Harris v. Superior Court of Cal.

• Decision Date: 25 April 2014
• Docket Number: B251071
• Citation: 170 Cal.Rptr.3d 780,225 Cal.App.4th 1129
• Court: California Court of Appeals Court of Appeals
• Parties: Melvin Harold HARRIS, Jr., Petitioner, v. SUPERIOR COURT of California, Los Angeles County, Respondent; People of the State of California, Real Party in Interest.

225 Cal.App.4th 1129

170 Cal.Rptr.3d 780

Melvin Harold HARRIS, Jr., Petitioner,

v. SUPERIOR COURT of California, Los Angeles County, Respondent;People of the State of California, Real Party in Interest.

B251071

Court of Appeal, Second District, Division 1, California.

Filed April 25, 2014

See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 232 et seq.

ORIGINAL PROCEEDINGS in mandate. David Walgren, Judge. Petition granted. (Los Angeles County Super. Ct. No. MA056288)

The Law Office of Peter Swarth and Peter Swarth, Los Angeles, for Petitioner.

No appearance for Respondent.

Jackie Lacey, District Attorney, Roberta Schwartz and Ann H. Park, Deputy District Attorneys, for Real Party in Interest.

CHANEY, J.

In this original proceeding, petitioner Melvin Harold Harris, Jr., (Harris), asks this court for relief from denial by respondent Superior Court of the State of California of his nonstatutory motion to dismiss or set aside the information against him. His motion contended that Harris was deprived of his right to the effective assistance of counsel at his preliminary hearing—a substantial right—due to the existence of a conflict of interest between Harris and his attorney. At the time of Harris's preliminary hearing, Gustavo Diaz, Harris's attorney, had himself been arrested and was facing pending felony charges by the same prosecuting entity (the Los Angeles District Attorney) that was prosecuting Harris. Further, the same officer that had arrested Harris, and who was the sole prosecution witness at Harris's preliminary hearing, had also previously arrested Diaz, and therefore was a potential witness in future proceedings against Diaz. These circumstances were unknown to Harris at the time of his preliminary hearing, but were known to Diaz, to the arresting officer, and to the People.

Harris posits that these circumstances gave rise to an actual conflict of interest between himself and his attorney, and that this conflict of interest deprived him of a substantial right at his preliminary hearing—the right to the effective assistance of counsel, uncompromised by a conflict of interest.

By order served November 7, 2013, this court sought opposition to the petition and notified the parties that it was considering the issuance of a peremptory writ in the first instance. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1238, 104 Cal.Rptr.3d 145, 223 P.3d 15; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) Having stayed further proceedings in respondent court, we grant the petition as set forth below.

The Facts and Proceedings

The arrest of Harris's attorney

On February 2, 2012, Gustavo Diaz, petitioner's attorney, was arrested by Deputy Sheriff Joshua Busch of the Los Angeles County Sheriff's Department, on felony charges regarding a December 19, 2011 incident. On March 6, 2012, a felony complaint was filed against Diaz.

The charges against Harris

Harris engaged Diaz as his attorney following his May 19, 2012 arrest, without knowledge of Diaz's arrest or the charges pending against him.

On May 24, 2012, Harris was arraigned on a complaint alleging that on May 19, 2012, he had committed the crimes of possession for sale of a controlled substance (Health & Saf.Code, § 11378), a felony, and maintaining a place for sale of a controlled substance (Health & Saf.Code, § 11366), a felony, along with various special allegations.¹ Represented by Diaz, Harris pleaded not guilty to the charges and denied the special allegations.

Harris was represented by Diaz at his June 8, 2012 preliminary hearing. The arresting officer, Deputy Sheriff Busch, testified on direct examination and was cross-examined concerning the circumstances of Harris's and his father's arrest. Following Busch's testimony, Harris and his father were each held to answer on count one.

On June 22, 2012, the information was filed charging Harris with a violation of Health and Safety Code section 11378. Represented by attorney Diaz, Harris pleaded not guilty to the charge, and denied the special allegations.

Attorney Diaz's removal as Harris's counsel

On August 1, 2012, the court removed Diaz as Harris's attorney, and appointed attorney Peter Swarth to represent Harris on an interim basis.²Swarth took over as Harris's attorney in this case on or about August 17, 2013. After a number of continuances and waivers of time, Harris's case was set for pretrial conference on June 6, 2013.

Harris's motion to dismiss or set aside the information

On May 23, 2013, Harris filed a nonstatutory motion to dismiss or set aside the information against him in the superior court.³ Swarth's declaration in support of the motion alleges that when he visited Harris in jail in September 2012, Harris said that Deputy Busch, his arresting officer, had just told him that Busch had previously also arrested attorney Diaz. Swarth promptly requested records from the district attorney concerning Diaz's arrest and any subsequent prosecution. On March 27, 2013, the district attorney's office provided a report of Diaz's February 2, 2012 arrest. A month later Swarth obtained a docket report showing that on December 21, 2012, Diaz had been held to answer on three felony counts and a misdemeanor charge.⁴ Based on these facts, the motion alleged that Harris had been deprived of substantial rights, including the right to effective assistance of counsel at his preliminary hearing, due to a conflict of interest with his attorney that was unknown to him, but was known to his attorney and to the People at his preliminary hearing.

The People's written opposition to Harris's trial court motion admitted “the apparent conflict between defendant and his attorney of record, Gustavo Diaz, at defendant's preliminary hearing,” consisting of “the fact that the witness at the preliminary hearing also arrested Gustavo Diaz in a separate matter approximately six months prior to defendant's preliminary hearing in June of 2012.” ⁵ However, contending that the conflict of interest was “known only to Gustavo Diaz at the time,” the People's opposition argued that the appropriate remedy was to send the case back for a new preliminary hearing, rather than to dismiss the information.⁶ While “strongly object[ing]” to Harris's request to dismiss the information, the opposition to Harris's motion stated that “the People have no objection” to sending the matter back for “a conflict free preliminary hearing” based on the (potential) conflict between Harris and his attorney.

At the trial court's July 11, 2013 hearing on the motion to dismiss, the court, David Walgren, Judge, verified the facts on which the motion was based—that on February 2, 2012, Deputy Busch arrested Diaz for vehicle theft; that on March 6, 2012, the Los Angeles County District Attorney's office filed a felony complaint against Diaz arising from that incident; and that Diaz represented Harris at Harris's June 8, 2012 preliminary hearing, at which Busch testified about Harris's arrest and the facts establishing cause for the charges against him. The People conceded that these facts, while not necessarily constituting an actual conflict, show “an irregularity, and in the abstract, it is a conflict.” ⁷ Confirming that the right to counsel includes the right to representation by an attorney who is free of any conflict of interest, the People explained “that, yes, the appropriate remedy is to have a new preliminary hearing if the defendant so requested, but not a legal dismissal, which would be the equivalent of a 995.” Harris's counsel contended that the conflict of interest shown by the facts entitled Harris to dismissal of the information.

The trial court denied the motion to dismiss the information. It explained its conclusion that dismissal of the information “is not the appropriate remedy in the pretrial phase when we are in a posture it can be corrected by being referred back to the magistrate,” citing the case of People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 165 Cal.Rptr. 851, 612 P.2d 941 (Pompa–Ortiz ). ⁸Harris's counsel expressly declined to seek remand of the matter for a new preliminary hearing (a remedy the People did not oppose and the court indicated its willingness to grant), confirming that he wanted “the opportunity to explore a writ before I make that choice.”

Recapping the timing of the relevant events:

? February 2, 2012—Attorney Diaz arrested by Deputy Busch.

? March 6, 2012—Felony complaint filed against attorney Diaz.

? May 19, 2012—Harris arrested by Deputy Busch.

? May 24, 2012—Harris arraigned on felony complaint.

? June 8, 2012—Harris's preliminary hearing, represented by attorney Diaz.

? June 22, 2012—Information charges Harris with felonies.

? August 1, 2012—Diaz removed as Harris's attorney.

? September 2012—Harris learns that Diaz had also been arrested by Deputy Busch.

? March 27, 2013—Los Angeles District Attorney produces Diaz arrest report.

? April 26, 2013—Harris's attorney learns status of proceedings against Diaz.

? May 23, 2013—Harris files motion to dismiss or set aside the information.

? July 11, 2013—Trial court hearing on Harris's motion to dismiss or set aside the information.

The writ petition

On September 19, 2013, Harris petitioned for writ relief, asking this court to restrain further proceedings in this case. The writ petition contends that he was denied his federal and state constitutional rights to effective assistance of counsel by the fact that his attorney was acting under a conflict of interest at his preliminary hearing, arising from the fact that at the time Diaz had been arrested by the same officer who arrested Harris, and that when the arresting officer testified at his preliminary hearing, Diaz was being prosecuted on felony charges by the same prosecuting agency—the office of the Los Angeles County District Attorney—that was prosecuting Harris. The petition also argues that the prosecutor's...