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Name: Gressett v. Superior Court
Case #: A127100
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 05/28/2010

An indigent defendant’s preference for a particular attorney is not a determinative factor requiring the appointment of that attorney and appointment of counsel is within the discretion of the trial court. Petitioner, a former senior deputy district attorney, was charged with raping a deputy district attorney. Petitioner retained attorney Russo for ten months from the filing of the complaint until filing of the indictment, but then became indigent and requested the court appoint Russo to represent him. Instead, the court appointed a retired Contra Costa County Chief Assistant Public Defender who was on the conflicts panel. Petitioner filed a writ of mandate challenging the denial of his request to appointment Russo. The right to counsel of choice applies only to retained counsel and not to appointed counsel. Penal Code section 987.2 provides the scheme for appointment of counsel for indigent defendants and allows the court to depart form the scheme after making a finding of good cause and stating the reasons on the record. In selecting counsel outside the scheme set forth in section 987.2, a defendant’s preference for a specific attorney, if timely made, is to be considered, but takes no precedence over other factors, including including previous representation of defendant by the attorney, his familiarity with the issues, duplication of time, and and expense to the county by the appointment of different counsel. Here, the court did not abuse its discretion in denying the request.