Alcocer v. Superior Court

• Decision Date: 20 December 1988
• Docket Number: No. B030388,B030388
• Citation: 254 Cal.Rptr. 72,206 Cal.App.3d 951
• Court: California Court of Appeals Court of Appeals
• Parties: , 57 USLW 2450 Ramiro ALCOCER, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Santa Barbara, Respondent. PEOPLE of the State of California, Real Party in Interest.

Page 72

254 Cal.Rptr. 72

206 Cal.App.3d 951, 57 USLW 2450

Ramiro ALCOCER, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Santa Barbara, Respondent PEOPLE of the State of California, Real Party in Interest.

No. B030388.

Court of Appeal, Second District, Division 6, California.

Dec. 20, 1988.

As Modified Jan. 19, 1989.

[206 Cal.App.3d 954] Ilan Funke-Bilu, San Luis Obispo, for petitioner.

No appearance for respondent.

Thomas W. Sneddon, Jr., Dist. Atty., Gerald McC. Franklin, Sr. Deputy Dist. Atty., for real party in interest.

OPINION AND ORDER

GILBERT, Associate Justice.

In a criminal case, a defendant has a right to be represented by an attorney who has no conflict of interest. May a defendant waive this right, even though by doing so he may not receive a fair trial? We hold he may if he knowingly and intelligently waives that right.

FACTS

Defendant Ramiro Alcocer is charged with lying to the grand jury during the course of an investigation. (Pen. Code, § 118.) Alcocer is alleged to have testified that he was unaware that a former Santa Maria Municipal Court judge had been using drugs. The judge later pled guilty to such charges.

Alcocer retained attorney Ilan Funke-Bilu to represent him. Funke-Bilu also represents Tommy Jackson in a case in which Jackson pled guilty to possession of drugs for sale. The prosecution has evidence that Jackson sold drugs to the former judge. The prosecution states it may call Jackson to testify that Alcocer was present when Jackson sold drugs to the former judge. Jackson, acting upon advice of Funke-Bilu, has refused to speak to the prosecutor.

On July 24, 1987, the district attorney moved to recuse Funke-Bilu upon the ground of conflict of interest. (See People v. Mroczko (1983) 35 Cal.3d 86, 197 Cal.Rptr. 52, 672 P.2d 835.) The court suggested independent counsel be retained to advise Alcocer of the hazards of having an attorney with divided loyalties represent him. Attorney Sam Eaton was retained. (Id., at pp. 115-116, 197 Cal.Rptr. 52, 672 P.2d 835.)

On October 2, 1987, Eaton reported to the court that he had conferred with both Alcocer and the prosecutor. Apparently Eaton did not speak to Jackson. Eaton stated that he had advised Alcocer that The trial judge granted the motion to recuse counsel. He concluded that by representing Jackson, Funke-Bilu could not adequately cross-examine him were he called to testify for the prosecution. This would prejudice Alcocer.

there could be a conflict, and advised him of his rights.

Alcocer seeks relief by way of extraordinary writ in which he asserts that he is being denied counsel of choice. He states that Eaton has explained the potential conflict of having Funke-Bilu represent him, and that he is willing to waive any conflicts.

DISCUSSION

A defendant is entitled to representation which is free of conflicting interests. (Holloway v. Arkansas (1978) 435 U.S. 475, 483, fn. 5, 98 S.Ct. 1173, 1178, fn. 5, 55 L.Ed.2d 426.) "Active representation by one attorney of clients with adverse and conflicting interests denies effective assistance of counsel to a defendant caught in the conflict." (In re Darr (1983) 143 Cal.App.3d 500, 509, 191 Cal.Rptr. 882.) A court is obliged to consider the ramifications of a possible conflict when counsel has represented a potential prosecution witness. (Wheat v. United States (1988) 486 U.S. 153, ----, 108 S.Ct. 1692, 1698, 100 L.Ed.2d 140, 150; People v. Mroczko, supra, 35 Cal.3d at pp. 111-112, 197 Cal.Rptr. 52, 672 P.2d 835; In re Darr, supra, 143 Cal.App.3d at pp. 514-515, 191 Cal.Rptr. 882.) "When an attorney attempts to represent his client free of compromising loyalties, and at the same time preserve the confidences communicated by a present or former client during representation in the same or a substantially related matter, a conflict arises." (United States v. Agosto (8th Cir.1982) 675 F.2d 965, 971, cert. den. 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 74; United States v. Dolan (3d Cir.1978) 570 F.2d 1177, 1181.)

In Wheat v. United States, supra, 486 U.S. at page ----, 108 S.Ct. at page 1699, 100 L.Ed.2d at page 151, the United States Supreme Court held that a trial judge has wide discretion in ruling on a prosecution's motion for recusal of defense counsel with a conflict of interest. The trial court may, therefore, recuse a defendant's lawyer, over the defendant's protest, if there is a conflict, or even a potential for conflict. (Id., at p. ----, 108 S.Ct. at p. 1698, 100 L.Ed.2d at p. 150.) Here, substantial evidence supports the trial court's ruling that with representation by Funke-Bilu there is the potential of a conflict.

The People argue that Wheat compels us to affirm the trial court's ruling because Wheat interprets the Sixth Amendment as ensuring that defendants receive a fair trial. This, they contend, takes precedence over ensuring that a defendant be represented by the lawyer whom he prefers. The People further state that, should we change these priorities, we would then give a more narrow interpretation to the Sixth Amendment than has the United States Supreme Court. On the contrary, we give the Sixth Amendment a broader interpretation.

It is true that a lawyer immersed in the shifting sands of conflicting interests may be unable to effectively represent one or all of those interests. This does not mean, however, that we must subordinate the defendant's right to counsel of his choice to his right to a conflict-free attorney. Such a paternalistic treatment of a defendant restricts his Sixth Amendment rights. The choice is up to defendant, provided he is fully informed of his rights, and knowingly and intelligently waives them.

A right that is imposed, as compared to a right that is chosen, is an impoverished right. A right derives its significance and vitality from its being chosen. (See Matter of Quinlan (1976) 70 N.J. 10, 355 A.2d 647.)

John Stuart Mill observed: "[i]n each person's own concerns his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will may be offered to him, even obtruded on him, by others; but he himself is the final judge. All errors which he is likely to commit against advice Ironically, in giving a broad interpretation to the word "right," we make it possible for a defendant to have less protection than he would have under the Wheat rationale. Through waiving the right to conflict-free counsel, a defendant may reduce his chances for an acquittal. Such a choice, however, strengthens rather than weakens the right to counsel. Under our holding, a defendant is master of his own fate; it is he, rather than the government, who decides who shall act as his counsel.

and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good." (Mill, On Liberty (Bobbs-Merrill ed. 1956) p. 93.)

A court abridges a defendant's right to counsel when it removes retained defense counsel in the face of a defendant's willingness to make an informed and intelligent waiver of his right to be represented by conflict-free counsel.

California decisions "limit severely the judge's discretion to intrude on defendant's choice of counsel in order to eliminate potential conflicts, ensure adequate representation, or serve judicial convenience." (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613, 180 Cal.Rptr. 177, 639 P.2d 248, emphasis added.) We have stated that the right to assistance of counsel includes "the right of an accused to be aided by [the] effective assistance of counsel of his own choosing at all critical stages of criminal proceedings." (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 431, 233 Cal.Rptr. 487.) Our courts recognize that the right of a defendant "to decide for himself who best can conduct the case must be respected wherever feasible. [Fn. omitted.]" (Maxwell, supra, 30 Cal.3d at p. 615, 180 Cal.Rptr. 177, 639 P.2d 248.).

In People v. Bonin (1989) 89 Daily Journal D.A.R. 372, and People v. Easley (1988) 46 Cal.3d 712, 250 Cal.Rptr. 855, 759 P.2d 490, cases decided after Wheat v. United States, our Supreme Court reaffirmed the rule that the right to conflict-free counsel may be waived. In Bonin, the court stated that "[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.]" (At p. 378.)

In Easley, the court reversed the death penalty phase of defendant's trial because the attorney's conflict of interest deprived the defendant of effective assistance of counsel. The trial court informed defendant of his right to conflict-free counsel, but failed to advise him of the full range of dangers and the possible consequences of being represented by an attorney with a conflict. ( People v. Easley, supra, 46 Cal.3d at p. 730, 250 Cal.Rptr. 855, 759 P.2d 490.) The California Supreme Court concluded there could be no finding that defendant knowingly waived the conflict absent an adequate explanation to the defendant of the consequences of the conflict. (Id., at p. 732, 250 Cal.Rptr. 855, 759 P.2d 490.)

This order modifying opinion does not change the judgment.

The Easley court characterized article I, section 15 of the California Constitution as affording a defendant greater protection than is the case under federal law. (People v. Easley, supra, 46 Cal.3d at p. 729, fn. 17, 250 Cal.Rptr. 855, 759 P.2d 490.) The court also reaffirmed the proposition that "[t]he right to conflict-free counsel may be waived." (Id., at p. 729, 250 Cal.Rptr. 855, 759...