Wednesday, January 21, 2026
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Court of Appeal:
Judge May Not Compel P.D. to Handle Habeas Corpus Petition
Justices Say Such Representation May Be Refused Even if Office Does Not Show Unavailability
By a MetNews Staff Writer
A public defender’s office cannot be compelled to represent an indigent inmate in pursuing a habeas corpus petition, Div. Two of the Fourth District Court of Appeal held yesterday, issuing a writ of mandate directing that an order compelling legal services be vacated.
Justice Frank J. Menetrez authored the majority opinion, in which Justice Douglas P. Miller joined. Presiding Justice Manuel A. Ramirez concurred in the result
Riverside Superior Court Judge Dean Benjamini had ordered the county’s public defender, Steven L. Harmon, to represent convicted rapist/human trafficker Taiwan Orran Reed in a habeas corpus petition alleging that there were violations at his trial of the California Racial Justice Act of 2020 (“RJA”). He was referred to at that trial as a “gorilla pimp.”
His conviction was affirmed by the Court of Appeal on Nov. 7, 2022.
Harmon resisted the appointment based on his office’s asserted lack of resources to add pursuit of habeas corpus petitions to its duties
Benjamini’s Reasoning
In ordering Harmon to represent Reed, Benjamini relied on Government Code §27706(a) which provides:
“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. 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, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in the 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.”
The judge reasoned that under section §27706(a), the appointment of the public defender is “mandatory,” unless the Public Defender can show, under Penal Code §987.2 that the office is “unavailable,” requiring appointment of alternative counsel
Menetrez’s Opinion
The controlling provision, Menetrez said, is not §27706(a), but §27706(g). That section says:
“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 jurist wrote:
“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.’…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.”
He went on to say:
“The distinction between ‘shall’ and ‘may’ is ‘particularly acute when both words are used in the same statute.’….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.”
Concurring Opinion
While agreeing with Benjamini’s analysis, Ramirez noted that in Superior Court proceedings, the Office of Public Defender claimed to be precluded from representing Orran in light of a conflict of interest. He wrote:
I concur…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 Harmon v. Superior Court (People), E086720.
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