Rose v. Super

Filed 2/16/06 Rose v. Super. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings in mandate after superior court denied defense counsel's motion to withdraw. Frederic L. Link, Judge. Petition granted.

BACKGROUND

John A. Torres is one of six defendants in the criminal action filed against members of the San Diego City Employees Retirement System Board. Torres retained Robert Rose of Sheppard, Mullin, Richter & Hampton to represent him in the case. On January 13, 2006, after a lengthy preliminary examination, the court held Torres and his codefendants to answer on one count, and set the arraignment for February 1.

On February 1, at defendants' request, the court continued the arraignment to February 16. Attorney Rose then made an oral motion to withdraw as counsel, representing that Torres could not afford Rose's services and had agreed that Rose should be relieved. The court denied the motion citing the multitude of issues at the preliminary examination, the complexity of the case and a concern that another attorney might not be able to come up to speed to bring a Penal Code section 995 motion and take a statutory writ from the ruling should the motion be denied.

Rose followed with this writ petition asserting the trial court abused its discretion in denying the motion. We requested a response from all parties in the case.

Torres responded that he has no opposition to Rose's request to withdraw. Torres' codefendants and the district attorney declined to take a position on the petition. We gave the parties notice that we were considering issuing a peremptory writ in the first instance. (Palma v. U. S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

DISCUSSION

Penal Code section 987.6 requires the continuous representation of a defendant who has been held to answer at a preliminary examination only until the date of the arraignment. Case law establishes that the issue of representation begins anew at the date of arraignment and a client's failure to pay expenses will furnish grounds for the attorney to withdraw from the case. (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1170, 1173.) Finally, Rose moved to be relieved as counsel at the earliest possible opportunity, Torres has agreed to the withdrawal, and the longer the issue of representation goes unresolved, the more prejudice both Rose and Torres will incur.

Because the relevant facts are not in dispute, the law is well-settled and the matter is urgent requiring acceleration, we conclude a peremptory writ in the first instance is proper. (Code of Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on other grounds in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISPOSITION

Let a writ issue directing the superior court to vacate its order of February 1, 2001, denying the motion to withdraw and enter an order granting the motion. The opinion will be final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)

IRION, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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