Public Defenders’ Acceptance of Appointment in Habeas Petitions under the Racial Justice Act is Discretionary.

 

Harmon v. Superior Court (4^th Dist., Div.2, 01/20/2026)

 

Reed, serving a 51-life sentence, petitioned the trial court for a writ of habeas corpus asking for relief under California’s Racial Justice Act (RJA) based upon the prosecutor and witnesses using racially discriminatory language.  The trial court found Reed’s petition stated facts which would constitute an RJA violation and set the case for an evidentiary hearing.

Reed’s retained lawyer withdrew prior to the hearing and the trial court appointed the Public Defender (PD).  The PD attempted to decline the appointment and requested alternate counsel be appointed.  The trial court held a hearing on the issue and ruled the PD was required to accept appointment, absent a conflict or unavailability.  The PD petitioned the Court of Appeal for a writ of mandate.

In a 2-1 opinion, the panel holds that court appointments of the PD on RJA habeas cases may be declined at the PD’s discretion.

The issue is framed as whether RJA habeas appointments fall under subsection (a) or (g) of Government Code section 27706(a).  Gov. C. 22706 pertains to the scope of duties of PD offices.  Subsection (a) describes the circumstances upon which a PD “shall defend,” and subsection (g) describes circumstances under which a PD “may represent.”  Giving the words “shall” and “may” their ordinary meanings, the opinion says PDs have the discretion to decline appoints in (g) cases, while in (a) cases there is no such discretion.

In interpreting the statute, the majority notes sub(a) contains the phrases “shall defend,” and “conducting the defense,” while sub(g) uses the phrase “may represent.”  It finds this useful because in a habeas proceeding, the defendant actuals prosecutes the writ; he defends nothing.  The panel also notes habeas proceedings are “separate actions” from the criminal case. 

Along with citations to instructive (but on on-point) cases, the majority finds RJA habeas proceedings fall under the “may represent” of sub(g).  Thus, a PD has discretion whether to accept a court’s appointment.  The writ is issued with directions to vacate the order compelling the PD to represent Reed and appoint someone else. 

There is a curious concurrence.  This justice interprets the two subsections differently, finding sub(a) applies to cases where a defendant has a right, statutory or Constitutional, to an attorney while sub(g) applies to cases where no right to counsel exists but where appointment is permissible.  This isn’t the curious part.  The curious part is the concurrence states it agrees with the result, remanding to the trial court to determine, “whether the public defender has a conflict . . . or is unavailable[.}”  Which isn’t the result at all.