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Gressett v. Superior Court of Contra Costa County

May 28, 2010


(Contra Costa County Super. Ct. No. 05-091070-3). Trial Judge Honorable Carlos G. Ynostroza*fn1

The opinion of the court was delivered by: Dondero, J.


Petitioner, Michael Gressett, a former senior deputy district attorney in Contra Costa County, is the named defendant (hereafter defendant) in a criminal indictment charging four counts of forced sodomy (Pen. Code, § 286, subd. (c)(2)), four counts of forced sexual penetration (Pen. Code, § 289, subd. (a)(1)), two counts of forced rape (Pen. Code, § 261, subd. (a)(2)), one count of forced oral copulation (Pen. Code, § 288a, subd. (c)(2)), one count of false imprisonment (Pen. Code, § 236), and one count of making criminal threats (Pen. Code, § 422). By this petition for writ of mandate (Code Civ. Proc., § 1085; Drumgo v. Superior Court (1973) 8 Cal.3d 930, 933 [106 Cal.Rptr. 631, 506 P.2d 1007] (Drumgo)), he challenges an order denying his request that attorney Daniel J. Russo be appointed at county expense as his assigned counsel. (Pen. Code, § 987 et seq.)*fn2 He contends that he established good cause for the appointment.

Following our summary denial of the petition, the Supreme Court directed us to vacate our order and issue an alternative writ.*fn3 As will be seen, we now again deny the petition.

When the petition was initially filed in this court, defendant appropriately named and served the People of the State of California as real party in interest. (§ 987.05; Sonoma County Nuclear Free Zone '86 v. Superior Court (1987) 189 Cal.App.3d 167, 173 [234 Cal.Rptr. 357]; and see Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750] (Harris).) His petition for review to the Supreme Court, however, was answered by the superior court, at the high court's invitation. When the matter was returned to this court, we named the County of Contra Costa as a real party in interest in addition to the People. Funds for payment of assigned counsel are to be paid out of the general fund of the county (§ 987.2, subd. (a)), so that the County of Contra Costa has a direct and special interest in the outcome of this writ proceeding.

The County of Contra Costa, and the superior court have filed returns to the alternative writ, to which defendant has replied. (Cal. Rules of Court, rule 8.487(b).)*fn4 The Attorney General takes no position on the merits.


The crimes charged in the indictment are alleged to have occurred May 8, 2008. The indictment names a deputy district attorney as the alleged victim. The People are represented below by the Attorney General, the Contra Costa District Attorney's Office being recused from the case. And, the members of the Contra Costa County Superior Court have also recused themselves. The challenged ruling was made by the judge assigned by the Chief Justice. (Cal. Const., art. VI, § 6.)

Defendant was originally charged by criminal complaint (§ 859) filed November 21, 2008. He was dismissed from the Contra Costa District Attorney's Office following the filing of the complaint, and two private attorneys, Michael Cardoza and Daniel J. Russo (Russo), served as his counsel around that same time. The case did not proceed to preliminary hearing, however, as the Contra Costa County Grand Jury returned an indictment against defendant filed on October 19, 2009. (§§ 940-951.)

On August 17, 2009, prior to the filing of the indictment, defendant requested appointment of attorney Russo as assigned counsel at public expense. (§ 987.2, subd. (d).) That motion was denied November 5, 2009, without prejudice. Among the reasons for the superior court's analytical decision were defendant's failure to prove his indigency, and the fact that the Contra Costa County Public Defender and the county's alternative defender had not declared themselves unavailable.

Subsequently, defendant was found eligible for the services of the public defender. Thereafter, that office and the alternative defender declared conflicts of interest. He was then referred to the Contra Costa County Criminal Conflicts Panel. The Panel selected attorney Michael J. Kotin, a retired Chief Assistant Public Defender of Contra Costa County, to represent him, and attorney Kotin appeared with him on November 30, 2009. During this proceeding, attorney Kotin acknowledged several times he was prepared to represent the defendant. However, on December 2, 2009, through attorney Kotin, defendant once again moved to have attorney Russo appointed as his assigned counsel. The renewed motion was denied December 7, 2009, the trial court again articulating the reasons for exercising its discretion. This petition followed.


All parties agree that the right to select one's counsel of choice applies only to retained, not appointed, counsel. (People v. Mungia (2008) 44 Cal.4th 1101, 1122 [81 Cal.Rptr.3d 614, 189 P.3d 880]; see United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151 [165 L.Ed.2d 409, 126 S.Ct. 2557].) Section 987.2 governs the assignment of counsel to represent criminal defendants unable to afford to employ an attorney. As relevant here, it provides: "[T]he 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 and the courts have contracted with one or more responsible attorneys or with a panel of attorneys to provide criminal defense services for indigent defendants, the court shall utilize 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 a county-contracted attorney after making a finding of good cause and stating the reasons therefor on the record." (§ 987.2, subd. (d), italics added.)

Defendant contends that he established good cause requiring the superior court to appoint attorney Russo rather than a county-contracted conflicts panel attorney. In doing so, he relies primarily on Harris to argue that the ...

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