Public Defender’s Representation of Indigent Habeas Petitioners Is Discretionary, Fourth District Holds

By Paul Myslin
Published March 05, 2026

Article courtesy of CEB

Does the public defender’s duty to take every criminal case include habeas corpus petitions? What are the rules on declining representation? Recently, this issue came up in the context of a state prisoner’s successful post-conviction petition under the California Racial Justice Act (Pen. Code, § 1473, subd. (e)).

In Harmon v. Superior Court (2025) 117 Cal.App.5th 1236, the Fourth District Court of Appeal explored the operative statutes that apply to the public defender’s duties. To begin with, Penal Code section 987.2 generally directs the court’s designation of counsel to represent an indigent person in criminal proceedings as well as appeals. The Harmon court pointed out that this includes “the court’s selection of counsel to represent a habeas corpus petitioner in noncapital cases,” citing another recent Fourth District case, Bemore v. Superior Court (2025) 108 Cal.App.5th 1125 at 1148. It is only when the public defender is unavailable that the statute authorizes appointment of alternative counsel. (Harmon, supra at 1249.)

Next, the availability of public defender services is bound by California Government Code section 27706. Certain narrow exceptions notwithstanding (e.g., inability to accept a case due to showing of unavailability or by declaring a conflict of interest), subdivision (a) sets forth the mandatory duty to defend indigent clients in the trial phase of a case:

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.

(Gov. Code, § 27706, subd. (a))

Subdivision (g), on the other hand, applies a discretionary standard when the public defender provides representation in other proceedings such as those related to detention, treatment, or punishment:

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.

(Gov. Code, § 27706, subd. (g) [emphasis added]).

The Fourth Appellate District held that a habeas corpus petition, such as the one filed by the petitioner in Harmon under Penal Code section, 1437, subdivision (e), falls into this second category, and the public defender’s duty of representation is therefore discretionary, not mandatory.

For more on post-conviction relief, see CEB’s California Criminal Law Procedure and Practice, chapter 42.

© The Regents of the University of California, 2026.

Unauthorized use and/or duplication of this material without express and written permission from CEB is strictly prohibited. CEB content does not render any legal, accounting, or other professional service; this content is not intended to describe the standard of care for attorneys in any community, but rather to assist attorneys in providing high quality service to their clients and in protecting their own interests. Attorneys using CEB content in dealing with a specific legal matter should also research original sources of authority. Any opinions contained in CEB content are not intended to reflect the position of the University of California. Materials written by employees of state or federal agencies are not to be considered statements of governmental policies.