People v. Walker CA4/2 ( 2014 )

Filed 4/15/14 P. v. Walker CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056938
v. (Super.Ct.No. FVI1000852)
DEJON DEANDRE WALKER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Dismissed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant and appellant Dejon Deandre Walker appeals after a guilty plea. He
contends the trial court improperly allowed his trial counsel to withdraw at sentencing,
violating defendant’s right to representation by counsel of his choice. We agree that the
trial court violated defendant’s Sixth Amendment right, but there is no effective relief
which can be afforded to him. We therefore dismiss the appeal as moot.
FACTS AND PROCEDURAL HISTORY
1. The Crimes
In the night and early morning hours of April 25-26, 2010, the victim Michael
Ramirez was driving along a roadway. He was being followed by a friend, Nico Galsim,
in another car. At approximately 11:30 p.m., defendant and four other men pulled up
next to Ramirez’s passenger side window in a Ford Taurus. The driver pointed a gun at
Ramirez and shouted at him to “Pull over or I’ll shoot you.”
Ramirez pulled into a parking lot and stopped; Galsim followed suit, although he
was unaware of what was happening. Defendant and three men got out of the Taurus;
they were armed. The driver remained inside the Taurus. Defendant and his companions
forced Ramirez and Galsim out of their respective vehicles. Defendant pointed a gun at
Ramirez’s head and demanded, “give me your wallet, your money, your phone,
everything you have.” Defendant ordered Ramirez and Galsim to lie face down on the
ground. He patted them down and took their wallets and phones. He also took Ramirez’s
iPod and some coins from his car. The assailants retreated to the Taurus and drove away,
after ordering Ramirez and Galsim to “act casual.”
2
After the thieves had left, Ramirez and Galsim drove to Ramirez’s house, where
they called the police and reported the crimes.
On the morning of April 26, 2010, Gary Noblado was on a ladder, washing
windows on the outside of a house. Defendant, with half his face hidden by a bandana,
jumped over the fence and approached Noblado. Defendant pointed a gun at Noblado
and demanded money. He pulled Noblado off the ladder, patted down Noblado, and took
Noblado’s cell phone and pocket knife from his pockets. Defendant jumped back over
the fence; Noblado had seen another man waiting on the other side of the fence.
2. The Charges, Defendant’s First Two Changes of Counsel, and the Change of Plea to
Guilty
By information, defendant was charged with three counts of second degree
robbery. The information also alleged enhancements for personal use of a firearm as to
each robbery count.
Defendant was initially represented by attorney Louisa B. Pensanti, who had been
retained to represent defendant through pretrial proceedings for a stated sum. Attorney
Pensanti had negotiated a plea offer, but defendant elected not to accept the offer; he
elected to proceed to jury trial. In the absence of compensation for the preparation
needed for trial, attorney Pensanti asked to be relieved as counsel for defendant. The trial
court granted the motion. In December 2010, the court appointed the public defender.
Several months later, in September 2011, defendant retained new counsel, Stanley
Granville. The public defender was relieved, and attorney Granville substituted in.
3
On January 13, 2012, defendant entered a change of plea. He agreed to plead
guilty to the three robbery counts, with a sentence of 11 years (five years on count 1, plus
four years for the gun use enhancement, plus one year each for counts 2 and 3). The
court continued the matter while the probation department prepared a report, particularly
addressing the issues of restitution and custody credits.
3. Attorney Granville’s Initial Request to Be Relieved for Conflict of Interest, on the
Ground That Defendant Wanted to Withdraw His Plea for Inadequate Advisements
On the day of sentencing, the trial court was ready to proceed to pronouncement
of judgment, when attorney Granville interrupted and asked to be heard. He explained
to the court, “There are some problems that have arisen, your Honor. I am going to
have to declare a conflict of interest . . . in this matter. [Defendant] desires to move
the court to withdraw his guilty plea and . . . the basis of that request is two fold [sic].
[¶] First of all, the Court would look at the plea waiver in Section Three, the hearing
that’s indicated by pre-sentence [sic] credits. There is crossed out a couple of boxes.
[¶] . . . [¶] And . . . you see that old 4019, 4-0-1-9 is crossed out and 2933.1 is X’d?
[¶] . . . [¶] [Defendant] indicates to me he wasn’t aware that he was not going to be
getting the old 4019 credits and that he wasn’t privy to the fact that 2933.1 had been X’d
out. [¶] I personally have no recollection of it. You may very well be right. He tells me
that the People approached him at some point and indicated that it was going to be a
difference, that it should be between the 2933.1 and that actually the prosecuting
attorney crossed out that section. That’s one . . . basis for his request to withdraw his
4
guilty plea. [¶] The second is that this happened before I was involved in [defendant’s]
case. I think he was still represented by the Public Defender. He indicates that the Court,
through his Public Defender, indicated to him that he would not be getting a three
strikes—would not be getting a three strikes [sic] involving a three strikes situation, in
other words, pleading guilty to three counts of robbery. [¶] . . . [¶] So I guess
specifically what my request is today is to continue the matter over so that his new
counsel can prepare a motion pursuant to 1018 allowing him to withdraw his guilty
plea.”1
The court inquired, “Now, you are saying new counsel, and why would I appoint
new counsel for you? [¶] . . . [¶] Are you saying . . . that one of the bas[e]s . . . for
withdrawal of the plea would be the claim of ineffective assistance of counsel?”
Attorney Granville agreed: “It may very well be, your Honor. [¶] I don’t have a
recollection of adequately explaining to [defendant] his pre-sentence [sic] credits. I do
note that there is a box that seems to have been scratched out, and it’s his impression that
he would be getting pre-sentence [sic] credits pursuant to the 4019 Rule.” The court
opined that the issue would likely have been addressed at the taking of the plea, but
attorney Granville had no recollection of doing so. The court therefore ordered a
1Notwithstanding attorney Granville’s recitation of what defendant told him had
been discussed by the public defender at the change-of-plea hearing while defendant was
represented by attorney Granville, defendant expressly acknowledged that his guilty plea
would be to three strike convictions for the three robbery counts. As a consequence,
should defendant ever be convicted of another offense, he would be ineligible for
probation; and if he should be convicted of another felony in the future, he would receive
a life (third strike) sentence.
5
transcript of the plea hearing to be prepared, and continued the matter. Defendant waived
his right to be sentenced within 20 days of the plea.
The minute order for the day of sentencing states that the court denied defendant’s
oral motion to withdraw his plea, but the reporter’s transcript does not reflect either that
such a motion was actually made or that it was ruled upon. The court did inquire whether
the prosecutor would agree to allow defendant to withdraw his plea, but the prosecutor
declined. Attorney Granville attempted to clarify that the continued hearing was to
review the plea transcript, and “not to litigate the motion to withdraw the guilty plea.”
The court noted that attorney Granville likely wanted to file some papers: “I mean, right
now you’re making just an oral motion. There should be something—I would think you
would want to file something. You are still representing [defendant], I believe.”
4. Appointment of Separate Counsel, Motion to Withdraw Defendant’s Plea, and Denial
of the Motion
At the next hearing date, the trial court appointed the public defender for the
limited purpose of filing a motion to withdraw defendant’s plea. The matter was
continued thereafter to allow the public defender to prepare the motion; the motion was
filed May 24, 2012.
As the discussion at the earlier hearing had suggested, the motion was based on
defendant’s assertion that the plea agreement was altered after he had signed it. That is,
in the portion of the plea agreement dealing with credits, “[a]longside one box is the
printed phrase ‘Old 4019.’ It appears an ‘X’ was placed in that box, but it also shows
6
scratching out of the ‘X.’ [¶] . . . To the right of that box is another box, alongside of
which appears the printed phrase ‘2933.1.’ That box has an ‘X’ marked in it.
[¶] . . . [Defendant] asserts the one box was scratched out and the second box marked
with an ‘X’ after he initialed and signed the plea agreement.” The public defender noted
that, because of defendant’s conviction of a violent strike felony, he was eligible to earn a
maximum of 15 percent conduct credits. He was not eligible to earn half-time credits.
The public defender acknowledged that, if attorney Granville had failed to advise
defendant at all about the rate of earning conduct credits, such failure would not have
provided a ground to withdraw the plea. In People v. Barella (1999) 20 Cal. 4th 261, the
California Supreme Court held that “The credit limitation contained within the Three
Strikes law serves a role functionally equivalent to a parole eligibility date, and we
conclude that neither the federal [n]or the state Constitution, nor California’s judicially
declared rules of criminal procedure, required the trial court to advise defendant, prior to
his guilty plea, that he would be ineligible for release from prison until he had served
four-fifths of his sentence.” (Id. at p. 263.) The public defender opined that the
restriction on credits would not, in itself, provide a valid ground to withdraw the plea.
However, the allegation that the plea form had been altered after defendant had initialed
and signed the form might arguably form a ground to withdraw the plea.
The People filed a written opposition to the motion. The People pointed out that a
motion to withdraw the plea under Penal Code section 1018 is addressed to the sound
discretion of the trial court, and that denial of the motion would not be an abuse of
7
discretion unless the court’s ruling “exceeds the bounds of reason.” The People also
urged that the trial court was entitled to weigh the credibility of defendant’s assertion,
e.g., that the plea form had been altered after he signed it, and the implicit claim that
defendant would not have agreed to the plea bargain had he known that his ability to earn
conduct credits would be restricted. Defendant had made no claim, however, that any
other portion of the plea form had been altered, yet he had initialed provision 10(d),
which expressly advised defendant that a consequence of his plea was “[r]educed earning
of custody credits.” Defendant had also orally told the court that he had had a full
opportunity to discuss the plea with his attorney. The court was therefore not obliged to
accept defendant’s claims at face value.
Defendant sent a handwritten letter to the court, dated July 3, 2012. The letter
stated: “I am giving notice to the Court that I declare the plea agreement VOID and
[c]ancelled because I made a mistake in signing the contract and it is VOID because the
terms and conditions of the plea agreement were misrepresented to me to induce me to
sign the agreement.”
The hearing on the motion to withdraw the plea finally came on for hearing on
August 3, 2012. The court read defendant’s handwritten letter into the record. The
public defender proposed to have attorney Granville testify as to the limited issue of his
knowledge about any changes to the plea document. Defendant waived his attorney-
client privilege for the purpose of that examination. Attorney Granville testified that he
had gone over and discussed the provisions of the plea agreement form with defendant.
8
He had prepared the majority of the handwritten portions of the plea agreement, though
he had had some assistance from the prosecutor. Attorney Granville recalled that he had
placed an “X” in the box indicating that defendant would receive “Old 4019” credits, but
the prosecutor informed him that Penal Code section 4019 credits would not apply in this
case; she therefore scratched out the “X” in the “Old 4019” box, and marked an “X” in
the box for credits under Penal Code section 2933.1. Attorney Granville did not
remember precisely, but believed that this had occurred after both he and defendant had
filled in and signed the plea agreement form. He also remembered “mentioning it”—i.e.,
the change—to defendant before the plea was taken. On cross-examination, however, he
stated that he did not recall specifically having any discussion with defendant about
reduced earning of custody credits. However, defendant “was aware of . . . less credits
with a strike than if it was a nonstrike.” In response to questioning by the court, attorney
Granville agreed that he considered the changes in the law that reduced conduct credits
for inmates convicted of violent felonies to be significant, and it was the attorney’s
custom and practice to advise his clients about the credits they could earn. Attorney
Granville testified, “I discussed that with [defendant] at least once. He knew . . . he
would have to do 85 percent of the 11 years. I believe we did the math in a general sense
as to how much actual time that would calculate out to be.”
The public defender argued the motion to the court, conceding that the failure to
advise of reduced credits, in and of itself, would not be a ground to withdraw the plea.
The additional issue, however, was whether the alteration after the plea agreement had
9
been initialed and signed had somehow voided the contract. The prosecutor responded
that attorney Granville’s testimony was that he did discuss with defendant that defendant
was pleading to a strike offense, and that such a plea carried with it the reduction in
ability to earn credits. Defendant had undisputedly initialed the plea consequences
portion of the form, including an express advisement that the ability to earn credits would
be reduced. In that context, any alteration to the plea form was insignificant.
Defendant attempted to intervene: “Excuse me, . . . when I signed the—” The
court cut defendant off, however, and instructed that the argument was to be conducted
by the lawyers. Defendant spoke up again, “Well, because it wasn’t—,” but the court
directed defendant to speak to the public defender, and not to address the court directly.
The public defender took the opportunity to consult with defendant at that point. The
court inquired whether the parties had anything else to present on the motion to withdraw
the plea. The public defender replied, “Nothing that makes a legal difference.”
The court then proceeded to summarize the documents and evidence it had
reviewed, as well as the substance of the claim. The court was satisfied that defendant
had been advised of the reduced credits, and it took into consideration that defendant had
expressly told the court at the taking of the plea that he understood everything on the
form. The court therefore denied the motion to withdraw the plea.
10
5. Order Relieving Retained Counsel, Appointment of the Public Defender, and
Sentencing
The matter then proceeded to sentencing. The court asked, “Who’s going to
represent [defendant] for the purpose of pronouncement of judgment? [¶] It was my
recollection that Mr. Granville is still attorney of record for the case.” Attorney Granville
confirmed the court’s understanding, but reminded the court of his request to be relieved
because of a conflict of interest. The public defender indicated that he would be able to
conduct the pronouncement of judgment proceedings, as he had previously participated in
representing defendant before attorney Granville had been retained, and he was “attorney
of record at least for the purpose of this motion.”
Attorney Granville advised the court that, notwithstanding the ruling on the
motion to withdraw the plea, he still felt he had a conflict of interest with defendant,
and still wished to be relieved. The court asked, “do you have any objection to that,
Mr. Walker?” Defendant answered, “Yes, I have an objection because—” The court
interrupted before defendant could answer, however, saying, “Just one second. Let me
be real specific. Do you have any objection to me relieving Mr. Granville as your
attorney?” Defendant replied, “Yes, I do.” Defendant started to explain, saying,
“[b]ecause—” but the court cut him off: “I don’t want to hear any becauses. That’s not
going to be something I’m going to listen to at this time unfortunately. I was—I was
interested in what your response was. I’d like to have given you what you wanted,
and if you wanted to have him relieved, then I would be looking at a unanimous
11
request. . . . [¶] . . . [¶] As it is, Mr. Granville’s attorney of record, and he’s telling me he
has an actual conflict, and I can’t, nor do I intend, to go behind his representation. I
think, by the way, that the circumstances causing that conflict . . . may not be apparent,
but they could probably be figured out if somebody wanted to look behind the
circumstances of all of the discussions we have had today. [¶] Mr. Granville, I think that
your representation of a conflict is sufficient for me. I’m ordering that you are relieved.”
The court appointed the public defender as attorney of record for all purposes, including
pronouncement of judgment.
The court denied probation and imposed sentence as agreed in the plea bargain:
Five years (aggravated term) on the first robbery count, plus four years for the weapon
enhancement, plus one year each (one-third the middle term) for each of the other two
robberies, for a total of 11 years. The court awarded defendant 713 days of credit in
actual custody, plus 107 days in conduct credits, for a total of 820 days.
6. Notice of Appeal, Denial of Certificate of Probable Cause, and Amended Notice of
Appeal
Defendant filed an initial notice of appeal, requesting a certificate of probable
cause, on the grounds that attorney Granville had given inadequate advice in preparing
and taking the plea, and that the trial court had erred in denying the motion to withdraw
the plea. The trial court denied the certificate of probable cause. Defendant filed an
amended notice of appeal, asserting that the appeal was based on sentencing or other
matters occurring after the plea.
12
Defendant now asserts that the trial court’s granting of attorney Granville’s motion
to be relieved, over defendant’s objection and without hearing the ground of defendant’s
objection, was a deprivation of his constitutional right to counsel of his choice, and
reversible per se.
ANALYSIS
I. THE TRIAL COURT ERRED IN RELIEVING TRIAL COUNSEL OVER
DEFENDANT’S OBJECTION WITHOUT MAKING ANY INQUIRY INTO THE
NATURE OF THE ASSERTED CONFLICT OF INTEREST
A. The Sixth Amendment Right to Counsel Is Independent of the Right to a Fair Trial
In United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [126 S. Ct. 2557; 165
L. Ed. 2d 409], the United States Supreme Court wrote, “The Sixth Amendment provides
that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.’ We have previously held that an element of this
right is the right of a defendant who does not require appointed counsel to choose who
will represent him. See Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100
L. Ed. 2d 140 (1988). Cf. Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158
(1932) (‘It 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’).
The Government here agrees, as it has previously, that ‘the Sixth Amendment guarantees
a 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
13
is without funds.’ Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-
625, 109 S. Ct. 2646, 109 S. Ct. 2667, 105 L. Ed. 2d 528 (1989).” (Id. at p. 144 [165
L. Ed. 2d 409, 416-417].)
The ability to select one’s own counsel (where the defendant does not require
appointed counsel) is a substantive guaranty, independent from general considerations of
fairness implicit in the notions of due process. In other words, it is not merely an adjunct
to the Fifth Amendment’s Due Process Clause. (United States v. Gonzalez-Lopez, supra,
548 U.S. 140, 145 [165 L. Ed. 2d 409, 417].) Although “[i]t is true enough that the
purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it
does not follow that the rights can be disregarded so long as the trial is, on the whole,
fair. . . . [¶] So also with the Sixth Amendment right to counsel of choice. It commands,
not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that
the accused be defended by the counsel he believes to be best. ‘The Constitution
guarantees a fair trial through the Due Process Clauses, but it defines the basic elements
of a fair trial largely through the several provisions of the Sixth Amendment, including
the Counsel Clause.’ [Citing] Strickland [v. Washington (1984) 466 U.S. 668,] 684-685,
104 S. Ct. 2052, [2064, 2068,] 80 L. Ed. 2d 674. In sum, the right at stake here is the right
to counsel of choice, not the right to a fair trial . . . .” (United States v. Gonzalez-Lopez,
supra, 548 U.S. 140, 145-146 [165 L. Ed. 2d 409, 417-418].) In Gonzalez-Lopez, the trial
court had erroneously refused the request of defendant’s preferred attorney for admission
pro hac vice to practice before the court. The United States Supreme Court held that the
14
defendant’s Sixth Amendment “right was violated because the deprivation of counsel was
erroneous. No additional showing of prejudice is required to make the violation
‘complete.’” (Id. at p. 146.)
B. The Right to Counsel of Choice Is Not Absolute, But May Be Limited by Other
Circumstances
However, “[t]he Sixth Amendment right to choose one’s own counsel” is not
absolute, but “is circumscribed in several important respects.” (Wheat v. United States
(1998) 486 U.S. 153, 159, [108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140, 148].)
For example, the right to counsel requires a minimum standard of competency
(except in the case of self-representation). Constitutionally required competency is
measured at the threshold by qualification as a member of the bar. Therefore, at a
minimum, “Regardless of his persuasive powers, an advocate who is not a member of the
bar may not represent clients (other than himself) in court. [Fn. omitted.]” (Wheat v.
United States, supra, 486 U.S. 153, 159 [100 L. Ed. 2d 140, 149].)
Another limitation on the right to counsel of one’s choice is reflected in the
differential treatment of retained, as opposed to appointed, counsel. “Similarly, a
defendant may not insist on representation by an attorney he cannot afford or who for
other reasons declines to represent the defendant.” (Wheat v. United States, supra, 486
U.S. 153, 159 [100 L. Ed. 2d 140, 149].) The right to one’s attorney of choice is afforded
greater scope when counsel is retained (i.e., willing to accept employment for whatever
fee is agreed), in comparison to when counsel is appointed.
15
Conflicts of interest may also limit the right to counsel of one’s choice. As the
United States Supreme Court stated in Wheat v. United States, supra, 486 U.S. 153, 159
[100 L. Ed. 2d 140, 149], “Nor may a defendant insist on the counsel of an attorney who
has a previous or ongoing relationship with an opposing party, even when the opposing
party is the Government.” (Ibid.) The instant case involved a purported conflict of
interest. We now examine the circumstances in which a conflict of interest might limit a
defendant’s Sixth Amendment right to counsel of his or her choice.
C. The Sixth Amendment Right to Counsel Is Subject to Some Limitations by Potential
or Actual Conflicts of Interest
Under the Sixth Amendment, a defendant in a criminal case has a right to the
assistance of counsel. The constitutional guaranty “entitles the defendant not to some
bare assistance but rather to effective assistance.” (People v. Ledesma (1987) 43 Cal. 3d
171, 215.) As noted, admission to the relevant bar is the initial measure of minimum
competency. That is, a defendant is entitled to the reasonably competent assistance of an
attorney acting as a diligent and conscientious advocate. (See, e.g., Strickland v.
Washington (1984) 466 U.S. 668, 686-689 [104 S. Ct. 2052, 2064-2065, 80 L. Ed. 2d 674,
692-694]; United States v. De Coster (D.C. Cir. 1973) 487 F.2d 1197, 1202.) Included in
the right to the effective assistance of counsel is “a correlative right to representation that
is free from conflicts of interest.” (Wood v. Georgia (1981) 450 U.S. 261, 271 [101 S. Ct.
1097, 67 L. Ed. 2d 220, 230]; accord, Leversen v. Superior Court (1983) 34 Cal. 3d 530,
536-537.)
16
“Conflicts of interest broadly embrace all situations in which an attorney’s loyalty
to, or efforts on behalf of, a client are threatened by his [or her] responsibilities to another
client or a third person or by his [or her] own interests. (See generally ABA, Model
Rules Prof. Conduct (1983) rule 1.7 and com. thereto [hereinafter ABA, Model Rules].)”
(People v. Bonin (1989) 47 Cal. 3d 808, 835.) These conflicts of interest may take any of
several forms.
a. Types of Conflict of Interest
i. Multiple Representation
Conflicts of interest may result from representing more than one client in the same
proceeding. The question raised in Wheat v. United States was, “the extent to which a
criminal defendant’s right under the Sixth Amendment to his chosen attorney is qualified
by the fact that the attorney has represented other defendants charged in the same
criminal conspiracy.” (Wheat v. United States, supra, 486 U.S. 153, 159 [100 L. Ed. 2d
140, 149].) The United States Supreme Court noted that conflicts of interest arising from
multiple representation “engenders special dangers of which a court must be aware.
While ‘permitting a single attorney to represent codefendants . . . is not per se violative of
constitutional guarantees of effective assistance of counsel,’ Holloway v. Arkansas, 435
U.S. 475, 482, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978), a court confronted with and alerted
to possible conflicts of interest must take adequate steps to ascertain whether the conflicts
warrant separate counsel.” (Id. at pp. 159-160 [100 L. Ed. 2d 140, 149].) Waivers by the
respective defendants in a multiple-representation context are not necessarily sufficient to
17
cure all problems arising from the conflicting interests: “Federal courts have an
independent 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. . . . Not only the interest of a criminal defendant but the institutional interest in the
rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple
representation. [¶] For this reason, the Federal Rules of Criminal Procedure direct trial
judges to investigate specially cases involving joint representation.” (Id. at pp. 160-161
[100 L. Ed. 2d 140, 149-150].)
ii. Serial Representation
Conflicts of interest may arise not only out of multiple representation in a single
case, but also from representation of different clients in different proceedings. In
Leversen v. Superior Court, supra, 34 Cal. 3d 530, defense counsel for one defendant in a
multi-defendant case realized in the middle of trial that his firm had previously
represented a witness for the codefendant. Because the codefendant knew the witness by
a different name, defense counsel had not recognized his firm’s connection to the
witness’s separate case. It was not until the witness appeared in court that he made the
connection. (Id. at pp. 533-534.) Defense counsel informed the court that, as soon as the
witness was called to the stand, he would have to declare a conflict of interest and move
for a mistrial. Even if the witness would claim his Fifth Amendment privilege on the
stand, and would refuse to testify, defense counsel nevertheless reiterated that the conflict
still existed, and he would still have to ask to be relieved. (Ibid.) The defendant declined
18
to waive the conflict. The trial court denied defense counsel’s motion to be relieved, on
the theory that the witness was not a codefendant, and his refusal to testify would
eliminate any need for defense counsel to cross-examine him. (Id. at p. 534.)
Having denied defense counsel’s request to be relieved, the court proceeded with
the trial. In front of the jury, the witness was called to the stand, gave his name, and
refused to answer questions whether he was present at the time and place of the crimes.
The witness was excused, and the codefendant re-took the stand, identifying the witness
as one of the persons she claimed had coerced her to participate in the crimes. Defense
counsel announced that he was “not able to examine” the codefendant on cross-
examination, because a conflict of interest still existed. First, the witness “‘has been
asserted as an uncharged codefendant in this particular case,’” whereas, second, defense
counsel’s firm “was representing [the witness] in a similar jewelry store robbery
prosecution,” and third, defense counsel “might have to use confidential information in
calling rebuttal witnesses.” (Leversen v. Superior Court, supra, 34 Cal. 3d 530, 534.) He
renewed his request to be relieved on that basis. The trial court denied the motion to be
relieved, “declaring its inability to see any possible conflict in light of the facts that [the
witness] was not a defendant and had declined to testify and that it was too late in the trial
to recall [the defendant] for examination on matters testified to earlier.” (Ibid.)
The court did continue the matter, however, to hear further argument on the
motion to be relieved. At that hearing, defense counsel’s firm submitted a memorandum
signed by several of the firm’s attorneys, representing “‘as officers of the court’ that ‘a
19
conflict of interest has arisen between other clients of the firm and [the defendant]’ and
that ‘they cannot adequately or fully represent [the defendant] without violating the
privilege of other clients.’ The memo stated they would immediately ask to be relieved
as [the witness’s] counsel in the other matters in which they represented him, and at the
hearing counsel stated that those requests had been granted. The memo further said that
the firm ‘possesses privileged information from a client other than [the defendant]
germane to [the defendant’s] trial; counsel cannot discuss that information with [the
defendant] without violating the privilege, and cannot independently pursue it without
adversely affecting the interests of another client and further violating the privilege.’”
(Leversen v. Superior Court, supra, 34 Cal. 3d 530 at pp. 534-535.) The court again
denied the motion to be relieved, and denied a motion for mistrial. The court “ruled that
the showing of conflict was insufficient, declaring that it, not counsel, must be the ‘final
arbiter’ of the existence of a material conflict of interest.” (Id. at p. 536.) Defense
counsel maintained that “the conflict was based on privileged information of which
counsel could not reveal the nature or source ‘other than to tell the court it is privileged
and that we feel, in accordance with our oath, that it is germane and that it creates a
conflict.’ Counsel further asserted that a substitute attorney might ‘very well get the
information from other sources.’ The court told counsel that ‘there has to be some clue to
the court’ and that here there was no basis for even a ‘reasonable, informed speculation’
that a disqualifying conflict existed.” (Ibid.)
20
It was in this posture—being directed to proceed with representation when defense
counsel felt that a conflict of interest existed between two clients whom he had
represented in different proceedings—that he sought a writ of mandate. The California
Supreme Court ruled that conflicts of interest between clients in different proceedings, no
less than conflicts between multiple clients in a single proceeding, “may impair a
defendant’s constitutional right to assistance of counsel.” (Leversen v. Superior Court,
supra, 34 Cal. 3d 530, 538.) That is, “An attorney is forbidden to use against a former
client any confidential information that was acquired during that client relationship.
[Citations.] Moreover, the attorney has a duty to withdraw, or apply to a court for
permission to withdraw, from representation that violates those obligations. (Rules Prof.
Conduct, rule 2-111(B)(2).) So important is that duty that it has been enforced against a
defendant’s attorney at the instance of his former client (who was also a codefendant)
even at the expense of depriving the defendant of his choice of counsel. [Citation.]”
(Ibid.) The California Supreme Court was persuaded that, with respect to conflicts of
interest requiring withdrawal, “counsel ‘is in the best position professionally and ethically
to determine when a conflict of interest exists or will probably develop,’” and that
“defense attorneys have an obligation to advise the court of any conflict of interest; and
that attorneys are officers of the court, and their representations concerning conflicts
‘should be given the weight commensurate with the grave penalties risked for
misrepresentation.’” (Id. at p. 537.) The Supreme Court noted, however, that “the trial
court remains free to deal with ‘untimely motion[s] for separate counsel . . . made for
21
dilatory purposes’ and to ‘explor[e] the adequacy of the basis of defense counsel’s
representations regarding a conflict of interest without improperly requiring disclosure of
the confidential communications of the client.’” (Ibid.) The court struck a balance
between counsel’s declaration of conflict, which should be given “great weight,” on the
one hand, and the trial court’s power and duty to make inquiries into the basis for the
claim underlying a request to relieve counsel, on the other. In Leversen, the trial court
had had many indicia before it of the conflict, its nature, and its actual existence: trial
defense counsel and members of the firm had expressly asserted the conflict, the court
was informed of the actuality of the representation of two different clients in two
different proceedings, one of the clients was identified by other witnesses as the
(uncharged) “mastermind” of the criminal scheme for which the other client was on trial.
Rather obviously, information obtained in confidence from one client could damage the
interests of the other client, placing the attorney in an untenable position, requiring either
the betrayal of confidences (using the information) or inability to represent the client
adequately (being constrained not to use the information). The inquiry undertaken by the
court, together with the good faith representations of defense counsel to the court,
combined to establish the conflict as a matter of law. The trial court had therefore erred
in denying defense counsel’s motion to be relieved. (Id. at p. 537-540.)
The instant case differs from Leversen in two significant respects. First, unlike the
client in Leversen, defendant here attempted to object to relieving trial counsel, and
maintains that he would waive the asserted conflict of interest. Second, more
22
importantly, the trial court here made no inquiry at all into the nature of the conflict of
interest. Even though, under the state Constitution at least, trial judges should give “great
weight” to an attorney’s assertion of a conflict of interest, the court still has its
independent duty to protect the defendant’s right to representation by retained counsel of
choice. The court’s duty includes the duty to inquire, so far as possible without requiring
counsel to divulge confidential information, into the nature of the claimed conflict. Here,
the court made no such inquiry.
iii. Financial Conflicts of Interest
Another potential source of a conflict of interest affecting representation is the
attorney’s acquisition of a financial interest that may potentially be adverse to the client.
For example, “Conflicts may also arise in situations in which an attorney undertakes
representation of a defendant in exchange for the literary rights to a portrayal or account
based on information relating to the representation. [Citations.]” (People v. Bonin,
supra, 47 Cal. 3d 808, 836.) “‘A grave conflict of interest can arise out of an arrangement
between a lawyer and an accused to give to the lawyer the right to publish books, plays,
articles, interviews or pictures, or related literary rights concerning the case. . . . [It] may
place the lawyer under temptation to conduct the defense with an eye on the literary
aspects and its dramatic potential. If such an arrangement or contract is part of the fee, in
lieu of the fee, or a condition of accepting the employment, it is especially reprehensible.’
[Citations.]” (Ibid.; however, cf. People v. Doolin (2009) 45 Cal. 4th 390, 420-421 [no
23
financial conflict of interest arose from counsel’s lump-sum compensation agreement in
capital representation case].)
iv. Arguing One’s Own Incompetence and Irreparable Breakdown of the
Attorney-Client Relationship
We are familiar with two additional common sources of conflict of interest, which
might create such a serious conflict between the attorney and the client that
constitutionally adequate representation is not possible.
The California Supreme Court recognized in People v. Smith (1993) 6 Cal. 4th
684: “It is true that when a defendant claims after trial or guilty plea that defense counsel
was ineffective, and seeks substitute counsel to pursue the claim, the original attorney is
placed in an awkward position,” which could possibly involve a conflict of interest
sufficient to disable the proper attorney-client relationship. (Id. at p. 694.) The
California Supreme Court discussed the matter of the appointment of separate or
substitute counsel for purposes of bringing a motion attacking the competence of a
defendant’s attorney. The issue was whether the standard was different at an early or late
stage of the proceedings. “The attorney must defend against charges from the very client
he or she is supposed to be representing. The potential for conflict is obvious. But the
same potential for conflict exists before trial as well. And the conflict is
unavoidable. [¶] . . . [¶] Similarly, it is difficult for counsel to argue his or her own
incompetence. However, the possibility that the defense might benefit from such an
argument can arise at any stage of the proceedings. . . . [¶] . . . [¶] Appointment of
24
counsel for the purpose of arguing that previous counsel was incompetent, without an
adequate showing by defendant, can have undesirable consequences. In People v.
Makabali (1993) 14 Cal. App. 4th 847 [18 Cal. Rptr. 2d 72], the trial court appointed
second counsel to investigate a possible motion to withdraw a guilty plea on the basis of
ineffective assistance of counsel. New counsel did not make the motion. On appeal,
appointed appellate counsel, i.e., the third attorney, claimed (unsuccessfully) that the
second was incompetent for not claiming the first was incompetent. The spectacle of a
series of attorneys appointed at public expense whose sole job, or at least a major portion
of whose job, is to claim the previous attorney was, or previous attorneys were,
incompetent discredits the legal profession and judicial system, often with little benefit in
protecting a defendant's legitimate interests. [¶] We note also that in People v.
Makabali, supra, 14 Cal. App. 4th 847, the original attorney was apparently not relieved of
further representation of the defendant. He represented the defendant at sentencing, after
the second attorney did not move to withdraw the plea. (Id. at p. 850.) We are unaware
of any authority supporting the appointment of simultaneous and independent, but
potentially rival, attorneys to represent defendant. When a Marsden2 motion is granted,
new counsel is substituted for all purposes in place of the original attorney, who is then
relieved of further representation. If the Marsden motion is denied, at whatever stage of
the proceeding, the defendant is not entitled to another attorney who would act in effect
as a watchdog over the first. [¶] We stress, therefore, that the trial court should appoint
2 People v. Marsden (1970) 2 Cal. 3d 118, 124-125.
25
substitute counsel when a proper showing has been made at any stage. A defendant is
entitled to competent representation at all times, including presentation of a new trial
motion or motion to withdraw a plea. For the reasons identified in People v. Fosselman,
supra, 33 Cal.3d at pages 582-583, justice is expedited when the issue of counsel’s
effectiveness can be resolved promptly at the trial level. In those cases in which counsel
was ineffective, this is best determined early. Thus, when a defendant satisfies the trial
court that adequate grounds exist, substitute counsel should be appointed. Substitute
counsel could then investigate a possible motion to withdraw the plea or a motion for
new trial based upon alleged ineffective assistance of counsel. Whether, after such
appointment, any particular motion should actually be made will, of course, be
determined by the new attorney. [¶] We stress equally, however, that new counsel
should not be appointed without a proper showing. A series of attorneys presenting
groundless claims of incompetence at public expense, often causing delays to allow
substitute counsel to become acquainted with the case, benefits no one. The court should
deny a request for new counsel at any stage unless it is satisfied that the defendant has
made the required showing. This lies within the exercise of the trial court’s discretion,
which will not be overturned on appeal absent a clear abuse of that discretion. [¶] We
thus hold that substitute counsel should be appointed when, and only when, necessary
under the Marsden standard, that is whenever, in the exercise of its discretion, the court
finds that the defendant has shown that a failure to replace the appointed attorney would
substantially impair the right to assistance of counsel (People v. Webster, supra, 54
26
Cal.3d at p. 435), or, stated slightly differently, if the record shows that the first appointed
attorney is not providing adequate representation or that the defendant and the attorney
have become embroiled in such an irreconcilable conflict that ineffective representation
is likely to result [citation]. This is true whenever the motion for substitute counsel is
made. There is no shifting standard for the trial court to apply, depending upon when the
motion is made.” (Id. at pp. 694-696.)
As the California Supreme Court has made clear, appointment of separate counsel
may be required if, and only if, there has been an initial showing that the first attorney
was incompetent, such that the first attorney would be unable, because of a conflict of
interest, to argue his or her own incompetence in bringing a motion, at whatever stage of
the proceedings such a motion would be required. The California Supreme Court’s
pronouncements in Smith took place in the context of discharging one appointed attorney
in favor of a second. If a defendant has retained counsel, the retained attorney may be
discharged (subject to limitations) without necessity of a Marsden showing. (People v.
Ortiz (1990) 51 Cal. 3d 975, 984.) Here, unlike Smith, defendant did not seek to
discharge his retained counsel. The issue of a conflict of interest in arguing one’s own
incompetence is, however, a potentiality in either retained or appointed representation.
However, the need to argue one’s own incompetence in a motion for, e.g., a new
trial, or, as here, to withdraw a plea, does not of itself necessarily constitute a conflict of
interest sufficient to interfere with a defendant’s Sixth Amendment right to assistance of
counsel. That is, even if “it is difficult for counsel to argue his or her own
27
incompetence,” (see People v. Smith, supra, 6 Cal. 4th 684, 694) the cases do not suggest
that it is impossible for counsel to do so; in other words, it is not necessarily the case that
asking counsel to make a motion arguing his or her own incompetence constitutes a
conflict of interest so severe that representation cannot continue. (See People v. Sanchez
(2011) 53 Cal. 4th 80, 89 [“‘It is difficult for counsel to argue his or her own
incompetence’ [citation], but we neither suggested it is impossible for counsel to do so
nor that a trial court should presume a defendant is requesting substitute counsel. . . .”].)
Even a conflict of interest such as requiring an attorney to argue for his or her own
incompetence does not automatically require appointment of separate counsel.
“Instead, . . . ‘substitute counsel should be appointed when . . . necessary under the
Marsden standard, that is whenever, in the exercise of its discretion, the court finds that
the defendant has shown that a failure to replace the appointed attorney would
substantially impair the right to assistance of counsel [citation], or, stated slightly
differently, if the record shows that the first appointed attorney is not providing adequate
representation or that the defendant and the attorney have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result [citation].’
[Citation.]” (Ibid.)
The instant case involved—at least initially—one of these well-recognized
potential conflicts of interest: requiring an attorney to argue for his or her own
incompetence. When attorney Granville first requested to be relieved, on the ground of
an asserted conflict of interest, he explained that defendant wished to withdraw his plea
28
for two identifiable reasons having to do with the earning of conduct credits, and the
three strikes treatment of his current convictions. Both grounds, inferentially, would
implicate the competence of attorney Granville’s representation of defendant in the
context of the plea bargain. In other words, it would be difficult for attorney Granville to
undertake a motion to withdraw the plea, if the grounds were based upon having to argue
his own incompetence. (See, e.g., People v. Stewart (1985) 171 Cal. App. 3d 388, 394-
395.)
Here, the trial court did appoint separate counsel, perhaps too readily and without
making the determination required under Sanchez and Smith, i.e., whether the record
showed that attorney Granville was not providing adequate representation (and so would
be conflicted in arguing for his own incompetence in bringing a motion to withdraw the
plea), or whether the attorney and client had become embroiled in an irreconcilable
conflict. Nevertheless, the court did appoint separate counsel for purposes of bringing
the motion, in an abundance of caution, to address the potentiality for a conflict of
interest. The public defender filed the motion, which was then heard and denied.
D. When the Court Is Informed of a Possible Conflict of Interest, the Court Must Inquire
to Determine Whether a Potential or Actual Conflict Exists, and Whether it Could Impair
the Defendant’s Sixth Amendment Rights
A trial court may become aware, through any of several means, of the possibility
of a conflict of interest between a defendant and his or her counsel. The courts have
consistently recognized that, whenever a trial court “knows or should know that defense
29
counsel has a possible conflict of interest with his [or her] client, it must inquire into the
matter [citations] and act in response to what its inquiry discovers [citation].” (People v.
Jones (1991) 53 Cal. 3d 1115, 1136.) In federal jurisprudence, the necessary inquiry may
be made pursuant to a Curcio hearing (United States v. Curcio (2d Cir. 1982) 680 F.2d
881): “At such a hearing, the trial court (1) advises the defendant of his right to
representation by an attorney who has no conflict of interest, (2) instructs the defendant
as to the dangers arising from particular conflicts, (3) permits the defendant to confer
with his chosen counsel, (4) encourages the defendant to seek advice from independent
counsel, (5) allows a reasonable time for the defendant to make a decision, and
(6) determines, preferably by means of questions that are likely to be answered in
narrative form, whether the defendant understands the risk of representation by his
present counsel and freely chooses to run them. [Citation.] The ultimate goal of these
procedures is to permit the court to determine whether the defendant’s waiver of his right
to conflict-free counsel is knowing and intelligent. [Citation.]” (United States v. Perez
(2d Cir. 2003) 325 F.3d 115, 119.)3
In People v. Bonin, supra, 47 Cal. 3d 808, 837-838, the California Supreme Court
held that the failure by the trial court to make the necessary inquiry, or to respond to what
the inquiry shows, is reversible error only if the defendant shows “that an actual conflict
of interest existed and that that conflict affected counsel’s performance.” Defendant here
3 Not all federal courts require the formality of a Curcio hearing. See United
States v. Scarfo (E.D. Pa. 1997) 980 F. Supp. 803, 808.
30
relies on cases stating to the effect that the erroneous deprivation of the Sixth
Amendment right to counsel of choice is a structural error, and reversible per se without a
showing of prejudice.
It is difficult, however, to mandate that a defendant must show both that an actual
conflict existed, and that the conflict impaired counsel’s performance, when the
defendant maintains that there was no conflict of interest and that counsel should not
have been discharged.
As we have stated, when attorney Granville first asserted the possible existence of
a conflict of interest, the sole ground of conflict was that defendant wanted to bring a
motion to withdraw his plea, and that the grounds for the motion might involve attorney
Granville having to argue for his own incompetence. That conflict of interest was
addressed by the appointment of separate counsel for the purpose of bringing the motion.
Appointed counsel did file the motion, and the motion was fully explored, heard, and
denied.
Thereafter, all that remained in the case was the imposition of the sentence as
agreed in the terms of the bargain. Nevertheless, attorney Granville asserted that he still
wanted to withdraw, and still felt that a conflict existed. The court refused to make any
inquiry whatsoever into the nature of the conflict.
After denying the motion to withdraw the plea, the trial court remarked, “I think,
by the way, that the circumstances causing that conflict . . . may not be apparent, but they
could probably be figured out if somebody wanted to look behind the circumstances of
31
all of the discussions we have had today.” The previously articulated conflict of
interest—having to argue one’s own incompetence—had been addressed by the
appointment of a different attorney to bring the motion to withdraw the plea. After the
motion was denied, no actions that remained to be performed in defendant’s case would
require any exercise of professional discretion, or legal reasoning or acumen on the part
of the attorney representing defendant. Only pronouncement of the agreed-upon
judgment remained.
In this posture, despite the trial court’s remarks, the ground of conflict of interest
was not apparent. Any conflict of interest engendered by defendant’s desire to bring a
motion to withdraw his plea had been answered. Here, unlike in other cases, the conflict
did not result from the representation of multiple clients. There was no prospect of
compromise of the duty of loyalty or the duty of zealous representation toward one client,
because of confidential information obtained from a different client. Contrary to the
court’s surmise—that the ground of conflict of interest could be “figured out” from the
earlier proceedings—once the motion had been decided, no ground of actual or potential
conflict is readily discernible. Attorney Granville’s concerns had been addressed when
independent counsel had been appointed, and had evaporated with the decision on the
motion. The trial court made no inquiry whatsoever, even a cursory one, to ascertain the
source of the alleged conflict of interest, beyond what had already been addressed
(asserting one’s own incompetence in a motion to withdraw the plea).
32
Nor does the record support the existence of an irremediable breakdown in the
attorney-client relationship. Attorney Granville, testifying at the hearing on the motion to
withdraw his plea, disagreed with defendant’s assertions in regard to the motion, but his
own memory of the events was not altogether distinct. The matter was drawn as one of
differing recollections between witnesses, rather than accusing defendant of deliberate
falsehood. Attorney Granville may have been left with the belief that defendant falsely
accused him of incompetence, or that defendant may have lied in his hearing testimony,
but such a “conflict” was compatible with continued representation. Defendant
manifestly did not believe there had been an irreparable breakdown in their relationship;
he objected to the motion to relieve counsel, although he was prevented from stating any
grounds. Attorneys commonly represent clients who lie, and who distrust their counsel,
and they are able to do so professionally and competently, within the effective assistance
mandate of the Sixth Amendment.
In this case, there was no occasion for any disagreements between defendant and
attorney Granville to manifest themselves. The only matter that remained was the
pronouncement of the sentence. No advocacy for a particular sentence was required; the
sentence to be imposed was that agreed to in the plea bargain. Moreover, to the extent
there was any issue as to the custody credits defendant would receive, or his three strikes
status, defendant’s concerns in those areas had been addressed in the motion to withdraw
the plea, and those matters had already been determined adversely to defendant. There
was, to all appearances, no actual or potential conflict of interest which would have
33
prevented attorney Granville from competently representing defendant at the sentence
pronouncement proceeding; if such a conflict existed, it was not obvious, and the trial
court should have inquired further to discover an articulable ground of such conflict. The
failure to make the inquiry erroneously deprived defendant of his Sixth Amendment right
to counsel of his choice.
II. ALTHOUGH THE TRIAL COURT ERRED IN FAILING TO INQUIRE INTO THE
NATURE OF AN ASSERTED CONFLICT OF INTEREST, AND EVEN THOUGH
THE ERROR DEPRIVED DEFENDANT OF THE SIXTH AMENDMENT RIGHT TO
COUNSEL OF HIS CHOICE, REVERSAL IS NOT REQUIRED UNDER THE
CIRCUMSTANCES OF THIS CASE BECAUSE NO EFFECTIVE RELIEF CAN BE
AFFORDED TO DEFENDANT; THE APPEAL MUST BE DISMISSED AS MOOT
Even if we accept defendant’s argument that the trial court erred in relieving
attorney Granville, that the error resulted in a deprivation of defendant’s Sixth
Amendment right to counsel of his choice, that the error is a structural error going to the
substance of the Sixth Amendment right, and that structural error requires reversal per se,
without regard to any issue of prejudice, we nevertheless determine that reversal is not
required in this case. Rather, we are confronted with circumstances in which, even if the
judgment were reversed, the reversal would be fruitless because no effective relief can be
granted to defendant.
A reversal and remand for the trial court to conduct an inquiry into the nature of
the alleged conflict of interest would achieve either one of two identical results: The
34
inquiry might establish that there was, indeed, an actual conflict of interest between
attorney Granville and defendant, such that the attorney could not meet the constitutional
obligation to represent defendant effectively. Such a conflict could require the court to
disqualify or discharge the attorney, in which case the court would appoint new counsel
to stand with defendant while the agreed-upon sentence is again pronounced.
Alternatively, a hearing might establish that there was no actual conflict or no serious
potential conflict between defendant and attorney Granville, so that the trial court should
not have relieved the attorney from representation. In such a case, attorney Granville
would be obligated to stand with defendant while the court yet again imposes the agreed-
upon sentence. No purpose would be served by forcing the trial court to go through the
motions of determining whether an actual conflict, or a serious potential for conflict, of
interest existed between defendant and attorney Granville. No matter what the outcome
of the hearing, no matter what attorney would ultimately represent defendant, the
identical sentence and judgment would be re-imposed.
The law does not require the performance of idle acts. (Civ. Code, § 3532; see
also People v. Coelho (2001) 89 Cal. App. 4th 861, 889 [“[R]eviewing courts have
consistently declined to remand cases where doing so would be an idle act that exalts
form over substance.”].) Where no effective relief can be granted, the appeal is moot,
and will be dismissed. (People v. Travis (2006) 139 Cal. App. 4th 1271, 1280 [“‘When no
effective relief can be granted, an appeal is moot and will be dismissed.’”].) Here, a
reversal and remand would result only in an exercise in futility, and would not alter the
35
outcome of the judgment and sentencing in any respect. Accordingly, we deem the
appeal moot, and we order it dismissed.
DISPOSITION
Even if defendant is correct that the trial court below violated his Sixth
Amendment right to counsel of his choice when it relieved his attorney from
representation over defendant’s objection and without making any inquiry into the nature
of the alleged conflict of interest, no practical purpose would be served by reversal and
remand to conduct a proper inquiry. Either original counsel was improperly relieved, and
would continue to represent defendant while the agreed-upon sentence is re-imposed, or
counsel was properly relieved, and substitute counsel properly represented defendant
while the agreed-upon sentence was imposed. Inasmuch as no effective relief can be
granted to defendant, and the law does not require the courts to engage in idle acts, we
conclude that the appeal is moot. Accordingly, we order the appeal dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
36