Riverside County Super. Ct. No. RIF 100398 Judge: Christian F. Thierbach and Dennis A. McConaghy.
The opinion of the court was delivered by: Kennard, J.
Before trial, and over defendant's objection, the trial court replaced defendant's appointed counsel, the public defender, because of a perceived conflict of interest arising from the public defender's previous representation of a potential prosecution witness in defendant's case. A jury convicted defendant, and he appealed. A divided Court of Appeal panel reversed the judgment of conviction.
All three justices agreed that the trial court's replacement of appointed counsel did not violate defendant's right to counsel, or to counsel of choice, under the federal Constitution's Sixth Amendment; but they concluded that the replacement violated defendant's right to counsel under our state Constitution, and that under state statutory law the replacement was an abuse of the trial court's discretion. In addition, a two-justice majority held that the replacement of counsel violated defendant's due process right under the federal Constitution's Fifth Amendment, and that this error required automatic reversal. The third justice, however, was of the view that the error was harmless and that the judgment of conviction should be affirmed.
We granted the Attorney General's petition for review. The Attorney General contends that in replacing defendant's appointed counsel with another court-appointed attorney, the trial court did not violate defendant's right to counsel under either the federal or the state Constitution. Conceding that the replacement violated state statutory law and was an abuse of discretion by the trial court, the Attorney General argues that the error requires reversal only upon a showing of prejudice, which defendant did not establish. We agree with the Attorney General on both points.
Defendant Daniel Loreto Noriega and co-defendant Manuel Paredes were sentenced to life in prison without the possibility of parole for the killing of Cesar Cortez, who had failed to pay a drug debt. (Paredes is not a party in the proceeding before this court.)
The facts pertinent to the trial court's replacement of the Riverside County Public Defender as defendant's appointed counsel are these: In December 2002, the prosecutor mentioned at a court hearing that he intended to call as a trial witness one Coin Tran, who while confined at the Riverside County jail had allegedly witnessed an incident during which defendant made "tacit admissions" of guilt. The prosecutor expressed concern that Tran's previous representation by the Riverside County Public Defender might create a conflict of interest. Supervising Deputy Public Defender Nicholas DePrisco disagreed, pointing out that there were "no secrets or confidences" in Tran's file and that a different deputy had handled Tran's case. The trial court then remarked that if Tran were to become a prosecution witness in defendant's case, Deputy Public Defender James Ashworth, who at that point had been assigned to defendant's case for 13 months, would have to cross-examine Tran, which in the court's view would create a "potential" conflict of interest for Ashworth. When Ashworth asked defendant whether he would "waive" any conflict, defendant answered, "Yes." The trial court nonetheless relieved the public defender as defendant's counsel and appointed attorney Peter Morreale, who thereafter represented defendant for the remainder of the trial proceedings, spanning a period of four years.
The Attorney General challenges the Court of Appeal majority's holding in this case that the replacement of defendant's appointed counsel violated defendant's federal constitutional right to due process of law under the Fifth Amendment, and he challenges the court's unanimous holding that the replacement violated defendant's state constitutional right to counsel. The Attorney General concedes that, as the Court of Appeal unanimously concluded, under state statutory law the trial court's replacement of counsel was an abuse of discretion. But the Attorney General disagrees with the Court of Appeal majority holding that the error requires reversal of defendant's conviction without a showing of prejudice. We address these contentions below.
Central to our consideration of the federal constitutional issues before us is the United States Supreme Court's recent decision in United States v. Gonzalez-Lopez (2006) 548 U.S. 140. There, a defendant facing federal criminal charges in Missouri retained California lawyer Joseph Low to represent him. (Id. at p. 142.) Because Attorney Low was from another state, he needed the federal district court's permission to appear in court as the defendant's counsel. Low filed the appropriate motion (for admission pro hac vice), but the district court denied it. (Id. at pp. 142-143.)
The defendant then retained local attorney Karl Dickhaus to represent him at trial. (United States v. Gonzalez-Lopez, supra, 548 U.S. 140, 143.) Attorney Low, who was still retained by the defendant, tried to assist Dickhaus in his representation of the defendant, but the federal district court would not allow Low to communicate with Dickhaus during court proceedings or to meet with the defendant while trial was in progress. (Ibid.) The defendant was convicted, but the federal Eighth Circuit Court of Appeals reversed the conviction, holding that the federal district court had lacked any valid ground to prohibit Low from representing the defendant, and also that not allowing the defendant to be represented by his preferred attorney, Low, was a constitutional violation that was not subject to harmless-error review. (Id. at pp. 143-144.)
The high court agreed with the Eighth Circuit that the district court had violated the defendant's right to counsel of choice under the federal Constitution's Sixth Amendment, and that the violation was structural error requiring automatic reversal. (United States v. Gonzalez-Lopez, supra, 548 U.S. 140, 147-150.) As the court explained, an element of the Sixth Amendment right to counsel "is the right of a defendant who does not require appointed counsel to choose who will represent him." (548 U.S. at p. 144.) The Sixth Amendment, the court noted, " `guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.' " (Ibid., quoting Caplin & Drysdale, Chartered v. United States (1989) 491 U.S. 617, 624-625.) This Sixth Amendment guarantee is subject to an important limitation, however: "[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them." (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 151, italics added.)
Here, citing defendant's indigence and his need for appointed counsel, the Court of Appeal panel unanimously agreed that defendant had no right under the federal Constitution's Sixth Amendment to choose which attorney would represent him at taxpayers' expense. But a two- justice majority concluded that the trial court's replacement of one appointed counsel with another - based on a perceived conflict of interest - violated defendant's right to effective assistance of counsel under the "due process clause of the Fifth Amendment, not the Sixth Amendment." The majority apparently reasoned that because the public defender's potential conflict of interest was "relatively minor and remediable," the trial court's replacement of the public defender was not necessary to protect defendant's right to effective assistance of counsel and therefore resulted in a violation of that right.
The Court of Appeal majority was wrong, for two reasons. First, contrary to the majority's assertion, under the federal Constitution the right to effective assistance of counsel is grounded in the Sixth Amendment's right to counsel, not in the Fifth Amendment's right to due process of law. (See United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 147 ["our recognition of the right to effective counsel within the Sixth Amendment was a consequence of our perception that representation by counsel `is critical to the ability of the adversarial system to produce just results.' [Citation.] " (italics added)].)
Second, replacement of one appointed attorney with another does not violate a defendant's constitutional right to effective assistance of counsel unless replacement counsel's representation " `was deficient when measured against the standard of a reasonably competent attorney and . . . this deficient performance caused prejudice in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.". . . ' " (People v. Sapp (2003) 31 Cal.4th 240, 263; see Strickland v. Washington (1984) 466 U.S. 668, 686.) Because defendant here has not even attempted to show that the performance by ...