P. v. Jones

1 SEE CONCURRING OPINIONS
Filed 12/10/01
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT ALLEN JONES,
Defendant and Appellant.
C029333
(Super. Ct. No. 94F1672)
An indigent criminal defendant has no constitutional right
to the appointment of a particular attorney. I conclude,
however, that once an indigent defendant establishes an
attorney-client relationship with his court-appointed counsel,
and counsel is willing and able to continue that representation,
the state constitutional right to counsel of choice forecloses a
California court, except in narrow circumstances, from removing
that attorney because of a potential conflict of interest if the
defendant objects and is willing to make appropriate waivers.

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Those narrow circumstances are flagrant attorney misconduct or
incompetence, attorney incapacity, significant prejudice to
the defendant, or serious circumstances that undermine the
integrity of the judicial process and the orderly administration
of justice.
The state constitutional right to counsel of choice in the
retained context envisions a choice to hire a particular
attorney, while that right in the appointed context envisions a
choice to continue with the appointed attorney. Thus, an
indigent criminal defendant in an established attorney-client
relationship has the same right to waive a potential conflict
regarding his appointed attorney as a nonindigent defendant has
regarding his retained attorney.
I find that none of the narrow circumstances apply here;
and that the trial court erred in removing appointed counsel for
a potential conflict, over the defendant’s objection and without
allowing him a chance to waive that conflict. I also conclude
that because defendant did not pursue a timely writ to rectify
this error, the standard of harmless error applies, and the
error was harmless here.
As a prelude to my discussion, I briefly note the
following.
Defendant Scott Allen Jones was charged with murder.
Appointed counsel Gary Roberts (Roberts) represented defendant
from the outset and this relationship continued for over two
years, including the litigation of several significant pretrial
issues. When the trial court found that Roberts had a potential

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conflict of interest, the court removed Roberts as defendant’s
counsel. Defendant adamantly opposed this removal. The trial
court did not give defendant a chance to waive any conflicts.
Roberts had formerly represented a client that Roberts
wished to investigate as a possible suspect on the murder charge
facing defendant. This former representation had been minimal,
it was completely unrelated to defendant’s case, and it involved
no information that could be used in defendant’s case. New
counsel was appointed for defendant, and the case subsequently
proceeded to trial.
A jury convicted defendant of first degree murder. On
appeal, defendant contends the trial court violated his
constitutional right to counsel by removing Roberts as his
attorney over his objection. I agree as the contention pertains
to the state constitutional right to counsel of choice. I find
the error harmless, however.
DISCUSSION
1. The Conflict Facts and Procedural Background
Boyd Wagner, 92, was murdered in his home in February 1992.
Defendant, a neighbor of Wagner’s, was arrested and charged with
the murder in March 1994. Roberts was appointed at this time to
represent defendant. At the time, Roberts’s law office served
as the public defender’s office.
The case against defendant was built on circumstantial
evidence, including DNA evidence from a disputed pair of pants
found in defendant’s bedroom. Roberts engaged in extensive

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pretrial litigation on DNA issues, as well as issues concerning
discovery, suppression and other evidentiary matters.
On February 29, 1996, nearly two years into his
representation of defendant, Roberts informed the trial court
ex parte that Michael Wert (Wert) was a “very speculative”
suspect in the case. There was animosity between defendant and
Wert over a romantic relationship Wert had had with defendant’s
wife. Apparently Wert had tried to assault defendant.
According to Roberts, Wert had a motive to “frame” defendant.
Roberts had once represented Wert on a minor, unrelated matter.
Roberts’s last contact with Wert had been “a long time ago.”
Roberts also raised another theory, the possible
involvement of Joshua F. and Derrick L., as part of a larger
group, in the murder. Roberts at this point did not “have any
idea” whether Joshua F. was involved in the Wagner murder, and
apparently felt the same about Derrick L.’s possible
involvement. When Roberts’s office was the public defender’s
office, one of his colleagues had represented Joshua F. and
Derrick L. separately in brief, pro forma juvenile proceedings
unrelated to the Wagner murder.
Roberts told the court that neither he nor his office had
received any communication from Joshua F., Derrick L., or Wert
that could be used in defendant’s case or that would present any
problem in representing defendant.
After discussing the issues of conflict and waiver with
defendant, and noting that Wert may have to waive as well at
some point, the trial court appointed an independent attorney

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to advise defendant on these issues. Defendant opted to
continue with Roberts as his counsel. Roberts said he was fully
ready, willing and able to continue that representation. The
trial court concluded that no change of counsel was necessary.
Two weeks later, on March 14, 1996, Roberts informed the
court ex parte that he had spoken with two people knowledgeable
in the area of conflicts of interest. They saw no conflict
regarding Michael Wert, Joshua F., or Derrick L., because no
relevant confidential communications were at issue in any way.
As to Joshua F. and Derrick L., there were essentially no
communications. As to Wert, there were perhaps one or two jail
holding cell conferences with Roberts. Roberts assured the
court that no attorney-client confidences involving him or his
office and any of these three people “have been used, or would
be used, or will be used in [defendant’s] case.”
Roberts’s representation of Wert posed the only
representational issue worth discussing. The nature of that
representation was as follows. A month and a half before
Roberts was appointed as defendant’s attorney, he had
represented Wert. Wert had violated his probation on a drug
offense by “walking away.” Roberts negotiated a deal that if
Wert admitted the probation violation, the authorities would not
pursue the walk-away escape charge. Wert took the deal and went
to prison for four years. Roberts received a call from Wert’s
wife after having been appointed defendant’s attorney; she
wanted to know whether the walk-away charge had been dismissed.

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Roberts wrote a letter to Michael Wert in prison in June 1994
confirming the dismissal.
Roberts assured the trial court that he did “not feel
inhibited to any degree in pursuing the defense of [defendant]
because of any concerns . . . regarding [his] prior
representation of Mr. Wert.”
At another ex parte proceeding approximately three months
later, Roberts informed the trial court that he had discovered
that Wert had been released from the Shasta County Jail after
posting a substantial bail just a few days before Wagner’s
murder. This provided a suspicious chronology and a robbery
motive for Wert, in addition to the animosity and physical
confrontations between Wert and defendant (these confrontations
included Wert’s attempt to assault defendant, defendant’s
alleged assault of Wert, and Wert’s brother’s alleged assault of
defendant).
Roberts again assured the trial court that nothing that he
would use against Wert in defendant’s case had resulted from his
previous attorney-client relationship with Wert. The trial
court suggested that defendant might complain that Roberts had
not adequately investigated Wert because Roberts had formerly
represented him. Roberts also noted that he had a pending job
offer. Roberts stated that he would not abandon defendant over
the job offer, and that his prospective employer had said it
“would be very accommodating” if he had professional
responsibilities with defendant’s case in the transition.
Defendant wanted Roberts to continue as his counsel, stating

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“I don’t want to lose [Roberts]. Gone this far, you know.”
Roberts had noted at the March 14 hearing that it would be
emotionally and legally devastating for defendant to “have some
other lawyer step in in this case.”
The trial court took the matter under submission. Two days
later, on June 26, 1996, the court ruled that Roberts had a
conflict of interest and that new counsel would be appointed.
Defendant immediately sought and was granted an ex parte
hearing.
At the ex parte hearing, Roberts explained that it was
unlikely that Michael Wert would be called to testify in this
case. The trial court was more concerned that Wert’s status as
a former client of Roberts would somehow hinder Roberts’s
investigation of Wert. Defendant noted that if the Wert defense
were never raised, he would lose Roberts as his attorney over
nothing. Defendant said he did not want to pursue Wert as a
suspect. The trial court responded that defense counsel
controlled this aspect, and had to pursue Wert if that was in
the best interests of the defense. Roberts was removed as
defendant’s counsel, and new counsel was appointed.
“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 responsibilities to another client
or a third person or by his own interests.”1
1 People v. Bonin (1989) 47 Cal.3d 808, 835 (Bonin).

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“Conflicts spring into existence in various factual
settings.”2 For example, a conflict may arise when an attorney
represents a defendant in a criminal matter and formerly
represented a person who is a witness in that matter, or, as
here, who is a potential suspect in that matter.3 “Such a
conflict springs from the attorney’s duty to provide effective
assistance to the defendant facing trial and his fiduciary
obligations to the witness [or potential suspect] with whom
he . . . had a professional relationship.”4
“‘Few precepts are more firmly entrenched than that the
fiduciary relationship between attorney and client is of the
very highest character [citations] and, even though terminated,
forbids (1) any act which will injure the former client in
matters involving such former representation or (2) use against
the former client of any information acquired during such
relationship. [Citation.] Under the promulgated rules
governing professional conduct, which apply in criminal and
civil cases alike [citation], the ethical prohibition against
acceptance of adverse employment involving prior confidential
information includes potential as well as actual use of such
previously acquired information. [Citation.]’”5
2 Bonin, supra, 47 Cal.3d at page 835.
3 Bonin, supra, 47 Cal.3d at page 835.
4 Bonin, supra, 47 Cal.3d at page 835, citing Leversen v.
Superior Court (1983) 34 Cal.3d 530, 538 (Leversen).
5 People v. Thoi (1989) 213 Cal.App.3d 689, 699, quoting
Yorn v. Superior Court (1979) 90 Cal.App.3d 669, 675 (Yorn);

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There has never been an issue here that Roberts would
injure Wert, Joshua F., or Derrick L., “in matters involving
[Roberts’s or his office’s] former representation” of these
three people. Roberts represented Wert on a minor, unrelated
matter involving a violation of probation before Roberts was
appointed defendant’s counsel. Roberts’s office made a brief,
pro forma appearance on Joshua F.’s behalf in an unrelated
juvenile matter. And the record discloses that any
representation of Derrick L. did not even rise to either of
these levels.
More importantly here, the record shows that Roberts could
not have used against Joshua F., Derrick L., or Wert, any
information acquired during Roberts’s or his office’s
relationship with them. As to Joshua F. and Derrick L., the
record shows there was essentially no substantive information
communicated. As to Wert, the record is clear there was no
information acquired during their attorney-client relationship
that Roberts could have used against Wert in defendant’s case.
From defendant’s perspective, the record shows that
Roberts’s representation of Wert would not have hampered his
representation of defendant. Roberts assured the trial court
that he did not feel hindered in any way in investigating Wert
and presenting him as a suspect on the murder charge facing
defendant. Roberts reiterated that he did not feel inhibited
accord, Leversen, supra, 34 Cal.3d at page 538; Rules of
Professional Conduct, rule 3-310(E); Business and Professions
Code section 6068, subdivision (e).

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to any degree in pursuing defendant’s defense because of his
prior representation of Wert.
The law, however, presumes a conflict where there has been
a substantial attorney-client relationship with the former
client, especially where relevant confidential information might
have been imparted; this presumption includes the potential, as
well as actual, use of confidential information.6 The record
does not display this variety of conflict. As for Joshua F. and
Derrick L., the record shows no substantial attorney-client
relationship between them and Roberts’s office. As for the
attorney-client relationship of Wert and Roberts, that
relationship, like the relationship in Vangsness, “was minimal
and dealt with matters unrelated to . . . the [defendant’s]
proceeding.”7 The record does not show any relevant confidential
information that might have been imparted during Roberts’s
representation of Wert for use in defendant’s case. Similar to
the conclusion reached in Vangsness, “we see no basis to presume
th[at] [Roberts] possess[ed] ‘relevant confidential information’
obtained from [Wert] in the face of [Roberts’s] staunch denial.”8
Although there was no actual or presumed conflict at the
time the trial court removed Roberts as defendant’s counsel
over his objection, potential conflict hung in the shadows
6 Vangsness v. Superior Court (1984) 159 Cal.App.3d 1087, 1090
(Vangsness).
7 Vangsness, supra, 159 Cal.App.3d at page 1090.
8 Vangsness, supra, 159 Cal.App.3d at page 1090.

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as to Wert. Had Roberts’s investigation of Wert ripened into a
viable defense theory, Roberts may have begun to feel uneasy
about vigorously pursuing Wert, his former client, and Wert
himself may have been called to the stand at some point. It
bears repeating, though, that the attorney-client relationship
of Roberts and Wert was minimal and dealt with matters that had
no relevance to the current proceeding. So long as Roberts did
not do anything to injure Wert in matters involving the former
representation, and did not use against Wert any information
acquired during their attorney-client relationship (and the
record shows this would have been the case), Roberts was on
solid ground as to Wert. As for the view from defendant’s
position, he could have waived any potential conflicts involving
the effectiveness of Roberts’s investigation or trial
examination of Wert. Although the record shows that defendant
wanted to so waive, the trial court denied him that chance and
removed Roberts as defendant’s counsel.
2. The California Standard Governing a Judge’s Discretion
to Remove Potentially Conflicted Counsel and
Application of that Standard
Under both the federal and state Constitutions, a defendant
in a criminal case has a right to the effective assistance of
counsel.9
9 United States Constitution, Sixth Amendment; California
Constitution, article I, section 15; Bonin, supra, 47 Cal.3d at
pages 833-834.

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The right to the effective assistance of counsel includes
the right to conflict-free counsel and the right to counsel
of choice.10 In the retained attorney context, the right to
counsel of choice encompasses the right to choose a particular
attorney to hire.11 In the appointed attorney context, an
indigent criminal defendant does not have a right to choose a
particular attorney to be appointed;12 but an indigent defendant
in California does have a right to choose to continue
representation with an appointed counsel in an established
attorney-client relationship unless certain circumstances are
present.13 The question is how a California court is to
reconcile sometimes competing considerations between the right
to conflict-free counsel and the right to counsel of choice.
In Wheat v. United States, the United States Supreme
Court concluded that trial courts have broad discretion
under the federal Constitution’s right to counsel (Sixth
Amendment) to remove (recuse) a criminal defense attorney
10 Bonin, supra, 47 Cal.3d at page 834; People v. Courts
(1985) 37 Cal.3d 784, 789 (Courts); Maxwell v. Superior Court
(1982) 30 Cal.3d 606, 612-613 (Maxwell); People v. Peoples
(1997) 51 Cal.App.4th 1592, 1597 (Peoples).
11 Courts, supra, 37 Cal.3d at page 789; Maxwell, supra,
30 Cal.3d at pages 613-614.
12 Harris v. Superior Court (1977) 19 Cal.3d 786, 795-796
(Harris); Alexander v. Superior Court (1994) 22 Cal.App.4th 901,
915.
13 Smith v. Superior Court (1968) 68 Cal.2d 547, 561-562
(Smith); Cannon v. Commission on Judicial Qualifications (1975)
14 Cal.3d 678, 697 (Cannon); Maxwell, supra, 30 Cal.3d at pages
613-615; People v. Daniels (1991) 52 Cal.3d 815, 846 (Daniels).

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facing a potential conflict regardless of a defendant’s desire
to waive the conflict.14 Wheat concluded that the Sixth
Amendment is concerned more with effective representation than
with preferred representation, and giving trial courts broad
discretion on this issue avoids them being “whipsawed” by
assertions of error no matter which way they rule.15 As the
Wheat court put it: “[W]hile the right to select and be
represented by one’s preferred attorney is comprehended by the
Sixth Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.”16
Thus, the United States Supreme Court, in construing the
Sixth Amendment to the federal Constitution, has emphasized the
right to conflict-free counsel where it collides with the right
to counsel of choice.
In contrast, in a long line of decisions that started
before Wheat and have continued after it, the California
Supreme Court has concluded that while California judges have
discretion to remove, over objection, a criminal defense
attorney in order to eliminate potential conflicts, ensure
adequate representation, or prevent substantial impairment
14 Wheat v. United States (1988) 486 U.S. 153, 162-164
[100 L.Ed.2d 140] (Wheat).
15 Wheat, supra, 486 U.S. at pages 159, 161.
16 Wheat, supra, 486 U.S. at page 159.

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of court proceedings, that discretion is “severely limited.”17
The narrow circumstances in which removal may occur are
“flagrant” attorney misconduct or incompetence, attorney
incapacity, “significant prejudice” to the defendant, or serious
circumstances that undermine “the integrity of the judicial
process” and the “orderly administration of justice.”18
The basis for this “severely limited” discretion was
articulated in the 1966 state Supreme Court decision in Crovedi
as “a value additional to that [of] insuring reliability of the
guilt-determining process. [The concern is] not only with the
state’s duty to insure ‘fairness’ in the trial, but also with
the state’s duty to refrain from unreasonable interference with
the individual’s desire to defend himself in whatever manner he
deems best, using every legitimate resource at his command.”19
“[T]hat desire can constitutionally be forced to yield only when
it will result in significant prejudice to the defendant himself
17 People v. McKenzie (1983) 34 Cal.3d 616, 629-630 (McKenzie);
Cannon, supra, 14 Cal.3d at page 697; Maxwell, supra, 30 Cal.3d
at pages 613-615; Daniels, supra, 52 Cal.3d at page 846; see
also People v. Crovedi (1966) 65 Cal.2d 199, 206-208 (Crovedi);
Smith, supra, 68 Cal.2d at pages 559, 561-562; Ingram v. Justice
Court (1968) 69 Cal.2d 832, 840-841 (Ingram); People v. Durham
(1969) 70 Cal.2d 171, 190-191 (Durham); People v. Lucev (1986)
188 Cal.App.3d 551, 556-557 (Lucev).
18 McKenzie, supra, 34 Cal.3d at pages 629-630; Cannon, supra,
14 Cal.3d at page 697; Maxwell, supra, 30 Cal.3d at pages 613-
615; Daniels, supra, 52 Cal.3d at page 846; Crovedi, supra,
65 Cal.2d at page 208; Smith, supra, 68 Cal.2d at page 559;
Peoples, supra, 51 Cal.App.4th at page 1599; People v. Smith
(1970) 13 Cal.App.3d 897, 907.
19 Crovedi, supra, 65 Cal.2d at page 206.

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or in a disruption of the orderly processes of justice
unreasonable under the circumstances of the particular case.”20
This principle of “severely limited” discretion to
involuntarily remove criminal defense counsel “manifests a value
seeking to insure respect for the dignity of the individual” and
implicates the concept of due process in the right of counsel.21
“The right of a criminal defendant to counsel and to present a
defense are among the most sacred and sensitive of . . .
constitutional rights.”22 In short, a “‘[d]efendant’s confidence
in his lawyer is vital to his defense. His right to decide for
himself who best can conduct the case must be respected wherever
feasible,’” so long as the defendant is fully informed about and
waives his right to conflict-free counsel.23
This principle of “severely limited” discretion has been
applied not only to retained counsel but to appointed counsel
as well, most prominently in the state high court’s decision
in Smith.24 Smith recognized that Crovedi involved retained
counsel, while the case before it involved appointed counsel.
20 Crovedi, supra, 65 Cal.2d at page 208.
21 Crovedi, supra, 65 Cal.2d at page 206; Lucev, supra,
188 Cal.App.3d at page 556.
22 People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz).
23 Courts, supra, 37 Cal.3d at page 789, quoting Maxwell,
supra, 30 Cal.3d at page 615; Alcocer v. Superior Court
(1988) 206 Cal.App.3d 951, 956-958 (Alcocer); People v. Burrows
(1990) 220 Cal.App.3d 116, 119-126 (Burrows).
24 Smith, supra, 68 Cal.2d at pages 559, 561-562; see Durham,
supra, 70 Cal.2d at pages 190-191; Cannon, supra, 14 Cal.3d at
page 697; Daniels, supra, 52 Cal.3d at page 846.

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Smith also recognized that an indigent defendant has no right to
the appointment of any particular attorney.25 In the context of
this distinction between retained and appointed counsel, the
Smith court recognized a right to counsel of choice in the
appointed context involving an established attorney-client
relationship (i.e., a right to continued representation) and
stated:
“[W]e must consider whether a court-appointed counsel may
be [removed], over the defendant’s objection, in circumstances
in which a retained counsel could not be removed. A superficial
response is that the defendant does not pay his fee, and hence
has no ground to complain as long as the attorney currently
handling his case is competent. But the attorney-client
relationship is not that elementary: it involves not just the
casual assistance of a member of the bar, but an intimate
process of consultation and planning which culminates in a state
of trust and confidence between the client and his attorney.
This is particularly essential, of course, when the attorney is
defending the client’s life or liberty. . . . It follows that
once counsel is appointed to represent an indigent defendant,
whether it be the public defender or a volunteer private
attorney, the parties enter into an attorney-client relationship
which is no less inviolable than if counsel had been retained.
To hold otherwise would be to subject that relationship
25 Smith, supra, 68 Cal.2d at page 561; see People v. Hughes
(1961) 57 Cal.2d 89, 98-99, cited by Smith.

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to an unwarranted and invidious discrimination arising merely
from the poverty of the accused.”26
Subsequent state Supreme Court decisions have briefly noted
Smith’s recognition of the right to counsel of choice (i.e.,
right to continued representation) in the context of an
appointed counsel in an established attorney-client
relationship.27 In Cannon, the state Supreme Court characterized
Smith as “mak[ing] it abundantly clear that the involuntary
removal of any attorney [appointed or retained] is a severe
limitation on a defendant’s right to counsel and may be
justified” only in certain narrowly defined circumstances.28 A
state Supreme Court decision issued nearly three years after
Wheat--Daniels--quoted with approval this passage from Cannon.29
These state Supreme Court decisions on the “severely
limited” judicial discretion to involuntarily remove defense
counsel are tethered to the state constitutional right to
counsel provision, though not exclusively so.30 For example, in
Crovedi--the decision which first articulated the dignity-
affirming value underlying what would become the “severely
limited” principle--the court characterized the issue before
26 Smith, supra, 68 Cal.2d at pages 561-562, see also page 559.
27 Ingram, supra, 69 Cal.2d at pages 840-841; Durham, supra,
70 Cal.2d at pages 190-191.
28 Cannon, supra, 14 Cal.3d at page 697.
29 Daniels, supra, 52 Cal.3d at page 846.
30 California Constitution, article I, section 15.

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it as “whether defendant Crovedi was denied his right to the
assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the federal Constitution, and
article I, section 13 [now § 15], of the state Constitution.”31
Smith, which extended the Crovedi value to the appointed
attorney context of continued representation, noted that
defendant Smith’s argument was based on the right to counsel
provisions of the federal and state Constitutions; and Smith
couched its conclusion in the generally phrased “constitutional
guarantee of the defendant’s right to counsel . . . .”32 Cannon,
in characterizing Smith, noted “that the involuntary removal of
any attorney is a severe limitation on a defendant’s right to
counsel . . . .”33
Most significantly for purposes of focusing on the state
Constitution is the state high court’s decision in Maxwell.
Maxwell was one of the first decisions, if not the first, to
articulate expressly the “severely limited” principle, and it
did so in a discussion that cited only the state constitutional
right to counsel provision as its constitutional component.34
Finally, in Daniels, a case decided almost three years after
31 Crovedi, supra, 65 Cal.2d at page 201.
32 Smith, supra, 68 Cal.2d at pages 554, 562, quotation at 562.
33 Cannon, supra, 14 Cal.3d at page 697.
34 Maxwell, supra, 30 Cal.3d at pages 612-613.

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Wheat, the state Supreme Court noted approvingly the “severely
limited” principle, citing Smith, Cannon and Maxwell.35
It is not a novel concept for the federal and state
constitutional right to counsel provisions to be construed
differently. It is true the two provisions are phrased
similarly and are often construed similarly--the federal
provision states, “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel
for his defense”; and the state provision currently states, “The
defendant in a criminal cause has the right . . . to have the
assistance of counsel for the defendant’s defense. . . .”36 But
these provisions, or their California predecessors, have been
construed differently in significant ways, most notably as to
the categories of crimes or of criminal proceedings they cover.37
The example of the distinct nature of California’s
constitutional provision that is most relevant for our purposes
is the following one. To establish a constitutional violation
of the federal right to counsel’s included right to conflict-
free counsel, a defendant who fails to object at trial must show
35 Daniels, supra, 52 Cal.3d at pages 846-847.
36 United States Constitution, Sixth Amendment; California
Constitution, article I, section 15; see Bonin, supra, 47 Cal.3d
at pages 833-834; People v. Mattson (1959) 51 Cal.2d 777, 795
(Mattson); see also 5 Witkin and Epstein, California Criminal
Law (3d ed. 2000) Criminal Trial, section 146, page 231.
37 See 5 Witkin and Epstein, California Criminal Law, supra,
section 147, pages 232-234; Mattson, supra, 51 Cal.2d at page
795; see former California Constitution, article I, section 13;
see now California Constitution, article I, section 15.

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that an actual conflict of interest adversely affected his
lawyer’s performance.38 To show a violation of the corresponding
right under the state Constitution, a defendant need only
demonstrate a potential conflict, so long as the record supports
an “‘informed speculation’” that the asserted conflict adversely
affected counsel’s performance.39 California’s greater
solicitude to the right to conflict-free counsel is consistent
with its greater solicitude to the right to counsel of choice,
so long as the defendant is fully informed about the conflict
and the right to conflict-free counsel and knowingly and
intelligently waives these, including any appellate issues of
ineffective representation arising from the conflict.40
In short, the highest court of our state, citing in part
the right to counsel provision of the state Constitution, has
“severely limited” the discretion of California judges to
involuntarily remove criminal defense counsel for potential
conflicts, where the defendant is fully informed about the
conflicts and the right to conflict-free counsel and knowingly
38 Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [64 L.Ed.2d
333]; People v. Frye (1998) 18 Cal.4th 894, 998 (Frye).
39 Frye, supra, 18 Cal.4th at page 998, italics added;
People v. Mroczko (1983) 35 Cal.3d 86, 104-105; see also
Raven v. Deukmejian (1990) 52 Cal.3d 336, 354-355 (Raven).
40 Alcocer, supra, 206 Cal.App.3d at pages 956, 957-958, 963;
Burrows, supra, 220 Cal.App.3d at pages 122-126; Bonin, supra,
47 Cal.3d at page 837.

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and intelligently waives these.41 I believe we are bound under
Auto Equity Sales, Inc. v. Superior Court to follow these high
court decisions.42
Two California Court of Appeal decisions have done just
that; they have declined to follow Wheat, and have noted, citing
Maxwell and the independent right to counsel provision in the
state Constitution, that a trial court’s power to remove a
conflicted counsel over the defendant’s objection is severely
limited.43 These decisions view Wheat as engaging in a
“paternalistic treatment of a defendant.”44 There is no need to
subordinate a defendant’s right to counsel of his choice to his
right to a conflict-free attorney, they say.45 The choice is up
to the defendant, provided he is fully informed of the conflicts
and his right to conflict-free counsel, and knowingly and
intelligently waives these (including the waiver of the right
41 Maxwell, supra, 30 Cal.3d at pages 612-613, 619; McKenzie,
supra, 34 Cal.3d at pages 629-630; Cannon, supra, 14 Cal.3d at
page 697; Daniels, supra, 52 Cal.3d at page 846; Crovedi, supra,
65 Cal.2d at page 208; Smith, supra, 68 Cal.2d at pages 559,
561-562; Bonin, supra, 47 Cal.3d at page 837; see also Lucev,
supra, 188 Cal.App.3d at pages 556-557 (discussing these high
court decisions).
42 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.
43 Alcocer, supra, 206 Cal.App.3d at pages 956-958; Burrows,
supra, 220 Cal.App.3d at pages 119, 123-126; see also
California Constitution, article I, section 15; Lucev, supra,
188 Cal.App.3d 551, 556-557; Peoples, supra, 51 Cal.App.4th at
pages 1597-1599; Raven, supra, 52 Cal.3d at pages 354-355.
44 Alcocer, supra, 206 Cal.App.3d at page 956.
45 See e.g., Alcocer, supra, 206 Cal.App.3d at pages 956-958.

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to appeal any issues arising from the conflict, which includes
the issue of counsel competence as it relates to the conflict).46
These two appellate decisions also cite two California
Supreme Court cases decided after Wheat that reaffirm a
defendant’s right to waive a conflict of interest and that
strongly imply that a trial court should uphold a fully informed
waiver.47 As one of these Supreme Court decisions explains, “the
defendant may choose the course he wishes to take” with respect
to continuing with potentially conflicted counsel, after being
fully informed about the potential conflict.48
In contrast then to the United States Supreme Court, the
California Supreme Court and the Court of Appeal, citing in
part the independent right to counsel provision in the state
Constitution, have emphasized the right to counsel of choice
where there is a potential conflict, so long as the defendant
is fully informed about the conflict and the right to conflict-
free counsel and knowingly and intelligently waives these.49
46 Alcocer, supra, 206 Cal.App.3d at pages 956, 961-962.
47 Bonin, supra, 47 Cal.3d at page 837; People v. Easley (1988)
46 Cal.3d 712, 729.
48 Bonin, supra, 47 Cal.3d at pages 836-837, quotation at
page 837.
49 Maxwell, supra, 30 Cal.3d at pages 612-613, 619; McKenzie,
supra, 34 Cal.3d at pages 629-630; Cannon, supra, 14 Cal.3d at
page 697; Daniels, supra, 52 Cal.3d at page 846; Crovedi, supra,
65 Cal.2d at page 208; Smith, supra, 68 Cal.2d at pages 559,
561-562; Bonin, supra, 47 Cal.3d at page 837; Alcocer, supra,
206 Cal.App.3d at pages 956-958; Burrows, supra, 220 Cal.App.3d
at pages 119-126; see also Lucev, supra, 188 Cal.App.3d at
pages 556-557 (discussing the high court decisions).

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23
The defendant “may choose the course he wishes to take”50 and is
“master of his own fate”51 (assuming defense counsel is willing
and able to continue representation), except where there is
“flagrant” attorney misconduct or incompetence, attorney
incapacity, “significant prejudice” to the defendant, or serious
circumstances that undermine “the integrity of the judicial
process” and the “orderly administration of justice.”52
I conclude that once an indigent criminal defendant
establishes an attorney-client relationship with his court-
appointed counsel, and counsel is willing and able to continue
that representation, the state constitutional right to counsel
of choice forecloses a California court, except in the narrow
circumstances just noted, from removing that attorney because of
a potential conflict if the defendant objects and is willing to
make appropriate waivers.
The trial court here did not give defendant the chance to
knowingly and intelligently waive the potential conflict. The
record does not show that any of the narrow exceptions apply.
And any potential conflicts here were not out of line with the
kinds of conflicts that California courts have allowed criminal
50 Bonin, supra, 47 Cal.3d at page 837.
51 Alcocer, supra, 206 Cal.App.3d at page 957; Burrows, supra,
220 Cal.App.3d at page 125.
52 Maxwell, supra, 30 Cal.3d at page 615; Cannon, supra,
14 Cal.3d at page 697; Crovedi, supra, 65 Cal.2d at page 208;
Peoples, supra, 51 Cal.App.4th at page 1599; People v. Smith,
supra, 13 Cal.App.3d at page 907.

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24
defendants to waive to continue with their counsel. In Alcocer,
for example, the appellate court allowed the defendant to waive
a conflict in which his counsel was also representing the likely
key prosecution witness against the defendant.53 The waivable
conflict in Vangsness is almost identical to that in Alcocer.54
In Burrows, the appellate court allowed the defendant to waive a
conflict in which his counsel had represented a codefendant at
the preliminary hearing.55 And in In re Darr, the appellate
court noted that waiver was available even though defendant’s
counsel was simultaneously representing the defendant and a key
prosecution witness against the defendant, and the witness had
probation revocation proceedings pending against him and had
been implicated by his sister in the charges against the
defendant.56
I conclude the trial court violated defendant’s state
constitutional right to counsel of choice by removing Roberts as
defendant’s appointed counsel over defendant’s objection,
without allowing defendant the opportunity to waive the
potential conflict. I now consider the effect of this error.
3. Effect of Error
The state Supreme Court has concluded that when a
criminal defendant is deprived of the right to retained
53 Alcocer, supra, 206 Cal.App.3d at page 955.
54 Vangsness, supra, 159 Cal.App.3d at pages 1089, 1091.
55 Burrows, supra, 220 Cal.App.3d at pages 118-119.
56 In re Darr (1983) 143 Cal.App.3d 500, 508, 510, 515.

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counsel of choice, reversal is required regardless of whether
the defendant in fact had a fair trial.57 Since the high court
has also held in Bonin that the constitutional right to the
assistance of counsel “protects the defendant who retains his
own counsel to the same degree and in the same manner as it
protects the defendant for whom counsel is appointed, and
recognizes no distinction between the two,”58 it follows that
this standard of per se reversal would also apply to the
defendant who has been deprived of the right to appointed
counsel of choice that I have recognized here--i.e., the right
to continue with an already appointed counsel.
The state high court has not, however, expressly considered
whether on appeal this standard of reversal per se applies if
the defendant declines to pursue timely writ relief to overturn
the trial court’s erroneous removal of counsel. I conclude that
it does not. Rather, in such circumstances, reversal on appeal
is only warranted if the defendant has been prejudiced.
I start once again with the Crovedi decision. As noted,
Crovedi first articulated the dignity-based value underlying
what would become the right-to-counsel-of-choice removal
principle in California; this principle “severely limits”
a court’s discretion to remove criminal defense counsel over
57 Courts, supra, 37 Cal.3d at page 796; Ortiz, supra, 51 Cal.3d
at page 988; see also People v. Gzikowski (1982) 32 Cal.3d 580,
589; Crovedi, supra, 65 Cal.2d at page 205; see Burrows, supra,
220 Cal.App.3d at page 125.
58 Bonin, supra, 47 Cal.3d at page 834.

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26
the defendant’s objection.59 That dignity-based value is one of
ensuring that the state does not unreasonably interfere with the
individual’s desire to defend himself in whatever manner he
deems best, using every legitimate resource at his command.60
Crovedi also cautioned, however, in the words of another
Supreme Court decision characterizing it, that the right to
counsel of choice “is not absolute: [the right] must be
carefully weighed against other values of substantial
importance, such as that seeking to ensure orderly and
expeditious judicial administration, with a view toward an
accommodation reasonable under the facts of the particular
case.”61 The narrow circumstances under which a California court
may involuntarily remove a criminal defense counsel, as
delineated previously, embody this admonition.
Limiting the standard of per se reversal on appeal to
defendants who have properly but unsuccessfully sought timely
writ relief to overturn a trial court order erroneously removing
their counsel also embodies this admonition. It does so by
assuring the orderly and expeditious administration of justice
is reasonably accommodated with the right to counsel of choice.
This requirement of seeking timely writ relief provides a
practical, sensible approach to implement California’s more
59 Crovedi, supra, 65 Cal.2d at page 206.
60 Crovedi, supra, 65 Cal.2d at pages 206, 208.
61 People v. Byoune (1966) 65 Cal.2d 345, 346; Crovedi, supra,
65 Cal.2d at page 206.

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27
exacting standard of limiting the discretion of trial courts to
remove conflicted defense counsel over the criminal defendant’s
objection. The requirement preserves California’s greater
solicitude to the right to counsel of choice, while
simultaneously ameliorating the “no-win” situation faced by
trial courts when ruling on conflicted counsel removal (the so-
called “whipsaw” effect that figured prominently in the Wheat
analysis, with appellate error being asserted either as to
conflict or as to removal).
Affording defendant a right to reversal per se on appeal
when he has declined to obtain timely writ review to correct an
erroneous removal of his counsel does not ensure orderly and
expeditious judicial administration. Nor, as a practical
matter, does it advance defendant’s right to counsel of choice.
This is because he is saddled with an unwanted attorney through
trial and chances are slim that upon retrial he will be
represented by the counsel he wanted all along.62
Requiring a defendant to pursue timely writ relief provides
an effective and efficient remedy for an erroneous removal of
counsel while preserving a defendant’s right to reversal per se
on appeal if the court determining the writ errs in failing to
reinstate erroneously removed counsel.
This approach is analogous to the approach taken with
respect to an allegedly biased or disqualified judge, where
62 See People v. Phillips (1985) 169 Cal.App.3d 632, 639
(Phillips).

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28
the writ process is enshrined because the remedy of nullifying
the judgment on appeal is neither speedy nor adequate.63
Interlocutory orders affecting a criminal defendant’s
constitutional right to counsel--including the limited right to
appointed counsel of defendant’s choice--have been treated
consistently for decades as properly reviewable in writ of
mandate proceedings.64
Requiring a defendant to seek timely writ relief to
preserve an appellate standard of per se reversal has been
recognized favorably in both the state Supreme Court and the
Court of Appeal.
The relevant Supreme court decision is People v. Pompa-
Ortiz and its characterization of another high court decision,
People v. Chavez.65 Pompa-Ortiz concluded that non-
jurisdictional errors in preliminary hearing procedures--in
63 See 2 Witkin, California Procedure (4th ed. 1996), Courts,
sections 165-166, pages 222-225.
64 Yorn, supra, 90 Cal.App.3d at page 673; see e.g., Harris,
supra, 19 Cal.3d 786 and Drumgo v. Superior Court (1973)
8 Cal.3d 930 (limited right to appointed counsel of defendant’s
choice); Smith, supra, 68 Cal.2d 547 (power to remove appointed
counsel); Maxwell, supra, 30 Cal.3d 606 (right to retained,
conflicted counsel of defendant’s choice); Vangsness, supra,
159 Cal.App.3d 1087 (allegedly conflicted appointed counsel);
Alcocer, supra, 206 Cal.App.3d 951 (allegedly conflicted
retained counsel); Mandell v. Superior Court (1977)
67 Cal.App.3d 1 (defense counsel sought to withdraw); Magee v.
Superior Court (1973) 8 Cal.3d 949 (defendant’s right to
associate out-of-state counsel); see also Phillips, supra,
169 Cal.App.3d at page 639.
65 People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-
Ortiz); People v. Chavez (1980) 26 Cal.3d 334 (Chavez).

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29
that case, the denial of an open preliminary hearing--were no
longer subject to the standard of per se reversal, but were to
be reviewed under the appropriate standard of harmless error;
reversal is required, said Pompa-Ortiz, only if the defendant
was deprived of a fair trial or otherwise suffered prejudice as
a result of the preliminary hearing error.66 Pompa-Ortiz
characterized this approach in the following terms: “The right
to relief without any showing of prejudice will be limited to
pretrial challenges of irregularities. At that time, by
application for extraordinary writ, the matter can be
expeditiously returned to the magistrate for proceedings free
of the charged defects.”67
Pompa-Ortiz noted that the high court had followed this
approach in other contexts. It gave as one example the decision
in Chavez, summarizing that decision as follows: “[W]here error
in refusing representation by attorney of choice, correctable
on pretrial [writ] application (Harris v. Superior Court
(1977) 19 Cal.3d 786 [161 Cal.Rptr. 762, 605 P.2d 401]), was
held to compel reversal after judgment only upon a showing
of prejudice[].”68 Chavez applied a standard of harmless error
to a superior court’s error in summarily denying a defendant’s
request to have the appointed attorney who represented him
66 Pompa-Ortiz, supra, 27 Cal.3d at pages 522, 529.
67 Pompa-Ortiz, supra, 27 Cal.3d at page 529.
68 Pompa-Ortiz, supra, 27 Cal.3d at page 529.

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30
at the preliminary hearing reappointed for the trial (this
attorney-client relationship had not been a continuing one).69
The relevant Court of Appeal decision is Phillips.70
Phillips concluded the trial court had erred in prematurely
recusing an appointed defense counsel without adequately
considering the views of the attorney and the defendant. The
Phillips court applied a standard of harmless error, noting in
part: “[Defendant failed] to pursue timely procedural avenues
which could have provided a remedy. Specifically, [defendant]
did not seek to correct the court’s error by petitioning for an
extraordinary writ before trial. [Citations.] Additionally,
our Supreme Court has intimated the issue may not be cognizable
on appeal in the absence of a showing of prejudice [citing
Pompa-Ortiz].”71
Here, defendant did not pursue a timely writ to overturn
the trial court’s order erroneously removing attorney Roberts.
Although at the time this pursuit was not deemed an express
prerequisite to preserve the standard of per se reversal on
appeal, the path of writ review of orders affecting a
defendant’s constitutional right to counsel was a well-worn
69 Chavez, supra, 26 Cal.3d at pages 340-341, 344-349.
70 Phillips, supra, 169 Cal.App.3d 632.
71 Phillips, supra, 169 Cal.App.3d at page 639, citing Pompa-
Ortiz, supra, 27 Cal.3d at page 529.

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31
and consistent one.72 Moreover, the court in Pompa-Ortiz
overruled an existing standard of per se reversal and applied
the standard of harmless error to the defendant before it on
appeal.73 Defendant, then, is subject to the appropriate
standard of harmless error here.74
Defendant has not shown he was prejudiced by the trial
court’s erroneous removal of attorney Roberts. When Roberts was
removed, defendant was consulted about his choice of a new
attorney. Defendant received his choice, an attorney who had
represented him in a previous prosecution and who was an
experienced criminal defense practitioner. The trial court
apparently agreed to pay the new attorney more than the going
appointed rate, to give defendant the attorney he wanted.
Defendant has never maintained that new counsel was anything
but fully competent. There has been no showing that defendant
questioned the ability or desire of his new appointed counsel
to represent his best interests. Nor has there been any showing
of disagreement or lack of rapport between defendant and new
counsel. A year and a half lapsed between the removal of
attorney Roberts and the beginning of defendant’s trial; during
72 See Yorn, supra, 90 Cal.App.3d at pages 673-674, and
Phillips, supra, 169 Cal.App.3d at page 639, and cases cited
therein.
73 Pompa-Ortiz, supra, 27 Cal.3d at pages 529-530.
74 See Pompa-Ortiz, supra, 27 Cal.3d at pages 522, 529-530;
Chavez, supra, 26 Cal.3d at pages 344-349; see also People v.
Flood (1998) 18 Cal.4th 470, 482-491.

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32
this period, defendant was being represented by his new counsel.
In short, it appears the trial court provided defendant with an
equally effective appointed counsel. Defendant has shown no
prejudice on which to reverse here.75
Nor may defendant claim his counsel was ineffective in
failing to pursue a writ, thereby foreclosing the possibility of
the standard of per se reversal being applied in his appeal. To
establish ineffective assistance of counsel, a defendant must
initially show that his counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms.76 Counsel did not perform unreasonably in
this respect. The state constitutional right to counsel of
choice as encompassing a right to continue with already
appointed counsel, and the requirement of seeking timely writ
review to preserve the standard of per se reversal on appeal,
while implied or intimated in prior decisions, had not
previously been delineated explicitly.
4. CALJIC No. 2.28
Defendant contends the trial court erred prejudicially by
instructing the jury with CALJIC No. 2.28 that the defense had
“cheated” by unlawfully hiding from the prosecution and the
court its intention to introduce evidence of defendant’s belt
and pant size. I disagree.
75 See Chavez, supra, 26 Cal.3d at pages 348-349.
76 People v. Scott (1997) 15 Cal.4th 1188, 1211 (Scott).

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33
This matter concerns the central piece of evidence in this
case--the pair of blue jeans found in defendant’s bedroom on his
bed. Defendant initially told a detective that the jeans were
his, and that he had recently worn them to work. DNA testing of
microspatters of blood and tissue found on the jeans resulted in
a positive match with the DNA of the victim, Boyd Wagner. An
expert opined that the spatters on the jeans had occurred in
close proximity to the source of the spatters.
The waist size on the jeans was 34 inches. The defense
sought to show that defendant wore jeans with a 36-inch waist at
the time of the Wagner incident.
On the day the prosecution rested its case, defense counsel
informed it and the court that he intended to present a belt to
corroborate testimony regarding the 36-inch waist theory; the
wear marks on the belt, and its buckle configuration, supposedly
supported this theory. Defense counsel later sought also to
present a photograph of defendant wearing the belt.
The prosecution maintained that the defense had failed to
previously disclose this evidence in violation of the discovery
provisions of Penal Code sections 1054.3 and 1054.7; these
sections generally require the defense to disclose to the
prosecution physical evidence and the names and addresses of
trial witnesses “at least 30 days prior to the trial.” (All
further section references are to the Penal Code.)
After hearings were held, the trial court allowed the
defense to present this evidence, subject to the following
instruction pursuant to CALJIC No. 2.28:

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34
“The prosecution and the defense are required to disclose
to each other before trial evidence which each intends to
present at trial so as to promote the ascertainment of the
truth, save court time and avoid any surprise which may arise
during the course of trial. Delay in the disclosure of the
evidence may deny a party sufficient opportunity to subpoena
necessary witnesses or to produce evidence that may exist to
rebut the noncomplying party’s evidence.
“Disclosures of evidence are required to be made at least
30 days in advance of the trial. Any new evidence discovered
within 30 days of the trial must be disclosed immediately. In
this case, the defense failed to timely disclose evidence
discovered during the course of the trial, to wit: the
testimony of Frank Jones, Wilma Jones, Jamie Jones, and Diane
Davis as it relates to the belt, the defendant’s pant[] size,
the photograph of the defendant, and the jeans seized by the
Sheriff’s Department.
“Although the defense’s failure to timely disclose evidence
was without lawful justification, the Court has under the law
. . . permitted the production of this evidence during the
trial.
“The weight and significance of any delayed disclosures are
matters for your consideration. However, you should consider
whether the untimely disclosed evidence pertains to a fact of
importance, something trivial, or subject matter already
established by other credible evidence.”

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35
CALJIC No. 2.28 embodies the discovery disclosure
provisions of section 1054.1 (required disclosures to defense),
section 1054.3 (required disclosures to prosecution), and
section 1054.7 (disclosure deadline of 30 days before trial,
except any new evidence discovered within 30 days of trial
must be disclosed immediately). CALJIC No. 2.28 also embodies
one of the discovery enforcement mechanisms set forth in
section 1054.5, subdivision (b), that can be applied to parties
who have not complied with section 1054.1 or section 1054.3:
“[T]he court may advise the jury of any failure or refusal to
disclose and of any untimely disclosure.”77
Defendant makes a series of arguments that reduce to one
contention: the trial court erred in instructing with CALJIC
No. 2.28 because it found the defense had not committed any
discovery violation. This is not an accurate reading of the
record.
For this reading, defendant cites to statements from the
trial court, including: “[I]t was brand new information to
everybody on the [defense] team. It’s not something [defense
counsel] could have, and I would never impugn [defense counsel]
of doing this to begin with. It’s not something he would have
isolated himself from by saying go find evidence and don’t tell
me about it until it’s the best time to tell me[]”; and, “I am
certainly of a mind that neither [defense counsel] nor any
77 People v. Bohannon (2000) 82 Cal.App.4th 798, 806-807,
footnote 10.

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36
of the defense team were aware of this until February 10th [the
day before the prosecution rested]. Certainly [the defense
investigator, Diane Davis] is someone who has testified in this
court many times and whose word I put great stock in. If Miss
Davis is going to tell me February 10th was when she got it, I
don’t have a problem believing that at all. . . . [¶] . . .
[¶] . . . I am of the mind no one on [the defense] team knew
about it and even extended to Mr. Jones, Senior [Frank Jones,
defendant’s father; also Wilma Jones, his mother; and Jamie
Jones, his estranged wife], knew about it.”
The record shows, however, that in these statements the
trial court was referring to the belt and possibly the
photograph of defendant wearing the belt; the court was not
referring to testimony regarding these items, the jeans at
issue, or defendant’s pant size, testimony that could be
corroborated by the belt and photo. The record can be read to
show that the defense did untimely disclose this testimony.
The record shows the following statements: “MR. GAUL
[prosecutor; responding to the issue of the belt initially being
raised just prior to the prosecution resting]: . . . We have
made requests for discovery. [Defense counsel’s] represented to
me he doesn’t have any. He doesn’t have any witnesses that he’s
planning on presenting[]”; “MR. SWARTZ [defense counsel]: We
had intended to put this evidence [i.e., pant size evidence] in
with just regular testimony from witnesses. . . . [¶] . . .
[¶] I found out about the belt as I said during the course of
trial[]”; “MR. SWARTZ: The defense is saying we found out about

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37
one particular piece of evidence [i.e., the belt] to support our
position. THE COURT: [¶] You are saying that you knew that
[this] pair of pants could not have been [defendant’s] years ago
because they were the wrong size? [¶] MR. SWARTZ: We had
evidence to that effect, yes. [¶] THE COURT: And nobody has
broached that to the [P]eople and said, hey, man, this guy
doesn’t wear 34’s, he wears 36’s, these couldn’t be his pants?
[¶] MR. GAUL: That’s never happened[]”; and, “MR. GAUL: . . . I
sure hope the Court is going to give me an instruction this
evidence should have been presented. [¶] THE COURT: You are
singing to the choir on that one. . . . It’s obviously evidence
that is way overdue and should have been produced. It wasn’t
for whatever reasons.”
The trial court also noted during these interchanges that
it had never been suggested previously that the jeans were not
defendant’s; and that the prosecution had presented its case on
this assumption and was now placed in an awkward position.
In line with this distinction between the belatedly
disclosed testimony regarding defendant’s pant size, pant
accessories, and the jeans at issue, and the newly discovered
belt and photo to corroborate that testimony, the trial court
instructed with CALJIC No. 2.28 that “the defense failed to
timely disclose evidence discovered during the course of the
trial, to wit: The testimony of Frank Jones, Wilma Jones, Jamie
Jones, and Diane Davis as it relates to the belt, the
defendant’s pant[] size, the photograph of the defendant, and
the jeans seized by the Sheriff’s Department.” (Italics added.)

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38
The instructional phrase “discovered during the course of the
trial” is not entirely accurate regarding the testimony, unless
“discovered” means “disclosed” in the legal vernacular.
Nevertheless, this phrase, by essentially stating that defendant
had not discovered the testimony until trial, rather than
sometime before as the record can be read to show, inured to
defendant’s benefit by making his untimely disclosure not so
untimely. I cannot say the trial court abused its discretion in
giving CALJIC No. 2.28.78
Defendant also contends that the criticism of defense
counsel which is at the heart of CALJIC No. 2.28 is especially
inappropriate here because the trial court had improperly
removed the original defense attorney (attorney Roberts).
However, defendant’s case did not go to trial for over a year
and a half after Roberts was removed; as everyone knew,
moreover, the jeans were the key piece of evidence in the case.
Finally, although defendant does not actually fault his new
counsel’s performance, he maintains that if CALJIC No. 2.28 was
appropriately given, that would necessarily mean that defense
counsel performed either negligently or in bad faith.
Even assuming for the sake of argument defendant’s
premise, I would not reverse on this point. To establish
ineffective assistance of counsel, a defendant must show
that his counsel’s performance was objectively unreasonable,
78 See Penal Code section 1054.5, subdivision (b); People v.
Wimberly (1992) 5 Cal.App.4th 773, 791-793.

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39
and that he was prejudiced--i.e., a reasonable probability that,
but for counsel’s failings, the result would have been more
favorable to the defendant; a reasonable probability is a
probability sufficient to undermine confidence in the outcome.79
Defendant cannot demonstrate this prejudice. There was the
damning DNA evidence found on the jeans. The jeans were found
in defendant’s bedroom on his bed. Statements from defendant
and from his estranged wife confirmed the jeans were
defendant’s.
The victim, Wagner, was killed sometime between Thursday,
February 20, and Saturday, February 22, 1992; defendant was a
neighbor of Wagner’s. Robbery appeared to be the motive.
Shoeprints left that Thursday or Friday were found leading away
from Wagner’s porch; these prints had the same class
characteristics as the Converse tennis shoes defendant was
wearing when he was located shortly thereafter by the police.
Upon learning of the shoeprints, defendant told detectives
he had chased his mother’s dog across Wagner’s property.
However, the shoeprint expert testified the prints were left by
someone moving in a very casual or normal walking motion, rather
than walking aggressively or rapidly or running.
Found in a metal tub that Wagner used as a trash can was an
empty 40-ounce bottle of Budweiser beer with the lid screwed on,
wrapped in a paper bag. This was the brand of beer defendant
drank and the manner in which he drank it.
79 Scott, supra, 15 Cal.4th at pages 1211-1212.

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40
After learning of this beer bottle, defendant told
detectives that about a month before the Wagner incident he had
been driving in a car and had thrown an empty beer bottle onto
Wagner’s property which may have landed in the trash tub. The
trash collector testified, however, that he would have normally
picked up the trash the Tuesday just before the Thursday-
Saturday time frame at issue; the collector was always careful
to empty the tub because Wagner had once complained when he
missed it.
Wagner had incurred, among other injuries, a wedge-shaped,
gaping, chop-like cut to the right shoulder; this was probably
caused by a long, heavy bladed instrument. Wagner’s screen door
had been cut with a sharp instrument, and the door frame had
been shattered with a blow of significant force. Defendant’s
father made long-bladed, leather-handled knives out of chain saw
bars; he had given one to defendant as a Christmas present two
months prior to the Wagner incident. Defendant’s knife was
never found; he first told detectives his knife was in a shed,
but later conceded this was untrue. He then told detectives he
had sold the knife to someone named “Darrell” in a bar;
questions were raised regarding this account.
In light of the evidence against defendant, there is not a
reasonable probability defendant would have fared any better had
CALJIC No. 2.28 not been given.

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DISPOSITION
The judgment is affirmed.
DAVIS , Acting P.J.

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1
RAYE, J.
I concur in the result though my reasons differ from those
set forth in the lead opinion.
On the question of whether the court erred in relieving
defendant’s appointed counsel, I agree there was no actual or
presumed conflict of interest. As to the potential that a
conflict might arise in the future, I agree with the lead author
that the potential existed but disagree with the principles that
control when a potential conflict arises. Rejecting the
Attorney General’s argument that the controlling principles are
those articulated in Wheat v. United States (1988) 486 U.S. 153,
162-164 [100 L.Ed.2d 140, 150-152] (Wheat), the lead opinion
concludes that we are bound instead by California Supreme Court
decisions interpreting the right to counsel provisions of the
California Constitution. I do not agree that the “severely
limited” principles articulated in Smith v. Superior Court
(1968) 68 Cal.2d 547, 561-562, Cannon v. Commission on Judicial
Qualifications (1975) 14 Cal.3d 678, 697, and other cases
decided prior to Wheat necessarily retain their vitality in
light of Wheat. The lead opinion reads the decisions of the
California Supreme Court as recognizing a state constitutional
right of different dimension than the federal right discussed in
Wheat. Ultimately, our Supreme Court may so conclude, but in my
view, none of the cases cited in the lead opinion stands clearly
for such a proposition.

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Ultimately, however, this quibble over which constitutional
principles apply is of no moment. In my view, even under the
“lower” standard articulated in Wheat, the trial court erred.
Wheat does not give the trial court carte blanche to
substitute its judgment for that of an attorney’s client when
potential conflicts of interest arise. The attorney in Wheat
represented three clients involved in a far-flung drug
distribution conspiracy. Two of his clients offered to plead
guilty to criminal charges. Shortly thereafter and only days
before the scheduled commencement of his trial, a third
participant in the conspiracy, Wheat, sought to retain the
attorney as trial counsel. The Government objected to the
proposed substitution, noting, among other things, the
likelihood that one of the attorney’s other two clients, Bravo,
would be called as a witness in the case against Wheat, and the
other, Gomez-Barajas, was yet free to withdraw his guilty plea,
in which case Wheat might be a witness in a future prosecution
against him. All three defendants were willing to waive any and
all conflicts of interest, actual and potential, but the Supreme
Court agreed with the Government that such waivers were not
binding on the trial court.
The facts of our case do not remotely resemble those of
Wheat. The potential for conflict in Wheat was real and
immediate; the attorney had been intimately involved in the
defense of two other defendants in cases arising from the same
series of criminal acts. The attorney’s involvement with Wheat,
on the other hand, was slight. He was retained at the last

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3
minute; Wheat had theretofore been represented by another
counsel who, it appears, was willing and able and, indeed, had
been expected to represent him in the impending trial.
Here, the potential conflict was speculative. Defendant
and his attorney enjoyed an attorney-client relationship of
nearly two years’ duration. His attorney was intimately
involved in every aspect of the defense. Unlike the situation
in Wheat, the conflict did not stem from simultaneous
representation of other defendants in the same criminal
transaction but from a brief involvement in representing Wert in
a completely unrelated probation violation case. No
confidential information had been exchanged, and there was no
indication the attorney’s prior representation of Wert was of
any value in his representation of defendant. The conflict
finding was premised on the speculation that defendant “might”
offer a defense implicating Wert and defendant’s attorney
“might” feel uneasy about pursuing his former client and “might”
not vigorously pursue investigation and cross-examination of the
client. Whatever the strength of these potential conflicts,
defendant was eager to waive them. His waiver should have been
accepted.
In Wheat, the Supreme Court framed the issue narrowly:
“The question raised in this case is 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, supra, 486 U.S. at p. 159.) We are

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confronted with a different issue. To paraphrase Wheat, our
question involves the extent to which a defendant’s right to his
chosen attorney is qualified by the fact that the attorney has
represented another defendant in a completely unrelated criminal
case. There may be limitations on a defendant’s right to choice
of counsel under such circumstances, but nothing in Wheat
supports the denial of counsel based on speculation that counsel
will not abide by his professional responsibilities.
The more difficult issue presented is the appropriate
standard for assessment of prejudice when a court errs in
removing counsel. Reasoning that since a rule of per se
reversal applies to a defendant who is improperly deprived of
the right to retained counsel, the lead opinion asserts the same
rule should apply to a defendant whose appointed counsel is
inappropriately removed. However, according to the lead author,
a rule of reversal per se should only apply if defendant seeks
but is ultimately unsuccessful in pursuing writ relief;
otherwise, traditional harmless error principles apply.
This novel approach is also a thoughtful one; timely
pursuit of writ relief affords an appellate court the
opportunity to correct error early in the process without
upsetting a verdict and necessitating another trial. However,
the rule is not supported by the authorities cited and is
perhaps better suited to imposition by the Legislature than by
this court. More significantly, as applied to removal of
appointed counsel, it is based on a faulty premise: that a rule

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5
of per se reversal applies in the absence of timely pursuit of
writ relief.
There are, of course, many similarities between the right
of the indigent to continue with counsel appointed for him and
the right of the more affluent to retain counsel of choice. But
there are differences. The California Supreme Court has never
applied a rule of per se reversal to improvident removal of
appointed counsel. The cases cited in the lead opinion as
support for a rule of per se reversal all involved retained
counsel. People v. Courts (1985) 37 Cal.3d 784 (Courts)
involved the right of a defendant to retain counsel to replace
his appointed counsel. In People v. Crovedi (1966) 65 Cal.2d
199 (Crovedi), the court replaced the defendant’s retained
counsel with appointed counsel. In People v. Gzikowski (1982)
32 Cal.3d 580, the defendant was denied a continuance to retain
counsel when one of his attorneys withdrew and the remaining
attorney considered herself too inexperienced to try a death
penalty case. People v. Ortiz (1990) 51 Cal.3d 975 involved the
unusual circumstance of a defendant who was denied the right to
discharge his retained counsel.
A defendant has a fundamental right to representation by a
retained counsel selected by him. An indigent defendant does
not have the right to choice of appointed counsel. “The right
to employ counsel of one’s own choosing ‘is based on a value
additional to that insuring reliability of the guilt-determining
process. Here we are concerned not only with the state’s duty
to insure “fairness” in the trial, but also with the state’s

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6
duty to refrain from unreasonable interference with the
individual’s desire to defend himself in whatever manner he
deems best, using every legitimate resource at his command.’”
Courts, supra, 37 Cal.3d at pp. 789-790, quoting Crovedi, supra,
65 Cal.2d at p. 206.)
The right of an individual to apply whatever resources are
at his command to the retention of a particular counsel differs
from the right of an individual to continue with a counsel
selected for him by the court. We apply a bright line rule
restricting interference with selection of retained counsel and
impose the extreme sanction of per se reversal in cases of
violation. Similar but different public policies are implicated
when the court removes appointed counsel. Even if the same
standard controls a trial court’s discretion in removing both
retained and assigned counsel, it does not necessarily follow
the same standard of reversible error should apply.
The reversible per se rule does not advance the truth-
finding function of our justice system. Like the exclusionary
rule, it serves an ancillary function: It reflects the value we
place on the right that has been violated, viz. the right of
individuals to apply whatever resources they can assemble to
retain counsel of their choice. Few legal violations warrant
the imposition of such a heavy sanction. Until our Supreme
Court rules otherwise, I would not extend it to cases involving
the removal of assigned counsel. Our focus in those cases
should be on the effectiveness of the representation actually
provided and the reliability of the verdict rather than the

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violation of the individual’s desire to continue with the same
counsel. (See People v. Chavez (1980) 26 Cal.3d 334, 349;
People v. Phillips (1985) 169 Cal.App.3d 632, 638-639.)
A person in defendant’s circumstances is not without a
remedy. Although the lead opinion’s qualified rule of per se
reversal is unwarranted, writ relief is nonetheless available to
redress an improvident removal of appointed counsel. Moreover,
a defendant who can demonstrate prejudice from the court’s error
would be entitled to relief on appeal. Here, defendant did not
seek writ relief and there is nothing to suggest that his
defense was hampered by the change in counsel. Accordingly, I
concur with my two colleagues in concluding the trial court
judgment should be affirmed.
RAYE , J.

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1
CALLAHAN, J.
I concur in the affirmance of defendant's conviction. I
write separately to express my endorsement of the United States
Supreme Court’s standard for evaluating actual and potential
conflicts in Wheat v. United States (1988) 486 U.S. 153, 163
[100 L.Ed.2d 140, 151] (Wheat). I also write to defend the
trial court’s judicious and carefully thought-out decision
to recuse Gary Roberts from continuing to represent defendant,
a decision which I find to be well reasoned and within the
court’s discretion. I believe the trial court correctly
concluded that Roberts’s thorny and complicated relationship
to a former client/potential third party suspect justified his
recusal from the case, especially since the conflict was brought
to light at an early stage of the proceedings.
Under the federal and state Constitutions, a criminal
defendant has a right to the assistance of counsel. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Holland
(1978) 23 Cal.3d 77, 86.) Embraced within that right is the
right to representation which is both effective and free of
conflicting interests. (People v. Bonin (1989) 47 Cal.3d 808,
834 (Bonin).) This constitutional guaranty applies to
defendants with appointed counsel “to the same degree and in
the same manner” as to those with retained counsel. (Ibid.)
Effective assistance of counsel can be seriously compromised
when a lawyer’s “conflict of interest deprives the client of
undivided loyalty and effort.” (Maxwell v. Superior Court
(1982) 30 Cal.3d 606, 612 (Maxwell).)

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2
An indigent defendant has no constitutional right to
representation by a particular court-appointed lawyer. (Morris
v. Slappy (1983) 461 U.S. 1, 12-14, [75 L.Ed.2d 610, 620-621].)
Once the attorney-client relationship is established, however,
trial courts should exercise their power to remove counsel “with
great circumspection.” (People v. McKenzie (1983) 34 Cal.3d
616, 630 (McKenzie).) Thus, a trial judge cannot throw
appointed counsel off the case based on a subjective perception
that counsel is “incompetent” (Smith v. Superior Court (1968)
68 Cal.2d 547, 562), or summarily refuse to reappoint the same
attorney for trial who represented the defendant at the
preliminary hearing without giving the latter a chance to
explain his preference for continued representation (People v.
Chavez (1980) 26 Cal.3d 334, 346-348). However, when an ethical
conflict on the part of defense counsel rears its ugly head, the
policy of judicial noninterference with counsel of choice must
be balanced against other considerations. At this point, two
constitutional rights appear headed on a collision course: the
defendant's right to defend himself with an attorney of his own
choosing and his right to effective assistance of counsel, which
includes the “correlative right to representation that is free
from conflicts of interest.” (Wood v. Georgia (1981) 450 U.S.
261, 271 [67 L.Ed.2d 220, 230].)
In conflict cases, the approaches taken by the United
States Supreme Court and some intermediary California appellate
courts appear to diverge. The United States Supreme Court has
clearly indicated that where the two rights collide, the right

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to effective (i.e., conflict-free) counsel prevails. While
recognizing that the right to counsel of choice is a component
of the right to counsel, the Wheat court has declared that the
“essential aim of the [Sixth] Amendment is to guarantee an
effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the
lawyer whom he prefers.” (486 U.S. at p. 159 [100 L.Ed.2d at
p. 148].) Accordingly, Wheat gives trial courts broad
discretion to recuse a defense attorney facing a conflict of
interest, even in cases where the defendant offers to waive
his right to conflict-free counsel. Although there is “a
presumption in favor of [defendant's] counsel of choice . . .
that presumption may be overcome not only by a demonstration of
actual conflict but by a showing of a serious potential for
conflict. The evaluation of the facts and circumstances of each
case under this standard must be left primarily to the informed
judgment of the trial court.” (486 U.S. at p. 164 [100 L.Ed.2d
at p. 152], italics added.)
Two notable California cases, People v. Burrows (1990) 220
Cal.App.3d 116 (Burrows) and its progenitor Alcocer v. Superior
Court (1988) 206 Cal.App.3d 951 (Alcocer), have flatly rejected
the Wheat approach in favor of a rule that requires trial courts
to permit a conflicts waiver except under the most flagrant of
circumstances. Characterizing Wheat as “paternalistic,” these
cases place a higher priority on the defendant's right to
continue with chosen counsel than on his right to conflict-free
assistance of counsel. (Burrows, supra, at p. 122, Alcocer,

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4
supra, at p. 956.) They attempt to avoid the clash between
these two important constitutional rights by allowing the
defendant to waive the conflict, a waiver which includes
the right to raise the conflict as part of any subsequent
ineffective assistance argument on appeal. (Alcocer, supra,
at pp. 961-962.)
I do not subscribe to Justice Davis’s view that we must
reject Wheat under the mandate of Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455. However eloquent
Justice Gilbert’s master-of-his-own-destiny presentation in
Alcocer may be, I do not believe it is mandated by anything the
California Supreme Court has said thus far.
Maxwell is the first true California Supreme Court
conflicts case in this area. There, the defendant wanted to
continue to be represented by an attorney who had entered into
a contract for commercial use of defendant's life story. The
court, tracing the enhanced recognition of the right to chosen
counsel over the years, determined that private retained counsel
could not be removed over defendant’s objection and willingness
to make an informed conflicts waiver. (30 Cal.3d at pp. 616-
622.) Nothing in Maxwell can be read to create a rule that
ethical conflicts may always be waived, or that trial courts
no longer had the authority to protect a defendant's Sixth
Amendment rights in an appropriate case by recusing counsel,
even where defendant is willing to enter into a conflicts
waiver. On the contrary, the court was careful to note that
where “substantial risks of conflict” are brought to the court’s

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attention and a knowing, intelligent, and unconditional waiver
was not possible, the trial court “may then protect the record
and defendant's right to effective assistance of counsel by
requiring counsel’s withdrawal.” (Id. at p. 620.)
Maxwell was followed by Wheat. Noting that trial courts
presented with conflicts situations “face the prospect of being
‘whipsawed’ by assertions of error no matter which way they
rule” (Wheat, supra, 486 U.S. at p. 161 [100 L.Ed.2d at p. 150]),
Wheat proclaimed that courts “must be allowed substantial
latitude in refusing waivers of conflicts of interest not only
in those rare cases where an actual conflict may be demonstrated
before trial, but in the more common cases where a potential for
conflict exists which may or may not burgeon into an actual
conflict as the trial progresses.” (Id. at p. 163 [100 L.Ed.2d
at p. 151].)
Bonin, the California Supreme Court case which Alcocer
touts as a departure from Wheat, is not authority for the
proposition that trial courts are duty-bound to accept a
conflicts waiver, especially since it involved a situation in
which the defendant claimed his right to counsel was violated by
allowing conflicted counsel to represent him without obtaining a
waiver. Bonin presents the obverse of the situation here, in
which conflicted counsel was removed without allowing a waiver.
It is true the Bonin court imposed a duty on the trial
court to inquire into possible conflicts and to act in response
to what it discovers. (47 Cal.3d at pp. 836-837.) In dictum,
the court declared that, “If the court has found that a conflict

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6
of interest is at least possible, the defendant may, of course,
decline or discharge conflicted counsel. But he may also
choose not to do so: ‘a defendant may waive his right to
the assistance of an attorney unhindered by a conflict of
interests.’ [Citations.]” (Bonin, supra, at p. 837.) Bonin
goes on to say that if the trial court violates these duties and
allows conflicted counsel into the case, the court commits error
under Wood v. Georgia, supra, 450 U.S. 261 [67 L.Ed.2d 200], an
error which results in reversal only if defendant can show that
the conflict adversely affected his counsel’s performance.
(Bonin, supra, at pp. 837-838.)
Significantly, Bonin does not distance itself from Wheat’s
flexible standard in recusing counsel for ethical conflicts, nor
does it announce a waiver-whenever-possible rule. In fact,
Bonin quotes with approval the declaration in Wheat that, where
the right to effective (i.e., conflict-free) counsel and the
right to counsel of choice clash, the Sixth Amendment tends to
favor the former over the latter. (47 Cal.3d at p. 834, quoting
Wheat, supra, 486 U.S. at p. 163 [100 L.Ed.2d at p. 148].)
In light of this historical background, I cannot accept
Alcocer’s outright rejection of Wheat under the banner of what
is perceived to be a more protective right to counsel clause in
the state Constitution. The Alcocer court cites People v.
Easley (1988) 46 Cal.3d 712 (Easley) to support its conclusion.
But Easley was a case in which counsel with an actual conflict
was allowed to represent the defendant without a knowing and
intelligent waiver. Easley applied a slightly more rigorous

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7
standard for determining prejudice than that which existed under
federal law for determining whether the conflict required
reversal of the judgment. (Id. at pp. 725, 729, fn. 17.)
It is therefore surprising that Alcocer would extract from
Easley a rule which exalts a defendant's right to chosen counsel
above his right to effective, conflict-free counsel. In fact,
I believe Justice Abbe had it exactly right in his dissent in
Alcocer, wherein he declared that there was no reason not to
apply the Wheat rule in California, whose constitutional
guaranty of the right to counsel is virtually identical to its
federal counterpart. (Alcocer, supra, 206 Cal.App.3d at
pp. 964-965 (dis. opn. of Abbe, J.).)
I have no quarrel with the concept deducible from Bonin and
Maxwell that there are instances in which an ethical conflict
can be intelligently waived in order to accommodate a
defendant's choice of counsel. However, it is too great a leap
to distill from these cases a rule which compels the trial court
to offer and accept waivers of a conflict of interest absent
extreme or “flagrant” circumstances, the parameters of which are
so ill-defined as to be incapable of consistent enforcement.
There are, quite simply, too many conflicts situations
which may potentially endanger a defendant's right to effective
counsel, and do not lend themselves to the facile solution
proposed by Alcocer. Worse still, a trial court attempting to
navigate “between the Scylla of denying a defendant the right to
determine his own fate and the Charybdis of violating his right
to counsel” (Maxwell, supra, 30 Cal.3d at p. 621) faces the

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prospect of a reversal on appeal regardless of which path it
chooses.
For all of these reasons, I subscribe to Wheat’s view that
trial courts enjoy broad discretion in recusing appointed
counsel when an ethical conflict jeopardizes a defendant's Sixth
Amendment rights. Like all grants of discretion, it is not
without limits. As Bonin points out, “[c]onflicts spring into
existence in various factual settings.” (47 Cal.3d at p. 835.)
Because judicial interference in the attorney-client
relationship is to be undertaken with great circumspection
(McKenzie, supra, 34 Cal.3d at p. 630), counsel cannot be
removed for trivial, petty, or imagined conflicts. Likewise,
where the court determines that the defendant is able and
willing to make an informed and intelligent waiver, it may allow
counsel with a potential conflict to continue. (Bonin, supra,
at p. 837.)
However, there are conflicts situations, not necessarily
falling into the “flagrant” variety postulated by the lead
opinion, in which trial courts should not be required to solicit
or accept a conflicts waiver. This case presents an excellent
example.
II
“‘It is . . . an attorney's duty to protect his client in
every possible way, and it is a violation of that duty for him
to assume a position adverse or antagonistic to his client
without the latter's free and intelligent consent . . . . By
virtue of this rule an attorney is precluded from assuming any

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9
relation which would prevent him from devoting his entire
energies to his client's interests.’” (Santa Clara County
Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 548,
quoting Anderson v. Eaton (1930) 211 Cal. 113, 116.) This duty
of loyalty survives the termination of the attorney-client
relationship. (Yorn v. Superior Court (1979) 90 Cal.App.3d 669,
675.) As a general rule, an attorney’s duty of loyalty to an
existing client is not capable of being divided. (See Vapnek et
al., Cal. Practice Guide: Professional Responsibility (The
Rutter Group 2001) ¶ 3:188, p. 3-62, and cases cited.) Thus,
where the attorney’s duty of loyalty to a present client clashes
with the same duty to a former client, the attorney is placed in
an untenable conflict of interest, regardless of the likelihood
that the lawyer could use the former client’s confidences
against him.
Here, defendant, who was charged with murder in the
bludgeoning death of an elderly neighbor, was represented by an
appointed attorney, Gary Roberts. Just a month before defendant
was arrested, Roberts had represented Michael Wert involving a
probation violation matter relating to drugs.1 In fact, there
was a period of a “few months” where the two representations
overlapped.
1 To complicate matters, Roberts had also represented Wert’s
brother on a bad check charge, an accusation which he managed to
have dismissed.

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Wert certainly had a motive to frame defendant for the
murder. There had been serious “bad blood” between the two men
-- Wert had a live-in romantic relationship with defendant's
wife, and defendant had allegedly assaulted Wert.
In February 1996, Roberts informed the trial court that
Wert was only a “very speculative” potential suspect in the
murder. At the time, he did not see anything in his former
representation of Wert that would present a problem in
representing defendant. In March, the court appointed an
independent attorney to advise defendant on the conflict issues;
after being so advised, defendant chose to continue with
Roberts.
However, the Wert angle turned far more ominous when
Roberts returned to court in June and reported that, upon
examining the court file, he discovered that Wert was bailed out
of jail just days before the murder and had posted a $5,000
bond. According to Roberts “[t]hat immediately clicked a light
on in my head because the DA [district attorney] has been
telling me all along the motive for the murder . . . was robbery
or burglary. And the theory was that this old guy kept stacks
of cash around his house.” Roberts went on to explain “[I]f, in
fact, my defense were to be that Wert did this, I might want to
play into their robbery theory, and weave it in[to] my defense.
In other words, I might want to catch their robbery theory and
throw it back to them by saying, you are darn right, the motive
for this homicide was robbery. Wert did the robbery. Wert did
the homicide. Wert had just bailed out of jail, needed to pick

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the money up to pay his bail bondsman. It all makes sense.”
(Italics added.) Roberts also discovered that Wert had his car
impounded, and was found in the possession of a stolen weapon
and several grams of methamphetamine, indicating “he was
dealing.” Roberts also learned there was a drug dealer living
down the street from defendant, and if it could be established
that the dealer was supplying Wert “that would blow this case
way out for [defendant],” because it would place Wert on the
same street as the victim through his relationship with the
dealer. Roberts was concerned that if the robbery could be tied
to a network of drug dealers on the same street with whom Wert
could be linked, it was quite possible “they are continuing to
protect Michael Wert” by pinning the murder on defendant.
In marked contrast to his attitude in February, Roberts
told the court the situation with Wert was “very troublesome”
and made him “very uneasy.”
Complex and nettlesome repercussions of the Wert conflict
abounded. For example, as the court observed, if defendant were
found guilty of murder in the present trial without raising Wert
as a potential suspect, defendant might very well argue
posttrial that Roberts did not vigorously investigate this
avenue of defense because Roberts’s loyalties were divided, a
possibility which Roberts “absolutely agree[d]” was a problem.
Second, if the “Wert defense” were to become viable and Wert
were called to testify, Roberts would be put in the position of
cross-examining his own former client, one whom he represented
in close temporal proximity to the crime.

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12
Wert’s future behavior was also unpredictable. Although
the lead opinion implies the Wert problem could be solved by
obtaining a waiver from defendant of Roberts’s conflict,
obtaining such a waiver from Wert was out of the question. If
Roberts were to raise Wert as a potential suspect, there loomed
the disturbing prospect that Wert could file suit against
Roberts or file a complaint to the State Bar on the ground that
Roberts had breached his fiduciary duty to a former client.
Would this possibility cause Roberts, consciously or
subconsciously, to pursue the “Wert defense” less vigorously
than a defense lawyer unencumbered by conflict? No one knew.
At the time, neither Roberts nor defendant could know where
the investigative path would lead. What was clear, however, was
that Roberts could not even begin to pursue the investigation
without the albatross of an ethical conflict hung around his
neck. Although it was true, as defendant stated at the hearing,
that if the Wert defense did not pan out he would have lost
Roberts over nothing, the important point was that by merely
opening inquiry into such a defense Roberts was stepping into an
ethical quagmire. And, as the trial court correctly pointed
out, as long as defendant was represented by counsel, the
tactical decision of pursuing a third party culpability line of
defense was Roberts’s to make.
When the trial court made its ruling, the case was still at
an early stage. Jury trial was more than a year away. There
was plenty of time for new counsel to get up to speed. Had the
court acquiesced to defendant's desire to continue with Roberts,

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the case would be dogged by the possibility that the situation
could mushroom into an irreconcilable and unwaivable conflict,
requiring Roberts’s removal in mid-trial. Such an event would
have wreaked havoc on defendant's right to effective assistance
of counsel. On appeal from the ensuing conviction, is there any
doubt that the court’s failure to remove Roberts at a safe point
in the proceedings could be viewed as having, for practical
purposes, crippled defendant's Sixth Amendment rights?
In the words of Wheat, the trial court had to resolve this
sticky dilemma “not with the wisdom of hindsight after the trial
has taken place, but in the murkier pre-trial context when
relationships between parties are seen through a glass, darkly.
The likelihood and dimensions of nascent conflicts of interest
are notoriously hard to predict, even for those thoroughly
familiar with criminal trials. . . . These imponderables are
difficult enough for a lawyer to assess, and even more difficult
to convey by way of explanation to a criminal defendant
untutored in the niceties of legal ethics.” (Wheat, supra, 486
U.S. at pp. 162-163 [100 L.Ed.2d at p. 151].) Thus, waivers,
even intelligent ones, do not always provide a ready solution.
Both before and after Wheat, California courts
have recognized that “‘the court’s power and duty to ensure
fairness and preserve the credibility of its judgment extends to
recusal even when an informed defendant, for whatever reason, is
cooperating in counsel’s tactics.’” (McKenzie, supra, 34 Cal.3d
at p. 630, quoting Maxwell, supra, 30 Cal.3d at p. 619, fn. 10.)
Furthermore, the trial court retains discretion to reject a

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proferred waiver where an unacceptable conflict on the part of
defense counsel threatens the integrity of the judicial process.
(People v. Peoples (1997) 51 Cal.App.4th 1592, 1597-1599.)
In my view, Roberts’s divided loyalties with respect to
Wert and defendant presented such a conflict. The court could
properly determine that Roberts’s recusal was required in order
to protect defendant's right to effective assistance of counsel.
Moreover, unlike my colleagues, I conclude the court had no duty
to entertain or solicit a waiver of the conflict from defendant
before removing Roberts and replacing him with effective,
conflict-free counsel.
__________CALLAHAN__________, J.

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