California Court of Appeals, Second District, First Division
ORIGINAL PROCEEDINGS in mandate Los Angeles County Super. Ct. No. MA056288 David Walgren, Judge.
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The Law Office of Peter Swarth and Peter Swarth for Petitioner.
No appearance for Respondent.
Jackie Lacey, District Attorney, Roberta Schwartz and Ann H. Park, Deputy District Attorneys, for Real Party in Interest.
In this original proceeding, petitioner Melvin Harold Harris, Jr., (Harris), asks this court for relief from denial by respondent Superior Court of Los Angeles County 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. 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.
Swarth 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. 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. 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.” 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. 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.” 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 ...