People v. Noriega

Opinion

KENNARD, J.

Before trial, and over defendant’s objection, the trial court replaced defendant’s appointed counsel, the public defender, because of a perceived conflict of interest arising from the public defender’s previous representation of a potential prosecution witness in defendant’s case. A jury convicted defendant, and he appealed. A divided Court of Appeal panel reversed the judgment of conviction.

All three justices agreed that the trial court’s replacement of appointed counsel did not violate defendant’s right to counsel, or to counsel of choice, under the federal Constitution’s Sixth Amendment; but they concluded that the replacement violated defendant’s right to counsel under our state Constitution, and that under state statutory law the replacement was an abuse of the trial court’s discretion. In addition, a two-justice majority held that the replacement of counsel violated defendant’s due process right under the federal Constitution’s Fifth Amendment, and that this error required automatic reversal. The third justice, however, was of the view that the error was harmless and that the judgment of conviction should be affirmed.

We granted the Attorney General’s petition for review. The Attorney General contends that in replacing defendant’s appointed counsel with another court-appointed attorney, the trial court did not violate defendant’s right to counsel under either the federal or the state Constitution. Conceding that the replacement violated state statutory law and was an abuse of discretion by the trial court, the Attorney General argues that the error requires reversal only upon a showing of prejudice, which defendant did not establish. We agree with the Attorney General on both points.

I

Defendant Daniel Loreto Noriega and codefendant Manuel Paredes were sentenced to life in prison without the possibility of parole for the killing of Cesar Cortez, who had failed to pay a drug debt. (Paredes is not a party in the proceeding before this court.)

The facts pertinent to the trial court’s replacement of the Riverside County Public Defender as defendant’s appointed counsel are these: In December 2002, the prosecutor mentioned at a court hearing that he intended to call as a trial witness one Coin Tran, who while confined at the Riverside County jail had allegedly witnessed an incident during which defendant made “tacit admissions” of guilt. The prosecutor expressed concern that Tran’s previous representation by the Riverside County Public Defender might create a conflict of interest. Supervising Deputy Public Defender Nicholas DePrisco disagreed, pointing out that there were “no secrets or confidences” in Tran’s file and that a different deputy had handled Tran’s case. The trial court then remarked that if Tran were to become a prosecution witness in defendant’s case, Deputy Public Defender James Ashworth, who at that point had been assigned to defendant’s case for 13 months, would have to cross-examine Tran, which in the court’s view would create a “potential” conflict of interest for Ashworth. When Ashworth asked defendant whether he would “waive” any conflict, defendant answered, “Yes.” The trial court nonetheless relieved the public defender as defendant’s counsel and appointed Attorney Peter Morreale, who thereafter represented defendant for the remainder of the trial proceedings, spanning a period of four years.

II

The Attorney General challenges the Court of Appeal majority’s holding in this case that the replacement of defendant’s appointed counsel violated defendant’s federal constitutional right to due process of law under the Fifth Amendment, and he challenges the court’s unanimous holding that the replacement violated defendant’s state constitutional right to counsel. The Attorney General concedes that, as the Court of Appeal unanimously concluded, under state statutory law the trial court’s replacement of counsel was an abuse of discretion. But the Attorney General disagrees with the Court of Appeal majority holding that the error requires reversal of defendant’s conviction without a showing of prejudice. We address these contentions below.

A. Federal Constitution

Central to our consideration of the federal constitutional issues before us is the United States Supreme Court’s recent decision in United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [165 L.Ed.2d 409, 126 S.Ct. 2557]. There, a defendant facing federal criminal charges in Missouri retained California lawyer Joseph Low to represent him. (Id. at p. 142.) Because Attorney Low was from another state, he needed the federal district court’s permission to appear in court as the defendant’s counsel. Low filed the appropriate motion (for admission pro hac vice), but the district court denied it. (Id. at pp. 142-143.)

The defendant then retained local attorney Karl Dickhaus to represent him at trial. (United States v. Gonzalez-Lopez, supra, 548 U.S. 140, 143.) Attorney Low, who was still retained by the defendant, tried to assist Dickhaus in his representation of the defendant, but the federal district court would not allow Low to communicate with Dickhaus during court proceedings or to meet with the defendant while trial was in progress. (Ibid.) The defendant was convicted, but the federal Eighth Circuit Court of Appeals reversed the conviction, holding that the federal district court had lacked any valid ground to prohibit Low from representing the defendant, and also that not allowing the defendant to be represented by his preferred attorney, Low, was a constitutional violation that was not subject to harmless-error review. (Id. at pp. 143-144.)

The high court agreed with the Eighth Circuit that the district court had violated the defendant’s right to counsel of choice under the federal Constitution’s Sixth Amendment, and that the violation was structural error requiring automatic reversal. (United States v. Gonzalez-Lopez, supra, 548 U.S. 140, 147-150.) As the court explained, an element of the Sixth Amendment right to counsel “is the right of a defendant who does not require appointed counsel to choose who will represent him.” (548 U.S. at p. 144.) The Sixth Amendment, the court noted, “ ‘guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.’ ” (548 U.S. at p. 144, quoting Caplin & Drysdale, Chartered v. United States (1989) 491 U.S. 617, 624-625 [105 L.Ed.2d 528, 109 S.Ct. 2646].) This Sixth Amendment guarantee is subject to an important limitation, however: “[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 151, italics added.)

Here, citing defendant’s indigence and his need for appointed counsel, the Court of Appeal panel unanimously agreed that defendant had no right under the federal Constitution’s Sixth Amendment to choose which attorney would represent him at taxpayers’ expense. But a two-justice majority concluded that the trial court’s replacement of one appointed counsel with another— based on a perceived conflict of interest—violated defendant’s right to effective assistance of counsel under the “due process clause of the Fifth Amendment, not the Sixth Amendment.” The majority apparently reasoned that because the public defender’s potential conflict of interest was “relatively minor and remediable,” the trial court’s replacement of the public defender was not necessary to protect defendant’s right to effective assistance of counsel and therefore resulted in a violation of that right.

The Court of Appeal majority was wrong, for two reasons. First, contrary to the majority’s assertion, under the federal Constitution the right to effective assistance of counsel is grounded in the Sixth Amendment’s right to counsel, not in the Fifth Amendment’s right to due process of law. (See United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 147 [“our recognition of the right to effective counsel within the Sixth Amendment was a consequence of our perception that representation by counsel ‘is critical to the ability of the adversarial system to produce just results.’ [Citation.]” (italics added)].)

Second, replacement of one appointed attorney with another does not violate a defendant’s constitutional right to effective assistance of counsel unless replacement counsel’s representation “ ‘was deficient when measured against the standard of a reasonably competent attorney and . . . this deficient performance caused prejudice in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” . . .’ ” (People v. Sapp (2003) 31 Cal.4th 240, 263 [2 Cal.Rptr.3d 554, 73 P.3d 433]; see Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052].) Because defendant here has not even attempted to show that the performance by his replacement counsel, Morreale, was in any way deficient, he has not established a violation of his federal constitutional right to the effective assistance of counsel.

B. State Constitution

The Court of Appeal unanimously concluded that the trial court’s replacement of defendant’s appointed attorney violated his state constitutional right to counsel. (Cal. Const., art. I, § 15.) The Attorney General contends that defendant has no right under our state Constitution to select or keep his court-appointed attorney. We agree, as explained below.

Our “state Constitution does not give an indigent defendant the right to select a court-appointed attorney,” but a trial court may abuse its discretion in refusing to appoint an attorney “with whom the defendant has a long-standing relationship.” (People v. Jones (2004) 33 Cal.4th 234, 244 [14 Cal.Rptr.3d 579, 91 P.3d 939].) “[RJemoval of an indigent defendant’s appointed counsel .. . poses a greater potential threat to the defendant’s constitutional right to counsel” than refusing “to appoint an attorney requested by the defendant... .” (Ibid.)

Here, the Court of Appeal, in holding that the trial court’s replacement of defendant’s appointed counsel violated the California Constitution, relied heavily on this court’s statement in Smith v. Superior Court (1968) 68 Cal.2d 547, 562 [68 Cal.Rptr. 1, 440 P.2d 65] (Smith), that an indigent criminal defendant’s established attorney-client relationship with appointed counsel is “no less inviolable than if counsel had been retained.” That statement is of no assistance to defendant, however.

At issue in Smith was “whether a trial judge has or should have the power to remove a court-appointed defense attorney, over the objections of both the attorney and the defendant, on the ground of the judge’s subjective opinion that the attorney is ‘incompetent’ because of ignorance of the law to try the particular case before him.” (Smith, supra, 68 Cal.2d at p. 549.) In concluding that the trial court lacked such a power, we stated in Smith: “[T]he constitutional guarantee of the defendant’s right to counsel requires that his advocate, whether retained or appointed, be free in all cases of the threat that [counsel] may be summarily relieved as ‘incompetent’ . . . .” (Id. at p. 562, italics added.) But as we observed in People v. Jones, supra, 33 Cal.4th 234, 243, it is unclear whether this constitutional guarantee refers to the Constitution of California or that of the United States; if the latter, the quotation from Smith provides no support for the Court of Appeal’s holding here that the replacement of defendant’s appointed counsel violated California’s Constitution. Moreover, a threat that counsel will be summarily removed for incompetence, as occurred in Smith poses a far more inhibiting constraint on counsel’s freedom to mount a vigorous defense than the possibility that an ethical conflict will require counsel’s removal, as occurred here. Thus, as this court held in Jones, a trial court does not violate a defendant’s right to counsel under the state Constitution when it “removes a defense attorney because of a potential conflict of interest.” (People v. Jones, at p. 244.)

This case falls within that holding. Over defendant’s objection, the trial court relieved the public defender from further representation of defendant because of the court’s concern that the public defender’s duty of loyalty to defendant might conflict with the public defender’s duty of loyalty to former client Tran, a potential prosecution witness in this case. Because the trial court removed the public defender before trial to forestall the risk that during trial this potential conflict would ripen into an actual conflict that would preclude the public defender from providing defendant with effective representation, the order did not deny defendant his right to counsel under our state Constitution.

C. State Statute

The statutory source of the trial court’s authority to disqualify an attorney derives from its power “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) This power, which is “ ‘inherent in every court’ ” (In re Charlisse C. (2008) 45 Cal.4th 145, 159 [84 Cal.Rptr.3d 597, 194 P.3d 330]), authorizes a trial court in either a civil or a criminal case to discharge an attorney who has a conflict of interest. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 [86 Cal.Rptr.2d 816, 980 P.2d 371]; People v. Jones, supra, 33 Cal.4th at p. 244, fn. 2.) A trial court’s disqualification of an attorney is generally reviewed for abuse of discretion. (Charlisse C., supra, at p. 159; Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-713 [76 Cal.Rptr.3d 250, 182 P.3d 579].)

Here, the Court of Appeal unanimously concluded that the trial court abused its discretion in replacing the public defender without explaining to defendant the potential pitfalls of keeping counsel who has an ethical conflict and without advising defendant of the alternatives available to him.

The Attorney General concedes that the trial court’s replacement of counsel was an abuse of discretion. Accepting his concession, we must determine the effect of that error. The Court of Appeal majority, over a vigorous dissent on this issue, concluded that the trial court’s erroneous removal order required automatic reversal of defendant’s conviction.¹ The Attorney General argues that, as the dissenting Court of Appeal justice pointed out, the error warrants reversal of defendant’s conviction only if it resulted in a miscarriage of justice, which defendant has failed to establish. The Attorney General states that to determine the prejudicial effect of statutory error, as occurred here, the appropriate test is the one set out in People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243], requiring reversal only when “it is reasonably probable that a result more favorable to the appealing party would have been reached” if the error had not occurred (id. at p. 836).

We agree with the Attorney General. Relevant here are two decisions of this court. In People v. Chavez (1980) 26 Cal.3d 334, 349 [161 Cal.Rptr. 762, 605 P.2d 401], after concluding that the trial court erred in refusing to appoint as trial counsel the same attorney who had represented the defendant at his arraignment, we stated that the error did not require automatic reversal of the defendant’s conviction. And in People v. Williams (2006) 40 Cal.4th 287, 301 [52 Cal.Rptr.3d 268, 148 P.3d 47], we concluded that automatic reversal was not compelled when the trial court in a death penalty case erred by refusing to appoint a second attorney to assist the defendant. Accordingly, as defendant in this case has not shown a reasonable probability that the trial court’s erroneous replacement of the public defender altered the outcome of the trial (People v. Watson, supra, 46 Cal.2d at p. 836), he is not entitled to reversal of his conviction.

Disposition

We reverse the Court of Appeal’s judgment and remand the matter for further proceedings consistent with our opinion.

George, C. J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

1 Justice Miller also noted in his concurring and dissenting opinion that when a trial court erroneously replaces appointed counsel over a criminal defendant’s objection, the defendant can immediately seek relief by a writ petition filed in a reviewing court. He noted that only by obtaining writ relief, which is a relatively speedy remedy, is it likely that the removed attorney will still be available to represent the defendant. Although here the public defender expressed in the trial court his intention to file a writ on defendant’s behalf, he did not do so.

We agree that a promptly filed writ petition normally provides the only effective remedy for an erroneous replacement of appointed counsel because of a potential conflict of interest. But we perceive a practical difficulty. The replaced attorney no longer represents the defendant and therefore cannot, without the defendant’s authorization, seek writ relief on the defendant’s behalf. (See Code Civ. Proc., § 1069 [writ petition “must be made on the verified petition of the party beneficially interested”].) The newly appointed attorney has standing to file the writ petition but may be reluctant to do so because if relief is granted it will result in termination of that attorney’s own appointment. Ideally, the attorney about to be removed should request that the trial court stay removal long enough to permit that attorney to prepare a writ petition. When such a stay has not been granted and reinstatement of the prior appointed attorney would best serve the defendant’s interests, however, replacement counsel has a professional obligation to pursue writ relief.