Opinion
G055071
07-27-2018
GAR MARTIN MYERS, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Sharon Petrosino, Orange County Public Defender, David Dworakowski, Assistant Public Defender, Alisha Montoro, Deputy Public Defender for Petitioner. Tony Rackauckas, District Attorney, Stephan Sauer, Senior Deputy District Attorney, John R. Maxfield, Deputy District Attorney, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2017-00904746) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Ronald L. Bauer, Judge. Petition granted. Sharon Petrosino, Orange County Public Defender, David Dworakowski, Assistant Public Defender, Alisha Montoro, Deputy Public Defender for Petitioner. Tony Rackauckas, District Attorney, Stephan Sauer, Senior Deputy District Attorney, John R. Maxfield, Deputy District Attorney, for Real Party in Interest.
The Orange County Public Defender was appointed to represent petitioner Gar Martin Myers at trial on charges of driving under the influence. The public defender represented Myers in the trial court for almost two years and was relieved as counsel due to a conflict of interest. Private counsel was then appointed to represent Myers and tried his case. Myers filed a notice of appeal after he was convicted at trial and the Appellate Division of the Orange County Superior Court appointed the public defender to represent Myers on appeal. The public defender again declared a conflict of interest and respondent court refused to relieve the public defender. We find respondent court abused its discretion and issue the requested writ of mandate.
FACTS
Myers was charged in the superior court complaint No. 12HM05624 with two counts of misdemeanor driving under the influence in violation of Vehicle Code sections 23152, subdivisions (a) and (b). Early in the case, Myers was represented by the Orange County Public Defender. Private counsel substituted in, but the public defender was subsequently reappointed to represent Myers. The public defender was eventually relieved as a result of a conflict of interest. The trial court appointed private counsel to represent Myers. The jury found Myers guilty on both counts and Myers filed a notice of appeal.
We take judicial notice of the court record in superior court case No. 12HM05624. (Evid. Code, § 452, subd. (d).)
On March 15, 2017, the appellate division of the Orange County Superior Court appointed the public defender to represent Myers on appeal. On April 21, counsel for Myers filed a declaration of conflict and request for appointment of new counsel. The declaration stated the conflict of interest declared in good faith was based on the attorney's review of the file and analysis of the issues Myers wanted pursued on appeal. The declaration further stated she could not further disclose the nature of the conflict without divulging privileged information. The declaration of conflict was approved by the supervising attorney of the writs and appeals section of the public defender's office, a senior assistant public defender, and the chief deputy.
Respondent court denied the request to be relieved and to have new counsel appointed, because "[c]ounsel has not provided any information regarding the conflict of interest, as required by Aceves v. Superior Court (1996) 51 Cal.App.4th 584 [(Aceves),] and Uhl v. Municipal Court (1974) 37 Cal.App.3d 526 [(Uhl)]."
DISCUSSION
Myers contends respondent court erred when it refused to relieve the public defender's office and appoint new counsel to represent him on appeal after the public defender declared a conflict of interest in his case. We agree.
I. Standard of Review
In reviewing a trial court's ruling on an attorney's declaration of conflict, we defer to the lower court's resolution of disputed facts if it is supported by substantial evidence. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) "When substantial evidence supports the [lower] court's factual findings, the appellate court reviews the conclusions based on those findings for a abuse of discretion. [Citation.]" (Id. at p. 1144.) However, we review the superior court's decision de novo "where there are no material disputed factual issues." (Ibid.) There are no material disputed facts in the present matter.
II. Right to Counsel
Indigent criminal defendants are entitled to the assistance of counsel at trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right to counsel is binding on the states through the Fourteenth Amendment's due process clause. (Gideon v. Wainwright (1963) 372 U.S. 335, 342-343.) When the state provides criminal defendants with a first appeal as a matter of right, as occurred here, indigent criminal defendants are also entitled to appointed counsel on appeal as a matter of due process and equal protection. (Griffin v. Illinois (1956) 351 U.S. 12, 18-19; In re Reno (2012) 55 Cal.4th 428, 488 [defendant entitled to effective assistance of counsel on appeal].)
A criminal defendant's Sixth Amendment right to counsel is violated when counsel "fail[s] to render 'adequate legal assistance,' [citation]." (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) Merely having a licensed attorney next to the defendant does not satisfy the Sixth Amendment (id. at p. 685), because "[m]ore than a 'warm body' is required to satisfy the Sixth Amendment. [Citation.]" (United States v. Smith (4th Cir. 2011) 640 F.3d 580, 589.) Rather, constitutionally sufficient counsel must "play[] the role necessary to ensure that the trial is fair." (Strickland, supra, 446 U.S. at p. 685.) At the trial level, that role requires counsel to "subject the prosecution's case to meaningful adversarial testing." (United States v. Cronic (1984) 466 U.S. 648, 659.) On appeal, competent counsel must "raise crucial assignments of error," which might result in reversal. (In re Smith (1970) 3 Cal.3d 192, 202-203.)
The right to effective representation by counsel "includes the right to representation that is free from conflicts of interest. [Citation.]" (People v. Cox (2003) 30 Cal.4th 916, 948, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also Holloway v. Arkansas (1978) 435 U.S. 475, 482 (Holloway) [Sixth Amendment anticipates counsel unfettered by conflicting interests].) Conflicts of interest are not limited to situations where an attorney represents multiple defendants with competing interests in the same case (People v. Ramsey (1971) 17 Cal.App.3d 731, 734-735), or represents the defendant and a prosecution witness in the same case (In re Darr (1983) 143 Cal.App.3d 500, 513-514). "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 third person or by his own interests. [Citation.]" (People v. Bonin (1989) 47 Cal.3d 808, 835 (Bonin); see Cal. Rules of Prof. Conduct, rule 3-310(B).)
"The constitutional guaranty of assistance of counsel is not satisfied and the right thereto is impaired, where the court has failed to make an effective appointment of counsel for a defendant who is unable to employ counsel himself." (People v. Donohoe (1962) 200 Cal.App.2d 17, 24, citing Powell v. Alabama (1932) 287 U.S. 45, 55.) Put another way, the lack of conflict-free counsel on direct appeal violates a criminal defendant's Sixth Amendment rights. (Burns v. Gammon (8th Cir. 1999) 173 F.3d 1089, 1094.)
III. Analysis
Defense counsel has a duty to refrain from representing a criminal client when the attorney has a conflict of interest, absent a written advisement of the conflict to the client and a waiver of the conflict. (Cal. Rules of Prof. Conduct, rule 3-310(B)(4).) When a court becomes aware of a possible conflict between defense counsel and the defendant, the court is obligated to inquire into the possibility of the conflict. (Wood v. Georgia (1981) 450 U.S. 261, 272 (Wood); People v. Bonin, supra, 47 Cal.3d at p. 837.) The inquiry is to ensure the court the defendant's Sixth Amendment right to conflict-free counsel is not being violated. (Wood, supra, 450 U.S. at pp. 272-273.)
When counsel declares a conflict of interest, however, the court's obligation to inquire has less to do with protecting the defendant's right to conflict-free counsel and more to do with the court controlling the proceedings. (See Comden v. Superior Court (1978) 20 Cal.3d 906, 916, fn. 4 [court's authority to relieve counsel in furtherance of justice and to control the conduct of its ministerial officers].) The court's duty to inquire into a potential conflict of interest is aimed at avoiding a subsequent reversal based on the existence of a conflict. (Aceves, supra, 51 Cal.App.4th at p. 593.) As a trial is conducted with the court watchful of the defendant's rights, including the Sixth Amendment right to effective assistance of counsel, "we would expect to see the duty of full inquiry triggered when defense counsel discounts the effect of a potential conflict. If 'protect[ing] the right of the accused to have the assistance of counsel' is the goal, however, we question whether the scope of inquiry is as broad where as here the public defender's office asserts it has a disabling conflict, cannot provide effective assistance and must withdraw from the case." (Aceves, supra, 51 Cal.App.4th at p. 593, italics added.)
If counsel declares a conflict of interest and is unable to provide further disclosure without violating the attorney-client privilege and the court accepts counsel's good faith representation, "the court should find the conflict sufficiently established and permit withdrawal. [Citations.]" (Aceves, supra, 51 Cal.App.4th at p. 592.) After all, counsel "'is in the best position professionally and ethically to determine when a conflict of interest exists or will develop in the course of [representation].' [Citation.]" (Holloway, supra, 435 U.S. p. 485.) In addition, counsel has an obligation to not mislead a judge by artifice or false statement. (Olguin v. The State Bar (1980) 28 Cal.3d 195, 200.) Also, "attorneys are officers of the court, and '"when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath."' [Citation.]" (Holloway, supra, 435 U.S. at p. 486.) Moreover, counsel has an obligation to advise the court of the existence of a conflict of interest as soon as counsel discovers it. (Id. at pp. 485-486; see also Cal. Rules of Prof. Conduct, rule 3-700(B) [duty to withdraw if continued representation would violate these rules].) Although a court need not "accept a sweeping claim of conflict and 'rubber stamp' counsel's request to withdraw" (Aceves, supra, 51 Cal.App.4th at p. 592), great weight should be given to counsel's good faith assertion of a conflict of interest. (Leversen v. Superior Court (1983) 34 Cal.3d 530, 537-538 (Leversen).) Finally, the work-product privilege applies in criminal cases to protect an attorney's mental impressions, conclusions, opinions, and theories. (People v. Collie (1981) 30 Cal.3d 43, 59.)
In Uhl, supra, 37 Cal.App.3d at page 528, a criminal complaint was filed against defendant and the municipal court referred him to the public defender's office to determine his financial eligibility for appointment of counsel. The deputy who interviewed defendant concluded defendant qualified for the services of the public defender, but a conflict of interest existed between defendant and the public defender. The next day in court, another deputy public defender appeared with defendant and informed the court the public defender's office had a conflict of interest. (Ibid.) The declaration of conflict did not include the nature of the conflict. The municipal court appointed the public defender notwithstanding the declared conflict. (Ibid.)
The public defender filed a petition for a writ of mandate in the superior court seeking to compel the municipal court to relieve the public defender and to appoint other counsel to represent defendant. (Uhl, supra, 37 Cal.App.3d at p. 528.) The superior court found that as "the public defender did not disclose the nature of the relationship out of which the conflict arose nor state that the mere disclosure of the relationship would, in fact, require a breach of the confidential relationship with the existing client, the municipal court was not required to appoint separate counsel." (Ibid.) The matter was remanded to the municipal court for the court to rehear the public defender's request for appointment of private counsel. (Id. at pp. 528-529.) On remand, the deputy public defender stated there was a conflict of interest with another client represented by the public defender and the nature of the representation could not be revealed "without breaching the confidence of the existing client." (Id. at p. 529.) The municipal court again refused to appoint other counsel and the superior court subsequently issued a writ of mandate compelling the municipal court to appoint private counsel. The municipal court appealed. (Ibid.) The Court of Appeal found the statement in support of the declaration of conflict was sufficient and the public defender was not required to disclose confidential information in order to demonstrate to the trial court's satisfaction the existence of a conflict of interest. (Id. at pp. 535-536.)
The decision in "'Uhl does not abrogate the court's duty of inquiry or the attorney's obligation to provide information about the conflict. It simply limits the range of inquiry to prevent the required disclosure of communications that are confidential but form the factual basis of the conflict.'" (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134.)
The trial court in Leversen denied defense counsel's mid-trial request to be relieved as a result of a conflict of interest. (Leversen, supra, 34 Cal.3d at pp. 533-534.) The conflict resulted from representation of a witness by defense counsel's firm. (Id. at p. 534.) Attorney Leversen asserted "the firm 'possesses privileged information from a client other than [defendant] germane to [defendant's] trial; counsel cannot discuss that information with [defendant] without violating the privilege, and cannot independently pursue it without adversely affecting the interests of another client and further violating the privilege.'" (Id. at p. 535.) The trial court denied the request to be relieved stating, "'there has to be some clue to the court' and that here there was no basis for even a 'reasonable, informed speculation' that a disqualifying conflict existed." (Id. at p. 536.)
The Leversen court reiterated that an attorney cannot use confidential information obtained from one client in order to benefit another client (Leversen, supra, 34 Cal.3d at p. 538), and that an attorney "has a duty to withdraw, or apply to a court for permission to withdraw, from representation that violates" duties imposed by the California Rules of Professional Responsibility. (Ibid.) The court found the trial court erred in refusing to relieve counsel when it held "there was no evidence of the nature of the confidential information . . . ." (Id. at p. 539.) "[R]espondent court failed to give sufficient weight to the assertions of petitioner and members of his firm that their continued representation of [the defendant] was precluded by a conflict of interest based on confidential information received during representation of [the witness]." (Ibid.)
Explaining why counsel's representation was sufficient to require appointment of new counsel without requiring defense counsel to disclose confidential information, our Supreme Court noted the witness represented by Leversen's firm had been charged in a jewelry store robbery similar to the one in which the defendant had been charged. (Leversen, supra, 34 Cal.3d at p. 539.) The court stated, "It is not implausible that [the witness represented by Leversen's firm] had furnished information that might lead to evidence, apart from [the witness's] testimony, that would tend to exculpate [defendant] even though perhaps incriminating [the witness]. Another possibility might have been to seek leniency for [defendant] in exchange for testimony against [the witness]. Petitioner's duty not to use [the witness's] confidences against him prevented [Leversen] from even discussing these or other possibilities with his client, [defendant], let alone revealing them in open court." (Ibid.)
In Aceves, supra, 51 Cal.App.4th at page 587, the public defender sought to be relieved due to a conflict of interest. A deputy stated the conflict of interest "was created by a statement from the client that had caused a complete breakdown of the attorney-client relationship and it had nothing to do with threats to witnesses as the [prosecutor] suggested." (Aceves, supra, 51 Cal.App.4th at p. 587.) The trial court refused to relieve the public defender unless "the facts underlying the conflict" were revealed. (Ibid.) The appellate court found counsel's disclosure was sufficient to be relieved as the result of a conflict of interest, directed the trial court to reverse its order and directed the trial court to relieve the public defender as counsel and appoint the defendant conflict-free counsel. (Id. at pp. 595-596.)
The Aceves court stated, "Conflicts come in all shapes and sizes. As our Supreme Court describes it: [¶] '"Conflicts of interest may arise in various factual settings. Broadly, they '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.'"'" (Aceves, supra, 51 Cal.App.4th at p. 590, quoting People v. Hardy (1992) 2 Cal.4th 86, 135.) The court went on to hold that "where the conflict is between lawyer and client—rather than between two or more clients—the lawyer is properly concerned divided loyalties may affect his or her full and active representation. Moreover, if there is no reason to doubt counsel's sincerity, the trial court properly relies on the lawyer. [Citation.] Regardless of how others might react, only the trial lawyer can realistically appraise whether the conflict may have an impact on the quality of the representation or whether counsel's self-interest might stand in the way. [Citations.] In such cases, the court by necessity relies on the lawyer." (Aceves, supra, 51 Cal.App.4th at p. 594.)
The declaration of conflict in this matter, in conjunction with the record on appeal (i.e., the public defender was relieved as counsel of record in the trial court based on a conflict of interest), supplied enough information for the court to conclude the public defender had a conflict of interest that precluded it from representing Myers on appeal. The deputy public defender's declaration under oath stated the conflict was the result of her review of the appellate record and consideration of the potential issues Myers wanted raised on appeal, the public defender did not declare conflicts lightly, three senior members of management (including the chief deputy public defender) approved the conflict, the conflict was made in good faith, and the deputy could not "further disclose the nature of the conflict without divulging privileged information." From this language we infer trial counsel's effectiveness may be an issue on appeal.
We have no reason to conclude the public defender's office believes a mere disagreement over tactics creates a conflict of interest. (See People v. Crandell (1988) 46 Cal.3d 833, 859-860 [difference in tactics not a conflict unless it "signals a complete breakdown in the attorney-client relationship"], disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
Additionally, the trial court's register of actions supports this conclusion. Not only did Myers bring a Marsden motion in the trial court to have the public defender removed from his case, it appears that later in the case there was an issue of whether the public defender sought a split of the blood sample obtained from him prior to the time the evidence was destroyed. "No doubt there was a conflict of interest in the present case. The lawyer who represented petitioner on direct appeal came from the same office as the lawyer who had represented him at trial. So far as an argument that trial counsel had been constitutionally ineffective is concerned, direct-appeal counsel had a clear conflict of interest." (Burns v. Gammon (8th Cir. 1999) 173 F.3d 1089, 1092.) Moreover, there is no reason to believe the conflict of interest that caused the trial court to relieve the public defender of its representation of Myers on the underlying case no longer existed when the public defender was appointed to represent Myers on appeal from the conviction in that same matter.
People v. Marsden (1970) 2 Cal.3d 118, 123.
We are aware that on the date of oral argument Myers submitted what he styled an ex parte motion for a Marsden motion hearing. Given our decision in this matter, we need not address his complaints. --------
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing respondent court to vacate its order denying the public defender's request to be relieved as counsel of record on Myers's appeal, and to enter a new order relieving the public defender and appointing new counsel to represent Myers on appeal. The alternative writ is discharged. The stay imposed by this court on June 30, 2017, is dissolved.
O'LEARY, P. J. WE CONCUR: ARONSON, J. FYBEL, J.