P. v. Jones 12/10/01 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C029333

Case Date: 03/21/2002

Preview:Filed 12/10/01

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, Plaintiff and Respondent, v. SCOTT ALLEN JONES, Defendant and Appellant.

C029333 (Super. Ct. No. 94F1672)

An indigent criminal defendant has no constitutional right to the appointment of a particular attorney. I conclude,

however, that once an indigent defendant establishes an attorney-client relationship with his court-appointed counsel, and counsel is willing and able to continue that representation, the state constitutional right to counsel of choice forecloses a California court, except in narrow circumstances, from removing that attorney because of a potential conflict of interest if the defendant objects and is willing to make appropriate waivers.

1

SEE CONCURRING OPINIONS

Those narrow circumstances are flagrant attorney misconduct or incompetence, attorney incapacity, significant prejudice to the defendant, or serious circumstances that undermine the integrity of the judicial process and the orderly administration of justice. The state constitutional right to counsel of choice in the retained context envisions a choice to hire a particular attorney, while that right in the appointed context envisions a choice to continue with the appointed attorney. Thus, an

indigent criminal defendant in an established attorney-client relationship has the same right to waive a potential conflict regarding his appointed attorney as a nonindigent defendant has regarding his retained attorney. I find that none of the narrow circumstances apply here; and that the trial court erred in removing appointed counsel for a potential conflict, over the defendant's objection and without allowing him a chance to waive that conflict. I also conclude

that because defendant did not pursue a timely writ to rectify this error, the standard of harmless error applies, and the error was harmless here. As a prelude to my discussion, I briefly note the following. Defendant Scott Allen Jones was charged with murder. Appointed counsel Gary Roberts (Roberts) represented defendant from the outset and this relationship continued for over two years, including the litigation of several significant pretrial issues. When the trial court found that Roberts had a potential 2

conflict of interest, the court removed Roberts as defendant's counsel. Defendant adamantly opposed this removal. The trial

court did not give defendant a chance to waive any conflicts. Roberts had formerly represented a client that Roberts wished to investigate as a possible suspect on the murder charge facing defendant. This former representation had been minimal,

it was completely unrelated to defendant's case, and it involved no information that could be used in defendant's case. New

counsel was appointed for defendant, and the case subsequently proceeded to trial. A jury convicted defendant of first degree murder. appeal, defendant contends the trial court violated his constitutional right to counsel by removing Roberts as his attorney over his objection. I agree as the contention pertains I find On

to the state constitutional right to counsel of choice. the error harmless, however.

DISCUSSION
1. The Conflict Facts and Procedural Background

Boyd Wagner, 92, was murdered in his home in February 1992. Defendant, a neighbor of Wagner's, was arrested and charged with the murder in March 1994. represent defendant. Roberts was appointed at this time to

At the time, Roberts's law office served

as the public defender's office. The case against defendant was built on circumstantial evidence, including DNA evidence from a disputed pair of pants found in defendant's bedroom. Roberts engaged in extensive

3

pretrial litigation on DNA issues, as well as issues concerning discovery, suppression and other evidentiary matters. On February 29, 1996, nearly two years into his representation of defendant, Roberts informed the trial court ex parte that Michael Wert (Wert) was a "very speculative" suspect in the case. There was animosity between defendant and

Wert over a romantic relationship Wert had had with defendant's wife. Apparently Wert had tried to assault defendant.

According to Roberts, Wert had a motive to "frame" defendant. Roberts had once represented Wert on a minor, unrelated matter. Roberts's last contact with Wert had been "a long time ago." Roberts also raised another theory, the possible involvement of Joshua F. and Derrick L., as part of a larger group, in the murder. Roberts at this point did not "have any

idea" whether Joshua F. was involved in the Wagner murder, and apparently felt the same about Derrick L.'s possible involvement. When Roberts's office was the public defender's

office, one of his colleagues had represented Joshua F. and Derrick L. separately in brief, pro forma juvenile proceedings unrelated to the Wagner murder. Roberts told the court that neither he nor his office had received any communication from Joshua F., Derrick L., or Wert that could be used in defendant's case or that would present any problem in representing defendant. After discussing the issues of conflict and waiver with defendant, and noting that Wert may have to waive as well at some point, the trial court appointed an independent attorney 4

to advise defendant on these issues. continue with Roberts as his counsel.

Defendant opted to Roberts said he was fully The

ready, willing and able to continue that representation.

trial court concluded that no change of counsel was necessary. Two weeks later, on March 14, 1996, Roberts informed the court ex parte that he had spoken with two people knowledgeable in the area of conflicts of interest. They saw no conflict

regarding Michael Wert, Joshua F., or Derrick L., because no relevant confidential communications were at issue in any way. As to Joshua F. and Derrick L., there were essentially no communications. As to Wert, there were perhaps one or two jail Roberts assured the

holding cell conferences with Roberts.

court that no attorney-client confidences involving him or his office and any of these three people "have been used, or would be used, or will be used in [defendant's] case." Roberts's representation of Wert posed the only representational issue worth discussing. representation was as follows. The nature of that

A month and a half before

Roberts was appointed as defendant's attorney, he had represented Wert. Wert had violated his probation on a drug Roberts negotiated a deal that if

offense by "walking away."

Wert admitted the probation violation, the authorities would not pursue the walk-away escape charge. to prison for four years. Wert took the deal and went

Roberts received a call from Wert's

wife after having been appointed defendant's attorney; she wanted to know whether the walk-away charge had been dismissed.

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Roberts wrote a letter to Michael Wert in prison in June 1994 confirming the dismissal. Roberts assured the trial court that he did "not feel inhibited to any degree in pursuing the defense of [defendant] because of any concerns . . . regarding [his] prior representation of Mr. Wert." At another ex parte proceeding approximately three months later, Roberts informed the trial court that he had discovered that Wert had been released from the Shasta County Jail after posting a substantial bail just a few days before Wagner's murder. This provided a suspicious chronology and a robbery

motive for Wert, in addition to the animosity and physical confrontations between Wert and defendant (these confrontations included Wert's attempt to assault defendant, defendant's alleged assault of Wert, and Wert's brother's alleged assault of defendant). Roberts again assured the trial court that nothing that he would use against Wert in defendant's case had resulted from his previous attorney-client relationship with Wert. The trial

court suggested that defendant might complain that Roberts had not adequately investigated Wert because Roberts had formerly represented him. offer. Roberts also noted that he had a pending job

Roberts stated that he would not abandon defendant over

the job offer, and that his prospective employer had said it "would be very accommodating" if he had professional responsibilities with defendant's case in the transition. Defendant wanted Roberts to continue as his counsel, stating 6

"I don't want to lose [Roberts].

Gone this far, you know."

Roberts had noted at the March 14 hearing that it would be emotionally and legally devastating for defendant to "have some other lawyer step in in this case." The trial court took the matter under submission. Two days

later, on June 26, 1996, the court ruled that Roberts had a conflict of interest and that new counsel would be appointed. Defendant immediately sought and was granted an ex parte hearing. At the ex parte hearing, Roberts explained that it was unlikely that Michael Wert would be called to testify in this case. The trial court was more concerned that Wert's status as

a former client of Roberts would somehow hinder Roberts's investigation of Wert. Defendant noted that if the Wert defense

were never raised, he would lose Roberts as his attorney over nothing. suspect. Defendant said he did not want to pursue Wert as a The trial court responded that defense counsel

controlled this aspect, and had to pursue Wert if that was in the best interests of the defense. Roberts was removed as

defendant's counsel, and new counsel was appointed. "Conflicts of interest broadly embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests."1

1

People v. Bonin (1989) 47 Cal.3d 808, 835 (Bonin). 7

"Conflicts spring into existence in various factual settings."2 For example, a conflict may arise when an attorney

represents a defendant in a criminal matter and formerly represented a person who is a witness in that matter, or, as here, who is a potential suspect in that matter.3 "Such a

conflict springs from the attorney's duty to provide effective assistance to the defendant facing trial and his fiduciary obligations to the witness [or potential suspect] with whom he . . . had a professional relationship."4 "`Few precepts are more firmly entrenched than that the fiduciary relationship between attorney and client is of the very highest character [citations] and, even though terminated, forbids (1) any act which will injure the former client in matters involving such former representation or (2) use against the former client of any information acquired during such relationship. [Citation.] Under the promulgated rules

governing professional conduct, which apply in criminal and civil cases alike [citation], the ethical prohibition against acceptance of adverse employment involving prior confidential information includes potential as well as actual use of such previously acquired information. [Citation.]'"5

2 3 4

Bonin, supra, 47 Cal.3d at page 835. Bonin, supra, 47 Cal.3d at page 835.

Bonin, supra, 47 Cal.3d at page 835, citing Leversen v. Superior Court (1983) 34 Cal.3d 530, 538 (Leversen).
5

People v. Thoi (1989) 213 Cal.App.3d 689, 699, quoting Yorn v. Superior Court (1979) 90 Cal.App.3d 669, 675 (Yorn); 8

There has never been an issue here that Roberts would injure Wert, Joshua F., or Derrick L., "in matters involving [Roberts's or his office's] former representation" of these three people. Roberts represented Wert on a minor, unrelated

matter involving a violation of probation before Roberts was appointed defendant's counsel. Roberts's office made a brief,

pro forma appearance on Joshua F.'s behalf in an unrelated juvenile matter. And the record discloses that any

representation of Derrick L. did not even rise to either of these levels. More importantly here, the record shows that Roberts could not have used against Joshua F., Derrick L., or Wert, any information acquired during Roberts's or his office's relationship with them. As to Joshua F. and Derrick L., the

record shows there was essentially no substantive information communicated. As to Wert, the record is clear there was no

information acquired during their attorney-client relationship that Roberts could have used against Wert in defendant's case. From defendant's perspective, the record shows that Roberts's representation of Wert would not have hampered his representation of defendant. Roberts assured the trial court

that he did not feel hindered in any way in investigating Wert and presenting him as a suspect on the murder charge facing defendant. Roberts reiterated that he did not feel inhibited

accord, Leversen, supra, 34 Cal.3d at page 538; Rules of Professional Conduct, rule 3-310(E); Business and Professions Code section 6068, subdivision (e). 9

to any degree in pursuing defendant's defense because of his prior representation of Wert. The law, however, presumes a conflict where there has been a substantial attorney-client relationship with the former client, especially where relevant confidential information might have been imparted; this presumption includes the potential, as well as actual, use of confidential information.6 does not display this variety of conflict. The record

As for Joshua F. and

Derrick L., the record shows no substantial attorney-client relationship between them and Roberts's office. As for the

attorney-client relationship of Wert and Roberts, that relationship, like the relationship in Vangsness, "was minimal and dealt with matters unrelated to . . . the [defendant's] proceeding."7 The record does not show any relevant confidential

information that might have been imparted during Roberts's representation of Wert for use in defendant's case. Similar to

the conclusion reached in Vangsness, "we see no basis to presume th[at] [Roberts] possess[ed] `relevant confidential information' obtained from [Wert] in the face of [Roberts's] staunch denial."8 Although there was no actual or presumed conflict at the time the trial court removed Roberts as defendant's counsel over his objection, potential conflict hung in the shadows

6

Vangsness v. Superior Court (1984) 159 Cal.App.3d 1087, 1090 (Vangsness).
7 8

Vangsness, supra, 159 Cal.App.3d at page 1090. Vangsness, supra, 159 Cal.App.3d at page 1090. 10

as to Wert.

Had Roberts's investigation of Wert ripened into a

viable defense theory, Roberts may have begun to feel uneasy about vigorously pursuing Wert, his former client, and Wert himself may have been called to the stand at some point. It

bears repeating, though, that the attorney-client relationship of Roberts and Wert was minimal and dealt with matters that had no relevance to the current proceeding. So long as Roberts did

not do anything to injure Wert in matters involving the former representation, and did not use against Wert any information acquired during their attorney-client relationship (and the record shows this would have been the case), Roberts was on solid ground as to Wert. As for the view from defendant's

position, he could have waived any potential conflicts involving the effectiveness of Roberts's investigation or trial examination of Wert. Although the record shows that defendant

wanted to so waive, the trial court denied him that chance and removed Roberts as defendant's counsel. 2. The California Standard Governing a Judge's Discretion to Remove Potentially Conflicted Counsel and Application of that Standard

Under both the federal and state Constitutions, a defendant in a criminal case has a right to the effective assistance of counsel.9

9

United States Constitution, Sixth Amendment; California Constitution, article I, section 15; Bonin, supra, 47 Cal.3d at pages 833-834. 11

The right to the effective assistance of counsel includes the right to conflict-free counsel and the right to counsel of choice.10 In the retained attorney context, the right to

counsel of choice encompasses the right to choose a particular attorney to hire.11 In the appointed attorney context, an

indigent criminal defendant does not have a right to choose a particular attorney to be appointed;12 but an indigent defendant in California does have a right to choose to continue representation with an appointed counsel in an established attorney-client relationship unless certain circumstances are present.13 The question is how a California court is to

reconcile sometimes competing considerations between the right to conflict-free counsel and the right to counsel of choice. In Wheat v. United States, the United States Supreme Court concluded that trial courts have broad discretion under the federal Constitution's right to counsel (Sixth Amendment) to remove (recuse) a criminal defense attorney

Bonin, supra, 47 Cal.3d at page 834; People v. Courts (1985) 37 Cal.3d 784, 789 (Courts); Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612-613 (Maxwell); People v. Peoples (1997) 51 Cal.App.4th 1592, 1597 (Peoples).
11

10

Courts, supra, 37 Cal.3d at page 789; Maxwell, supra, 30 Cal.3d at pages 613-614.
12

Harris v. Superior Court (1977) 19 Cal.3d 786, 795-796 (Harris); Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 915.
13

Smith v. Superior Court (1968) 68 Cal.2d 547, 561-562 (Smith); Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697 (Cannon); Maxwell, supra, 30 Cal.3d at pages 613-615; People v. Daniels (1991) 52 Cal.3d 815, 846 (Daniels). 12

facing a potential conflict regardless of a defendant's desire to waive the conflict.14 Wheat concluded that the Sixth

Amendment is concerned more with effective representation than with preferred representation, and giving trial courts broad discretion on this issue avoids them being "whipsawed" by assertions of error no matter which way they rule.15 Wheat court put it: As the

"[W]hile the right to select and be

represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."16 Thus, the United States Supreme Court, in construing the Sixth Amendment to the federal Constitution, has emphasized the right to conflict-free counsel where it collides with the right to counsel of choice. In contrast, in a long line of decisions that started before Wheat and have continued after it, the California Supreme Court has concluded that while California judges have discretion to remove, over objection, a criminal defense attorney in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment

14

Wheat v. United States (1988) 486 U.S. 153, 162-164 [100 L.Ed.2d 140] (Wheat).
15 16

Wheat, supra, 486 U.S. at pages 159, 161. Wheat, supra, 486 U.S. at page 159. 13

of court proceedings, that discretion is "severely limited."17 The narrow circumstances in which removal may occur are "flagrant" attorney misconduct or incompetence, attorney incapacity, "significant prejudice" to the defendant, or serious circumstances that undermine "the integrity of the judicial process" and the "orderly administration of justice."18 The basis for this "severely limited" discretion was articulated in the 1966 state Supreme Court decision in Crovedi as "a value additional to that [of] insuring reliability of the guilt-determining process. [The concern is] not only with the

state's duty to insure `fairness' in the trial, but also with the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command."19 "[T]hat desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself

People v. McKenzie (1983) 34 Cal.3d 616, 629-630 (McKenzie); Cannon, supra, 14 Cal.3d at page 697; Maxwell, supra, 30 Cal.3d at pages 613-615; Daniels, supra, 52 Cal.3d at page 846; see also People v. Crovedi (1966) 65 Cal.2d 199, 206-208 (Crovedi); Smith, supra, 68 Cal.2d at pages 559, 561-562; Ingram v. Justice Court (1968) 69 Cal.2d 832, 840-841 (Ingram); People v. Durham (1969) 70 Cal.2d 171, 190-191 (Durham); People v. Lucev (1986) 188 Cal.App.3d 551, 556-557 (Lucev). McKenzie, supra, 34 Cal.3d at pages 629-630; Cannon, supra, 14 Cal.3d at page 697; Maxwell, supra, 30 Cal.3d at pages 613615; Daniels, supra, 52 Cal.3d at page 846; Crovedi, supra, 65 Cal.2d at page 208; Smith, supra, 68 Cal.2d at page 559; Peoples, supra, 51 Cal.App.4th at page 1599; People v. Smith (1970) 13 Cal.App.3d 897, 907.
19 18

17

Crovedi, supra, 65 Cal.2d at page 206. 14

or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case."20 This principle of "severely limited" discretion to involuntarily remove criminal defense counsel "manifests a value seeking to insure respect for the dignity of the individual" and implicates the concept of due process in the right of counsel.21 "The right of a criminal defendant to counsel and to present a defense are among the most sacred and sensitive of . . . constitutional rights."22 In short, a "`[d]efendant's confidence His right to decide for

in his lawyer is vital to his defense.

himself who best can conduct the case must be respected wherever feasible,'" so long as the defendant is fully informed about and waives his right to conflict-free counsel.23 This principle of "severely limited" discretion has been applied not only to retained counsel but to appointed counsel as well, most prominently in the state high court's decision in Smith.24 Smith recognized that Crovedi involved retained

counsel, while the case before it involved appointed counsel.

20 21

Crovedi, supra, 65 Cal.2d at page 208.

Crovedi, supra, 65 Cal.2d at page 206; Lucev, supra, 188 Cal.App.3d at page 556.
22 23

People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz).

Courts, supra, 37 Cal.3d at page 789, quoting Maxwell, supra, 30 Cal.3d at page 615; Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 956-958 (Alcocer); People v. Burrows (1990) 220 Cal.App.3d 116, 119-126 (Burrows). Smith, supra, 68 Cal.2d at pages 559, 561-562; see Durham, supra, 70 Cal.2d at pages 190-191; Cannon, supra, 14 Cal.3d at page 697; Daniels, supra, 52 Cal.3d at page 846. 15
24

Smith also recognized that an indigent defendant has no right to the appointment of any particular attorney.25 In the context of

this distinction between retained and appointed counsel, the Smith court recognized a right to counsel of choice in the appointed context involving an established attorney-client relationship (i.e., a right to continued representation) and stated: "[W]e must consider whether a court-appointed counsel may be [removed], over the defendant's objection, in circumstances in which a retained counsel could not be removed. A superficial

response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client it involves not just the

relationship is not that elementary:

casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client's life or liberty. . . . It follows that

once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship

25

Smith, supra, 68 Cal.2d at page 561; see People v. Hughes (1961) 57 Cal.2d 89, 98-99, cited by Smith. 16

to an unwarranted and invidious discrimination arising merely from the poverty of the accused."26 Subsequent state Supreme Court decisions have briefly noted Smith's recognition of the right to counsel of choice (i.e., right to continued representation) in the context of an appointed counsel in an established attorney-client relationship.27 In Cannon, the state Supreme Court characterized

Smith as "mak[ing] it abundantly clear that the involuntary removal of any attorney [appointed or retained] is a severe limitation on a defendant's right to counsel and may be justified" only in certain narrowly defined circumstances.28 state Supreme Court decision issued nearly three years after Wheat--Daniels--quoted with approval this passage from Cannon.29 These state Supreme Court decisions on the "severely limited" judicial discretion to involuntarily remove defense counsel are tethered to the state constitutional right to counsel provision, though not exclusively so.30 For example, in A

Crovedi--the decision which first articulated the dignityaffirming value underlying what would become the "severely limited" principle--the court characterized the issue before

26 27

Smith, supra, 68 Cal.2d at pages 561-562, see also page 559.

Ingram, supra, 69 Cal.2d at pages 840-841; Durham, supra, 70 Cal.2d at pages 190-191.
28 Cannon, supra, 14 Cal.3d at page 697.

29 30

Daniels, supra, 52 Cal.3d at page 846. California Constitution, article I, section 15. 17

it as "whether defendant Crovedi was denied his right to the assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, and article I, section 13 [now

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