Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Tony ANDERSON, Defendant and Appellant.

No. D020204.

Decided: June 22, 1995

Leslie Ann Rose, under appointment by the Court of Appeal, San Diego, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., M. Howard Wayne and Lora Fox Martin, Deputy Attys. Gen., for plaintiff and respondent.

 A jury convicted Tony Anderson of robbery.  (Pen.Code,2 § 211.)   The court sentenced Anderson to a prison term of 15 years:  five years for the robbery and two five-year enhancements for prior serious felonies.  (§ 667, subd. (a).)  Anderson contends the court erred in removing his appointed counsel over his objection.   We conclude the court's removal of counsel constituted error, but the error does not require a reversal because it was harmless.   We additionally reject Anderson's contention the court erred in imposing a restitution fine.


Early one morning, Steven Sheneman rode his bicycle home from a convenience store.   A man dressed as a woman confronted Sheneman and asked if he “want[ed] a date.”   When Sheneman attempted to continue on his bicycle, the man and several others pushed Sheneman against a wall.   The other individuals began to punch and beat Sheneman.   Sheneman felt the man's hand reach into his back pocket and take his wallet.   Sheneman escaped and reported the incident to the police.   Sheneman found a broken, blue-green, acrylic fingernail in his back pocket.

The next day, Sheneman, while patrolling with police, identified Anderson as the man who first approached him and put his hand in his pocket.   The police arrested Anderson and photographed his hands.   Nine of Anderson's fingers had false acrylic nails painted in red fingernail polish.   The middle finger of his left hand did not have a false nail, while the little finger on the left hand had a broken false nail.

The court appointed Deputy Public Defender John Jimenez as Anderson's trial counsel.   During a meeting between Jimenez and Anderson in the courthouse holding cell, Anderson gave Jimenez a plastic packet containing Anderson's broken acrylic fingernails.   Jimenez gave the nails to Cristeen LaMontagne, a professional manicurist, and asked her to examine them.

On the first day of Anderson's trial, the prosecutor and Jimenez met in chambers with the trial judge.   The meeting was unreported.   When the court reconvened with Anderson present, the prosecutor noted Jimenez had become a potential witness by taking the fingernails from Anderson.   The prosecutor refused to stipulate to any foundation for the nails or state “for sure” whether he intended to question Jimenez at trial.   The prosecutor said it was possible he might call Jimenez as a witness or cross-examine Jimenez if he were called as a defense witness.

Jimenez argued against his removal from the case.   He stated he took the fingernails because a defense investigator was unavailable at the time and he was concerned the evidence might be lost in jail.   Because he was only a small link in the chain of custody, Jimenez asserted that his testimony should be limited to informing the jury that he received the fingernails from Anderson.   Additionally, due to his 17 years of experience and nearly three months of representing Anderson, Jimenez maintained he had “distinct value” to Anderson as his attorney.

The court found the existence of a potential conflict and removed Jimenez as Anderson's counsel, stating it was doing so in “an abundance of caution.” 3  Explaining its rationale, the court noted the prosecutor had a right to choose to cross-examine Jimenez and thus could not be forced to accept a stipulation.   By taking the fingernails from Anderson, Jimenez became a potential witness and might be in a position where he would be arguing his own credibility in front of the jury.

Jimenez objected to his recusal and stated “Anderson wants me as his attorney.”   The court never inquired as to whether Anderson wished to waive the conflict and thus never made a determination whether Anderson was capable of knowingly and intelligently waiving the potential conflict.

The court relieved the entire Public Defender's Office and later appointed an attorney from the Alternate Public Defender's Office.   The court granted a continuance to provide the new counsel necessary preparation time.

During trial, the prosecution did not call Jimenez as a witness and instead focused on the victim's eyewitness identification of Anderson.   Jimenez testified very briefly for the defense, only to say he had received the acrylic nails from Anderson.   The prosecution did not cross-examine Jimenez.   LaMontagne testified on behalf of the defense, opining that Anderson's acrylic nails were made of a different material than the nail retrieved from Sheneman's pocket.   At the conclusion of the evidence and argument, the jury found Anderson guilty of robbery.


I. Right to Waive Conflict

Anderson contends the court erred in removing Jimenez as his trial counsel.

A. The Court's Refusal To Permit Anderson to Waive Conflict

 Under the federal and state constitutions, a criminal defendant has a right to the assistance of counsel.  (U.S. Const., 6th Amend.;  Cal. Const., art. I, § 15;  People v. Holland (1978) 23 Cal.3d 77, 86, 151 Cal.Rptr. 625.)   This right generally encompasses an indigent defendant's right to continue with the representation of an appointed counsel from the time of the appointment through the completion of the trial, absent the counsel's flagrant misconduct or incompetence.  (See Smith v. Superior Court (1968) 68 Cal.2d 547, 561–562, 68 Cal.Rptr. 1, 440 P.2d 65;  see also People v. Daniels (1991) 52 Cal.3d 815, 846, 277 Cal.Rptr. 122, 802 P.2d 906.)   The right to counsel also includes the right of representation which is effective and free of conflicting interests.  (People v. Bonin (1989) 47 Cal.3d 808, 834, 254 Cal.Rptr. 298, 765 P.2d 460.)

These two constitutional guarantees—the right to continued representation and the right to effective, conflict-free representation—are inconsistent when a defendant insists on the representation of his or her attorney despite a known conflict of interest.   Two California appellate courts have resolved a similar inconsistency in favor of permitting a defendant to be the “master of his [or her] own fate.”  (Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 957, 254 Cal.Rptr. 72 (Alcocer);  People v. Burrows (1990) 220 Cal.App.3d 116, 123, 269 Cal.Rptr. 206.)  Alcocer and Burrows both arose in the context where a trial court refused to permit a defendant to be represented by a retained counsel of choice because of an actual conflict of interest.4  (Alcocer, supra, 206 Cal.App.3d at p. 957, 254 Cal.Rptr. 72;  People v. Burrows, supra, 220 Cal.App.3d at p. 125, 269 Cal.Rptr. 206.)   Each appellate court reversed, determining a trial court must uphold a defendant's knowing and intelligent waiver of the right to conflict-free counsel.

 Alcocer and Burrows recognized their holdings were inconsistent with the United States Supreme Court's interpretation of the Sixth Amendment.  (See Wheat v. United States (1988) 486 U.S. 153, 163, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140.)   In Wheat, the United States Supreme Court held a trial court has wide discretion to recuse a criminal defendant's counsel when an actual or potential conflict of interest arises between counsel and defendant.   Accordingly, under the Sixth Amendment, a court may recuse counsel even over a defendant's professed desire to waive his or her right to conflict-free counsel.  (Id. at pp. 162–164, 108 S.Ct. at pp. 1698–1700.)

Rather than follow Wheat, Alcocer and Burrows rested their conclusions on the California Constitution, explaining that in decisions after Wheat the California Supreme Court has reaffirmed a defendant's right to waive a conflict of interest and has strongly implied that the court should uphold an informed waiver.  (See People v. Bonin, supra, 47 Cal.3d 808, 837, 254 Cal.Rptr. 298, 765 P.2d 460;  People v. Easley (1988) 46 Cal.3d 712, 729, 250 Cal.Rptr. 855, 759 P.2d 490.)

 On our review of Bonin and Easley, we are convinced Alcocer and Burrows correctly applied California law.   Before a court removes a defendant's counsel because of a conflict of interest, it must first advise the defendant of the nature of the conflict and describe the general consequences of proceeding with his or her counsel.  (Alcocer, supra, 206 Cal.App.3d at pp. 961–962, 254 Cal.Rptr. 72.)   After the defendant has been fully informed, the court must inquire as to whether the defendant wishes to waive the right to obtain a new counsel.   If the defendant is willing to waive this right, the court must enforce such waiver unless the court determines the waiver was not knowingly made.  (Ibid.;  see People v. Bonin, supra, 47 Cal.3d at p. 837, 254 Cal.Rptr. 298, 765 P.2d 460.)  “This procedure best serves the ends of justice.   It respects a defendant's choice, and it [avoids the need for a continuance], permit[ing] a case to move forward without a protracted delay.” 5  (Alcocer, supra, 206 Cal.App.3d at p. 962, 254 Cal.Rptr. 72.)

 The Attorney General does not assert, nor do we find, a significant distinction in this context between the right to waive a conflict involving a retained counsel and the right to waive a conflict involving an appointed counsel.   While an indigent defendant has no constitutional right to the appointment of a particular attorney (see Harris v. Superior Court (1977) 19 Cal.3d 786, 795, 140 Cal.Rptr. 318, 567 P.2d 750), once the counsel is appointed, the attorney-client relationship is constitutionally protected and the involuntary removal of appointed counsel is subject to strict limits.   (See People v. Daniels, supra, 52 Cal.3d at p. 846, 277 Cal.Rptr. 122, 802 P.2d 906; 6  Smith v. Superior Court, supra, 68 Cal.2d at p. 562;  People v. Phillips (1985) 169 Cal.App.3d 632, 636–637, 215 Cal.Rptr. 394;  see also People v. Bonin, supra, 47 Cal.3d at p. 834, 254 Cal.Rptr. 298, 765 P.2d 460.)

The Attorney General instead argues Anderson could not have intelligently waived the conflict because the conflict here was “so potentially damaging” to Anderson's defense.   The trial court, however, never reached the question as to Anderson's capability of making an informed waiver;  rather the court made the decision for Anderson.   Moreover, even if there were certain serious conflict situations in which a waiver could not be intelligently made, this is not such a circumstance.

 When an attorney acts as a witness at trial, his or her dual role may render the attorney a less effective advocate and a less effective witness, thereby compromising the fairness of the trial.  (See Comden v. Superior Court (1978) 20 Cal.3d 906, 912, 145 Cal.Rptr. 9, 576 P.2d 971.)   But the fact that a defense counsel testifies at a criminal trial does not necessarily rise to the level of an actual or potential conflict.   (See People v. Goldstein (1982) 130 Cal.App.3d 1024, 1031, 182 Cal.Rptr. 207.)   California professional responsibility rules prohibit an attorney from testifying at trial only to the extent the client does not provide an informed written consent.7

 On the record before it, the trial court had no evidence that Jimenez's testimony would be inconsistent with Anderson's defense.   To the contrary, it appeared helpful to the defense.   Because Jiminez's testimony was potentially relevant to a collateral defense issue, Anderson and Jimenez were in the best position to analyze any problems arising from Jimenez's testimony.   Further, the deputy district attorney's inability (on the first day of trial) to state whether he intended to call Jimenez and his refusal to enter a stipulation concerning what appears from the record to be a routine chain of custody issue, raises the specter of questionable motives.   As Alcocer warned, there is a “danger of abuse” when a court involuntarily removes counsel in that “the prosecut[or] may seek the removal of counsel solely because that counsel is unacceptable to the prosecution․”  (Alcocer, supra, 206 Cal.App.3d at p. 958, 254 Cal.Rptr. 72.)

On this record, the court erred in removing Jimenez over Anderson's objections without first attempting to determine whether Anderson wished to waive his right to another attorney.8

B. Effect of Error

 “ ‘Cases involving [constitutional] deprivations are ․ subject to the general rule that remedies should be tailored to the injury suffered․’ ”  (In re Carpenter (1995) 9 Cal.4th 634, 648, 38 Cal.Rptr.2d 665, 889 P.2d 985, quoting Rushen v. Spain (1983) 464 U.S. 114, 117–118, 104 S.Ct. 453, 455, 78 L.Ed.2d 267.)   Here, there is no evidence that Anderson suffered any prejudicial injury from the court's failure to permit him to waive the conflict.   The record is undisputed Anderson had a fair trial and that Anderson's second appointed counsel was an effective advocate.   Anderson does not claim any damage flowing from the change of attorneys.   There is no suggestion that the outcome would have been different had Jimenez represented Anderson at trial.   Under the circumstances, we are required to hold the trial court's error does not warrant reversal of Anderson's conviction.

 Anderson contends the error is reversible per se.  Burrows held the improper refusal to permit a defendant to select a particular retained counsel “ ‘ “requires reversal regardless of whether in fact [defendant] had a fair trial.” ’ ”  (People v. Burrows, supra, 220 Cal.App.3d at p. 125, 269 Cal.Rptr. 206.)  Burrows relied on People v. Courts (1985) 37 Cal.3d 784, 796, 210 Cal.Rptr. 193, 693 P.2d 778, which held “[d]eprivation of appellant's right to counsel of ․ choice ” is per se reversible.  (Italics added.)

Unlike Courts and Burrows, we are evaluating the effect of the court's error in replacing one appointed counsel with another appointed counsel.   While we have found that in this context there is no distinction between the scope of a defendant's right to waive a conflict involving a retained counsel and the scope of a defendant's right to waive a conflict involving an appointed counsel, our review of relevant cases convinces us the effect of such error is different.

When a court refuses to permit a defendant to waive a conflict involving a retained counsel, the defendant's fundamental right to chosen representation is violated.   Underlying the right to choose is the premise that our justice system is most effective when the state “refrain[s] from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.”  (People v. Courts, supra, 37 Cal.3d at pp. 789–790, 210 Cal.Rptr. 193, 693 P.2d 778, quoting People v. Crovedi (1966) 65 Cal.2d 199, 200, 53 Cal.Rptr. 284, 417 P.2d 868.)   Because the right to retain counsel of choice thus “entail[s] more than the presence of a skilled advocate,” providing an effective appointed counsel to a defendant who wants to be represented by a particular retained counsel is an insufficient remedy.  (Id. at p. 796, 210 Cal.Rptr. 193, 693 P.2d 778.)

By contrast, an indigent defendant does not have the right to any particular appointed counsel.  (Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 915, 27 Cal.Rptr.2d 732.)   The failure to permit an indigent defendant to waive a conflict therefore does not infringe upon the right of choice.   Recognizing the different nature of the infringement, at least two courts have applied a harmless error standard in situations analogous to the one presented here.  (See People v. Chavez (1980) 26 Cal.3d 334, 161 Cal.Rptr. 762, 605 P.2d 401;  People v. Phillips, supra, 169 Cal.App.3d 632, 215 Cal.Rptr. 394.)

In Chavez, the public defender declared a conflict of interest and the trial court appointed a particular private counsel to represent the defendant at the preliminary hearing.   During the subsequent superior court arraignment, the defendant informed the court that his prior counsel was both willing and able to resume representation in an appointed capacity.   The trial court summarily denied the request, explaining that it had selected a different counsel.  Chavez held that although the trial court was not required to appoint defendant's former counsel, the court erred in failing to give defendant an opportunity to explain the reasons for his preference.   The court, however, expressly rejected the defendant's argument the error required reversal per se, stressing “there is no showing that defendant questioned the ability or desire of his new appointed counsel fully to represent his best interests [or] ․ of disagreement or lack of rapport between defendant and [appointed] counsel․”  (People v. Chavez, supra, 26 Cal.3d at p. 349, 161 Cal.Rptr. 762, 605 P.2d 401;  see also People v. Courts, supra, 37 Cal.3d at p. 796, fn. 11, 210 Cal.Rptr. 193, 693 P.2d 778 [noting the automatic reversal standard does not necessarily extend to the situation when an infringement involves an appointed counsel rather than a retained counsel].)

Phillips likewise held the trial court's improper recusal of the defendant's appointed attorney was harmless.  (People v. Phillips, supra, 169 Cal.App.3d 632, 215 Cal.Rptr. 394.)  Phillips reasoned that reversal would not provide the defendant with an effective remedy because on remand he would not be entitled to any particular appointed counsel and because the defendant failed “to pursue timely procedural avenues which could have provided a remedy [such as] petitioning for an extraordinary writ before trial.”   (Id. at p. 639.)

As in Chavez and Phillips, the trial court error in this case did not involve an infringement of defendant's right to choose a retained counsel.   Rather, the error here concerned solely the right to continue with an appointed counsel.   While the infringement of such right represents an improper interference in an established attorney-client relationship, we see no justification for imposing a per se reversal standard.   The critical point is that the court provided Anderson with an equally effective appointed counsel.   “[T]he essential aim of the [right to counsel] is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”  (People v. Bonin, supra, 47 Cal.3d at p. 834, 254 Cal.Rptr. 298, 765 P.2d 460.)

The trial court error does not warrant reversal.9

II. Restitution **


Judgment affirmed.


FN2. All further statutory references are to the Penal Code..  FN2. All further statutory references are to the Penal Code.

3.   Judge Revak presided at this hearing.   Judge Prager ruled on the motion to relieve the Public Defender's Office.   Judge Mitchell presided at the trial.

4.   In Alcocer the trial court removed the defendant's retained counsel because the counsel had represented a witness who was likely to testify at trial in favor of the prosecution.  (Alcocer, supra, 206 Cal.App.3d at p. 955, 254 Cal.Rptr. 72.)   In Burrows, the trial court refused to permit a defendant to substitute his appointed counsel with a retained counsel who had represented a co-defendant at the preliminary hearing.  (People v. Burrows, supra, 220 Cal.App.3d at pp. 118–119, 269 Cal.Rptr. 206.)

5.   In removing counsel in this case, the trial court was concerned about the potential adverse consequences associated with an attorney acting as a witness and an advocate and thus inevitably creating an issue of whether Anderson was adequately represented.   While such concerns are understandable, California law provides that a defendant's right to waive a conflict involving his or her attorney is paramount.   In the face of a knowing and intelligent waiver, the possibility that the defendant will later raise the conflict as a basis for reversal is insufficient to outweigh the defendant's right to continue with counsel.  (See Alcocer, supra, 206 Cal.App.3d at pp. 958–959, 254 Cal.Rptr. 72.)

6.   While recognizing this general rule, Daniels upheld the trial court's removal of an appointed counsel who was a potential prosecution witness even though the defendant was willing to make a voluntary and informed waiver.  (People v. Daniels, supra, 52 Cal.3d at pp. 846–848, 277 Cal.Rptr. 122, 802 P.2d 906.)  Daniels explained that the trial court had broad discretion because its action was essentially a reconsideration of the appointment, rather than a removal of counsel.   Here, the Attorney General does not attempt to bring the case within Daniels and concedes that the court's action here constituted a “removal” of counsel.   We agree that on the record before us the court severed an established attorney-client relationship, thus requiring the application of the rules governing removal of counsel.

7.   California Rules of Professional Conduct Rule 5–210 states:  “A member shall not act as an advocate before a jury which will hear testimony from the member unless:  (A) The testimony relates to an uncontested matter;  or (B) The testimony relates to the nature and value of legal services rendered in the case;  or (C) The member has the informed, written consent of the client.”  (Italics added.)

8.   This case is distinguishable from People v. Rodriguez (1981) 115 Cal.App.3d 1018, 171 Cal.Rptr. 798 and People v. Smith (1970) 13 Cal.App.3d 897, 91 Cal.Rptr. 786, relied upon by the Attorney General.   In People v. Rodriguez, supra, 115 Cal.App.3d at p. 1021, 171 Cal.Rptr. 798, the court permitted the prosecution to call the defense counsel as a witness, whose testimony “nullified” the defendant's sole theory of defense.   In permitting the testimony, the trial court did not consult with the defendant or obtain his consent.   This court held the defendant was denied his effective assistance of counsel.Smith is likewise inapposite because it did not address waiver concerns at issue in this case.

9.   We join with Phillips in suggesting that where a court improperly interferes with a defendant's right to continue with appointed counsel, the defendant should not wait to raise the issue on appeal, but should seek to address the situation by petitioning for an extraordinary writ before trial.  (See People v. Phillips, supra, 169 Cal.App.3d at p. 639, 215 Cal.Rptr. 394.)

FOOTNOTE.   See footnote 1, ante.

HALLER, Associate Justice.

FROEHLICH, Acting P.J., and NARES, J., concur.