Uhl v. Municipal Court

• Decision Date: 26 February 1974
• Citation: 112 Cal.Rptr. 478,37 Cal.App.3d 526
• Parties: Marston Stone UHL, Plaintiff and Respondent, v. The MUNICIPAL COURT OF the COUNTY OF MARIN, CENTRAL JUDICIAL DISTRICT, State of California, Defendant; PEOPLE of the State of California, Real Party in Interest and Appellant. Civ. 31096.
• Court: California Court of Appeals Court of Appeals

Page 478

112 Cal.Rptr. 478

37 Cal.App.3d 526

Marston Stone UHL, Plaintiff and Respondent, v. The MUNICIPAL COURT OF the COUNTY OF MARIN, CENTRAL JUDICIAL DISTRICT, State of California, Defendant PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 31096.

Court of Appeal, First District, Division 2, California.

Feb. 26, 1974.

Douglas J. Maloney, County Counsel, County of Marin, George J. Silvestri, Jr., Deputy Marin County Counsel, San Rafael, for real party in interest and appellant.

Harold J. Truett, Public Defender, Peter J. Muzio, Deputy Public Defender, San Rafael, for plaintiff and respondent.

TAYLOR, Presiding Justice.

This appeal from an order granting the public defender's petition for a writ of mandamus raises a question of first impression: whether the assertion of a conflict of interest with an unnamed client in another proceeding by an attorney is sufficient to permit his withdrawal from a case to which he has been appointed. Appellant maintains that the attorney should be required to make a showing of the facts and circumstances giving rise to the asserted conflict or prejudice. We have concluded, on the basis of the right to untrammeled and unimpaired assistance of counsel guaranteed by the state and federal Constitutions and its necessary corollary, the confidentiality of the attorney-client relationship, the Canons of Ethics and the applicable California law, that the order ¹ granting the petition for writ of mandamus must be affirmed.

The basic facts are not in dispute. On September 16, 1971, a criminal complaint was filed charging respondent, Marston S. Uhl, with a violation of Penal Code section 459. On October 5, Uhl was referred to the public defender's office for a determination of his eligibility for its services. After he was interviewed by a deputy, Mr. Briggs, it was determined that Uhl was financially eligible for representation by the public defender. However, after taking a factual statement from Uhl, Briggs formed the opinion that a conflict of interest existed between Uhl and another client then being represented by the public defender's office. Briggs duly noted the existence of the conflict in Uhl's file.

The following day, October 6, Uhl was present in the Municipal Court of the County of Marin, Central Judicial District, with another deputy public defender, mr. Muzio, who indicated that a conflict of interest existed and requested that the court appoint private counsel to represent Uhl. ² Muzio did not elaborate on the nature of the conflict and the court thereafter appointed the public defender to represent Uhl.

On October 8, 1971, the public defender filed, on behalf of Uhl, a petition for writ of mandate to compel the court to appoint private counsel to represent Uhl. After a hearing, the superior court found that since 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. The superior court, however, directed the municipal court to rehear Uhl's request for appointment of separate counsel. At the rehearing on November 24, 1971, Muzio again appeared with Uhl and reiterated the existence of a conflict of interest between Uhl and another client whom the public defender's office was then representing. Muzio also added that he could not disclose the nature of the relationship that gave rise to the conflict without breaching the confidence of the existing client. After the court again denied the request for appointment of separate counsel, the superior court issued its peremptory writ of mandate ³ directing the appointment of separate counsel and this appeal ensued.

Citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, the California Supreme Court has held that the refusal of a trial court to grant to a defendant a continuance to secure separate counsel where a conflict of interest is asserted is reversible error (People v. Robinson, 42 Cal.2d 741, 269 P.2d 6). In Robinson, the People argued that the record failed to reflect any diversity of interest between the defendants. The court, however, held that, apart from any factual conflict, a defendant is entitled to the undivided loyalty and untrammeled assistance of his own counsel (p. 748). This principle was reiterated in People v. Douglas, 61 Cal.2d 430, at 437, 38 Cal.Rptr. 884, at 888, 392 P.2d 964, at 968: ". . . The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial."

More recently, in People v. chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106, the California Supreme Court reversed a defendant's conviction based on the ineffective assistance of counsel who represented the codefendants, despite the fact that neither the defendant nor his attorney had raised the claim of conflict of interest in the trial court.

We have found no case on all fours with the instant one, where the precise question is whether any showing of the facts and circumstances that give rise to the potential conflict or prejudice is required, or whether the court can rely on the assertion of the attorney. ⁴ We also note that most of the reported cases relate to multiple defendants in the same criminal proceedings rather than separate ones. To us, however, this distinction (like that between appointed or retained counsel) is of no substance in relation to the basic important rights involved.

Appellant urges us to adopt a rule analogous to that of the First, Second, Eighth and Ninth Circuits (derived from Glasser), namely, that no reversible error is committed in assigning a single attorney to represent two or more codefendants in a pending criminal action, absent evidence of an Actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest between the codefendants (United States v. Foster (1 Cir. 1972) 469 F.2d 5; ⁵ United States v. Wisniewski (2 Cir. 1973) 478 F.2d 274, 281; Austin v. Erickson (8 Cir. 1973) 477 F.2d 620, 623; Duran v. United States (9 Cir. 1969) 413 F.2d 596, 599; Carlson v. Nelson (9 Cir. 1971) 443 F.2d 21, 22).

However, in People v. Chacon, 69 Cal.2d 765, at 776, 73 Cal.Rptr. 10, 447 P.2d 106, supra, our Supreme Court noted that this state follows the rule of the Fourth and D.C. Circuits, likewise based on Glasser, supra, Requiring the appointment of separate counsel for each defendant intitially where there is a basis for an 'informed speculation' that a defendant was prejudiced by being represented by the same counsel (Ford v. Uited States (1967) 126 U.S.App.D.C. 346, 379 F.2d 123; ⁶ Lollar v. United States (1967) 126 U.S.App.D.C. 200, 376 F.2d 243; ⁷ Sawyer v. Brough (4 Cir. 1966) 358 F.2d 70).

We also note that when faced with a question more analogous to the instant situation than the rules discussed above, the Second Circuit said in United States v. Armone (2 Cir. 1966) 363 F.2d 385, at 405--406: 'Viscardi also claims that he was prejudiced by sharing counsel with the two Armones and Grammauta and that the trial court's failure to apprise him of 'the hazards inherent in sharing an attorney with the Armones and Grammauta' was error. The short answer to Viscardi's contention is that almost six months prior to trial, the government requested the court to inquire into the existence of a possible conflict of interest. The following interchange between government counsel and counsel for Viscardi, the two Armones, and Grammauta appears on the record:

"Mr. Jacobs: . . . (Y)our Honor, this case was on on Monday and at that time the government stated it wished Mr. Lewis in court because the situation in this case is a novel situation, Mr. Lewis representing four defendants in a conspiracy case, and I wish the Court to ask Mr. Lewis that if after being in this case now for over a month he knows of any conflict or any reason why he couldn't represent these four defendants.

"The Court: I assume he doesn't or he would have brought it to the attention of the Court.

"Mr. Lewis: That's right; I discussed it with my clients and they have advised me they feel there is no conflict.'

'Viscardi relies upon Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and Campbell v. United States (122 U.S.App.D.C. 143), 352 F.2d 359 (1965). Nothing in Glasser requires the government or the court to take further steps after receiving such an assurance from an officer of the court. In Campbell, where a single attorney was retained by two defendants, the court reversed the conviction of one defendant because the trial judge did not inquire into whether the defendants knowingly accepted the risk of sharing defense counsel. We need not now decide how much of the Campbell case we accept as law in this circuit. We simply hold that the trial judge's inquiry of counsel as to possible conflict of interest in this case sufficed to protect any rights Viscardi may have had in the matter. The court must be allowed to accept an attorney's representations in matters of this kind, at least absent unusual circumstances.' (Emphasis added.)

Returning to California authorities, People v. Gallardo, 269 Cal.App.2d 86, 74 Cal.Rptr. 572, is helpful here. In Gallardo, the codefendants were jointly charged with several counts of robbery and represented by the public defender. At the outset of the trial, the public defender advised the court that while the codefendants thought there was a conflict, he did not agree. The court did not ask the codefendants about the nature of the conflict but merely called into question the competence of the public defender and denied the request for appointment of separate counsel. On appeal, the conviction was reversed because, in fact,...