Stanford Law School - Robert Crown Law Library

Filed 6/24/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S103689
v.
Ct.App. 3 C029333
SCOTT ALLEN JONES,
) Shasta
County
Defendant and Appellant.
Super. Ct. No. 94F1672

In this murder case, the trial court removed defendant’s appointed attorney
because the attorney’s previous representation of a man whom the defense
suspected of committing the murder created a potential conflict of interest; the
removal occurred notwithstanding defendant’s offer to waive the potential
conflict. Defendant contends the removal violated his right to counsel under the
federal and the state Constitutions. We disagree.
I
In February 1992, Boyd Wagner, a 92-year-old man, was found dead in his
home in Cottonwood, a small community in Shasta County. Two years later, in
March 1994, defendant, who lived near Wagner, was charged with murdering him.
The Shasta County Municipal Court appointed Shasta County Public Defender
Frank O’Connor to represent defendant. O’Connor assigned defendant’s case to
Deputy Public Defender Gary Roberts.
1

---

For the next two years, Roberts represented defendant. At some point,
apparently in early 1995, O’Connor ceased to be the public defender; but Roberts,
by then an associate in O’Connor’s law firm, continued to serve as defendant’s
counsel.1
Roberts filed numerous motions and engaged in extensive pretrial
litigation, most of which pertained to the admissibility of certain DNA evidence.
The DNA was extracted from a pair of bloodstained pants found in defendant’s
bedroom. Tests showed that the DNA of the blood on the pants matched that of
murder victim Wagner.
In a series of in camera hearings beginning in February 1996, Attorney
Roberts told the trial court he was investigating the possibility that one Michael
Wert had committed the murder, which might give rise to a conflict of interest
because O’Connor’s law office, where Roberts was an associate, had previously
represented Wert. Defendant and Wert had an acrimonious relationship that dated
back to 1989, when defendant and his wife separated and defendant’s wife moved
in with Wert. In late 1989 and early 1990 there were violent incidents involving
the two: Wert assaulted defendant’s wife, defendant assaulted Wert, and Wert and

1
When O’Connor was the public defender he, rather than Roberts, was the
attorney of record. (See People v. Sapp (2003) 31 Cal.4th 240, 256 [“ ‘In cases
handled by the public defender’s office, it is the officeholder who is the attorney
of record.’ ”].) After O’Connor ceased to be the public defender, it is unclear
whether O’Connor or Roberts was defendant’s attorney of record, but most likely
O’Connor was, because motions filed on defendant’s behalf listed the “Law Office
of Frank J. O’Connor” as defendant’s attorney. Attorney Roberts, however, made
all the appearances and signed all the motions filed on defendant’s behalf.

For simplicity and clarity, we refer to Roberts as defendant’s lawyer, even
though O’Connor technically may have been the attorney of record, and we use
the term “O’Connor’s law office” to refer both to the office O’Connor occupied as
public defender and to the law firm he headed after he no longer was the public
defender.
2

---

his brother William assaulted defendant. The defense also had information that
Wert had been involved in a murder in Los Angeles and had been living under an
assumed name as part of a witness protection program. In February 1992, the
month Wagner was killed, Wert was arrested on felony drug charges. He was
released on bail a few days before the killing. The defense, however, had no
evidence linking Wert to Wagner’s death. It regarded him as a possible suspect
for these reasons: he was a reputed drug dealer who had a history of violence and
might have needed money to pay his bail bondsman; he was living in Cottonwood,
where the murder of Wagner occurred; and he had a motive to “frame” defendant
for the murder because of their troubled relationship.
Attorney Roberts’s possible conflict of interest pertaining to Wert resulted
primarily from two matters. First, O’Connor’s law office, in which Roberts was
an associate, had represented Wert in the 1992 drug charges mentioned above.
Second, in 1994 Roberts himself represented Wert on a charge that Wert had
violated probation and had escaped from electronic home confinement. Roberts
negotiated a plea bargain under which Wert admitted the probation violation in
exchange for dismissal of the escape charge. Roberts had also represented Wert’s
brother William on a bad check charge. But so far as Roberts knew, neither he nor
anyone in O’Connor’s law office had received any communication from Wert that
could be useful in defendant’s case.
As the trial court became aware of these facts through Roberts, it held a
series of in camera hearings to discuss the situation. At the first hearing, on
February 29, 1996, the court appointed Attorney John Webster to discuss with
defendant his right to conflict-free counsel. Later that day, the court met with
defendant as well as Attorneys Webster and Roberts. Webster told the court he
had fully advised defendant about all possible conflicts of interest, to the extent he
was aware of them, and that defendant nevertheless wanted to be represented by
3

---

Roberts. Defendant told the court he would waive any possible conflict of
interest. Roberts said he saw no reason why he could not represent defendant, but
he raised the possibility that a conflict could arise if the defense turned up
evidence linking Wert to the murder. The court asked Roberts if his
representation of defendant would be adversely affected by the possibility that
Wert might report him to the State Bar or sue him. Roberts replied he’d “like to
think about that.”
At the second in camera hearing, on March 14, 1996, Roberts mentioned
that he had consulted two attorneys knowledgeable about conflicts of interest, and
that both saw no conflict in his continued representation of defendant. Roberts
said that he had thought about the possibility of Wert’s suing him but concluded
that it would not interfere with his ability to adequately represent defendant. He
explained, “that’s why we have malpractice insurance,” adding that if he was
adequately represented in any such lawsuit Wert would have no chance of
prevailing. And Roberts expressed no concern about the possibility that Wert
would report him to the State Bar, explaining: “The State Bar would only be
concerned about it if there was a conflict. And I’m satisfied . . . that there is no
conflict.” He noted that if he were taken off defendant’s case, it would be
“emotionally devastating” to defendant, and that it would “require a major delay in
proceedings while another attorney got up to speed.”
At the third in camera hearing, held on June 24, 1996, Roberts said it made
him “very uneasy that I’m with this office that has this close relationship with the
representation of Michael Wert” and that the possibility of a conflict was “very
troublesome.” He acknowledged that “if I stay with the case, I’m potentially
creating problems.” He told the court that another client in a criminal case had
filed a complaint against him with the State Bar, and even though the bar had
absolved him of wrongdoing he had to spend two days of work responding to the
4

---

complaint. The court asked Roberts if going through that experience could cause
him “to flinch in this case.” Roberts said it might. Asked for his response,
defendant said he wanted Roberts to continue representing him.
Two days after that hearing, the trial court announced that it had decided to
remove Roberts as defendant’s counsel because of the potential conflict. Roberts
asked for a fourth in camera hearing. There, he told the court Wert was unlikely
to testify as a witness at trial. The court explained that the possibility of Wert’s
testifying was only one of the factors that led to his decision to remove Roberts. It
explained: “[I]f [defendant] believes there is any likelihood that Mr. Wert is the
actual perpetrator, then he has the right to have an attorney that is totally
unhindered in pursuing that possibility from the very get go, including
investigation. And one that would not have any psychological pressure on him to
[be] hesitant, to fully prosecute any actions against your former client. [¶] And I
think that puts you in a very unfair position from your perspective . . . .” The
court added it felt “compelled . . . by the law” to discharge Roberts.
After consulting with defendant, Attorney Roberts told the trial court that
defendant did not want to “pursue any issue involving Michael Wert,” but that in
Roberts’s view defendant should consult with independent counsel before making
that choice. Defendant then said, “I don’t need no lawyer to tell me. I don’t want
to pursue Michael Wert as a suspect.” That, the court replied, this was to be
decided by defendant’s lawyer. It refused to reconsider its ruling removing
Roberts, and it appointed Attorney Russell Swartz to represent defendant.
Defendant’s case went to trial in January 1998, a year and a half after the
court’s removal of Attorney Roberts. Defendant, by then represented by Swartz,
presented no evidence pertaining to Wert. The jury convicted defendant of first
degree murder.
5

---

The Court of Appeal’s three-member panel affirmed the conviction, but
could not agree on a rationale for its result. Justice Davis’s lead opinion
concluded that the trial court’s removal of Attorney Roberts was erroneous under
state law. It reasoned, however, that because defendant had not challenged the
removal by pretrial writ, and instead had waited to raise the issue on appeal, he
could obtain reversal of his murder conviction only on a showing of prejudice,
which he had not established. According to the lead opinion, the record did not
show that the trial court’s discharge of defendant’s appointed counsel prejudiced
defendant. Justice Raye found the trial court’s removal of Roberts to be a
violation of both state law and the federal Constitution. Nevertheless, he
concluded that improper removal of appointed counsel does not require reversal
absent a showing of prejudice, which defendant had not made. Justice Callahan
found no error whatsoever, reasoning that the trial court had properly exercised its
discretion in removing Roberts as defendant’s counsel.
II
“A trial court’s authority to disqualify an attorney derives from the power
inherent in every court ‘[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.’ ” (People ex rel.
Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th
1135, 1145 (SpeeDee Oil).) Inherent in the question whether a trial court may
disqualify a criminal defense attorney over the defendant’s objection is the conflict
between the defendant’s preference to be represented by that attorney and the
court’s interest in “ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear fair to all who
observe them.” (Wheat v. United States (1988) 486 U.S. 153, 160 (Wheat); see
also SpeeDee Oil, supra, at pp. 1144-1147.)
6

---

III
Defendant contends the trial court’s removal of his appointed counsel
because of a potential conflict of interest, notwithstanding defendant’s desire to
waive that conflict, violated his right to counsel under the Sixth and Fourteenth
Amendments to the federal Constitution. We disagree.
In Wheat, supra, 486 U.S. 153 the United States Supreme Court discussed
the extent to which the federal Constitution limits a trial court’s power to remove
an attorney for a conflict of interest. In that case, the defendant was charged with
conspiring to sell illegal drugs. Attorney Eugene Iredale represented two other
alleged participants in the conspiracy: One (Bravo) eventually pled guilty to
participating in the conspiracy; the other (Gomez-Barajas) was tried and acquitted,
but he had other unrelated charges pending. When the defendant sought to be
represented by Iredale, the prosecution objected. It contended that the defendant
might be called as a witness in a trial on Gomez-Barajas’s remaining charges, and
that Bravo might be called as a witness if the defendant’s case went to trial. In
either event, the prosecution argued, Attorney Iredale had a conflict of interest.
The defendant insisted that he and Bravo were unlikely to be witnesses, and he
offered to waive any possible conflict of interest. The trial court nevertheless
ruled that Iredale could not represent him.
The high court in Wheat upheld the trial court’s refusal to allow Iredale to
represent the defendant. The court explained that “while the right to select and be
represented by one’s preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment 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.” (Wheat, supra, 486
U.S. at p. 159.) When a defense attorney has a potential conflict of interest, the
court noted, a trial court is placed in a difficult dilemma: “If a . . . court agrees to
7

---

the . . . representation, and the advocacy of counsel is thereafter impaired as a
result, the defendant may well claim that he did not receive effective assistance.
[Citation.] On the other hand, a . . . court’s refusal to accede to the . . .
representation may result in a challenge such as petitioner’s in this case. Nor does
a waiver by the defendant necessarily solve the problem, for we note, without
passing judgment on, the apparent willingness of the Courts of Appeals to
entertain ineffective-assistance claims from defendants who have specifically
waived the right to conflict-free counsel.” (Id. at pp. 161-162.)
Moreover, the high court stated, a trial court’s decision whether to allow a
defendant to waive a conflict of interest cannot be made after trial, but instead
occurs “in the murkier pretrial context when relationships between parties are seen
through a glass, darkly.” (Wheat, supra, 486 U.S. at p. 162.) The court went on to
say that “[t]he likelihood and dimensions of nascent conflicts of interest are
notoriously hard to predict” and are “even more difficult to convey by way of
explanation to a criminal defendant untutored in the niceties of legal ethics.” (Id.
at pp. 162-163.)
Thus, the high court concluded, trial courts “must be allowed substantial
latitude in refusing waivers of conflicts of interest not only in those rare cases
where an actual conflict may be demonstrated before trial, but in the more
common cases where a potential for conflict exists which may or may not burgeon
into an actual conflict as the trial progresses.” (Wheat, supra, 486 U.S. at p. 163,
italics added.)
Here that potential existed, at least with regard to Wert. At the time of
Wagner’s murder, Roberts was an attorney working in O’Connor’s law office,
which was representing Wert on an unrelated matter. Wert may have given the
office information pertaining to his whereabouts at the time of the murder and his
financial status, matters that could have become relevant if the defense later
8

---

obtained information linking Wert to the murder. Although the likelihood that
Wert had revealed such information may not have been great, it was enough to
create a serious potential conflict of interest for Defense Attorney Roberts.
Indeed, at the last in camera hearing before his removal as defendant’s attorney,
Roberts told the trial court that the possibility of a conflict was “very troublesome”
and had the potential of “creating problems.” He also said his fear of being sued
by Wert might affect his representation of defendant. Under Wheat, supra, 486
U.S. at page 163, the trial court had “substantial latitude” to eliminate the potential
conflict by discharging Roberts as defendant’s appointed attorney. Consequently,
that discharge did not violate defendant’s right to counsel under the federal
Constitution.
IV
Defendant contends that even if the trial court did not violate the federal
Constitution when it discharged appointed Attorney Roberts, it nonetheless
violated the state Constitution. We begin our analysis with a brief review of the
four pertinent decisions of this court.
In People v. Crovedi (1966) 65 Cal.2d 199 (Crovedi), we held that the trial
court committed reversible error when it denied the defendant a seven-week
continuance to allow his retained counsel to recover from a midtrial heart attack
and insisted that counsel’s associate represent defendant for the rest of the trial.
We explained that although “a defendant has no absolute right to be represented
by a particular attorney, still the courts should make all reasonable efforts to
ensure that a defendant financially able to retain an attorney of his own choosing
can be represented by that attorney.” (Id. at p. 207, fn. omitted.) We continued,
“an accused must be afforded reasonable opportunity for representation by
retained counsel of his own choice whether or not a conflict of interest is shown.”
(Ibid., italics added.)
9

---

Thereafter, in Smith v. Superior Court (1968) 68 Cal.2d 547 (Smith), we
addressed the issue of discharging a court-appointed attorney. In that case, a judge
who had a personality conflict with the defendant’s appointed attorney discharged
the attorney on the basis of incompetence. We ordered reinstatement of the
attorney. Quoting Crovedi, supra, 65 Cal.2d at page 206, we said the threat to
remove counsel for alleged incompetence is “ ‘an unreasonable interference with
the individual’s desire to defend himself in whatever manner he deems best. . . .’ ”
(Smith, supra, 68 Cal.2d at p. 561.) We recognized that the defendant’s attorney,
unlike defense counsel in Crovedi, was appointed rather than retained, but we
considered the distinction inconsequential: “[O]nce counsel is appointed to
represent an indigent defendant, whether it be the public defender or a volunteer
private attorney, the parties enter into an attorney-client relationship which is no
less inviolable than if counsel had been retained.” (Smith, supra, 68 Cal.2d at
p. 562.)
We expressed a similar view in Cannon v. Commission on Judicial
Qualifications (1975) 14 Cal.3d 678 (Cannon). There, we removed a judge from
office for, among other things, “unlawful interference . . . with the attorney-client
relationship” (id. at p. 698) by recusing deputy public defenders whom she had
held in contempt. In rejecting the judge’s claim that she had inherent power to
remove the attorneys, we said that “Smith[, supra, 68 Cal.2d 547] makes it
abundantly clear that the involuntary removal of any attorney is a severe limitation
on a defendant’s right to counsel and may be justified, if at all, only in the most
flagrant circumstances of attorney misconduct or incompetence when all other
judicial controls have failed.” (Cannon, supra, 14 Cal.3d at p. 697; see also
People v. Daniels (1991) 52 Cal.3d 815, 846 [quoting Cannon with approval].)
Thereafter, we applied the reasoning of those three decisions (Cannon,
supra, 14 Cal.3d 678; Smith, supra, 68 Cal.2d 547; and Crovedi, supra, 65 Cal.2d
10

---

199) in Maxwell v. Superior Court (1982) 30 Cal.3d 606 (Maxwell), where the
defendant was willing to waive a potential conflict of interest between himself and
his attorneys. Charged with 10 counts of capital murder, the indigent defendant
was able to retain private attorneys by signing a contract assigning to them all
rights to his life story. Finding that the contract created a possible conflict of
interest, the trial court discharged the attorneys. We ordered their reinstatement.
We explained: “[T]he mere possibility of a conflict does not warrant pretrial
removal of competent counsel in a criminal case over defendant’s informed
objection. When the possibility of significant conflict has been brought to the
court’s attention and the danger of proceeding with chosen counsel has been
disclosed generally to defendant, he may insist on retaining his attorneys if he
waives the conflict knowingly and intelligently for purposes of the criminal trial.”
(Maxwell, supra, 30 Cal.3d at p. 619, italics added, fns. omitted.)
It is difficult to determine the basis underlying the holdings in the quartet of
cases discussed above. (Maxwell, supra, 30 Cal.3d 606; Cannon, supra, 14 Cal.3d
678; Smith, supra, 68 Cal.2d 547; and Crovedi, supra, 65 Cal.2d 199.) It is far
from clear whether they are grounded on the state Constitution, or on the federal
Constitution (in which event they are superseded by the high court’s decision in
Wheat, supra, 486 U.S. 153, to the extent they are inconsistent with that decision);
or on neither Constitution, instead simply delineating the limits of a trial court’s
discretion to remove an attorney because of a possible conflict of interest.2 Citing

2
As we noted in SpeeDee Oil, supra, 20 Cal.4th at page 1145, a trial court’s
power to disqualify an attorney derives from Code of Civil Procedure section 128,
subdivision (a)(5), which authorizes a trial court to “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 . . . .” Under this section,
which applies in criminal cases (Comden v. Superior Court (1978) 20 Cal.3d 906,
(Footnote continued on next page.)
11

---

these four decisions, defendant here argues that the trial court’s removal of his
attorney violated article I, section 15 of the California Constitution, which gives a
criminal defendant “the right . . . to have the assistance of counsel . . . .” As we
shall explain, the removal did not violate defendant’s right to counsel under the
California Constitution.
The California Constitution gives a criminal defendant the right to an
attorney who must competently represent the defendant. But, as we have often
pointed out, the state Constitution does not give an indigent defendant the right to
select a court-appointed attorney. (Harris v. Superior Court (1977) 19 Cal.3d 786,
795-796; Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934; People v. Hughes
(1961) 57 Cal.2d 89, 98-99; see generally People v. Courts (1985) 37 Cal.3d 784,
796, fn. 11.) True, in certain circumstances a trial court abuses its discretion if it
refuses to honor an indigent defendant’s request for appointment of an attorney
with whom the defendant has a long-standing relationship (see Harris, supra, 19
Cal.3d 786 [trial court abused its discretion in refusing to appoint attorneys who
had represented the defendants in related criminal proceedings and had developed
a close working relationship with them]), but this abuse of discretion does not
ordinarily violate the defendant’s right to counsel.
The removal of an indigent defendant’s appointed counsel, which occurred
here, poses a greater potential threat to the defendant’s constitutional right to

(Footnote continued from previous page.)

916, fn. 4; People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 261, fn. 4), “a
trial court’s decision on a disqualification motion is reviewed for abuse of
discretion” (SpeeDee Oil, supra, at p. 1143). Here, defendant does not contend
that the trial court violated this section when it removed attorney Roberts, and we
do not address the issue.
12

---

counsel than does the refusal to appoint an attorney requested by the defendant,
because the removal interferes with an attorney-client relationship that has already
been established. But when, as here, a trial court removes a defense attorney
because of a potential conflict of interest, the court is seeking to protect the
defendant’s right to competent counsel. In such circumstances, there is no
violation of the right to counsel guaranteed by article I, section 15 of the state
Constitution, notwithstanding the defendant’s willingness to waive the potential
conflict. (See generally People v. McDermott (2002) 28 Cal.4th 946, 990 [stating
in passing that “a trial court may refuse to accept . . . a waiver” of the right to be
represented by conflict-free counsel].)3
DISPOSITION
We affirm the judgment of the Court of Appeal.

3
In Alocer v. Superior Court (1988) 206 Cal.App.3d 951, 957, the Court of
Appeal stated: “A court abridges a defendant’s right to counsel when it removes
retained defense counsel in the face of a defendant’s willingness to make an
informed and intelligent waiver of his right to be represented by conflict-free
counsel.” (Italics added.) We need not decide whether the state Constitution
permits a defendant to insist on being represented by a retained attorney who has a
potential conflict of interest, for here defendant’s attorney was appointed by the
court, not privately retained by defendant.
13

---

KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
CHIN, J.
BROWN, J.
14

---

CONCURRING OPINION BY WERDEGAR, J.

I concur in the majority’s result. I write separately to explain my
differences with the majority in its analysis of a defendant’s federal and state
constitutional rights to counsel in the context of a counsel’s potential conflict of
interest.
When defendant was charged in 1994 with murdering victim Boyd Wagner,
the superior court appointed Attorney Gary Roberts to represent him. Almost two
years later, after Roberts had “filed numerous motions and engaged in extensive
pretrial litigation” (maj. opn., ante, at p. 2), a potential conflict arose due to
Roberts’s previous representation of Michael Wert, a felon who had been released
from jail on bail only days before Wagner’s murder. Antagonism existed between
Wert and defendant because Wert had previously had a romantic relationship with
defendant’s wife, causing defendant allegedly to assault Wert. Other than this
possible motive to frame defendant and the possibility Wert may have visited a
drug dealer who lived on the same street as the victim, neither physical evidence
nor any eyewitnesses connected Wert to the murder. The trial court held a series
of hearings to inquire into the potential conflict and appointed independent
counsel to advise defendant. After being apprised of the pertinent facts, defendant
chose to waive any possible conflict of interest arising from Roberts’s prior
representation of Wert. That defendant’s waiver was a knowing and voluntary one
is not disputed.
1

---

Attorney Roberts’s position on the potential conflict was less consistent. At
one point, he asserted he was “satisfied” that no conflict existed. He agreed with
the trial court that he would “not feel inhibited to any degree in pursuing the
defense of [defendant] because of any concerns . . . regarding [his] prior
representation of Mr. Wert.” At a later hearing, Roberts appeared less confident.
He stated he was “very uneasy” with the situation and answered in the affirmative
when the trial court asked whether his prior representation of Wert might cause
him to “flinch in this case.” Despite Roberts’s earlier assertion that his removal
would be “emotionally devastating” to defendant and would “require a major
delay in proceedings while another attorney got up to speed,” the trial court
removed Roberts as defendant’s attorney. Defendant, represented by a different
attorney, was eventually convicted of Wagner’s murder.
The majority affirms the conviction, finding Roberts’s removal did not
violate defendant’s right to counsel under either the federal or the state
Constitution. Although I agree, I believe the majority misconstrues the scope of
defendant’s right to counsel of his choice under both the federal and state
Constitutions.
I
The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall . . . have the assistance of counsel,”
and this basic guarantee applies to the states, requiring the appointment of counsel
for all serious crimes for those who cannot afford to hire an attorney. (Gideon v.
Wainwright (1963) 372 U.S. 335.) The Sixth Amendment right to counsel
includes “the right to the effective assistance of counsel” (McMann v. Richardson
(1970) 397 U.S. 759, 771, fn. 14; see Strickland v. Washington (1984) 466 U.S.
668, 686), as well as the “correlative right to representation that is free from
conflicts of interest” (Wood v. Georgia (1981) 450 U.S. 261, 271).
2

---

The “right to select and be represented by one’s preferred attorney is
comprehended by the Sixth Amendment.” (Wheat v. United States (1988) 486
U.S. 153, 159 (Wheat).) Indeed, the Wheat court observed that the Sixth
Amendment creates a “presumption in favor of [defendant’s] counsel of choice.”
(Wheat, supra, at p. 164.) In previous opinions, the high court has explained that a
criminal defendant’s “right to be heard through his own counsel was unqualified”
(Chandler v. Fretag (1954) 348 U.S. 3, 9) and “[i]t is hardly necessary to say that
the right to counsel being conceded, a defendant should be afforded a fair
opportunity to secure counsel of his own choice” (Powell v. Alabama (1932) 287
U.S. 45, 53). Although an indigent accused is not initially entitled to choose his or
her own counsel at state expense (Drumgo v. Superior Court (1973) 8 Cal.3d 930,
934 [“We have repeatedly held that constitutional and statutory guarantees are not
violated by the appointment of an attorney other than the one requested by
defendant”]; see also Morris v. Slappy (1983) 461 U.S. 1, 23, fn. 5 (conc. opn. of
Brennan, J.)), once the defendant establishes an attorney-client relationship with
his or her attorney, the law recognizes a protectable interest in that relationship.
(See Harris v. Superior Court (1977) 19 Cal.3d 786.) “Further, the constitutional
guaranty [of the effective assistance of counsel] protects the defendant who retains
his own counsel to the same degree and in the same manner as it protects the
defendant for whom counsel is appointed, and recognizes no distinction between
the two. (Cuyler v. Sullivan [(1980)] 446 U.S. [335,] 344-345 [64 L.Ed.2d at
p. 344].)” (People v. Bonin (1989) 47 Cal.3d 808, 834.)
When a criminal defendant is willing to waive his lawyer’s conflict of
interest but, as here, that conflict threatens to undermine the fairness of the trial
itself, trial courts are faced with a dilemma. The majority correctly identifies
Wheat, supra, 486 U.S. 153, as relevant to the determination whether the trial
court’s decision to remove Roberts violated defendant’s Sixth Amendment rights.
3

---

I disagree, however, with the majority’s treatment of Wheat as fully dispositive of
the Sixth Amendment issue; in my view, the majority reads too much into the high
court’s decision in Wheat, a case that is distinguishable on its facts.
Wheat concerned an attorney named Iredale, who represented two members
of a criminal conspiracy to smuggle illegal drugs. Just one day before the start of
his trial, Wheat, purportedly a third member of the same conspiracy, sought to
substitute Iredale in lieu of his own attorney. Because there was a manifest
conflict between the three defendants due to their expected defenses (and the
decision of one to plead guilty), Wheat offered to waive any conflict of interest
related to Iredale’s representation of the other coconspirators. The trial court
denied permission to substitute counsel.
In affirming the trial court’s decision, the high court in Wheat explained
that although “the right to select and be represented by one’s preferred attorney is
comprehended by the Sixth Amendment, the essential aim of the Amendment 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.”
(Wheat, supra, 486 U.S. at p. 159.) Noting the difficult situation faced by district
courts when confronted with a defendant willing to waive a conflict with his
lawyer, the high court concluded district courts “must be allowed substantial
latitude in refusing waivers of conflicts of interest not only in those rare cases
where an actual conflict may be demonstrated before trial, but in the more
common cases where a potential for conflict exists which may or may not burgeon
into an actual conflict as the trial progresses. In the circumstances of this case,
with the motion for substitution of counsel made so close to the time of trial[,] the
District Court relied on instinct and judgment based on experience in making its
decision. We do not think it can be said that the court exceeded the broad latitude
which must be accorded it in making this decision.” (Id. at p. 163, italics added.)
4

---

Because the defendant in Wheat sought to hire Iredale on the eve of trial
and up to that point had had no professional relationship with him, Wheat’s
holding must be viewed with these facts in mind. The Wheat majority concluded
no federal constitutional right exists to hire one’s choice of counsel over the trial
court’s determination that counsel is conflicted, even if the defendant is willing to
waive the conflict. Moreover, after Wheat, the client cannot use his Sixth
Amendment right to counsel as a sword to force the trial court, on the eve of trial,
to approve the client’s desire to hire conflicted counsel.
Neither of these two critical features of Wheat is present in this case. First,
defendant here had an existing attorney-client relationship with Attorney Roberts.
At the time of his removal, Roberts had represented defendant for almost two
years and had conducted vigorous pretrial litigation. Even if a trial court has
discretion, after Wheat, to reject a proffered knowing and intelligent waiver of the
right to hire unconflicted counsel, Wheat does not address whether that rule
applies where, as here, a defendant has an already established attorney-client
relationship with his lawyer. The distinction is important; as we said in Maxwell
v. Superior Court (1982) 30 Cal.3d 606, 613, “[E]ffective assistance is linked
closely to representation by counsel of choice. When clients and lawyers lack
rapport and mutual confidence the quality of representation may be so undermined
as to render it an empty formality.” By terminating the existing attorney-client
relationship over defendant’s objection, the trial court’s decision here risked
destroying the trust and confidence that had developed between Roberts and
defendant over almost two years.
Second, the question whether Roberts could continue to represent
defendant despite the potential conflict of interest arose well before trial. The trial
court inquired into the pertinent facts over several pretrial hearings. Unlike
Wheat, this case does not involve a request to substitute attorneys on the eve of
5

---

trial, a fact found important by the Wheat court. (Wheat, supra, 486 U.S. at p.
163.) Because the facts of Wheat are not at all similar to those of the instant case,
the majority errs to the extent it treats Wheat as controlling.
I nevertheless agree the trial court did not violate defendant’s rights under
the Sixth Amendment to the federal Constitution. As noted, ante, the Sixth
Amendment creates a “presumption in favor of [defendant’s] counsel of choice”
(Wheat, supra, 486 U.S. at p. 164), but that presumption is rebuttable. Although
defendant was willing to waive Roberts’s potential conflict stemming from
Roberts’s previous representation of Michael Wert, and Roberts himself initially
was confident no actual conflict would arise, Roberts was not so sanguine at a
later hearing. As Justice Callahan related in her dissenting opinion below: “[T]he
Wert angle turned far more ominous when Roberts returned to court in June and
reported that, upon examining the court file, he discovered that Wert was bailed
out of jail just days before the murder and had posted a $5,000 bond. According
to Roberts ‘[t]hat immediately clicked a light on in my head because the DA
[district attorney] has been telling me all along the motive for the murder . . . was
robbery or burglary. And the theory was that this old guy kept stacks of cash
around his house.’ Roberts went on to explain ‘[I]f, in fact, my defense were to be
that Wert did this, I might want to play into their robbery theory, and weave it
in[to] my defense. In other words, I might want to catch their robbery theory and
throw it back to them by saying, you are darn right, the motive for this homicide
was robbery. Wert did the robbery. Wert did the homicide. Wert had just bailed
out of jail, needed to pick the money up to pay his bail bondsman. It all makes
sense.’ (Italics added.) Roberts also discovered that Wert had his car impounded,
and was found in the possession of a stolen weapon and several grams of
methamphetamine, indicating ‘he was dealing.’ Roberts also learned there was a
drug dealer living down the street from defendant, and if it could be established
6

---

that the dealer was supplying Wert ‘that would blow this case way out for
[defendant],’ because it would place Wert on the same street as the victim through
his relationship with the dealer. Roberts was concerned that if the robbery could
be tied to a network of drug dealers on the same street with whom Wert could be
linked, it was quite possible ‘they are continuing to protect Michael Wert’ by
pinning the murder on defendant. [¶] In marked contrast to his attitude in
February, Roberts told the court the situation with Wert was ‘very troublesome’
and made him ‘very uneasy.’ ”
As Wheat recognizes, when the right to preferred counsel under the Sixth
Amendment collides with the right to the effective assistance of counsel, also
guaranteed by the Sixth Amendment, an accommodation must occur. In such
cases, a court “must recognize [the] presumption in favor of [defendant’s] counsel
of choice . . . may be overcome not only by a demonstration of actual conflict but
by a showing of a serious potential for conflict.” (Wheat, supra, 486 U.S. at
p. 164, italics added.) Consequently, although I doubt Wheat’s deferential
“substantial latitude” standard of review applies in a case, as here, where a
criminal defendant has a long-established attorney-client relationship and makes a
knowing and voluntary waiver of the conflict, because the record reveals a serious
possibility that Roberts’s conflict would undermine the fairness of the trial, I
conclude the trial court’s removal of Roberts did not violate defendant’s Sixth
Amendment right to counsel of his choice, whatever its scope.
II
Although I also agree with the majority that the trial court did not, by
removing Roberts, violate defendant’s right to counsel under the California
Constitution, I cannot subscribe to the majority’s treatment of this issue. At the
threshold, the majority announces that it is “far from clear whether [our prior
7

---

decisions in this area] are grounded on the state Constitution.” (Maj. opn., ante, at
p. 11.) I do not share the majority’s doubts.
Article I, section 15 of the California Constitution provides in part: “The
defendant in a criminal cause has the right . . . to have the assistance of counsel for
the defendant’s defense [and] to be personally present with counsel.” In People v.
Crovedi (1966) 65 Cal.2d 199, cited by the majority, this court began its
discussion by framing the issue thusly: “The single issue of substance in this case
is whether defendant Crovedi was denied his right to the assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution,
and article I, section 13, of the state Constitution.” (Id. at p. 201, italics added.)1
Similarly, Maxwell v. Superior Court, supra, 30 Cal.3d 606, also cited by
the majority, began its discussion of the issue on page 612 this way: “The right to
counsel guaranteed by section 15 of article I of the California Constitution does
contemplate effective counsel, and effectiveness means more than mere
competence.” (Italics added.) Maxwell goes on immediately thereafter to discuss
the “right to loyal counsel,” a clear reference to the state constitutional right.
(Ibid.) Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678,
also cited by the majority, speaks in terms of the “right to counsel” (id. at pp. 696-
697) and, while the opinion does not make explicit the basis of such right, its
citation to People v. Crovedi, supra, 65 Cal.2d 199, suggests it is relying on both
the federal and state Constitutions. As is clear, we have recognized a state
constitutional basis for the right to counsel on several occasions.

1
At the time Crovedi was decided, article I, section 13 of the state
Constitution provided in part: “In criminal prosecutions, in any court whatever,
the party accused shall have the right . . . to appear and defend, in person and with
counsel.” (See People v. Ashley (1963) 59 Cal.2d 339, 360, fn. 6.)
8

---

Although the majority fails to acknowledge it, we also have for years
treated conflict of counsel issues differently under the California Constitution than
under the federal Constitution, recognizing that the state charter grants criminal
defendants greater rights both to challenge and to waive conflicts of counsel than
does its federal counterpart. Thus, “[t]o establish a federal constitutional violation,
a defendant who fails to object at trial must show that an actual conflict of interest
‘adversely affected his lawyer’s performance.’ (Cuyler v. Sullivan (1980) 446
U.S. 335, 348 . . . , fn. omitted . . . .) To show a violation of the corresponding
right under our state Constitution, a defendant need only demonstrate a potential
conflict, so long as the record supports an ‘informed speculation’ that the asserted
conflict adversely affected counsel’s performance. (. . . People v. Mroczko (1983)
35 Cal.3d 86, 104-105 . . . .)” (People v. Frye (1998) 18 Cal.4th 894, 998.) As
Justice Davis’s lead opinion below explained: “California’s greater solicitude [of]
the right to conflict-free counsel is consistent with its greater solicitude [of] the
right to counsel of choice, so long as the defendant is fully informed about the
conflict and the right to conflict-free counsel and knowingly and intelligently
waives these, including any appellate issues of ineffective representation arising
from the conflict.” (See also People v. Easley (1988) 46 Cal.3d 712, 729, fn. 17
[recognizing greater protection for one’s choice of counsel under the state
Constitution]; People v. Peoples (1997) 51 Cal.App.4th 1592, 1599 [California
does not “literally follow” the Wheat rule]; Alcocer v. Superior Court (1988) 206
Cal.App.3d 951, 958 [same].)
Contrary to the deferential standard announced in Wheat, supra, 486 U.S.
153, which would accord the trial court “substantial latitude” (id. at p. 163) to
remove a defendant’s attorney for a conflict of interest despite the defendant’s
willingness to waive the conflict and commits that decision to the “discretion” and
“informed judgment of the trial court” (id. at p. 164), California follows a different
9

---

rule, one that recognizes that, when represented by a lawyer who has a potential
conflict of interest, “a defendant is master of his own fate” (Alcocer v. Superior
Court, supra, 206 Cal.App.3d at p. 957). We explained the rule in People v.
McKenzie (1983) 34 Cal.3d 616 (McKenzie),2 a case involving an attorney who
declined to participate in the trial proceedings because of the defendant’s refusal to
cooperate with him. We opined: “Counsel may also be relieved on the court’s
own motion, even over the objections of defendant or counsel. Although the
judge has the discretion to overrule defendant’s choice of counsel in order to
eliminate potential conflicts, ensure adequate representation, or prevent substantial
impairment of court proceedings, this discretion has been severely limited by
California decisions. Thus, ‘the state should keep to a necessary minimum its
interference with the individual’s desire to defend himself in whatever manner he
deems best, using any legitimate means within his resources—and . . . that desire
can constitutionally be forced to yield only when it will result in significant
prejudice to the defendant himself or in a disruption of the orderly processes of
justice unreasonable under the circumstances of the particular case.’ (People v.
Crovedi (1966) 65 Cal.2d 199, 208 [53 Cal.Rptr. 284, 417 P.2d 868].)
“While we recognize that courts should exercise their power to remove
defense counsel with great circumspection [citations], they nevertheless retain the
obligation to supervise the performance of defense counsel to ensure that adequate
representation is provided. [Citations.] Thus, a trial judge may remove defense
counsel despite the objections of the defendant and his attorney if a serious
conflict of interest arises during the trial proceedings resulting in ‘an obviously
deficient performance. Then the court’s power and duty to ensure fairness and

2
McKenzie, supra, 34 Cal.3d 616, was overruled on a different ground in
People v. Crayton (2002) 28 Cal.4th 346, 364-365.
10

---

preserve the credibility of its judgment extends to recusal even when an informed
defendant, for whatever reason, is cooperating in counsel’s tactics.’ ” (McKenzie,
supra, 34 Cal.3d at pp. 629-630, italics added, quoting Maxwell v. Superior Court,
supra, 30 Cal.3d at p. 619, fn. 10.)
In People v. Bonin, supra, 47 Cal.3d 808, we explained that a trial court has
the duty to inquire into counsel’s potential conflict of interest, but “[a]fter the trial
court has fulfilled its obligation to inquire into the possibility of a conflict of
interest and to act in response to what its inquiry discovers, the defendant may
choose the course he wishes to take. If the court has found that a conflict of
interest is at least possible, the defendant may, of course, decline or discharge
conflicted counsel. But he may also choose not to do so: ‘a defendant may waive
his right to the assistance of an attorney unhindered by a conflict of interests.’
[Citations.]” (Id. at p. 837.) Commenting on our decision in Bonin, the appellate
court in People v. Burrows (1990) 220 Cal.App.3d 116, 125, said: “California
makes a defendant the master of his fate and allows him to proceed uninterrupted,
with the exceptions of flagrant circumstances of attorney misconduct or
incompetence [citation], with counsel of his choice if the parties involved in the
conflict properly waive any potential or actual conflicts.”
As is clear, the state constitutional standard demands less deference be
shown to a trial court’s decision to remove counsel over a defendant’s objection
and more strongly supports a criminal defendant’s choice to keep his preferred
legal advocate at his side despite the presence of a possible conflict of interest.
Applying that less deferential standard here, I conclude the trial court did
not violate defendant’s right to counsel of his choice under article I, section 15 of
the California Constitution. As explained, ante, Attorney Roberts informed the
trial court that his previous representation of Wert was “very troublesome” and
made him “very uneasy.” He expressed concern he might be sued for malpractice.
11

---

Although Roberts had represented defendant for almost two years, the trial was
still several weeks, if not months, away, and at that time whether additional
evidence would emerge connecting Wert to the crime was unknown. Under the
circumstances, although a trial court’s discretion under California law to remove
appointed counsel over a defendant’s objection is “severely limited” (McKenzie,
supra, 34 Cal.3d at p. 629), the facts known at the time the trial court ruled
comprised “a serious conflict of interest” (id. at p. 630) that could have resulted in
“significant prejudice to the defendant” (ibid.). The trial court thus did not violate
defendant’s state constitutional right to his counsel of choice by removing Roberts
and appointing substitute counsel.
WERDEGAR, J.
I CONCUR:
MORENO, J.
12

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 12/10/01 - 3d Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S103689
Date Filed: June 24, 2004
__________________________________________________________________________________

Court:

Superior
County: Shasta
Judge: Wilson Curle

__________________________________________________________________________________

Attorneys for Appellant:

Gregory Marshall, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys
General, for Defendant and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Gregory Marshall
P. O. Box 996
Palo Cedro, CA 96073
(530) 549-4836

Janine R. Busch
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5178

---

Opinion Information

Date:	Docket Number:
Thu, 06/24/2004	S103689

Disposition
Jun 24 2004	Opinion: Affirmed

Dockets
Jan 15 2002	Petition for review filed   by counsel for appellant Scott Allen Jones
Jan 17 2002	Record requested
Jan 22 2002	Received Court of Appeal record   one doghouse
Mar 7 2002	Time extended to grant or deny review   to April 15, 2002.
Mar 20 2002	Petition for Review Granted; issues limited (criminal case)   Review granted to address whether trial court erred in removing, over defendant's objection, appointed counsel for a potential conflict of interest; if so, whether the error was subject to harmless error analysis, and if subject to harmless error analysis, whether the error was prejudicial. Votes: George C.J., Kennard, Werdegar & Moreno JJ. Brown, J., was absent and did not participate.
Jun 3 2002	Counsel appointment order filed   Gregory Marshall appointed to represent aplt. Opening brief on the merits is due w/in 30 days (7-3-02)
Jul 1 2002	Opening brief on the merits filed   Appellant Scott Allen Jones
Jul 18 2002	Received Court of Appeal record   one confidential envelope
Jul 31 2002	Request for extension of time filed   by resp to file the answer brief on the merits, 30 day ext. (to 8-30)
Aug 7 2002	Extension of time granted   to 8-30-2002 for resp to file the answer brief on the merits.
Aug 30 2002	Answer brief on the merits filed   by resp
Sep 23 2002	Reply brief filed (case fully briefed)   by aplt (CRC 40k)
Nov 1 2002	Received Court of Appeal record   1-box (confidential)
Mar 13 2003	Received Court of Appeal record   three boxes
Mar 10 2004	Case ordered on calendar   4-7-04, 9am, L.A.
Mar 15 2004	Filed:   aplt counsel's request to reset oral argument.
Mar 16 2004	Note:   letters sent to counsel denying requests to reschedule oral argument.
Mar 16 2004	Filed:   Resp counsel's request to reset oral argument. (faxed)
Apr 7 2004	Cause argued and submitted
Jun 24 2004	Opinion filed: Judgment affirmed in full   Majority opinion by Kennard, J. -----------joined by George, C.J., Baxter, Chin, Brown, JJ. Concurring opinion by Werdegar, J.---joined by Moreno, J.
Jul 8 2004	Received:   Letter from Michael P. Judge, Public Defender of Los Angeles County, California, dated 7-6-2004 urging this Court to grant a rehearing upon its own motion, or otherwise, modify its opinion.
Jul 21 2004	Time extended to consider modification or rehearing   "Finality of the opinion in the above-entitled case is hereby extended to and including 8-20-04"
Aug 19 2004	Time extended to consider modification or rehearing   "Finality of the opinion in the above-entitled case is hereby further extended to and including 9-22-04"
Aug 27 2004	Request for modification of opinion filed   by Santa Clara County Public Defender (non-party)
Sep 7 2004	Received:   Letter dated 9-2-2004 from John E. Roth, Public Defender, San Bernardino County (non-party)
Sep 15 2004	Request for modification denied   The requests of the Los Angeles, Santa Clara, and San Bernardino public defenders to grant rehearing or modify the opinion on our own motion are denied.
Sep 23 2004	Remittitur issued (criminal case)
Oct 27 2004	Compensation awarded counsel   Atty Marshall

Briefs
Jul 1 2002	Opening brief on the merits filed
Aug 30 2002	Answer brief on the merits filed
Sep 23 2002	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website