Stanford Law School - Robert Crown Law Library

Filed 4/5/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S160953
v.
Ct.App. 4/2 E040123
DANIEL LORETO NORIEGA,
Riverside County
Defendant and Appellant.
Super. Ct. No. RIF 100398
____________________________________)

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,

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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.
I
Defendant Daniel Loreto Noriega and codefendant 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,
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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.
II

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.
A. Federal Constitution

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.)
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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.)
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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.
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Washington (1984) 466 U.S. 668, 686.) Because defendant here has not even
attempted to show that the performance by his replacement counsel, Morreale, was
in any way deficient, he has not established a violation of his federal constitutional
right to the effective assistance of counsel.
B. State Constitution

The Court of Appeal unanimously concluded that the trial court‟s
replacement of defendant‟s appointed attorney violated his state constitutional
right to counsel. (Cal. Const., art. I, § 15.) The Attorney General contends that
defendant has no right under our state Constitution to select or keep his court-
appointed attorney. We agree, as explained below.
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.) “[R]emoval 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.)

Here, the Court of Appeal, in holding that the trial court‟s replacement of
defendant‟s appointed counsel violated the California Constitution, relied heavily
on this court‟s statement in Smith v. Superior Court (1968) 68 Cal.2d 547, 562
(Smith), that an indigent criminal defendant‟s established attorney-client
relationship with appointed counsel is “no less inviolable than if counsel had been
retained.” That statement is of no assistance to defendant, however.
At issue in Smith was “whether a trial judge has or should have the power
to remove a court-appointed defense attorney, over the objections of both the
attorney and the defendant, on the ground of the judge‟s subjective opinion that
the attorney is „incompetent‟ because of ignorance of the law to try the particular
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case before him.” (Smith, supra, 68 Cal.2d at p. 549.) In concluding that the trial
court lacked such a power, we stated in Smith: “[T]he constitutional guarantee of
the defendant‟s right to counsel requires that his advocate, whether retained or
appointed, be free in all cases of the threat that [counsel] may be summarily
relieved as „incompetent.‟ ” (Id. at p. 562, italics added.) But as we observed in
People v. Jones, supra, 33 Cal.4th 234, 243, it is unclear whether this
constitutional guarantee refers to the Constitution of California or that of the
United States; if the latter, the quotation from Smith provides no support for the
Court of Appeal‟s holding here that the replacement of defendant‟s appointed
counsel violated California‟s Constitution. Moreover, a threat that counsel will be
summarily removed for incompetence, as occurred in Smith¸ poses a far more
inhibiting constraint on counsel‟s freedom to mount a vigorous defense than the
possibility that an ethical conflict will require counsel‟s removal, as occurred here.
Thus, as this court held in Jones, a trial court does not violate a defendant‟s right
to counsel under the state Constitution when it “removes a defense attorney
because of a potential conflict of interest.” (People v. Jones, at p. 244.)
This case falls within that holding. Over defendant‟s objection, the trial
court relieved the public defender from further representation of defendant
because of the court‟s concern that the public defender‟s duty of loyalty to
defendant might conflict with the public defender‟s duty of loyalty to former client
Tran, a potential prosecution witness in this case. Because the trial court removed
the public defender before trial to forestall the risk that during trial this potential
conflict would ripen into an actual conflict that would preclude the public defender
from providing defendant with effective representation, the order did not deny
defendant his right to counsel under our state Constitution.
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C. State Statute

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.)
Here, the Court of Appeal unanimously concluded that the trial court
abused its discretion in replacing the public defender without explaining to
defendant the potential pitfalls of keeping counsel who has an ethical conflict and
without advising defendant of the alternatives available to him.
The Attorney General concedes that the trial court‟s replacement of counsel
was an abuse of discretion. Accepting his concession, we must determine the
effect of that error. The Court of Appeal majority, over a vigorous dissent on this
issue, concluded that the trial court‟s erroneous removal order required automatic
reversal of defendant‟s conviction.1 The Attorney General argues that, as the

1
Justice Miller also noted in his concurring and dissenting opinion that when
a trial court erroneously replaces appointed counsel over a criminal defendant‟s
objection, the defendant can immediately seek relief by a writ petition filed in a
reviewing court. He noted that only by obtaining writ relief, which is a relatively
speedy remedy, is it likely that the removed attorney will still be available to

(fn. continued on next page)
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dissenting Court of Appeal justice pointed out, the error warrants reversal of
defendant‟s conviction only if it resulted in a miscarriage of justice, which
defendant has failed to establish. The Attorney General states that to determine
the prejudicial effect of statutory error, as occurred here, the appropriate test is the
one set out in People v. Watson (1956) 46 Cal.2d 818, requiring reversal only
when “it is reasonably probable that a result more favorable to the appealing party
would have been reached” if the error had not occurred (id. at p. 836).
We agree with the Attorney General. Relevant here are two decisions of
this court. In People v. Chavez (1980) 26 Cal.3d 334, 349, after concluding that
the trial court erred in refusing to appoint as trial counsel the same attorney who
had represented the defendant at his arraignment, we stated that the error did not
require automatic reversal of the defendant‟s conviction. And in People v.
Williams (2006) 40 Cal.4th 287, 301, we concluded that automatic reversal was

(fn. continued from previous page)

represent the defendant. Although here the public defender expressed in the trial
court his intention to file a writ on defendant‟s behalf, he did not do so.

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. (See Code of
Civ. Proc, § 1069 [writ petition “must be made on the verified petition of the party
beneficially interested . . . ”].) The newly appointed attorney has standing to file
the writ petition but may be reluctant to do so because if relief is granted it will
result in termination of that attorney‟s own appointment. 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.
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not compelled when the trial court in a death penalty case erred by refusing to
appoint a second attorney to assist the defendant. Accordingly, 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.
DISPOSITION

We reverse the Court of Appeal‟s judgment and remand the matter for
further proceedings consistent with our opinion.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

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DISSENTING OPINION BY WERDEGAR, J.
The majority concludes the trial court did not violate defendant Daniel
Loreto Noriega‟s constitutional rights (and did not prejudicially violate his
statutory rights) when, over his objection, it removed his appointed attorney and
replaced him with another attorney. Because I conclude the trial court‟s action
violated defendant‟s right to counsel under article I, section 15 of the California
Constitution, I dissent.
I
The majority provides the reader with a brief statement of facts it deems
“pertinent” (maj. opn., ante, at p. 2), but I believe a fuller statement is helpful to
understand what happened below. Defendant Noriega and codefendants Manuel
Ortega Paredes and Juan Diego Vasquez jointly conspired to collect an unpaid
drug debt from Cesar Cortez. Paredes armed himself with an assault rifle, but
Vasquez warned them not to do anything “stupid.” When Noriega and Paredes
drove off to Cortez‟s house to collect the debt, Vasquez did not accompany them.
Noriega and Paredes arrived at Cortez‟s house and killed him over the unpaid
debt. Noriega, Paredes and Vasquez were charged jointly for these crimes. The
trial court appointed James Ashworth, a deputy public defender in the Riverside
County Public Defender‟s Office, to represent Noriega. Ashworth worked on the
case diligently for over one year, representing Noriega at the preliminary hearing
and at arraignment, and dealing with a “huge volume” of discovery.
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At some point, Vasquez pleaded guilty to reduced charges and agreed to
testify against Noriega and Paredes.
In December 2002, the prosecutor raised the possibility that Attorney
Ashworth might have a conflict of interest in representing Noriega. A hearing was
held at which the prosecutor explained that he might call a jail inmate named
Ciong Tran as a prosecution witness. Tran allegedly had been on a sheriff‟s
transport bus with Noriega and had observed him first accuse Vasquez of being a
“snitch” and then assault him. The alleged conflict of interest arose because the
Riverside County Public Defender‟s Office had previously represented Tran in an
unrelated criminal matter. In that prior case, Tran had been represented by a
different deputy, not by Ashworth.
The prosecutor assured the trial court he had no objection to Ashworth‟s
continued representation of Noriega, but opined: “I just bring it to the court‟s
attention as an officer of the court. I don‟t have an opinion as to who represents
Mr. Noriega. I just don‟t want to try the case twice. I don‟t want to trample his
rights to counsel of his choice, but when I feel there‟s a situation that comes to my
attention . . . that there may well be a conflict of interest, as an officer of the court,
I‟m obliged to raise it.”
Apprised of the problem, defendant offered to waive the potential conflict.
In addition, Supervising Deputy Public Defender Nicholas DePrisco informed the
trial court he had personally examined Tran‟s file from the earlier case. He
assured the court Tran‟s case was unrelated to Noriega‟s murder case, a different
deputy public defender had represented Tran, and Tran‟s file contained no
confidential information that would prevent Ashworth from fully and vigorously
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representing Noriega. When pressed, DePrisco said he could not, in open court,1
reveal what was in Tran‟s file, but he offered to disclose its contents in camera.
The trial court declined this offer. Over Noriega‟s objection, the court then
relieved Deputy Public Defender Ashworth and appointed different counsel.
Tran eventually did testify at Noriega‟s trial. On cross-examination, new
Defense Counsel Peter Morreale asked Tran whether the assailant — allegedly
defendant Noriega — was a “big guy,” “bigger than you?” Tran answered in the
affirmative. Morreale asked just one more question, to which Tran answered that
the man he observed “use[d] his head” to strike Vasquez “in the face.” Noriega
was convicted of murder and sentenced to life in prison without the possibility of
parole.
II
Like the Sixth Amendment to the United States Constitution, the California
Constitution guarantees a criminal defendant the right to counsel for his or her
defense. Article I, section 15 of the state Constitution provides that “[t]he
defendant in a criminal cause has the right . . . to have the assistance of counsel for
the defendant‟s defense . . . .” This is a right independent from that guaranteed by
the federal Constitution. Indeed, when in 1963 the United State Supreme Court
decided the justly famous case of Gideon v. Wainwright (1963) 372 U.S. 335 and
interpreted the federal Constitution to require states to provide indigent criminal
defendants with attorneys free of charge, the high court simply mandated that
which the State of California had already required for decades under the California
Constitution. As this court explained in 1940: “The right of an accused to the

1
The prosecutor, Vasquez and his trial counsel, and codefendant Paredes
(who was representing himself) were all present at the hearing.
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assistance of counsel in his defense is guaranteed by both the federal and state
Constitutions. To supplement the requirements of the fundamental law the
legislature in 1872 adopted section 987 of the Penal Code, which provides: [¶] „If
the defendant appears for arraignment without counsel, he must be informed by
the court that it is his right to have counsel before being arraigned, and must be
asked if he desires the aid of counsel. If he desires and is unable to employ
counsel, the court must assign counsel to defend him.‟ ” (In re Connor (1940) 15
Cal.2d 161, 164, italics added.)2
In short, the right to counsel springs from two different sources, and the
scope of the right under the state Constitution has never been identical to the right
under the federal Constitution. (See discussion in People v. Jones (2004) 33
Cal.4th 234, 250-253 (conc. opn. of Werdegar, J.).) Because I find the state
Constitution dispositive of the case before the court, I do not join the majority‟s
discussion of the federal right to counsel and express no views on that subject.
None dispute that the right to select one‟s own counsel applies only to
retained, not appointed, counsel. (People v. Mungia (2008) 44 Cal.4th 1101,
1122; see United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151 [same rule
under the Sixth Amendment to the federal Constitution].) This case, however,
involved not the appointment, but the removal of counsel. The issue, therefore, is

2
This interplay between state constitutional law and statutory law is
essentially unchanged today. Subdivision (a) of Penal Code section 987 now
provides: “In a noncapital case, if the defendant appears for arraignment without
counsel, he or she shall be informed by the court that it is his or her right to have
counsel before being arraigned, and shall be asked if he or she desires the
assistance of counsel. If he or she desires and is unable to employ counsel the
court shall assign counsel to defend him or her.” (Italics added.) Subdivision (b)
in the same manner provides for the appointment of counsel in capital cases.
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whether an indigent defendant has a state constitutional right to the continuous
representation of his or her court-appointed attorney.
We addressed this issue in Smith v. Superior Court (1968) 68 Cal.2d 547.
In that case, the trial court had appointed an attorney named Kanarek to represent
the defendant, Smith. When the trial court later removed Kanarek for alleged
incompetence, the defendant petitioned for a writ of mandate. This court issued
the writ, explaining that although an indigent defendant “is not entitled to
demand” a particular attorney be appointed, “that principle . . . is obviously
inapplicable to the situation now before us: Mr. Kanarek was himself the counsel
appointed by the court . . . to represent Smith in these proceedings, and Smith is
demanding not to change that appointment but only to enforce it.” (Id. at p. 561.)
The majority acknowledges that a significant difference exists between the
original selection of appointed counsel for an indigent defendant and the removal
of that counsel over the defendant‟s objection. “The removal of an indigent
defendant‟s appointed counsel . . . poses a greater potential threat to the
defendant‟s constitutional right to 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.” (People v. Jones,
supra, 33 Cal.4th at p. 244, quoted with approval in maj. opn., ante, at p. 6.) In
this case, however, the majority‟s deference to, and affirmance of, the trial court‟s
decision to remove Ashworth from the case does not reflect the foregoing
concerns.
The importance of an established attorney-client relationship to the overall
fairness of a trial (and, by extension, the legitimacy of our adversarial system of
jurisprudence) cannot be overstated. As I explained in my separate opinion in
Jones: “ „[E]ffective assistance is linked closely to representation by counsel of
choice. When clients and lawyers lack rapport and mutual confidence the quality
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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 [his attorney] and defendant over almost two years.” (People
v. Jones, supra, 33 Cal.4th at p. 248 (conc. opn. of Werdegar, J.).) And
“[a]lthough an indigent accused is not initially entitled to choose his or her own
counsel at state expense [citations], once the defendant establishes an attorney-
client relationship with his or her attorney, the law recognizes a protectable
interest in that relationship.” (Id. at pp. 246-247, italics added.)
What, then, is the legal standard this court should apply under the state
Constitution when evaluating whether a lower court erred in removing a
defendant‟s appointed lawyer? Citing this court‟s decision in People v. Jones,
supra, 33 Cal.4th 234, the majority states without elaboration that “a trial court
does not violate a defendant‟s right to counsel under the state Constitution when it
„removes a defense attorney because of a potential conflict of interest.‟ ” (Maj.
opn., ante, at p. 7, quoting Jones, at p. 244.) Reliance on Jones, however, is
unpersuasive. Although the majority declares that “[t]his case falls within
[Jones‟s] holding” (maj. opn., ante, at p. 7), the two cases are patently
distinguishable. In Jones, the nature of the counsel‟s conflict was significant and
palpable. Roberts, an attorney, was appointed to represent Jones against a charge
of murder. But, in a previous case, Roberts had personally represented a man
named Wert, who was an alternate suspect for the same murder with which Jones
was charged. After initially declaring himself unconcerned with the potential
conflict, Roberts later expressed substantial misgivings about continuing his
representation, noting several facts suggesting Wert‟s possible involvement in the
murder. (Jones, at pp. 237-239; id. at p. 249 (conc. opn. of Werdegar, J.).) Under
those circumstances, this court correctly held that removing Attorney Roberts
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from the case did not violate the defendant‟s rights under the state Constitution.
(Id. at pp. 244-250.)
Here, in contrast, the potential conflict was minor, almost trivial. The
prosecution announced it might call Tran as a witness. Tran had been involved in
a prior criminal case that was completely unrelated to the murder charged against
Noriega. In that case, Tran had been represented by the public defender‟s office
now representing Noriega, but not by Ashworth personally. Indeed, Ashworth
told the court he was unfamiliar with Tran and that “Mr. Tran could walk in here
and I wouldn‟t know him.” Ashworth expressed no misgivings about his
continued representation, and his supervising attorney assured the court that no
grounds for a conflict existed in Tran‟s file. The trial court declined the
opportunity to review the file itself.
As is clear, the two cases are not at all comparable. Yet the majority treats
them as legally equivalent, simply citing Jones as support for its conclusion that
Ashworth‟s removal did not violate Noriega‟s right to counsel under the state
Constitution. In so doing, the majority elevates the holding in Jones, appropriate
under the facts there, into an inflexible rule pursuant to which the deference paid
to the trial court‟s decision to remove appointed counsel is such that no appellate
court likely could ever subject such a ruling to meaningful review nor act to
protect a defendant‟s right to counsel as guaranteed by the state Constitution.
I am not so willing to relegate our independent state constitutional right to
counsel to the historical dustbin. Rather, I would consider the circumstances
confronting the trial court at the time it ruled to assess how disabling the potential
conflict was and whether removal of counsel appeared necessary to ensure a fair
trial, thereby overriding the defendant‟s interest in maintaining an established
relationship with his or her attorney. Although ascertaining the extent of a conflict
in advance of trial is sometimes difficult (Wheat v. United States (1988) 486 U.S.
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153, 162; People v. Jones, supra, 33 Cal.4th at p. 241), here the trial court knew
this much when it ruled: (1) defendant had objected to Ashworth‟s removal;
(2) Ashworth had actively represented defendant for more than one year;
(3) Ashworth had not personally represented the witness, Tran; (4) Tran‟s prior
criminal case was completely unrelated to defendant‟s alleged crimes; (5) after
examining Tran‟s file, the supervising deputy public defender assured the court no
conflict existed; and (6) the prosecutor did not request Ashworth be removed.
Under these circumstances, even accepting that a trial court, faced with a potential
conflict of interest, has greater discretion to remove appointed counsel than
retained counsel (see People v. Easley (1988) 46 Cal.3d 712, 732), I find the
conclusion inescapable that the trial court violated the California Constitution by
removing Ashworth as Noriega‟s attorney. Because the majority holds otherwise,
I dissent.
III
My conclusion, based as it is on the California Constitution (Cal. Const.,
art. I, § 15), renders it unnecessary to reach the Sixth Amendment issue. (People
v. Reyes (1998) 19 Cal.4th 743, 767 (conc. & dis. opn. of Werdegar, J.); People v.
Bennett (1998) 17 Cal.4th 373, 393 (conc. opn. of Werdegar, J.).) Nevertheless,
I find noteworthy the United States Supreme Court‟s pronouncement on a similar
issue. In discussing whether, for retained counsel, the improper denial of a
defendant‟s counsel of choice is structural error3 and thus automatically reversible

3
The high court has explained that a structural error “affect[s] the framework
within which the trial proceeds, rather than simply an error in the trial process
itself. „Without these basic protections, a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.‟ ” (Arizona v. Fulminante
(1991) 499 U.S. 279, 310.)
8

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without a showing of prejudice, the high court recently explained: “We have little
trouble concluding that erroneous deprivation of the right to counsel of choice,
„with consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as “structural error.” ‟ [Citation.] Different attorneys
will pursue different strategies with regard to investigation and discovery,
development of the theory of defense, selection of the jury, presentation of the
witnesses, and style of witness examination and jury argument. And the choice of
attorney will affect whether and on what terms the defendant cooperates with the
prosecution, plea bargains, or decides instead to go to trial. In light of these
myriad aspects of representation, the erroneous denial of counsel bears directly on
the „framework within which the trial proceeds,‟ [citation]—or indeed on whether
it proceeds at all. It is impossible to know what different choices the rejected
counsel would have made, and then to quantify the impact of those different
choices on the outcome of the proceedings. Many counseled decisions, including
those involving plea bargains and cooperation with the government, do not even
concern the conduct of the trial at all. Harmless-error analysis in such a context
would be a speculative inquiry into what might have occurred in an alternate
universe.” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150.)
All of these stated concerns regarding the difficulty of assessing the
prejudice flowing from the improper removal of retained counsel, of course, apply
equally to the removal of appointed counsel. I therefore find it odd that a trial
court‟s unwarranted interference with an established attorney-client relationship is,
in the case of retained counsel, structural error reversible per se under the federal
Constitution, while, according to the majority, in the case of appointed counsel, it
is neither prejudicial nor even error under the state Constitution. Even were the
Sixth Amendment to the federal Constitution to permit this disproportionality
between the rights of those with means to hire their own lawyers and those without
9

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— a question as yet undecided — we need not, and should not, accept such a rule
under article I, section 15 of the California Constitution. Because the majority in
this case holds otherwise, I dissent.
WERDEGAR, J.
10

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

Name of Opinion People v. Noriega
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 158 Cal.App.4th 1516
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S160953
Date Filed: April 5, 2010
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Christian F. Thierbach and Dennis A. McConaghy

__________________________________________________________________________________

Attorneys for Appellant:

Mark L. Christiansen, under appointment by the Supreme Court, for Defendant and Appellant.

Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Donald E.
De Nicola, Deputy State Solicitor General, Gary W. Schons, Assistant Attorney General, Steve Oetting and
Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

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

Mark L. Christiansen
Law Office of Mark L. Christiansen
44489 Town Center Way, #D
Palm Desert, CA 92260
(760) 568-1664

Lise S. Jacobson
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
9619) 645-2293

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Petition for review after the Court of Appeal reversed a judgment of conviction of a criminal offense. This case presents the following issue: Is the erroneous removal of appointed counsel reversible per se as structural error or is the ensuing conviction reversible only on a showing of prejudice?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 04/05/2010	48 Cal. 4th 517, 229 P.3d 1, 108 Cal. Rptr. 3d 74	S160953	Review - Criminal Appeal	submitted/opinion due

Opinion Authors
Opinion	Justice Joyce L. Kennard
Dissent	Justice Kathryn M. Werdegar

Dockets
Feb 19 2008	Petition for review filed   Manuel Ortega Paredes, Appellant by Steven Schorr, counsel
Feb 19 2008	Record requested
Feb 25 2008	2nd petition for review filed   Respondent People by Lise S. Jacobson, Deputy Attorney General - San Diego (Filed in San Diego)
Feb 27 2008	2nd record request
Feb 29 2008	Received Court of Appeal record   one full box
Mar 7 2008	Answer to petition for review filed   Daniel Noriega, appellant, to Petitions for Review Mark L. Christiansen, CA-appointed counsel
Mar 14 2008	Request for depublication (petition for review pending)   filed by Lise S. Jacobson, Deputy Attorney General of the State of California, on behalf of Respondent The People
Mar 24 2008	Opposition filed   Opposition letter from Mark L. Christiansen on behalf of Co-Appellant Noriega to respondent's depub request (faxed copy) Original letter received 3-24-2008.
Apr 18 2008	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including May 23, 2008, or the date upon whioch review is either granted or denied.
Apr 30 2008	Petition for review granted (criminal case)   Respondent's petition for review is granted. Appellant Paredes' petition for review is denied. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 23 2008	Request for extension of time filed   The respondent requests a 30 day extension of time to file the opening brief on the merits, by Lise Jacobson, deputy attorney general
May 28 2008	Extension of time granted   On application of the respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 29, 2008.
May 28 2008	Counsel appointment order filed   Upon request of appellant Manuel Ortega Paredes for appointment of counsel, Steven Schorr is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
May 28 2008	Counsel appointment order filed   Upon request of appellant Daniel Loreto Noriega for appointment of counsel, Mark L. Christiansen is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Jun 20 2008	Request for extension of time filed   to and including July 29, 2008, to file respondent's opening brief on the merits by Lise Jacobson, Deputy Attorney General - San Diego
Jun 23 2008	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 29, 2008.
Jul 25 2008	Opening brief on the merits filed   Respondent People by Lise S. Jacobson, Deputy Attorney General - San Diego (Filed in San Diego)
Aug 21 2008	Request for extension of time filed   to and including September 23, 2008, to file Appellant Noriega's Answer Brief on the Merits by Mark L. Christiansen, Supreme Court appointed counsel
Aug 22 2008	Extension of time granted   On application of Appellant Daniel Noriega and good cause appearing, it is ordered that the time to serve and file his Answer Brief on the Merits is extended to and including September 23, 2008.
Sep 18 2008	Answer brief on the merits filed   Appellant Daniel Loreto Noriega by Mark L. Christiansen, Supreme Court Appointed Counsel
Oct 3 2008	Reply brief filed (case fully briefed)   Respondent People's by Lise S. Jacobson, Deputy Attorney General - San Diego (Filed in San Diego)
Oct 22 2008	Compensation awarded counsel   Atty Christiansen
Nov 3 2008	Received application to file Amicus Curiae Brief   California Attorneys for Criminal Justice in support of appellant by Richard Such, counsel
Nov 7 2008	Permission to file amicus curiae brief granted   The application of California Attorneys for Criminal Justice for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Nov 7 2008	Amicus curiae brief filed   California Attorneys for Criminal Justice in support of appellant by Richard Such, counsel.
Nov 19 2008	Request for extension of time filed   to and including December 18, 2008, to file Respondent's Answer to the Amicus Curiae Brief by Lise Jacobson, Depupty Attorney General
Nov 21 2008	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Answer to the Amicus Curiae Brief of California Attorneys for Criminal Justice in support of Appellant Noriega is extended to and including December 18, 2008.
Dec 17 2008	Response to amicus curiae brief filed   By respondent, The People, to amicus curia brief filed by The California Attorneys for Criminal Justice in support of appellant by Lise S. Jacobson, counsel
Nov 23 2009	Order filed   The above entitled matter is retitled as follows: THE PEOPLE, Plaintiff and Respondent, v. DANIEL LORETO NORIEGA et al., Defendants and Appellants.
Dec 2 2009	Case ordered on calendar   to be argued on January 7, 2010, at 9:00 a.m., in San Francisco.
Dec 23 2009	Order filed   This court denied the petition for review filed by defendant Manuel Ortega Paredes, but granted the petition for review filed by the Attorney General concerning an issue relating solely to defendant Daniel Loreto Noriega. This case, titled People v. Paredes in the Court of Appeal, is hereby severed as to the two defendants. As to defendant Paredes, the matter is dismissed and remanded to the Court of Appeal with directions to issue a remittitur as to him. As to defendant Noriega, the matter is retained for a decision by this court under the title People v. Noriega. Werdegar, J., was absent and did not participate.
Dec 23 2009	Supplemental brief filed Plaintiff and Respondent: The PeopleAttorney: Lise Simons Jacobson   By respondent in San Diego.
Dec 28 2009	Supplemental brief filed Defendant and Appellant: Noriega, Daniel LoretoAttorney: Mark L. Christiansen   Answer to Respondent's Supplemental Brief.
Jan 7 2010	Cause argued and submitted
Feb 3 2010	Compensation awarded counsel   Atty Schorr
Apr 2 2010	Notice of forthcoming opinion posted   To be filed Monday, April 5, 2010.

Briefs
Jul 25 2008	Opening brief on the merits filed
Sep 18 2008	Answer brief on the merits filed
Oct 3 2008	Reply brief filed (case fully briefed)
Nov 7 2008	Amicus curiae brief filed
Dec 17 2008	Response to amicus curiae brief filed

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

Apr 29, 2010 Annotated by jkwu

Facts: Trial judge replaced defendant’s appointed counsel, a public defender, over defendant’s objection because of the court perceived a potential conflict of interest arising from the public defender’s previous representation of a potential prosecution witness in defendant’s case. The trial court removed the public defender, who had been assigned to defendant’s case for 13 months, even though the potential prosecution witness had been represented by a different deputy public defender and the witness’s file contained “no secrets or confidences.” Procedural Posture: The California Court of Appeals rejected defendant’s argument that the replacement of defendant’s appoint counsel did not violate defendant’s right to counsel or to counsel of choice under the federal Constitution’s Sixth Amendment. However, the court of appeals reversed the defendant’s conviction on three grounds: (1) the replacement violated the defendant’s due process right under the federal Constitution’s Fifth Amendment, requiring automatic reversal; (2) the replacement violated the defendant’s right to counsel under California’s state constitution; and (3) the replacement was an abuse of the trial court’s discretion under state statutory law. Opinion (J. Kennard): The California Supreme Court reversed the Court of Appeal’s holding and remanded for further proceedings. First, the Court reject defendant’s Fifth Amendment claim on grounds that the right to effective counsel is grounded in the Sixth Amendment right to counsel, not in the Fifth Amendment’s right to due process of the law and because defendant failed to establish that his replacement counsel was in any way deficient. Second, the Court rejected defendant’s claim that he had a right under the state Constitution to select or keep his court-appointed attorney. The Court dismissed the Court of Appeal’s reliance on Smith v. Superior Court, 68 Cal.2d 547 (1968) (holding that an indigent criminal defendant’s established attorney-client relationship with appointed counsel is “no less inviolable than if counsel had been retained.”). In Smith, the Court held that a trial judge lacked the power to remove a court appointed defense attorney over the objections of the defendant on the court’s subjective opinion that the attorney was incompetent. The Court distinguished Smith from the issue presented in this case on grounds that the threat that counsel might be removed for incompetence “poses a far more inhibiting constraint on counsel’s freedom to mount a vigorous defense than the possibility that an ethical conflict will require counsel’s removal.” Finally, the Court rejected defendant’s claim that trial court’s erroneous removal of defendant’s public defender required automatic reversal of defendant’s conviction. The California Code authorizes a trial court in either a civil or criminal case to discharge an attorney who has a conflict of interest. Code Civ. Proc. § 128. While the Attorney General conceded that the court had abused its discretion, the Court, citing People v. Chavez, 26 Cal.3d 334 (1980) (stating that error in refusing to appoint as trial counsel the same attorney who had represented the defendant at arraignment did not require automatic reversal), and People v. Williams, 40 Cal.4th 287 (2006) (concluding that automatic reversal was not compelled when the trial court in a death penalty case erred by refusing to appoint a second attorney to assist the case), held that defendant in this case was not entitled to automatic reversal because he had not shown a reasonable probability that the trial court’s erroneous decision altered the outcome of the trial. Dissent (J. Werdegar): The dissent concluded that the trial court’s removal of defendant’s public defender violated his right to counsel under article I, section 15 of the California Constitution. Instead of framing the issue in the case as a question of defendant’s right to counsel, the dissent emphasized that the real issue in this case was whether an indigent defendant has a state constitutional right to the continuous representation of his or her court-appointed attorney. Relying on People v. Jones, 33 Cal.4th 234 (2004), the dissent argued that “the removal of an indigent defendant’s appointed counsel . . . poses a greater potential threat to the defendant’s constitutional right to 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. 33 Cal.4th at 244. The dissent claimed that the majority’s ruling establishes an “inflexible rule pursuant to which the deference paid to the trial court’s decision to remove appointed counsel is such that no appellate court likely could ever subject such a ruling to meaningful review nor act to protect a defendant’s right to counsel as guaranteed by the state Constitution.”