Rhaburn v. Superior Court

• Decision Date: 09 June 2006
• Docket Number: No. E038620.,No. E038503.,E038503.,E038620.
• Citation: 140 Cal.App.4th 1566,45 Cal.Rptr.3d 464
• Court: California Court of Appeals Court of Appeals
• Parties: Gerald Anthony RHABURN, Petitioner, v. The SUPERIOR COURT of the County of Riverside, Respondent; The People, Real Party in Interest. Noel Baez, Petitioner, v. The Superior Court of the County of Riverside, Respondent; The People, Real Party in Interest.

45 Cal.Rptr.3d 464

140 Cal.App.4th 1566

Gerald Anthony RHABURN, Petitioner, v. The SUPERIOR COURT of the County of Riverside, Respondent;

The People, Real Party in Interest.

Noel Baez, Petitioner, v. The Superior Court of the County of Riverside, Respondent;

The People, Real Party in Interest.

No. E038503.

No. E038620.

Court of Appeal, Fourth District, Division 2.

June 9, 2006.

Jeffrey Van Wagenen, Riverside, for petitioner Gerald Anthony Rhaburn.

Gary Windom, Public Defender and Richard V. Myers, Deputy Public Defender, for Petitioners.

No appearance for Respondent.

Grover Trask, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Real Parties in Interest.

OPINION

GAUT, Acting P.J.

In these cases we are asked to determine whether a public defender whose office has previously represented a witness for the prosecution is subject to automatic (or virtually automatic) disqualification for conflict of interest. Although we cannot establish a bright-line rule, we do hold that disqualification is not mandatory whenever the situation arises; further, that disqualification in one of the two cases before us was clearly improper.

The facts of the two cases are similar, although not identical.

Petitioner Rhaburn was arrested on October 8, 2003. After the usual proceedings and several continuances, a trial date of May 16, 2005, was set. The case continued to trail into July, and on July 7, the prosecutor filed a trial brief that included a request that the public defender's office be disqualified because that office had represented witness Cary Barnett, Sr. in a criminal proceeding in 1996. Although the brief was not very illuminating, at the hearing held that date the prosecutor explained that Cary had originally been charged with a crime of moral turpitude—to wit, misdemeanor spousal abuse under Penal Code section 273.5¹—but had eventually been convicted only of disturbing the peace. (§ 415.) The prosecutor correctly pointed out that the conviction, as a misdemeanor, could not be used to impeach Cary, Sr. (Cf. Evid.Code, § 788, on impeachment by felony convictions.) However, he reasoned that the underlying conduct could be used for impeachment if it involved "moral turpitude." (See People v. Wheeler (1992) 4 Cal.4th 284, 295, 14 Cal.Rptr.2d 418, 841 P.2d 938.) He further informed the court that, in fact, Cary, Sr. had "pushed and shoved" the victim so that the offense did involve moral turpitude, and therefore argued that the public defender would have a conflict in using information about the offense "against" Cary.²

Objecting, the public defender informed the court that office records of 1996 cases were kept "off-site ... in a location that I'm not even aware of where it is." His supervisors had instructed him to make no inquiry about the files. He did not join the Riverside Public Defender's office until 2000. Finally, he indicated that he did not feel that the fact that his office had previously represented Cary, Sr. would have any effect on his cross-examination.

The public defender also informed the court that his client strenuously objected to the delay in trial that would be necessitated by the change in attorney. Questioned by the court, Rhaburn indicated that he felt there was no conflict and he wanted to go to trial. However, the court granted the prosecutor's request and disqualified the public defender.

As an attachment to the petition filed in this court, Deputy Public Defender Richard Myers declares that he had personally obtained and reviewed the file relating to Cary, Sr., and that it contained no secrets or confidences pertaining to him. He also declares that the deputy who handled Cary, Sr.'s case was employed by the office for less than six months in 1996 and has not returned.

In the Baez case, petitioner Noel Baez is charged with the attempted kidnapping (§§ 664 & 207) of Elizabeth C., as well corporal injury on a spouse/cohabitant (§ 273.5, subd. (a)) and violating a protective order (§ 273.6, subd. (a)), both with respect to Elizabeth C. Baez was arrested on August 19, 2003, and the complaint was filed on September 16 of that year. After various proceedings and a number of continuances, the matter was finally set for trial on July 11, 2005, and trailed thereafter.

On July 20, the district attorney filed a motion to disqualify the public defender. This motion cryptically listed three criminal case numbers (CR-44045, 44046 & 44047) and asked the court to take judicial notice of various pieces of information. From the dockets—which are all that we have—it appears that these cases involved charges against the victim in the current case, Elizabeth C. The docket indicates that she faced numerous charges, including forgery, grand theft, receiving stolen property, and the transportation or importation into the state of a controlled substance for sale. (§§ 470, 496; former § 487, subd. (3); Health & Saf.Code, § 11379, subd. (a).) She was represented at most proceedings—but not all—by a member of the public defender's office. These proceedings terminated in early 1993, at which time Elizabeth C. was found in violation of probation with respect to new charges, and sentenced to prison.

Baez's attorney objected to the delayed filing of the motion to disqualify. He also stated that his office's representation of Elizabeth C. would not affect his trial performance or strategy. However, after brief proceedings, the trial court agreed with the prosecutor and relieved the public defender. It also, on July 21, 2005, declined to consider formal opposition prepared by the deputy public defender, or to allow him to present additional argument. It was similarly unmoved by the representation that petitioner objected, stating that "You were relieved. You no longer represent Mr. Baez." Petitioner had not personally been present on July 20, 2005, due to the fact that he had executed a waiver of personal appearance under section 977; he had not, of course, been aware that the prosecutor would attempt to disqualify the public defender on that date.³

The opposition prepared for the trial court did not include any declaration by the deputy public defender. However, he subsequently executed a declaration stating that he had not reviewed any of Elizabeth C.'s criminal files.

DISCUSSION

First, we must dispose of issues not directly related to the one that has prompted our plenary pretrial review of these cases.

Petitioners—especially Baez—assert that the prosecutor has a "practice" of withholding potential disqualification challenges until the last minute, either to cover up his unreadiness for trial, or to interfere with the defendant's speedy trial rights and choice of counsel.⁴ Such assertions— which are not established by competent evidence—are only remotely germane to the primary issue before us. Insofar as the petitions seek the relief of dismissal for violation of petitioners' speedy trial rights, we decline to reach the issues. However, we will direct the trial court to reconsider Rhaburn's motion to dismiss in light of the views expressed in this opinion; Baez is free to bring such a motion upon remand.

Next, real party objects to petitioners' petitions insofar as they offer new material not provided to the trial court. That is, in the Rhaburn case, the declaration of Deputy District Attorney Myers to the effect that he has reviewed the file relating to Cary, Sr. and has determined that it contains no "secrets [or] confidences pertaining to" him and that the attorney who handled the case left the office shortly thereafter; and in the Baez case, the declaration of trial counsel in which he states that he has not reviewed any of the victim's files, as well as Myers' declaration that he has reviewed the only available file relating to the victim and that it too contains no "secrets or confidences."

We recognize, of course, that as a rule a reviewing court is limited to considering the record which was placed before the trial court. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184 at fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261; Cal. Court Rules, rule 14(a)(2)(C), briefs must "provide a summary of the significant facts limited to matters in the record.") There is, however, considerable merit to petitioners' argument that, due to the procedures followed by real party, they had no realistic opportunity to collect factual evidence before the trial court ruled.⁵ We also note that the trial court refused to accept the written opposition proffered in the Baez case one day after the hearing.⁶

On the other hand, it was incumbent upon the public defender at least to make as full an oral record as possible.⁷ However, we find it is unnecessary formally to consider the new matter. We do note that although factual assertions contained in the briefs on appeal alone, or otherwise not presented to the trial court, may not be the basis for our decision, it can be appropriate for a reviewing court to consider such assertions or presentations in order to assess the likely future course of the case if an order is reversed. This is especially true if evidence has been effectively excluded by the trial court. (See Taylor v. S & M Lamp Co. (1961) 190 Cal.App.2d 700, 708-709, 12 Cal.Rptr. 323.)⁸

As a third point, we must emphasize that, although there was some discussion at oral argument on the matter, these petitions neither require nor permit us to prescribe procedures which the Public Defender must follow in analyzing the possibility of conflict. The system depends on the willingness of attorneys to comply with their ethical duties and to bring "close calls" to the attention of the court. All we do in this opinion is attempt to provide some guidance for recognizing what is, and is not, a "close call."

We proceed now to the merits.

It is well established that in considering a motion to disqualify counsel, the "paramount concern is the preservation of public trust in the scrupulous...