoyed with the public defender for being late, and was not exercising the required ‘ “discriminating judgment” ’ [citation] in taking into consideration all the relevant factors that should have been part of the decision as to whether to [332]appoint the public defender or private counsel.” (Craig S. v. Superior Court, supra, 95 Cal.App.3d at p. 575, fn. omitted.)
In the present case, the court would have been justified in viewing with skepticism Mr. Swarth’s representation that he could try defendant’s case within 60 days, given the fact that Mr. Swarth admittedly had over 15 cases which were more than 120 days old. However, defendant correctly contends that the court erred when it refused to appoint Mr. Swarth based solely on the numbers and age of his pending cases. Numbers and age do not always provide the relevant information in a court’s determination of ability to be ready. Numbers do not reveal, for example, those cases that were set beyond the present trial date or may have to be continued for good cause and will not interfere with this trial in any way. Numbers also do not indicate which cases are possible pleas, court trials, one day trials, multiple cases for one defendant or probation violations. Moreover, once Mr. Swarth indicated that he could try this case within the time set, despite his existing caseload, the court should have inquired further to determine if that were the case. If, after hearing Mr. Swarth’s explanation, the court was not persuaded, it could have stated the reasons for its decision and declined the appointment of Mr. Swarth.
While we are sympathetic to the fact that trial courts are busy and function under pressure to expedite cases and accommodate those awaiting judicial process, the facts before us appear to have allowed for an inflexible evaluation of counsel’s trial readiness. By refusing to give Mr. Swarth an opportunity to explain why he believed his calendar would not prevent him from being ready on the trial date, the court effectively foreclosed consideration of factors relevant in making an impartial decision in this case.
It bears noting that a court has the discretion to remove counsel who cannot try his or her client’s case at the appointed time. (See, e.g., Stevens v. Superior Court (1988) 198 Cal.App.3d 932 [244 Cal.Rptr. 94]; People v. Lucev (1986) 188 Cal.App.3d 551 [233 Cal.Rptr. 222] [counsel’s trial scheduled caused repeated delays]; People v. Strozier (1993) 20 Cal.App.4th 55, 62 [24 Cal.Rptr.2d 362] [counsel requested a continuance but could not show good cause for the continuance]; Maniscalco v. Superior Court (1991) 234 Cal.App.3d 846, 850-851 [285 Cal.Rptr. 795] [medical emergency which renders counsel incapable of adequately representing the defendant].) Further, an attorney who represents that he or she will be ready for trial on a date certain, but is not prepared at that time, risks not only removal from the case but severe sanctions as well.8 The consequences of not being prepared for trial should inspire counsel to give the court an honest assessment of counsel’s ability to timely try the case.
[333]Conclusion
We conclude that respondent court should have allowed Mr. Swarth an opportunity to present further evidence on his ability to be ready for trial in this case and duly considered that evidence in determining whether Mr. Swarth was available for appointment.9
Disposition
The petition for writ of mandate is denied as moot. Respondent’s request for attorney fees pursuant to Code of Civil Procedure section 1021.5 is denied.
Armstrong, J., concurred.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 1382 provides: “(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [H ... FI (2) When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information . . . .”
Section 1049.5 provides: “In felony cases, the court shall set a date for trial which is within 60 days of the defendant’s arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time. If the court, after a hearing as prescribed in Section 1050, finds that there is good cause to set the date for trial beyond the 60 days, it shall state on the record the facts proved that justify its finding. A statement of facts proved shall be entered in the minutes.”
Mr. Swarth disputed this number. According to his calculations, he had 17 cases beyond 60 days, with 15 over 120 days. This minor difference in numbers is not essential to our discussion.
Although the court did not inquire on the record about the panel attorney’s pending caseload, defendant’s counsel stated at oral argument that considerable activity occurred off the record in an effort to locate a panel attorney who would be available to try the case.
In Alexander, we determined that the superior court has the authority to appoint counsel for an indigent defendant at the time of arraignment and is not bound by an appointment made for the preliminary examination. We need not address that issue again in this opinion.
The class designation separates counties by population; Los Angeles County, with a population of over 4 million is considered a county of the first class. (Gov. Code, §§ 28022-28024.)
In People v. Daniels, supra, 52 Cal.3d at page 844, our Supreme Court acknowledged the conflict of whether Harris and other cases allowing for discretionary appointment of indigent counsel were applicable to situations where the public defender was available for appointment. It chose not to decide that question.
Section 987.05 provides for substantial sanctions.
Both defendant and respondent court have provided us with virtually a day-by-day update of Mr. Swarth’s trial schedule and how it would have impacted this case. Although that information was of some benefit because it allowed us to follow the progress of defendant’s case, it is irrelevant to our resolution of the issues presented here, since the court must evaluate counsel’s availability based on information available to the court at the time of arraignment. Obviously, a court cannot base such a decision on events which may or may not occur.