Public Defender Disqualified from Case for Race-Related Statement in Plea Bargain Negotiations

A California appellate panel interprets California's Racial Justice Act.

From Sanchez v. Superior Court, decided yesterday by California Court of Appeal Justice Richard Fields, joined by Justice Manuel Ramirez:

In this writ proceeding, defendant and petitioner Enrique Sanchez seeks a writ of mandate ordering respondent superior court to vacate its order directing the San Bernardino County Public Defender (public defender) to assign a new attorney from its office to represent petitioner in his criminal proceedings. The trial court issued the order after receiving evidence that the deputy public defender currently assigned to represent him made remarks invoking defendant's race as a factor to consider during plea negotiations, potentially in violation of the Racial Justice Act (RJA). We conclude that petitioner has failed to establish an abuse of discretion warranting reversal of the trial court's order under the circumstances presented in this case. As such, we deny the petition….

In October 2023, the People filed an information alleging petitioner committed multiple criminal offenses arising out of an incident that occurred on January 7, 2023. {[From the dissent: -EV] Sanchez was charged with kidnapping to commit rape, rape by force or fear, infliction of corporal injury on a spouse or cohabitant, forcible oral copulation, and assault with a deadly weapon. Kidnapping to commit rape carries a sentence of life without parole.}

The public defender was appointed as defendant's counsel and a specific deputy public defender from its office (deputy public defender) was assigned to handle defendant's case. On December 4, 2023, the prosecutor … stat[ed] that she engaged in a plea negotiation with the deputy public defender and, in the course of that negotiation, the deputy public defender became frustrated and stated: "'I really don't care.' … [R]ead between the lines …. I am a white man. What do I care? It's not my people we are incarcerating.'"

When the prosecutor asked for clarification about the remarks, the deputy public defender stated that he expected the prosecutor to show more leniency because the prosecutor and defendant appeared to be the same race, stating: "'[Y]ou are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.'"

Based upon this exchange, the prosecutor requested that the deputy public defender's remarks be disclosed to petitioner and that the trial court evaluate whether a conflict existed requiring removal of the deputy public defender from petitioner's representation in this matter…. The deputy public defender did not dispute that he made the comment: "I'm just a white guy; why should I care?" and did not dispute that he urged the prosecutor to consider defendant's race in considering her plea offer. Instead, the deputy public defender explained that his comment was made "sarcastically" and that his only intent was to pursue petitioner's best interests….

[T]he trial court ordered that (1) the public defender's office assign a new attorney to handle defendant's case, and (2) the public defender take steps to isolate any persons who have worked on defendant's case thus far from further involvement in the case. In making its order, the trial court concluded that the deputy public defender assigned to defendant's case made comments that "at least trigge[r] the potential of an issue with the Racial Justice Act"; the failure to raise such a claim could potentially constitute ineffective assistance of counsel; any appointed appellate counsel would be bound to investigate and raise the claim in a future proceeding; and that it would be reasonable to take steps to avoid this necessity in future proceedings….

The majority of the appellate panel agreed with a trial court; here's an excerpt from the long opinion:

The RJA, "effective January 1, 2021, added section 745 to the Penal Code. The Legislature enacted the [RJA] with the express intent 'to eliminate racial bias from California's criminal justice system' and 'to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.'" As written, the RJA includes a mandatory provision providing that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." It also includes permissive provisions providing a procedural mechanism for a criminal defendant to seek relief for a violation of the statute. Where a violation of the RJA has occurred, any resulting conviction or sentence may be rendered legally invalid, requiring retrial of an entire case after declaration of a mistrial, empaneling of a new jury, or vacatur of a judgment….

The RJA Created an Actual Conflict of Interest in This Case …

"Criminal defense counsel has the duty to investigate carefully all defenses of fact and of law that may be available to the defendant…. 'The defendant can reasonably expect that before counsel undertakes to act, or not to act, counsel will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.'"This duty extends to investigation and evaluation of potential claims under the RJA, since the failure to timely raise an RJA violation can constitute ineffective assistance of counsel. Thus, when defense counsel becomes aware of a potential violation of the RJA, counsel has a duty to conduct an investigation of the circumstances surrounding such a claim and make an informed decision with respect to how best to advance his client's interests based upon the results of that investigation. As the trial court correctly observed, the failure to do so could constitute ineffective assistance of counsel.

However, defense counsel is placed in an untenable position when the duty to investigate an RJA claim arises from counsel's own comments. In such instances, the subject of such investigation is whether counsel himself harbors racial bias or animus, and the inquiry must include whether counsel's decision may be influenced in an unintentional or unconscious manner by implicit bias. Thus, because the nature of any investigation in this case necessarily includes an assessment of whether a specific deputy public defender may harbor an unintentional or unconscious implicit bias, it is simply not an inquiry which that specific deputy public defender is equipped to conduct. By definition, implicit bias includes unconscious assumptions, and the specific deputy public defender cannot reasonably be expected to even recognize its existence absent input from another, objective attorney. It is this tension—between petitioner's right to have counsel fully investigate and pursue any potentially meritorious RJA claim and the specific deputy public defender's inability to objectively perform this task—that creates the conflict in this case.

{We disagree with the dissent's effort to resolve the meaning or intent of the deputy public defender's comments to reach the merits of a potential RJA claim that has yet to be fully investigated or litigated in the trial court. We observe that the threshold for establishing the right to an investigation and evidentiary hearing on an RJA claim is low, and may be satisfied even if, in the opinion of a reviewing court, there was clearly a permissible and race-neutral purpose for the statements in question. (People v. Howard (2024) 104 Cal.App.5th 625, 653 [The trial court must hold a full evidentiary hearing on an RJA claim even if "the record shows a permissible purpose for the [attorney's statements] and fails to show the [attorney] harbored express racial bias or animus …."].)}

It may be that after a thorough investigation, there is insufficient evidence to support a claim that the RJA has been violated or other factors may support a reasonable tactical decision to forego pursuing any RJA claim. However, it is inescapable that if petitioner is entitled to such an investigation and informed decision by counsel, the specific deputy public defender subject of the claim cannot be the one charged with performing this task. It is the inability of the specific deputy public defender to impartially fulfill this duty that creates the conflict of interest. Because the record in this case shows that an actual conflict of interest exists, the trial court did not abuse its discretion in ordering that a specific deputy public defender be removed from the case.

{We disagree with the dissent's analytical approach of seeking to first resolve whether the record evidences a meritorious RJA claim. In our view, any such analysis is entirely premature…. [T]he issue before the trial court here was whether an actual or potential conflict required removal of counsel. To require that the record already be sufficient to show the existence of an RJA claim against defense counsel before the trial court can remove counsel essentially requires that a conflict actually ripen into an act that has already caused defendant detriment before removal is appropriate. This approach contradicts longstanding precedent that the trial court has discretion to remove counsel for the purpose of preventing an unripe conflict from actually materializing to the defendant's detriment….

The Trial Court Could Also Remove the Deputy Public Defender To Prevent a Risk of Substantial Impairment of the Proceedings

Even in the absence of an actual conflict, we would find no abuse of discretion warranting reversal. In addition to expressing its concern that the failure to raise an RJA claim might constitute ineffective assistance, the trial court also stated that its order was intended to forestall any potential future RJA claim. Indeed, petitioner concedes that the trial court was concerned with insulating the proceedings from a future RJA claim, and further acknowledges that this was a legitimate concern, separate and apart from any conflict of interest. In our view, removal of counsel to prevent a potential violation of the RJA was also within the trial court's discretion under the circumstances presented in this case….

Potential for Waiver

Finally, we address petitioner's argument that any concerns related to conflict of interest or a future RJA claim can be adequately addressed by a knowing and intelligent waiver. We disagree that the offer of waiver establishes an abuse of discretion warranting relief in this case. We agree with defendant that the right to conflict-free counsel may be waived. However, we express serious reservation with the proposition that the trial court's concerns regarding the potential for an RJA claim may be adequately addressed by waiver…. "… 'Although a defendant may waive rights which exist for his own benefit, he may not waive those which belong also to the public generally.' …" …

[T]he purpose of the RJA is not only to remedy the effects of racial bias on individual criminal defendants but to eliminate the impact of such bias "on our system of justice as a whole" because "[d]iscrimination undermines public confidence in the fairness of the state's system of justice." Thus, the interests protected by the RJA are not merely those of the criminal defendant but the public's interest in eliminating racial bias from the criminal justice system.

To be sure, the RJA includes a provision that an RJA claim which is not timely raised by a criminal defendant "may be deemed waived." However, it is far from clear that the defendant's waiver in this manner can relieve the trial court or prosecution from the duty to ensure a proceeding free from racial bias or animus. After all, section 745, subdivision (a)'s language places a mandatory duty on the state to "not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." It would seem contrary to the Legislature's intended purpose to hold that a criminal defendant may relieve the state of its mandatory duties under the statute by entering a waiver, thereby permitting the trial court or prosecutor to knowingly and openly proceed in a manner that the Legislature has declared is in violation of public policy.

Ultimately, we need not decide whether an RJA claim is subject to express waiver because the trial court retains discretion to remove counsel even where a defendant offers to enter an otherwise valid waiver of his interests….

Justice Frank Menetrez dissented; again, here is a short excerpt from the long full opinion:

A deputy public defender sought a more favorable plea offer and expressed the view that the criminal justice system is biased against Hispanic defendants like his client. As a result, the district attorney moved to disqualify both the deputy public defender and the entire public defender's office on the ground that the deputy public defender's "race/ethnicity-based remarks" gave rise to a potential claim against the deputy public defender under the California Racial Justice Act of 2020, creating a conflict of interest. The trial court granted the motion in part, removing the deputy public defender and "anybody who has touched the case" but not disqualifying the entire public defender's office.

The record contains no evidence of a potential RJA claim against the deputy public defender. The trial court's ruling was therefore erroneous and prejudicial, depriving defendant Enrique Sanchez of an attorney whom he wanted to keep and who was zealously representing him….

On October 13, 2023, the deputy public defender representing Sanchez met with the deputy district attorney to discuss a plea bargain. The deputy district attorney offered 14 years, and the deputy public defender sought a better offer. Their accounts of ensuing events overlap in certain respects but diverge in others.

According to the deputy district attorney's declaration, when the deputy public defender failed to obtain a better offer, he "exclaimed 'I really don't care.' [The deputy district attorney] proceeded to ask him what he meant by that statement and [he] stated, 'read between the lines …, I am a white man, what do I care? It's not my people we are incarcerating.' [¶] In response, [the deputy district attorney] stated 'what do you mean exactly? Are you asking me to give Mr. Sanchez a better deal because he is brown and I am brown?' to which [the deputy public defender] immediately responded 'Yes! Exactly! Because you are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.'" The deputy district attorney then "immediately stood up and stated 'it did not matter what the Defendant's race is, whether they are brown, White, Asian, or Black, a crime has been committed and I am seeking what is fair and just.' [The deputy district attorney] proceeded to state, 'I am done with this conversation, I will not allow you to upset me. I am completely done.'" As the deputy district attorney left the conference room and entered the courtroom, she was "emotionally distraught from [the deputy public defender's] race/ethnicity-based commentary." The deputy public defender "was agitated" and "continued to follow" the deputy district attorney, asking her "multiple times" if she "'was going to take it out on his client'" because she was "mad" at him. The deputy district attorney "responded 'yes, yes, yes' to him so that he would leave [her] alone."

The deputy public defender's declaration describes the incident somewhat differently and adds some factual context. The same deputy public defender had represented Sanchez at the preliminary hearing, and he intended to call the victim, Jane Doe, as a witness. Doe "was present all morning waiting to be called as a witness by the defense" and "was also present after the lunch break," but "[w]hen it was time for the defense to call Jane Doe to the stand, she was gone." Doe later informed the deputy public defender that she had left because "she was told by the District Attorney Victim Advocate to go home." Doe subsequently told the police that "all the sexual intercourse was consensual, she was not raped, and she did not want to lie."

When the deputy public defender received the prosecution's offer of 14 years, he "felt this offer was very unreasonable considering all the circumstances, the wishes of Jane Doe, and the fact that Jane Doe was recanting the kidnapping and rape allegations." He accordingly "attempted to persuade [the deputy district attorney] to consider many mitigating factors in an attempt to persuade her to make Mr. Sanchez a more reasonable offer." The deputy public defender asked "if she had considered that Mr. Sanchez was a youth offender in deciding upon her offer," and he "asked her if she had considered any RJA implications" as well as "the wishes of the victim Jane Doe."

The deputy public defender's declaration provides the following description of what happened next: "I used sarcasm to make a point about the systemic and pervasive racism that permeates every aspect of our justice system. I sarcastically said, I'm just a white guy why should I care. You are just sending another poor young Hispanic man to prison. I discussed Mr. Sanchez's race with [the deputy district attorney] because I recognize the history of racial bias, implicit bias, and systemic racial injustice in the criminal justice system. I felt like Mr. Sanchez and victim Jane Doe, both Hispanic individuals, had no voice in our justice system. [The deputy district attorney] responded by threatening Mr. Sanchez with life in prison if he did not take the fourteen-year offer."

According to the deputy public defender, the deputy district attorney became "upset and even angry to the point where [the deputy public defender] felt that [the deputy district attorney's] impartiality as a prosecutor might be compromised." He asked her "if she was going to take it out on" Sanchez "because she was so mad at" the deputy public defender. "She responded with one simple 'yes.'" The deputy public defender's declaration states that he did not know the deputy district attorney's race, did not comment on it, and did not use the phrase "'your people.'" He claimed that the statements attributed to him in the deputy district attorney's declaration were all "either inaccurate or false" and that the deputy district attorney did not make the statement about "'seeking what is fair and just'" that appears in her declaration….

The majority opinion reasons that the trial court properly disqualified the deputy public defender because his conduct evidences "a potential violation of the RJA." That is incorrect. [details omitted. -EV] … [And g]iven the complete absence of any evidence that the deputy public defender harbors any conscious or unconscious bias against Sanchez or that any such bias has adversely affected his representation of Sanchez, there is no basis to investigate him for such bias. In sum, the record does not contain a shred of evidence of any potential violation of the RJA by the deputy public defender. There is nothing to investigate, no potential conflict, and no basis to disqualify the deputy public defender from representing Sanchez. The district attorney's motion was wholly without merit and should have been denied….

The dissent also discussed waiver, and various other points.

Philip Stemler represents the State.