Attorney: appointed counsel: replacement of counsel: 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; 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: “The
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.); 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 “state Constitution does not give an
indigent defendant the right to select
a court-appointed attorney,” but a trial court may abuse its discretion in
refusing to appoint an attorney “with whom the defendant has a long-standing
relationship.” (People v. Jones (2004) 33 Cal.4th 234, 244.) “Removal of an indigent defendant’s
appointed counsel . . . poses a greater potential threat to the
defendant’s constitutional right to counsel” than refusing “to appoint an attorney requested by the
defendant . . . .” (Ibid.); the statutory source of the trial court’s authority to
disqualify an attorney derives from its power “[t]o control in furtherance of
justice, the conduct of its ministerial officers, and of all other persons in
any manner connected with a judicial proceeding before it, in every matter
pertaining thereto.” (Code Civ. Proc.,
§ 128, subd. (a)(5).) This power,
which is “ ‘inherent in every court’ ” (In re Charlisse C. (2008) 45 Cal.4th 145, 159), authorizes a trial
court in either a civil or a criminal case to discharge an attorney who has a
conflict of interest. (See People ex rel. Dept. of Corporations v.
SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145; People v. Jones, supra, 33 Cal.4th at p. 244, fn. 2.) A trial court’s disqualification of an
attorney is generally reviewed for abuse of discretion. (Charlisse
C., supra, at p. 159; Haraguchi v. Superior Court (2008) 43
Cal.4th 706, 711-713.); as defendant in this case has not shown a reasonable
probability that the trial court’s erroneous replacement of the public defender
altered the outcome of the trial (People
v. Watson, supra, 46 Cal.2d at p.
836), he is not entitled to reversal of his conviction; (we agree that a
promptly filed writ petition normally provides the only effective remedy for an
erroneous replacement of appointed counsel because of a potential conflict of
interest. But we perceive a practical
difficulty. The replaced attorney no
longer represents the defendant and therefore cannot, without defendant’s
authorization, seek writ relief on the defendant’s behalf; ideally, the
attorney about to be removed should request that the trial court stay removal
long enough to permit that attorney to prepare a writ petition. When such a stay has not been granted and
reinstatement of the prior appointed attorney would best serve the defendant’s
interests, however, replacement counsel has a professional obligation to pursue
writ relief.) (Cal.
S. Ct., 05.04.10, P. v. Noriega, S160953).
Monday, April 5, 2010
P. v. Noriega
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