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Court of Appeal:
Racial Justice Act May Justify Removal of Defense Attorney
Majority Says Deputy Public Defender Remarking to Prosecutor That Those ‘Being Incarcerated Are Your People’ Justified Order; Menetrez Dissents, Decrying Use of Law to Deprive Defendant of Preferred Counsel
By Kimber Cooley, associate editor
Div. Two of the Fourth District Court of Appeal has held, in a 2-1 decision, that it was not an abuse of discretion for a trial judge to order that the Public Defender’s Office assign a new attorney to represent a Hispanic defendant after his lawyer purportedly said to the prosecutor during plea negotiations, “Look around you, all the people being incarcerated are your people” and “I really don’t care…I am a white man.”
Noting that a criminal defense attorney has a duty to investigate any possible defenses including potential claims under the Racial Justice Act (“RJA”), codified at Penal Code §745, the court reasoned the lawyer’s statements created a conflict of interest as the deputy cannot be expected to investigate himself for any overt or unconscious bias.
The act provides 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” and sets forth four categories of violations.
Seeking writ relief from the order removing his attorney was Enrique Sanchez, who was charged in October 2023 with kidnapping for rape, among other crimes. According to minute orders in the case, San Bernardino Deputy Public Defender Luke Byward represented Sanchez in the case.
Motion by Prosecution
On Dec. 4, 2023, the prosecutor filed a motion requesting the court to evaluate a possible conflict of interest based on Byward’s alleged statements. Opposing the motion, defense counsel submitted a declaration in which Byward did not dispute that he made the comment that ‘I’m just a white guy; why should I care?’ or that he urged the prosecutor to consider defendant’s race in making an offer.
Byward claims his comments were made “sarcastically” and that his only intent was to pursue the best interests of his client.
San Bernardino Superior Court Judge Rodney A. Cortez ordered the Public Defender’s Office to assign a new deputy to handle Sanchez’s case, finding that the lawyer’s comments “at least trigge[r] the potential of an issue with the Racial Justice Act.”
Justice Richard T. Fields wrote the opinion, filed Oct. 22 and certified for publication Friday, denying a petition for writ of mandate filed by Sanchez challenging the reassignment order. Presiding Justice Manuel A. Ramirez joined in the opinion.
Dissenting, Justice Frank J. Menetrez took issue with the application of the RJA in the case, saying:
“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.”
Conflict of Interest
Sanchez argued that there can be no conflict of interest because there has been no evidence suggesting that Byward’s statements or strategic decision have the potential to adversely impact the case.
Turning to the RJA, Fields pointed out that §745(a) provides 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” and said that “petitioner misapprehends the nature of counsel’s required performance under the RJA, giving rise to the conflict in this case.”
He opined:
“[W]hen 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.”
The jurist continued:
“[B]ecause 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.”
Under these circumstances, he declared that “[b]ecause 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.”
Fields added that “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.”
Menetrez’s Dissent
Menetrez, pointing to the introductory language relied upon by the majority, remarked:
“[T]hat sentence provides: ‘The 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.’…The deputy public defender is not the state and has not sought, obtained, or imposed a conviction or sentence on Sanchez. There is consequently no evidence of a potential violation of the first sentence of section 745, subdivision (a), by the deputy public defender.”
Noting that “[t]here are four ways to prove a violation of the RJA” as set forth §745(a)(1) through (4), he noted that “[t]he majority opinion does not mention” them, and said:
“[T]he only possible basis for the majority opinion[]…appears to be the following: By expressing the view that the criminal justice system is biased against Hispanic defendants like Sanchez…the deputy public defender was soliciting a violation of the first sentence of subdivision (a) of section 745, because he was attempting to induce the prosecution to agree to a (more favorable) sentence on the basis of Sanchez’s race. That analysis must be unsound.”
He continued:
“If it were sound, then a motion for relief under the RJA would itself constitute a violation of the RJA. For example, a motion under subdivision (a)(4)(A) of section 745 seeks…to show that the defendant got a longer sentence than similarly situated defendants of other races and that such racially disparate sentences are frequently imposed, so the defendant should get a more favorable sentence because of his race. But it would be absurd to interpret the RJA as prohibiting the motions for relief that the RJA itself authorizes. The majority opinion’s (implicit) reasoning therefore cannot be correct.”
The case is Sanchez v. Superior Court (People), 2024 S.O.S. 3555.
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