BACKGROUND

In August 2020, a jury convicted Reed of pimping, pandering, human trafficking,

and rape involving two victims.2 (Pen. Code, §§ 236.1, subd. (b), 261, subd. (a)(2),

266h, subd. (a), 266i, subd. (a).) The jury also found that he committed a qualifying sex

offense against multiple victims under the one strike law. (Id., § 667.61, subd. (e)(4).)

The trial court sentenced him to a determinate term of 21 years four months in prison,

plus an indeterminate term of 30 years to life.

Reed is African American. In June 2024, he filed the petition for writ of habeas

corpus seeking relief under the RJA. The trial court issued an order to show cause “why

relief should not be granted on the ground that [Reed] suffered a violation of the [RJA]

because the prosecutor and law enforcement witnesses who testified as experts used

‘racially discriminatory language’ during [his] trial, specifically by referring to [Reed] as

a ‘gorilla pimp.’”

2 We take judicial notice of the record in Reed’s direct appeal from the judgment, People v. Reed (Nov. 7, 2022, E075783) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

3 In April 2025, the court set an evidentiary hearing on the matter. That same

month, Reed’s retained counsel filed an “ex parte motion to appoint counsel for indigent

defendant.” (Capitalization and boldface omitted.) According to counsel’s declaration,

her fee agreement with Reed excluded representation in any evidentiary hearing, and he

had not paid her to represent him in an evidentiary hearing. In addition, her husband had

just been released from the hospital, and she needed to care for him during the ensuing

six-week rehabilitation period. She stated that the emotional and mental stress caused by

her husband’s medical condition would make it difficult for her to focus on Reed’s case.

The court treated counsel’s ex parte motion as a motion to withdraw and granted

the motion. Reed indicated that he did not have the ability to retain new counsel and

asked the court to appoint counsel, and the court appointed the Public Defender to

represent Reed. The Public Defender made “a quasi attempt at asking to be relieved” as

counsel. The court then ordered the Public Defender “to submit briefing . . . addressing

[his] position that the trial court did not have the authority to appoint the Office of the

Public Defender to prosecute a petition for writ of habeas corpus.” The court further

ordered the Public Defender to (1) explain his position in light of Bemore v. Superior

Court (2025) 108 Cal.App.5th 1125 (Bemore) and Charlton v. Superior Court (1979) 93

Cal.App.3d 858 (Charlton) and (2) “address the interplay between” section 27706 and

Penal Code section 987.2.

The Public Defender filed a brief arguing that under section 27706(g), he had

discretion to decline appointments in postconviction habeas proceedings and other

4 proceedings “beyond the core mission of trial work.” He asserted that the decision to

decline appointment in this case was “not a reflection on the merits” of Reed’s petition.

Rather, the decision was based on the office’s “current resources and obligations to [its]

current clients,” the “lack of funding for habeas defense,” and the office’s “mandatory

mission of representing indigent people facing charges in trial court, consistent with

[section] 27706.” He further argued that Penal Code section 987.2 did not affect his

discretion, because it merely governed the order of priority for appointed counsel. That

is, the statute gives the Public Defender priority of appointment, but if the Public

Defender is unavailable for appointment, then the court must select from other options.

The court heard argument on the issue in June 2025. The People took no position

on the issue. Supervising public defender Aimee Vierra appeared for the Public

Defender. Vierra acknowledged that the Public Defender was obligated to accept

appointments to represent defendants who were “pre-conviction,” with some limited

exceptions. But she reiterated that the Public Defender had discretion to decline

appointments for postconviction habeas proceedings under section 27706(g). She

explained: “What we’re talking about here is RJA which is a habeas writ, right. And we

have 13,000 people that are sentenced from this county either in state prison or through

[Penal Code section 1170, subdivision (h),] still with the Sheriff’s Department. That

group of people sends me a habeas writ about five times a day related to conditions of

confinement and other such things.” Vierra asserted that the Public Defender was unable

to represent all of the habeas petitioners asking the office for help. She alternatively

5 argued that Reed was “in an appellate position,” and under the second sentence of section

27706(a), the Public Defender could choose whether to accept an appellate appointment.

Vierra observed that the Public Defender had chosen to represent some petitioners

for purposes of RJA habeas petitions. That was because the office had recently

represented those petitioners for purposes of resentencing under Senate Bill No. 483

(2021-2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3 [declaring prior prison term

enhancements to be legally invalid]), and they were “open client[s].” But Reed was not

one of those clients. According to Vierra, the Public Defender had requested more

funding from the county executive office and wanted to be able to handle more RJA work

for former clients. But the executive office had not granted the request, and the Public

Defender could not help more clients “with the same zero-sum resources.” She asserted

that the Public Defender’s dedication to preconviction clients constituted good cause to

decline appointment in Reed’s case.

The court asked Vierra to estimate the amount of time needed to prepare for

Reed’s evidentiary hearing, and she estimated roughly 30 to 40 hours of work. She

explained that the Public Defender had six attorneys doing postconviction work like the

resentencing proceedings under Senate Bill No. 483. Those six attorneys had well over

50 clients each, and the attorneys needed to prioritize those clients. Some of those clients

were waiting “egregious amounts of time to get their cases heard and pushed forward,”

especially those that also had claims under the RJA. Vierra requested that the court

appoint an attorney from the conflict panel or the habeas panel to represent Reed.

6 After hearing argument, the court ruled that the Public Defender was obligated to

serve as Reed’s appointed counsel under the first sentence of section 27706(a), and the

Public Defender did not have discretion to decline the appointment. The court reasoned

that according to Charlton, postconviction habeas writs were part of “‘the proceedings’”

relating to the commission of an offense within the meaning of section 27706(a).

(Charlton, supra, 93 Cal.App.3d at p. 862, italics omitted.) The court distinguished

between a “permissive appointment” and a “mandatory appointment,” noting that an

appointment under section 27706(g) was permissive. The Public Defender “has the

ability to accept or decline [the] appointment. There’s nothing mandatory about it.” But

under section 27706(a), the appointment was “mandatory,” unless the Public Defender

could show that the office was unavailable.

The court accordingly considered whether the Public Defender had established

that the office was unavailable for appointment under Penal Code section 987.2. The

court concluded: “I cannot say that based on what I heard that you’re unavailable to take

Mr. Reed’s case. I do have concerns, and I share your concerns about the total amount of

cases which could be assigned to the Public Defender’s Office, how that’s going to

stretch your resources, I understand that. You’ve raised some very good points. [¶] I

don’t think though that for the purpose of Mr. Reed who is sitting before me, that those

are points I need to consider. Now, if Mr. Reed’s case was an excessively voluminous

case, if it was a death penalty case for instance that had a five-month trial transcript that

7 had to be gone through and all the types of issues that are attendant with that type of

situation, that might be a different story.”

The court also observed that the influx of RJA cases was not “an easy situation”

for anyone involved, including the Public Defender and the courts. There was “a

significant amount of additional work for everyone,” and “everyone’s workloads are

being stretched by additional tasks and additional responsibilities that we have as a result

of some legislation.” The court nevertheless determined that the Public Defender

“remains appointed on the case.”

The Public Defender filed the instant petition requesting that we issue a writ of

mandate directing the trial court to vacate its order compelling the Public Defender to

represent Reed. We issued an order to show cause and stayed proceedings in the trial

court. Neither the People nor respondent superior court filed a return.

STANDARD OF REVIEW

The issue in this case turns on questions of statutory interpretation. We review the

trial court’s interpretation of a statute de novo. (People v. Tirado (2022) 12 Cal.5th 688,

694.) To determine the Legislature’s intent and effectuate the statute’s purpose, we first

examine the “‘statute’s words and give them their usual and ordinary meaning.’” (People

v. Gonzalez (2008) 43 Cal.4th 1118, 1126.) “We do not consider statutory language in

isolation; instead, we examine the entire statute to construe the words in context.

[Citation.] If the language is unambiguous, ‘then the Legislature is presumed to have

8 meant what it said, and the plain meaning of the language governs.’” (Kirzhner v.

Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 972.)

DISCUSSION

The Public Defender does not deny that Reed is entitled to appointed counsel for

purposes of his RJA habeas petition. The question is whether the Public Defender may

decline the appointment, which would require the court to appoint alternate counsel. We

agree with the Public Defender that he may decline. Section 27706(g) applies to public

defenders’ representation of indigent habeas petitioners, and under that subdivision,

public defenders have discretion to decline representation.

I. Subdivisions (a) and (g) of section 27706 and Penal Code section 987.2

Section 27706 establishes the duties of county public defenders. (Erwin v.

Appellate Department (1983) 146 Cal.App.3d 715, 718.) Penal Code section 987.2

concerns the court’s selection of appointed counsel. (Pen. Code, § 987.2, subds. (d), (e).)

The first sentence of section 27706(a) concerns “the trial phase of the case.”

(Mowrer v. Appellate Department (1990) 226 Cal.App.3d 264, 267 (Mowrer).) It states:

“Upon request of the defendant or upon order of the court, the public defender shall

defend, without expense to the defendant, 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 courts at all stages of the proceedings, including the preliminary

examination.” (§ 27706(a).) The first sentence thus requires public defenders to “defend

. . . at all stages of the proceedings” indigent individuals who are charged with an offense,

9 and public defenders “shall” provide that defense at the individual’s request or if so

ordered by the court. (Ibid.) Public defenders generally have no “power to decline” an

appointment or a request to defend an indigent person charged with a criminal offense.

(Ligda v. Superior Court (1970) 5 Cal.App.3d 811, 827; Williams v. Superior Court

(1996) 46 Cal.App.4th 320, 327 [“the statute requires the public defender to defend those

indigent clients who request its services”].) They are “employed by the people to render

such services.” (Ligda, at p. 827.) But the court may relieve public defenders if they

have a conflict of interest or otherwise show that they are unavailable.3 (Pen. Code,

§ 987.2, subds. (a)(3), (d), (e); People v. Chavez (1980) 26 Cal.3d 334, 344-345; Aceves

v. Superior Court (1996) 51 Cal.App.4th 584, 592.)

The second sentence of section 27706(a) further addresses public defenders’ duties

in the trial phase. It states: “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 . . . .” (§ 27706(a).)

The remainder of the second sentence of section 27706(a) concerns appeals in

criminal cases. In relevant part, it states: “The public defender . . . shall prosecute all

appeals to a higher court or courts of any person who has been convicted, where, in the

3 When assessing availability for that purpose, the court may “appropriately consider the relative ability of proposed counsel to prepare for a proceeding.” (Bemore, supra, 108 Cal.App.5th at p. 1154.) “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.” (Williams v. Superior Court, supra, 46 Cal.App.4th at p. 331.)

10 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.” (§ 27706(a).) The second

sentence “vests the office of the county public defender with the broad discretion to

choose which clients it wishes to represent on appeal.” (Mowrer, supra, 226 Cal.App.3d

at p. 267.) Although the statute uses the phrase “‘shall prosecute all appeals,’” nothing in

the statute requires public defenders “to make any determination of the merit of the

proposed appeal,” which is what may trigger the duty to prosecute an appeal. (Ibid.)

Section 27706(a) therefore “is intended to . . . (a) clothe the office of the county public

defender with the discretion to prosecute any appeals that its staff of attorneys believe to

be meritorious, and (b) ward off the blows of those seeking to improperly interfere with

the exercise of that discretion.” (Mowrer, at p. 267.)

The foregoing provisions of section 27706(a) have existed in a similar form since

1921, when the Legislature enacted them as part of a general enabling statute permitting

cities and counties to establish public defender offices. (Stats. 1921, ch. 245, § 5, p. 355;

see Ingram v. Justice Court (1968) 69 Cal.2d 832, 836, fn. 1 (Ingram), superseded on

another ground by § 27707.) Over the years, the Legislature has added subdivisions to

section 27706 that authorize public defenders to represent indigent parties in other

circumstances.

The Legislature added subdivision (g) to section 27706 in 1975. (Stats. 1975, ch.

1125, § 2, p. 2744; Sen. Bill No. 1018 (1975-1976 Reg. Sess.); In re Brindle (1979) 91

Cal.App.3d 660, 679.) That subdivision states: “Upon the order of the court or upon the

11 request of the person involved, the public defender may represent any person who is not

financially able to employ counsel in a proceeding of any nature relating to the nature or

conditions of detention, of other restrictions prior to adjudication, of treatment, or of

punishment resulting from criminal or juvenile proceedings.” (§ 27706(g).)

While section 27706 governs public defenders’ duties, Penal Code section 987.2

governs the court’s selection of counsel to represent an indigent person “in a criminal

trial, proceeding, or appeal.” (Id., subd. (a).) That includes the court’s selection of

counsel to represent a habeas petitioner in noncapital cases. (Bemore, supra, 108

Cal.App.5th at p. 1148.) The statute directs the court to “first utilize the services” of the

county public defender when selecting counsel for appointment. (Pen. Code, § 987.2,

subds. (d), (e).) If the county public defender is “‘unavailable,’” then “the statute permits

appointment of alternate defense counsel according to a specific order of priority.”

(Bemore, at p. 1152.) Alternate counsel includes the second public defender or alternate

public defender, someone from a panel of contract attorneys, and any other private

counsel. (Pen. Code, § 987.2, subds. (d), (e); Bemore, at p. 1152.) Additionally, the

statute provides that alternate counsel shall be compensated from the county general fund

“[i]n a case in which the court finds that, because of a conflict of interest or other reasons,

the public defender has properly refused” to represent the indigent person. (Pen. Code,

§ 987.2, subd. (a)(3).)

12

II. Applicability of section 27706(g) to representation of habeas petitioners

The Public Defender argues that representation of an indigent person in

prosecuting a habeas petition falls under section 27706(g), not section 27706(a). He

contends that the court therefore erred by compelling him to represent Reed under the

first sentence of section 27706(a). We agree.

The first sentence of section 27706(a) refers to “defend[ing]” an indigent person in

proceedings in which they are charged with an offense. In a similar vein, the second

sentence addresses public defenders’ provision of counsel and advice about charges on

which they are “conducting the defense.” (Ibid.) But section 27706(g) refers more

broadly to “represent[ing]” an indigent person “in a proceeding of any nature.” The

petitioner seeking a writ of habeas corpus is not defending a criminal action—they are

prosecuting the writ. (Pen. Code, § 1473, subd. (a) [“A person unlawfully imprisoned or

restrained of their liberty, under any pretense, may prosecute a writ of habeas corpus to

inquire into the cause of the imprisonment or restraint”].) Moreover, habeas petitions are

“separate actions” (Briggs v. Brown (2017) 3 Cal.5th 808, 839) and “special

proceeding[s]” that are “not entirely analogous to either” civil or criminal proceedings (In

re Scott (2003) 29 Cal.4th 783, 815, fn. 6). Habeas petitions thus fit squarely within the

language of section 27706(g) providing for public defenders to represent individuals (not

defend them) in a proceeding of any nature. (Polakovic) is instructive. Private counsel in that case sought compensation under Penal

Code section 987.2 for representing an indigent person in prosecuting two petitions for

writ of prohibition. (Polakovic, at pp. 71-72.) We held that Penal Code section 987.2

authorized the compensation. (Polakovic, at p. 76.) Our conclusion was based in part on

then-recent changes to the statutory language. (Id. at pp. 72-73.) The former version of

the statute authorized compensation “‘[i]n any case in which counsel is assigned in the

superior court to defend a person . . . who is charged therein with the commission of a

crime.’” (Id. at p. 72.) The amended statute changed the “wording from one appointed to

‘defend’ an indigent ‘charged therein’ to one appointed to ‘represent’ an indigent in a

‘criminal trial, proceeding or appeal.’” (Id. at pp. 72-73.) We concluded that the

amendment “clearly broaden[ed] the scope of the statute,” and counsel “was representing

his client in a ‘criminal trial, proceeding or appeal’” when he prosecuted the writ

petitions. (Id. at p. 73.) Counsel’s request for compensation therefore was “consistent

with the statutory language.” (Ibid.)

Consistent with Polakovic, our interpretation of section 27706 gives effect to the

Legislature’s decision to use different terms to describe public defenders’ roles in

different circumstances. The statute uses “defend” when describing public defenders’

duty to provide a defense in the superior court but not when describing their authority to

act beyond providing a defense. In that instance, they are “prosecut[ing]” appeals

(§ 27706(a)) or “represent[ing]” petitioners in other “proceeding[s]” (§ 27706(g)). “It is

14 a cardinal rule of construction that the several parts of a statute must be read together and

harmonized, when reasonably possible, so as to discover and give effect to the intent of

the Legislature.” (Ingram, supra, 69 Cal.2d at p. 839.)

Habeas petitions also fit within the further description of proceedings in section

27706(g). The subdivision applies to proceedings “relating to the nature or conditions of

detention, of other restrictions prior to adjudication, of treatment, or of punishment

resulting from criminal or juvenile proceedings.” (§ 27706(g).) That list describes

challenges properly brought in habeas proceedings.

A “necessary prerequisite for issuance of the writ [of habeas corpus] is the custody

or restraint of the petitioner by the government.” (People v. Villa (2009) 45 Cal.4th

1063, 1068.) An “individual in custody for a crime (or alleged crime) may—within

limits—challenge the legality of that detention on habeas corpus. A petitioner in custody

can also challenge the conditions of confinement, a challenge related not to the

petitioner’s underlying conviction but instead to his or her actual confinement.” (Id. at

p. 1069.) In addition, habeas jurisdiction lies to challenge “‘alleged mistreatment or

illegal treatment of prisoners inside penal institutions’” (In re Williams (2015) 241

Cal.App.4th 738, 743) or the claimed failure to provide proper treatment to defendants

declared mentally incompetent (In re Lerke (2024) 107 Cal.App.5th 685, 696). Habeas

review also is available to challenge a purportedly illegal sentence. (In re Harris (1993)

5 Cal.4th 813, 839, disapproved on another ground by Shalabi v. City of Fontana (2021)

11 Cal.5th 842, 855 & fn. 5.)

15 Challenges to the legality of a petitioner’s detention and the conditions of their

confinement are proceedings “relating to the nature or conditions of detention.”

(§ 27706(g).) Challenges to a petitioner’s alleged improper treatment are proceedings

“relating to the nature or conditions . . . of treatment.” (Ibid.) And challenges to a

petitioner’s sentence are proceedings “relating to the nature or conditions . . . of

punishment.” (Ibid.)

Moreover, challenges “relating to the nature or conditions . . . of other restrictions

prior to adjudication” may also be brought by habeas petitions. (§ 27706(g).) According

to the legislative history for section 27706(g), “restrictions imposed prior to adjudication”

include things like the “setting of bail, travel restrictions, etc.” (Assem. Off. of Research,

3d reading analysis of Sen. Bill No. 1018 (1975-1976 Reg. Sess.), pp. 1-2.) “Habeas

corpus is an appropriate vehicle by which to raise questions concerning the legality of

bail grants or deprivations.” (In re McSherry (2003) 112 Cal.App.4th 856, 859.) And

conditions of pretrial release may also be challenged by way of a habeas petition. (See In

re Webb (2019) 7 Cal.5th 270, 272-273 [petitioner challenging a condition of release on

bail]; In re York (1995) 9 Cal.4th 1133, 1138-1139 [petitioners challenging conditions of

release on their own recognizance].)

In sum, habeas proceedings are “proceeding[s] of any nature” in which public

defenders may “represent” the petitioner, not defend the petitioner, and section 27706(g)

describes the types of challenges brought in habeas proceedings. (§ 27706(g).) The plain

16 language of the statute demonstrates that the Public Defender’s representation of a habeas

petitioner falls under section 27706(g), not section 27706(a).

The trial court relied on Charlton to conclude otherwise. To the extent that

Charlton can be read to require a contrary conclusion, we disagree with Charlton.

The indigent habeas petitioner in Charlton wanted his privately retained counsel to

continue to represent him by court appointment. (Charlton, supra, 93 Cal.App.3d at

pp. 860, 863.) The trial court determined that it had to appoint the county public

defender to represent the habeas petitioner, and the public defender was available to

accept the appointment. (Id. at pp. 860, 863.) The petitioner then sought a writ of

mandate compelling the trial court to appoint his private counsel. (Id. at p. 860.) The

Charlton court denied the petition for writ of mandate, holding: “[I]n 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 cause.” (Id. at p. 863.)

Charlton reasoned that Penal Code section 987.2 “applies to habeas corpus

proceedings by implication,” because “it refers to the appointment of assigned counsel

for indigents ‘in a criminal trial, proceeding or appeal.’” (Charlton, supra, 93

Cal.App.3d at p. 862.) Moreover, under Penal Code section 987.2, the trial court had no

authority to assign private counsel unless the county had no public defender or “the

public defender is unable because of a conflict of interest or other reasons to act.”

17 (Charlton, at p. 863.) But the county public defender was available in Charlton, so those

exceptions did not apply. (Ibid.) The court also reasoned: “Government Code section

27706, subdivision (a) requires that the public defender must upon request represent any

indigent ‘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.’ The habeas corpus

hearing is necessarily a proceeding relating to the commission of an offense within the

courts listed.” (Id. at p. 862.) That is the only reference to section 27706 in the opinion,

and the case does not contain any further analysis of section 27706.

Charlton does not persuade us that section 27706(a) requires public defenders to

represent indigent habeas petitioners. “The scope of the ‘[l]anguage used in any

opinion’” must “‘be understood in the light of the facts and the issue then before the

court, and an opinion is not authority for a proposition not therein considered.’” (V Lions

Farming, LLC v. County of Kern (2024) 100 Cal.App.5th 412, 423.) The public defender

was not attempting to decline the appointment in Charlton, so there was no dispute about

whether the public defender had the authority to do that under section 27706 or about

which subdivision of section 27706 applied—subdivision (a) or subdivision (g). In that

respect, Charlton’s statement that a habeas hearing is necessarily a “stage[] of the

proceedings” within the meaning of section 27706(a) must be understood as limited.

Regardless of whether the court appointed the county public defender under subdivision

(a) or subdivision (g) of section 27706, Penal Code section 987.2 determined the result in

Charlton.

18 Moreover, Charlton failed to recognize that section 27706(a) requires public

defenders to “defend” an indigent person, not “represent” them. (Charlton, supra, 93

Cal.App.3d at p. 862.) It failed to acknowledge that section 27706(g) applies to the

broader circumstances in which public defenders “may represent” petitioners in “a

proceeding of any nature.” And it failed to acknowledge that section 27706(g) describes

typical habeas challenges. Charlton did not even acknowledge that section 27706(g)

exists. We consequently disagree with Charlton’s analysis to the extent that the court

concluded that section 27706(a) governs public defenders’ representation of habeas

petitioners.4

The trial court asked the Public Defender to explain his position in light of Bemore

as well. Bemore does not compel a different result. That case did not interpret section

27706, and the opinion does not cite section 27706. Rather, Bemore concerned the trial

court’s selection of appointed counsel under Penal Code section 987.2. (Bemore, supra,

108 Cal.App.5th at pp. 1134-1135.) Over the petitioner’s objection, the trial court

appointed the county public defender to represent the petitioner in prosecuting his RJA

habeas petition. (Bemore, at p. 1134.) The public defender wanted to represent the

petitioner (id. at p. 1158), but the petitioner wanted to be represented by private counsel

4 We are similarly unpersuaded by the concurring opinion, which relies on Charlton to conclude that the first sentence of section 27706(a) governs the Public Defender’s duty to represent Reed. (Conc. opn., post, at pp. 1, 5-7.) We also note that the concurring opinion appears to be inconsistent with this court’s opinion in Gardner v. Appellate Division of Superior Court (2019) 41 Cal.App.5th 1139 (Gardner). Gardner concluded that the first sentence of section 27706(a) “applies only in ‘the trial phase’” of a case. (Gardner, at p. 1145.)

19 who had represented him in prior habeas proceedings. (Id. at pp. 1133-1134.) Bemore

vacated the order appointing the county public defender and directed the court to appoint

the requested private counsel on the basis of various provisions in Penal Code section

987.2. (Bemore, at p. 1135.) The case has no bearing on which subdivision of section

27706 governs public defenders’ representation of habeas petitioners.

Finally, Ingram is the only California Supreme Court case to address the

applicability of section 27706 to writ proceedings, and our interpretation of section 27706

is consistent with Ingram. Our high court decided Ingram before the Legislature added

subdivision (g) to section 27706 in 1975. The case involved a postconviction motion to

set aside the judgment, “i.e., a petition for writ of error coram nobis.” (Ingram, supra, 69

Cal.2d 832 at p. 843.) The county public defender was representing the movant and

argued that the movant was denied the right to counsel when he was convicted eight

years earlier. (Id. at p. 835.) The issue in Ingram was whether the trial court had the

power to review the public defender’s determination that an accused who requested the

public defender’s services was indigent. (Id. at pp. 834-835.) Ingram held that the trial

court could not review that determination, even if the accused requests the public

defender’s services “for a collateral attack on a final judgment rather than a defense to a

pending charge.”5 (Id. at p. 835.)

5 In response to Ingram, the Legislature enacted section 27707, which provides that the court “may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender.” (§ 27707, subd. (a); Roswall v. Municipal Court (1979) 89 Cal.App.3d 467, 471.)

20 Ingram reasoned that section 27706(a) did not preclude the public defender from

representing an indigent person in writ proceedings attacking the final judgment.

(Ingram, supra, 69 Cal.2d at p. 843.) The court observed that the statute “directs the

public defender to represent indigents ‘charged with the commission of any . . . offense’;

but it also directs him to do so ‘at all stages of the proceedings,’ and in particular to

prosecute on behalf of such persons ‘all appeals to a higher court . . . where, in his

opinion, the appeal will or might reasonably be expected to result in the reversal or

modification of the judgment of conviction.’” (Ibid.) The court explained that a coram

nobis petition is “‘“part of the proceedings”’” in a criminal case, and “‘the questions that

may be raised on coram nobis are as crucial as those that may be raised on direct

appeal.’” (Ibid.) The court accordingly concluded that if “the public defender reasonably

believes that a judgment, although final, is so defective as to be subject to a successful

collateral attack, whether by coram nobis or habeas corpus, it does no violence to the

statute to allow him to represent such an indigent at the latter’s request.” (Ibid.)

According to Ingram, public defenders were “allow[ed]” to represent coram nobis

and habeas petitioners, because those proceedings were analogous to direct appeals.

(Ingram, supra, 69 Cal.2d at p. 843; see Gardner, supra, 41 Cal.App.5th at p. 1146

[Ingram held that “by using the word ‘appeals,’ the Legislature did not intend to exclude

collateral attacks that are the functional equivalent of appeals”].) But the court did not

conclude, like the trial court in this case, that public defenders are required to represent

petitioners under the first sentence of section 27706(a). Moreover, because our high

21 court decided Ingram before section 27706(g) existed, the court had no occasion to

consider whether that subdivision applies to public defenders’ representation of writ

petitioners seeking postconviction relief. Ingram consequently does not change our

interpretation of section 27706.

For all of these reasons, we conclude that the Public Defender’s representation of

an indigent person in prosecuting a habeas petition falls under section 27706(g), not

section 27706(a). The trial court erred by ordering the Public Defender to represent Reed

under the first sentence of section 27706(a).

III. Discretion to decline representation under section 27706(g)

The Public Defender also argues that under section 27706(g), he had discretion to

decline to represent Reed. We agree, and we accordingly conclude that the trial court’s

reliance on section 27706(a) was prejudicial.

Public defenders have no power to decline an appointment to defend an indigent

person in the trial phase of a case, but they may be relieved if they have a conflict of

interest or make some other showing of unavailability. That is because the first sentence

of section 27706(a) states that public defenders “shall defend” indigent individuals.

“Ordinarily, the term ‘shall’ is interpreted as mandatory and not permissive. Indeed, ‘the

presumption [is] that the word “shall” in a statute is ordinarily deemed mandatory and

“may” permissive.’” (People v. Standish (2006) 38 Cal.4th 858, 869.)

22 The distinction between “shall” and “may” is “particularly acute when both words

are used in the same statute.” (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th

421, 433.) That is the case here. In contrast to section 27706(a), section 27706(g) uses

the term “may”—public defenders “may represent” indigent individuals in certain

proceedings, upon request or upon order of the court. No other subdivision in section

27706 uses “may” to describe public defenders’ representation of the indigent. The

subdivisions all state that public defenders shall defend, shall represent, or shall prosecute

appeals or actions for the indigent (§ 27706, subds. (b)-(f)), although some subdivisions

condition public defenders’ duty on their assessment of the case. (E.g., id., subd. (c)

[upon request, the public defender shall defend an indigent person in civil litigation if “in

the judgment of the public defender, the person is being persecuted or unjustly

harassed”].)

“May” means “you can do it if you want, but you aren’t being forced to.” (County

of Orange v. Bezaire (2004) 117 Cal.App.4th 121, 129.) That plain meaning of the term

applies to section 27706(g): Public defenders may represent the indigent in proceedings

described by section 27706(g) if they are so inclined, but they are not required to do so.

They may instead decline the request by the indigent or decline the appointment by the

court.

Our interpretation is consistent with how courts have treated the similarly

discretionary provision regarding appeals in section 27706(a). For instance, in Mowrer,

the public defender declined to represent the defendant on appeal from the judgment in a

23 misdemeanor case. (Mowrer, supra, 226 Cal.App.3d at p. 266.) The public defender

failed to opine that the appeal would not “reasonably be expected to result in the reversal

or modification of the judgment of conviction” (§ 27706(a)), and the appellate division

refused to relieve the public defender unless he made a statement to that effect. (Mowrer,

at p. 266.) Mowrer held that the appellate division could not compel the public defender

to prosecute the appeal or file a “declaration of no merit.” (Id. at pp. 267-268.) Rather,

section 27706(a) “vests the office of the county public defender with the broad discretion

to choose which clients it wishes to represent on appeal.” (Mowrer, at p. 268.) The court

had no “power to appoint the public defender in an appeal against his or her will.”6

(Gardner, supra, 41 Cal.App.5th at p. 1145.)

Because section 27706(g) empowers the Public Defender to decline to represent

Reed, the trial court’s application of section 27706(a) in this case was prejudicial. The

6 The concurring opinion states that “[e]xcept for subdivision (g), all of the other provisions of section 27706 relate to situations in which a statutory or constitutional right to counsel exists.” (Conc. opn., post, at p. 4.) That is incorrect. For example, subdivision (b) of section 27706 relates to “prosecut[ing] actions for the collection of wages and other demands . . . where the sum involved does not exceed one hundred dollars,” and subdivision (c) relates to defending any indigent person “in any civil litigation.” We are unaware of any statutory right to counsel in the cases described by subdivisions (b) and (c), and there generally is no constitutional right to counsel in civil cases. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) The concurring opinion further states that section 27706(g) “is the only subdivision for which the public defender’s duties to an indigent person are not mandatory.” (Conc. opn., post, at p. 4.) That too is incorrect. For example, section 27706(a) gives public defenders discretion to decline to represent defendants on direct appeal (Mowrer, supra, 226 Cal.App.3d at p. 268), even though defendants have a constitutional right to counsel “on the first appeal granted as a matter of right from a criminal conviction” (People v. Delgadillo (2022) 14 Cal.5th 216, 224). Public defenders have no mandatory duty to represent indigent defendants on appeal.

24 Public Defender tried to decline the appointment to represent Reed. The court could not

have compelled the Public Defender to accept the appointment if it had properly applied

section 27706(g). Indeed, the court acknowledged as much when it described an

appointment under section 27706(g) as “permissive” and explained its application as

follows: “The Court appoints and then the Public Defender’s Office has the ability to

accept or decline appointment. There’s nothing mandatory about it.” But the court

determined that section 27706(g) did not apply to this case. It thus is reasonably probable

that the Public Defender would have obtained a more favorable result in the absence of

the court’s error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We therefore vacate the

court’s order compelling the Public Defender to represent Reed.

To summarize, the first sentence of section 27706(a) concerns public defenders’

duty to defend indigent individuals in the trial phase of a case, but it does not apply to

public defenders’ representation of indigent individuals in habeas proceedings. Section

27706(g) applies to those circumstances. And under section 27706(g), public defenders

have discretion to decline a request for representation or an order of appointment. Reed

is entitled to counsel for purposes of his RJA habeas petition, but the court must appoint

someone other than the Public Defender. The Public Defender has “properly refused” the

appointment and consequently is “unavailable.” (Pen. Code, § 987.2, subds. (a)(3), (d),

(e).)

25

DISPOSITION

The previously ordered stay is dissolved. The petition for writ of mandate is

granted. Let a peremptory writ of mandate issue directing the superior court to (1) vacate

its order compelling the Public Defender to represent Reed for purposes of his habeas

petition and (2) appoint someone other than the Public Defender to represent Reed for

that purpose.

CERTIFIED FOR PUBLICATION

MENETREZ

J.

I concur:

MILLER

J.

26 [E086720 Harmon v. SC; People]

RAMIREZ, P. J., Concurring.

The majority holds that the right to counsel for a petitioner seeking a writ of

habeas corpus pursuant to the California Racial Justice Act of 2020 (RJA; Stats. 2020,

ch. 317, § 1), is governed by subdivision (g) of Government Code1 section 27706, and

that the public defender has discretion to decline representation. (Maj. opn., p. 2.) I

respectfully disagree. In my opinion, the issuance of the order to show cause (OSC)

automatically triggered the provisions of Penal Code section 1473, subdivision (e), the

right to appointment of counsel, which, in turn, triggered the public defender’s duty to

accept the appointment pursuant to section 27706, subdivision (a), absent unavailability

or a conflict of interests. I concur, however, with the result, remanding the matter to the

superior court, to determine if the public defender has a conflict of interests, as indicated

in the lower court proceedings, or is unavailable, within the meaning of Penal Code

section 987.2.

The case is governed by Penal Code section 1473, subdivision (e), which provides,

“[t]he petition shall state if the petitioner requests appointment of counsel and the court

shall appoint counsel if the petitioner cannot afford counsel and either the petition

alleges facts that would establish a violation of subdivision (a) of Section 745, or the

State Public Defender requests counsel be appointed.” Here, an OSC was issued so the

appointment of counsel was required, not permitted.

1 All further statutory references are to the Government Code unless otherwise indicated.

1 Because a defendant has a statutory right to appointment of counsel upon the

issuance of an OSC respecting a petition for writ of habeas corpus filed pursuant to Penal

Code section 745, the public defender does not have discretion to decline appointment

pursuant to section 27706, subdivision (g), which applies only when there is no statutory

or constitutional right to the appointment of counsel.

When a person is entitled to appointed counsel, “the trial court must ‘first utilize

the services of the public defender to provide criminal defense services for indigent

defendants’ unless the public defender is unavailable or a conflict exists.” (Joshua P. v.

Superior Court (2014) 226 Cal.App.4th 957, 964; see Pen. Code, § 987.2, subd. (e)

[authorizes the superior court to appoint private counsel upon a finding of “good cause” if

the public defender is “unavailable”]; Williams v. Superior Court (1996) 46 Cal.App.4th

320, 326; Cain v. Superior Court (2025) 110 Cal.App.5th 639, 654 [disqualification of

the public defender’s office was error because the office no longer possessed confidential

information regarding its prior defense of another person, tried for the same murder with

which defendant was charged, and there was no evidence of an actual or potential conflict

of interests].)

In Bemore v. Superior Court (2025) 108 Cal.App.5th 1125 (Bemore), the

reviewing court concluded that Penal Code section 987.2 applied to RJA proceedings and

required the superior court to give priority to the primary public defender when selecting

counsel for court appointment in superior court. (Bemore, supra, at p. 1152.) I agree

with that conclusion and therefore disagree that the provisions of section 27706,

2 subdivision (g), govern in cases where an OSC has issued and the right to counsel has

been triggered. I explain further.

Subdivision (g) of section 27706 applies to cases where no statutory or

constitutional right to counsel yet exists. It states, “Upon the order of the court or upon

the request of the person involved, the public defender may represent any person who is

not financially able to employ counsel in a proceeding of any nature relating to the

nature or conditions of detention, of other restrictions prior to adjudication, of

treatment, or of punishment resulting from criminal or juvenile proceedings.” The

subdivision refers specifically to conditions of confinement, to which the RJA does not

apply, and, by extension, to initial petitions for which there is no statutory right to counsel

and no OSC has issued. (See In re Brindle (1979) 91 Cal.App.3d 660, 679–680 [habeas

corpus granted to allow the public defender to consult with two inmates suspected of a

crime, but who had not been charged].)

I interpret the legislative references to “detention, of other restrictions prior to

adjudication, of treatment, or of punishment” (§ 27706, subd. (g)) to refer to conditions of

pretrial confinement as well as postconviction conditions in prison (or, as in the case of

mentally disordered offenders or sexual offenders, state hospitals) which violate the right

or privileges retained by persons in custody, which present actual or potential deprivation

of civil rights or conditions which render a punishment cruel or unusual. As for that

genre of petition, there is an extensive and detailed administrative process for inmates to

seek redress for complaints, and an administrative appeal procedure, that must be

exhausted before judicial relief may even be initiated. (See Wright v. State of California

3 (2004) 122 Cal.App.4th 659, 664–665.) In such cases, there is no ripe right to counsel so

representation by the public defender is discretionary.

Subdivision (g) of section 27706 does not apply to persons who are entitled by

statute or constitutional provision to the appointment of counsel. Except for subdivision

(g), all of the other provisions of section 27706 relate to situations in which a statutory or

constitutional right to counsel exists,2 and in which the Legislature has provided that

“upon request, the public defender shall” perform certain duties. (Italics added.)

Section 27707, subdivision (a), added in 2021 (Stats. 2020, ch. 92; Assem. Bill

No. 1869), further explains that “The court in which the proceeding is pending may make

the final determination in each case as to whether a defendant or person described in

Section 27706 is financially able to employ counsel and qualifies for the services of the

public defender. The public defender shall, however, render legal services as provided in

subdivisions (a), (b) and (c) of Section 27706 for any person the public defender

determines is not financially able to employ counsel until such time as a contrary

determination is made by the court.” (Italics added.) Thus, subdivision (g) of section

27706 is the only subdivision for which the public defender’s duties to an indigent person

are not mandatory.

In 2022, the Legislature amended section 1473, subdivision (e), “to require trial

courts to appoint habeas counsel upon request ‘if the petitioner cannot afford counsel,’

and ‘either the petition alleges facts that would establish a violation of [the RJA] or the 4 State Public Defender requests counsel be appointed.”’ (Bemore, supra, 108 Cal.App.5th

at p. 1133; see People v. Wilson (2024) 16 Cal.5th 874, 945; McIntosh v. Superior Court

(2025) 110 Cal.App.5th 33, 46.)

In fact, the California Rules of Court require that, “On issuing an order to show

cause, the court must appoint counsel for any unrepresented petitioner who desires but

cannot afford counsel.” (Cal. Rules of Court, rule 4.551(d)(1).) Penal Code section

987.2 refers to the appointment of assigned counsel for indigents “in a criminal trial,

proceeding, or appeal.” (Italics added.) “A hearing on a petition for a writ of habeas

corpus is a proceeding within that provision of the Penal Code. Furthermore, [section

27706], subdivision (a) requires that the public defender must upon request represent any

indigent ‘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.” (Charlton v.

Superior Court (1979) 93 Cal.App.3d 858, 862 (Charlton).)

The majority disagrees with the analysis of Charlton (maj. opn., p. 19), although

the Supreme Court has, on at least two occasions, declined to decide whether the trial

court has discretion to appoint private counsel when the public defender is available,

without criticism or limitation of the holding. (See People v. Cole (2004) 33 Cal.4th

1158, 1186; People v. Daniels (1991) 52 Cal.3d 815, 844–845.)

In footnote 4 of the majority opinion, the majority refers to this court’s decision in

Gardner v. Appellate Division of the Superior Court (2019) 41 Cal.App.5th 1139

(Gardner), incorrectly indicating that my concurrence is inconsistent with my earlier

opinion. Only if apples are oranges. It is true that in Gardner we recounted the two

5 sentences of section 27706, subdivision (a), noting that “[t]he first sentence of section

27706[, subdivision] (a) allows a court to appoint the public defender to represent a

defendant ‘at all stages of the proceedings.’ Erwin [v. Appellate Department (1983) 146

Cal.App.3d 715], however, necessarily implied that this does not include a defendant's

appeal from a misdemeanor conviction. Moreover, Mowrer [v. Appellate Department

(1990) 226 Cal.App.3d 264] came right out and held that the first sentence applies only in

‘the trial phase.’” (Gardner, supra, at p.1145.) We agreed with those observations

(ibid.), but they were not the ratio decidendi or holding of the case.

Instead, we acknowledged that, pursuant to the Supreme Court’s holding in

Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, “a pretrial

prosecution appeal of a suppression order also qualifies as a critical stage of the

prosecution at which the defendant has a right to appointed counsel as a matter of state

constitutional law.” (Id. at p. 1005.) We further noted that the appeal was not

interlocutory (which would pertain to the second sentence of subdivision (a) of section

27706), and that a felony defendant in such a situation “an indigent defendant would

normally be represented by appointed counsel other than the public defender. We see no

reason for a different outcome in a misdemeanor case.” (Gardner, supra, 41 Cal.App.5th

at p. 1147.)

This instant case is on much different procedural footing because the defendant

filed a postconviction petition for which he is entitled to appointment of counsel pursuant

to Penal Code section 1473, subdivision (e), upon a proper showing. In short, the

Gardner decision is completely inapposite. Here, having made the requisite showing,

6 resulting in the issuance of the OSC; he is entitled by statute to appointment of counsel.

(Charlton, supra, 93 Cal.App.3d at p. 862.) Subdivision (g) of section 27706 does not

provide the public defender with the discretion to decline appointments where the right to

counsel exists. Such a holding in this case would result in a fiscal tsunami for counties

throughout the state.

Notwithstanding my disagreement with the analysis by the majority, I also noted

that in the present case, the public defender’s petition for extraordinary relief indicated he

filed a declaration in the superior court indicating the existence of a conflict of interests,

in addition to his reliance on the provisions of section 27706, subdivision (g), to decline

the appointment. Apparently the declaration did not indicate the public defender was

unavailable, although it was not appended to the petition for writ of mandate. Because a

conflict of interests is one of the situations recognized by Penal Code section 987.2, as a

valid reason for the public defender to decline an appointment which it would otherwise

have a duty to accept, I agree that remand is needed to permit the public defender to

clarify whether a conflict exists. For this reason, I concur in the result.

RAMIREZ

P. J.

7