Alcocer v. Superior Court ( 1988 )

ABBE, J.

I respectfully dissent.

The issue in this case, as I see it, is whether a defendant in a criminal case may foreclose a trial court from recusing retained counsel who has a potential conflict of interest by purportedly waiving his right to conflict free counsel.

In People v. Mroczko (1983) 35 Cal.3d 86, 110, footnote 26 [197 Cal.Rptr. 52, 672 P.2d 835], the California Supreme Court stated that the issue has not been considered directly by it.

However, the United States Supreme Court has recently considered this issue. In Wheat v. United States (1988) 486 U.S. 153, 159 [100 L.Ed.2d 140, 148, 108 S.Ct. 1692] the court stated: “. . . the essential aim of the [Sixth] 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. [Citations.]” “Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver . ...” A trial court, “. . . must be allowed substantial latitude in refusing waivers of conflicts of interest . . . where a potential for conflict exists . . . .” (Id., at pp. 162-163 [100 L.Ed.2d at pp. 150-151].)

The Sixth Amendment to the United States Constitution and article I, section 15, clause 3 of the California Constitution have virtually identical language. I know of no reason why the United States Supreme Court’s interpretation of this language should not be applied here.

Under the circumstances of this case, I conclude the trial court did not abuse its broad latitude in making the decision to recuse defense counsel. As the Wheat court stated: “The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.” (486 U.S. at p. 164 [100 L.Ed.2d at p. 152].)

I would affirm the trial court’s order.

On January 19, 1989, the opinion was modified to read as printed above.