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The right to counsel in California

The California constitution guarantees that “[t]he defendant in a criminal cause has the right . . . to have the assistance of counsel for the defendant’s defense . . ..” Although states are free to construe their own laws more broadly than the federal constitution has been construed, California provides that:

In criminal cases the rights of a defendant . . . to the assistance of counsel . . . shall be construed by the courts of this State in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.

California statutes guarantee that every indigent person, adult and juvenile, “who is charged with the commission of any contempt or offense triable in the superior courts” is entitled to public counsel “at all stages of the proceedings, including the preliminary examination,” and continuing on direct appeal.

Crimes in California are either felonies, misdemeanors (including most county and city ordinance violations), or infractions. All misdemeanors and felonies in California carry the possibility of incarceration as a punishment, so a person charged with any of these crimes who cannot afford to hire their own attorney is entitled to have an attorney provided to represent them at public expense. An infraction does not carry the possibility of incarceration, and so an indigent defendant charged with an infraction is not entitled to appointed counsel, but failure to appear in court on an infraction constitutes a misdemeanor.

Though the federal Constitution does not require it, California statutorily guarantees appointed counsel to indigent defendants in some later stages of a criminal case for defendants sentenced to death: on writ of certiorari to the United States Supreme Court from judgment of the California Supreme Court on direct appeal; and in state postconviction proceedings, with the same attorney handling a federal habeas corpus petition where appointed and paid by the federal court. California also statutorily provides appointed counsel to indigent parties in a significant number of civil proceedings, including certain parties in involuntary commitment and involuntary guardianship proceedings and in dependency and paternity proceedings, among others.

How the right to counsel is administered and structured

California delegates to each of its 58 counties the full responsibility for providing and administering effective assistance of counsel to indigent people at the trial court level within the county in all of the types of cases for which California guarantees a right to counsel.

The right to counsel on direct appeal and beyond is administered by the courts of appeal and state supreme court.

How the right to counsel is funded

Each California county is responsible at the outset for funding all trial-level indigent representation services. California places substantial restrictions on the ability of counties to raise revenue.

The state makes very limited funding for trial-level services available to counties through grants or reimbursements in extremely limited circumstances: costs beyond a certain amount in homicide cases but excluding normal salaries and expenses; not more than 10% of funds expended to provide counsel in criminal prosecutions and involuntary commitments; and for some training of and assistance to county indigent representation systems.

Funding for the right to counsel in appellate and discretionary proceedings is provided by the state through the courts’ budgets. The state makes some funding available to some county indigent representation systems for the workload of certain criminal post-conviction proceedings.

The methods used to provide public counsel

Trial-level representation.  Each county board of supervisors, or the individual superior court judges in the county, or the board and judges collectively, determine the method(s) used to provide representation to indigent people at the trial level. In each county, indigent people may be represented by a public defender office, a private attorney under contract, a private attorney appointed on a case-by-case basis, or almost any combination of these methods.

Public defender office. A county board of supervisors may, but is not required to, establish a public defender office for the county; and two or more counties may join together to establish and operate a public defender office. If a county establishes a public defender office, the county board of supervisors determines whether the public defender is elected or appointed. If elected, the public defender is elected countywide to a four-year term of office. If appointed, the public defender is appointed by and serves at the will of the board of supervisors. Among the California counties that have established a public defender office, only the San Francisco public defender is elected.

In counties that establish a public defender office, the public defender “shall” represent indigent adults and children:

–     “charged with the commission of any contempt or offense triable in the superior courts at all stages of the proceedings, including the preliminary examination;”

–     in “serious habitual offender” proceedings for juveniles;

–     in all appeals “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” (note that this does not require a public defender to appeal in every case where the defendant so desires);

–     to collect wages and other demands of the person for $100 or less “where, in the judgment of the public defender, the claim urged is valid and enforceable in the courts;”

–     in civil litigation in “which, in the judgment of the public defender, the person is being persecuted or unjustly harassed;” and

–     in involuntary guardianships, involuntary conservatorships, and involuntary mental health treatment proceedings.

Private attorneys under contract. A superior court may contract with one or more “responsible attorneys” to provide representation to indigent adults and children. The court must consult with the county board of supervisors regarding the amount of the contract.

Private attorneys appointed case by case (“assigned counsel”). Each superior court judge may choose and appoint an individual private attorney to represent the indigent person in a specific case. Where judges appoint individual private attorneys on a case-by-case basis, the judges or the county are “encouraged” but not required by state law to:

(1)  Establish panels that shall be open to members of the State Bar of California.

(2)  Categorize attorneys for panel placement on the basis of experience.

(3)  Refer cases to panel members on a rotational basis within the level of experience of each panel, except that a judge may exclude an individual attorney from appointment to an individual case for good cause.

(4)  Seek to educate those panel members through an approved training program.

(5)  Establish a cost-efficient plan to ensure maximum recovery of costs [from indigent defendants].

Appellate representation and beyond.  Each of the six courts of appeal contracts with a non-profit appellate project to qualify, train, and provide resource assistance to a panel of private lawyers who are appointed to represent indigent clients in direct appeals (other than in death penalty cases). The non-profit appellate projects are: First District Appellate Project; California Appellate Project – Los Angeles (second appellate district); Central California Appellate Program (third and fifth appellate districts); Appellate Defenders, Inc. (fourth appellate district); and Sixth District Appellate Program.

The State Public Defender (appointed to a four-year term by the Governor, subject to confirmation by the Senate), with up to 15 staff attorneys and the number of support staff necessary, is authorized to represent indigent defendants in only two types of cases. Its primary responsibility is to represent death sentenced defendants on automatic appeal to the California Supreme Court and an ensuing petition for writ of certiorari to the United States Supreme Court. Secondarily, it can handle appeals in noncapital criminal cases if “the State Public Defender determines that taking a limited number of those cases is necessary for staff training” or if the office were ever in a situation where it had sufficient manpower to handle all of the death sentenced appeals plus non-capital appeals.

Under contract from the California Judicial Council, the non-profit California Appellate Project – San Francisco (CAP-SF) serves as a resource center for private attorneys appointed to capital cases on direct appeal and on through habeas corpus proceedings.

The California Habeas Corpus Resource Center, in the judicial branch, employs up to 34 attorneys who may be appointed by the superior court judge that imposed a death sentence to represent indigent death-sentenced state prisoners in their state postconviction proceeding, federal habeas corpus petitions if the federal court will pay them, and petitions for executive clemency. The California Supreme Court selects an executive director, who serves at the will of the court, to manage the center.

Legal authority

California Constitution, art. 1, §§ 15, 24

California Government Code, §§ 15400 through 15425 (state public defender), and §§ 27700 through 27712 (county public defenders), and § 68511.5 (counsel on direct appeal), and §§ 68660 through 68666 (habeas corpus resource center)

California Penal Code, § 987.2 (private attorneys under contract or appointed case-by-case

California Welfare and Institutions Code, §§ 633, 634, 634.6, 679 (juvenile court)

California Rules of Court, rules 5.403(a), 5.663(c), 8.300, 8.391, 8.403, 8.482, 8.605, 8.652

Source of data: original research conducted by Sixth Amendment Center staff.