PEOPLE v. JONES

WERDEGAR, J.

I concur in the majority's result. I write separately to explain my differences with the majority in its analysis of a defendant's federal and state constitutional rights to counsel in the context of a counsel's potential conflict of interest.

When defendant was charged in 1994 with murdering victim Boyd Wagner, the superior court appointed Attorney Gary Roberts to represent him. Almost two years later, after Roberts had "filed numerous motions and engaged in extensive pretrial litigation" (maj. opn., ante, at p. 237), a potential conflict arose due to Roberts's previous representation of Michael Wert, a felon who had been released from jail on bail only days before Wagner's murder. Antagonism existed between Wert and defendant because Wert had previously had a romantic relationship with defendant's wife, causing defendant allegedly to assault Wert. Other than this possible motive to frame defendant and the possibility Wert may have visited a drug dealer who lived on the same street as the victim, neither physical evidence nor any eyewitnesses connected Wert to the murder. The trial court held a series of hearings to inquire into the potential conflict and appointed independent counsel to advise defendant. After being apprised of the pertinent facts, defendant chose to waive any possible conflict of interest arising from Roberts's prior representation of Wert. That defendant's waiver was a knowing and voluntary one is not disputed.

Attorney Roberts's position on the potential conflict was less consistent. At one point, he asserted he was "satisfied" that no conflict existed. He agreed with the trial court that he would "not feel inhibited to any degree in pursuing the defense of [defendant] because of any concerns . . . regarding [his] prior representation of Mr. Wert." At a later hearing, Roberts appeared less confident. He stated he was "very uneasy" with the situation and answered in the affirmative when the trial court asked whether his prior representation of Wert might cause him to "flinch in this case." Despite Roberts's earlier assertion that his removal would be "emotionally devastating" to defendant and would "require a major delay in proceedings while another attorney got up to speed," the trial court removed Roberts as defendant's attorney. Defendant, represented by a different attorney, was eventually convicted of Wagner's murder.

The majority affirms the conviction, finding Roberts's removal did not violate defendant's right to counsel under either the federal or the state Constitution. Although I agree, I believe the majority misconstrues the scope of defendant's right to counsel of his choice under both the federal and state Constitutions.

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall . . . have the assistance of counsel," and this basic guarantee applies to the states, requiring the appointment of counsel for all serious crimes for those who cannot afford to hire an attorney. ( Gideon v. Wainwright (1963) 372 U.S. 335 [ 9 L.Ed.2d 799, 83 S.Ct. 792].) The Sixth Amendment right to counsel includes "the right to the effective assistance of counsel" ( McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [ 25 L.Ed.2d 763, 90 S.Ct. 1441]; see Strickland v. Washington (1984) 466 U.S. 668, 686 [ 80 L.Ed.2d 674, 104 S.Ct. 2052]), as well as the "correlative right to representation that is free from conflicts of interest" ( Wood v. Georgia (1981) 450 U.S. 261, 271 [ 67 L.Ed.2d 220, 101 S.Ct. 1097]).

The "right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment." ( Wheat v. United States (1988) 486 U.S. 153, 159 [ 100 L.Ed.2d 140, 108 S.Ct. 1692] ( Wheat).) Indeed, the Wheat court observed that the Sixth Amendment creates a "presumption in favor of [defendant's] counsel of choice." ( Wheat, supra, at p. 164.) In previous opinions, the high court has explained that a criminal defendant's "right to be heard through his own counsel was unqualified" ( Chandler v. Fretag (1954) 348 U.S. 3, 9 [ 99 L.Ed. 4, 75 S.Ct. 1]) and "[i]t is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice" ( Powell v. Alabama (1932) 287 U.S. 45, 53 [ 77 L.Ed. 158, 53 S.Ct. 55]). Although an indigent accused is not initially entitled to choose his or her own counsel at state expense ( Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934 [ 106 Cal.Rptr. 631, 506 P2d 1007] ["We have repeatedly held that constitutional and statutory guarantees are not violated by the appointment of an attorney other than the one requested by defendant"]; see also Morris v. Slappy (1983) 461 U.S. 1, 23, fn. 5 [ 75 L.Ed.2d 610, 103 S.Ct. 1610] (conc. opn. of Brennan, J.)), once the defendant establishes an attorney-client relationship with his or her attorney, the law recognizes a protectable interest in that relationship. (See Harris v. Superior Court (1977) 19 Cal.3d 786 [ 140 Cal.Rptr. 318, 567 P.2d 750].) "Further, the constitutional guaranty [of the effective assistance of counsel] protects the defendant who retains his own counsel to the same degree and in the same manner as it protects the defendant for whom counsel is appointed, and recognizes no distinction between the two. ( Cuyler v. Sullivan [(1980)] 446 U.S. [335,] 344-345 [ 64 L.Ed.2d 333, 344, 100 S.Ct. 1708].)" ( People v. Bonin (1989) 47 Cal.3d 808, 834 [ 254 Cal.Rptr. 298, 765 P.2d 460].)

When a criminal defendant is willing to waive his lawyer's conflict of interest but, as here, that conflict threatens to undermine the fairness of the trial itself, trial courts are faced with a dilemma. The majority correctly identifies Wheat, supra, 486 U.S. 153, as relevant to the determination whether the trial court's decision to remove Roberts violated defendant's Sixth Amendment rights. I disagree, however, with the majority's treatment of Wheat as fully dispositive of the Sixth Amendment issue; in my view, the majority reads too much into the high court's decision in Wheat, a case that is distinguishable on its facts.

Wheat concerned an attorney named Iredale, who represented two members of a criminal conspiracy to smuggle illegal drugs. Just one day before the start of his trial, Wheat, purportedly a third member of the same conspiracy, sought to substitute Iredale in lieu of his own attorney. Because there was a manifest conflict between the three defendants due to their expected defenses (and the decision of one to plead guilty), Wheat offered to waive any conflict of interest related to Iredale's representation of the other coconspirators. The trial court denied permission to substitute counsel.

In affirming the trial court's decision, the high court in Wheat explained that although "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." ( Wheat, supra, 486 U.S. at p. 159.) Noting the difficult situation faced by district courts when confronted with a defendant willing to waive a conflict with his lawyer, the high court concluded district courts "must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. In the circumstances of this case, with the motion for substitution of counsel made so close to the time of trial[,] the District Court relied on instinct and judgment based on experience in making its decision. We do not think it can be said that the court exceeded the broad latitude which must be accorded it in making this decision." ( Id. at p. 163, italics added.)

Because the defendant in Wheat sought to hire Iredale on the eve of trial and up to that point had had no professional relationship with him, Wheat's holding must be viewed with these facts in mind. The Wheat majority concluded no federal constitutional right exists to hire one's choice of counsel over the trial court's determination that counsel is conflicted, even if the defendant is willing to waive the conflict. Moreover, after Wheat, the client cannot use his Sixth Amendment right to counsel as a sword to force the trial court, on the eve of trial, to approve the client's desire to hire conflicted counsel.

Neither of these two critical features of Wheat is present in this case. First, defendant here had an existing attorney-client relationship with Attorney Roberts. At the time of his removal, Roberts had represented defendant for almost two years and had conducted vigorous pretrial litigation. Even if a trial court has discretion, after Wheat, to reject a proffered knowing and intelligent waiver of the right to hire unconflicted counsel, Wheat does not address whether that rule applies where, as here, a defendant has an already established attorney-client relationship with his lawyer. The distinction is important; as we said in Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613 [ 180 Cal.Rptr. 177, 639 P.2d 248], "[E]ffective assistance is linked closely to representation by counsel of choice. When clients and lawyers lack rapport and mutual confidence the quality of representation may be so undermined as to render it an empty formality." By terminating the existing attorney-client relationship over defendant's objection, the trial court's decision here risked destroying the trust and confidence that had developed between Roberts and defendant over almost two years.

Second, the question whether Roberts could continue to represent defendant despite the potential conflict of interest arose well before trial. The trial court inquired into the pertinent facts over several pretrial hearings. Unlike Wheat, this case does not involve a request to substitute attorneys on the eve of trial, a fact found important by the Wheat court. ( Wheat, supra, 486 U.S. at p. 163.) Because the facts of Wheat are not at all similar to those of the instant case, the majority errs to the extent it treats Wheat as controlling.

I nevertheless agree the trial court did not violate defendant's rights under the Sixth Amendment to the federal Constitution. As noted, ante, the Sixth Amendment creates a "presumption in favor of [defendant's] counsel of choice" ( Wheat, supra, 486 U.S. at p. 164), but that presumption is rebuttable. Although defendant was willing to waive Roberts's potential conflict stemming from Roberts's previous representation of Michael Wert, and Roberts himself initially was confident no actual conflict would arise, Roberts was not so sanguine at a later hearing. As Justice Callahan related in her dissenting opinion below: "[T]he Wert angle turned far more ominous when Roberts returned to court in June and reported that, upon examining the court file, he discovered that Wert was bailed out of jail just days before the murder and had posted a $5,000 bond. According to Roberts `[t]hat immediately clicked a light on in my head because the DA [district attorney] has been telling me all along the motive for the murder . . . was robbery or burglary. And the theory was that this old guy kept stacks of cash around his house.' Roberts went on to explain `[I]f, in fact, my defense were to be that Wert did this, I might want to play into their robbery theory, and weave it in[to] my defense. In other words, I might want to catch their robbery theory and throw it back to them by saying, you are darn right, the motive for this homicide was robbery. Wert did the robbery. Wert did the homicide. Wert had just bailed out of jail, needed to pick the money up to pay his bail bondsman. It all makes sense.' (Italics added.) Roberts also discovered that Wert had his car impounded, and was found in the possession of a stolen weapon and several grams of methamphetamine, indicating `he was dealing.' Roberts also learned there was a drug dealer living down the street from defendant, and if it could be established that the dealer was supplying Wert `that would blow this case way out for [defendant],' because it would place Wert on the same street as the victim through his relationship with the dealer. Roberts was concerned that if the robbery could be tied to a network of drug dealers on the same street with whom Wert could be linked, it was quite possible `they are continuing to protect Michael Wert' by pinning the murder on defendant. [¶] In marked contrast to his attitude in February, Roberts told the court the situation with Wert was `very troublesome' and made him `very uneasy.'"

As Wheat recognizes, when the right to preferred counsel under the Sixth Amendment collides with the right to the effective assistance of counsel, also guaranteed by the Sixth Amendment, an accommodation must occur. In such cases, a court "must recognize [the] presumption in favor of [defendant's] counsel of choice . . . may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." ( Wheat, supra, 486 U.S. at p. 164, italics added.) Consequently, although I doubt Wheat's deferential "substantial latitude" standard of review applies in a case, as here, where a criminal defendant has a long-established attorney-client relationship and makes a knowing and voluntary waiver of the conflict, because the record reveals a serious possibility that Roberts's conflict would undermine the fairness of the trial, I conclude the trial court's removal of Roberts did not violate defendant's Sixth Amendment right to counsel of his choice, whatever its scope.

Although I also agree with the majority that the trial court did not, by removing Roberts, violate defendant's right to counsel under the California Constitution, I cannot subscribe to the majority's treatment of this issue. At the threshold, the majority announces that it is "far from clear whether [our prior decisions in this area] are grounded on the state Constitution." (Maj. opn., ante, at p. 243.) I do not share the majority's doubts.

Article I, section 15 of the California Constitution provides in part: "The defendant in a criminal cause has the right . . . to have the assistance of counsel for the defendant's defense [and] to be personally present with counsel." In People v. Crovedi (1966) 65 Cal.2d 199 [ 53 Cal.Rptr. 284, 417 P.2d 868], cited by the majority, this court began its discussion by framing the issue thusly: "The single issue of substance in this case is 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, of the state Constitution." ( Id. at p. 201, italics added.)

Similarly, Maxwell v. Superior Court, supra, 30 Cal.3d 606, also cited by the majority, began its discussion of the issue on page 612 this way: "The right to counsel guaranteed by section 15 of article I of the California Constitution does contemplate effective counsel, and effectiveness means more than mere competence." (Italics added.) Maxwell goes on immediately thereafter to discuss the "right to loyal counsel," a clear reference to the state constitutional right. ( Ibid.) Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678 [ 122 Cal.Rptr. 778, 537 P.2d 898], also cited by the majority, speaks in terms of the "right to counsel" ( id. at pp. 696-697) and, while the opinion does not make explicit the basis of such right, its citation to People v. Crovedi, supra, 65 Cal.2d 199, suggests it is relying on both the federal and state Constitutions. As is clear, we have recognized a state constitutional basis for the right to counsel on several occasions.

Although the majority fails to acknowledge it, we also have for years treated conflict of counsel issues differently under the California Constitution than under the federal Constitution, recognizing that the state charter grants criminal defendants greater rights both to challenge and to waive conflicts of counsel than does its federal counterpart. Thus, "[t]o establish a federal constitutional violation, a defendant who fails to object at trial must show that an actual conflict of interest `adversely affected his lawyer's performance.' ( Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [ 64 L.Ed.2d 333, 100 S.Ct. 1708] . . ., fn. omitted. . . .) To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an `informed speculation' that the asserted conflict adversely affected counsel's performance. (. . . People v. Mroczko (1983) 35 Cal.3d 86, 104-105 [ 197 Cal.Rptr. 52, 672 P.2d 835]. . . .)" ( People v. Frye (1998) 18 Cal.4th 894, 998 [ 77 Cal.Rptr.2d 25, 959 P.2d 183].) As Justice Davis's lead opinion below explained: "California's greater solicitude [of] the right to conflict-free counsel is consistent with its greater solicitude [of] the right to counsel of choice, so long as the defendant is fully informed about the conflict and the right to conflict-free counsel and knowingly and intelligently waives these, including any appellate issues of ineffective representation arising from the conflict." (See also People v. Easley (1988) 46 Cal.3d 712, 729, fn. 17 [ 250 Cal.Rptr. 855, 759 P.2d 490] [recognizing greater protection for one's choice of counsel under the state Constitution]; People v. Peoples (1997) 51 Cal.App.4th 1592, 1599 [ 60 Cal.Rptr.2d 173] [California does not "literally follow" the Wheat rule]; Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 958 [ 254 Cal.Rptr. 72] [same].)

Contrary to the deferential standard announced in Wheat, supra, 486 U.S. 153, which would accord the trial court "substantial latitude" ( id. at p. 163) to remove a defendant's attorney for a conflict of interest despite the defendant's willingness to waive the conflict and which commits that decision to the "discretion" and "informed judgment of the trial court" ( id. at p. 164), California follows a different rule, one that recognizes that, when represented by a lawyer who has a potential conflict of interest, "a defendant is master of his own fate" ( Alcocer v. Superior Court, supra, 206 Cal.App.3d at p. 957). We explained the rule in People v. McKenzie (1983) 34 Cal.3d 616 [ 194 Cal.Rptr. 462, 668 P.2d 769] ( McKenzie), a case involving an attorney who declined to participate in the trial proceedings because of the defendant's refusal to cooperate with him. We opined: "Counsel may also be relieved on the court's own motion, even over the objections of defendant or counsel. Although the judge has the discretion to overrule defendant's choice of counsel in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings, this discretion has been severely limited by California decisions. Thus, `the state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources — and . . . that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' ( People v. Crovedi[, supra,] 65 Cal.2d [at p.] 208 [ 53 Cal.Rptr. 284, 417 P.2d 868].)

"While we recognize that courts should exercise their power to remove defense counsel with great circumspection [citations], they nevertheless retain the obligation to supervise the performance of defense counsel to ensure that adequate representation is provided. [Citations.] Thus, a trial judge may remove defense counsel despite the objections of the defendant and his attorney if a serious conflict of interest arises during the trial proceedings resulting in `an obviously deficient performance. Then the court's power and duty to ensure fairness and preserve the credibility of its judgment extends to recusal even when an informed defendant, for whatever reason, is cooperating in counsel's tactics.'" ( McKenzie, supra, 34 Cal.3d at pp. 629-630, italics added, quoting Maxwell v. Superior Court, supra, 30 Cal.3d at p. 619, fn. 10.)

In People v. Bonin, supra, 47 Cal.3d 808, we explained that a trial court has the duty to inquire into counsel's potential conflict of interest, but "[a]fter the trial court has fulfilled its obligation to inquire into the possibility of a conflict of interest and to act in response to what its inquiry discovers, the defendant may choose the course he wishes to take. If the court has found that a conflict of interest is at least possible, the defendant may, of course, decline or discharge conflicted counsel. But he may also choose not to do so: `a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests.' [Citations.]" ( Id. at p. 837.) Commenting on our decision in Bonin, the appellate court in People v. Burrows (1990) 220 Cal.App.3d 116, 125 [ 269 Cal.Rptr. 206] said: "California makes a defendant the master of his fate and allows him to proceed uninterrupted, with the exceptions of flagrant circumstances of attorney misconduct or incompetence [citation], with counsel of his choice if the parties involved in the conflict properly waive any potential or actual conflicts."

As is clear, the state constitutional standard demands less deference be shown to a trial court's decision to remove counsel over a defendant's objection and more strongly supports a criminal defendant's choice to keep his preferred legal advocate at his side despite the presence of a possible conflict of interest.

Applying that less deferential standard here, I conclude the trial court did not violate defendant's right to counsel of his choice under article I, section 15 of the California Constitution. As explained, ante, Attorney Roberts informed the trial court that his previous representation of Wert was "very troublesome" and made him "very uneasy." He expressed concern he might be sued for malpractice. Although Roberts had represented defendant for almost two years, the trial was still several weeks, if not months, away, and at that time whether additional evidence would emerge connecting Wert to the crime was unknown. Under the circumstances, although a trial court's discretion under California law to remove appointed counsel over a defendant's objection is "severely limited" ( McKenzie, supra, 34 Cal.3d at p. 629), the facts known at the time the trial court ruled comprised "a serious conflict of interest" ( id. at p. 630) that could have resulted in "significant prejudice to the defendant" ( ibid.). The trial court thus did not violate defendant's state constitutional right to his counsel of choice by removing Roberts and appointing substitute counsel.

Moreno, J., concurred.