Metropolitan News-Enterprise


Tuesday, April 6, 2010


Page 1


Removal of Public Defender Not Unconstitutional, Justices Rule

Right to Counsel Held Not to Preclude Ouster Over Conflict, Even if Defendant Waives It




The replacement of one court-appointed attorney with another over a possible conflict of interest, even over the objection of the defendant, does not violate the constitutional right to counsel, the California Supreme Court ruled yesterday.

In a 6-1 decision, the high court reinstated the first degree murder conviction of Daniel L. Noriega, sentenced to life imprisonment without possibility of parole, plus a 25-year-to-life firearms enhancement, for killing Cesar Cortez of Perris. Prosecutors said Noriega, of Rubidoux, shot Cortez in November 2001 over a drug debt.

Noriega’s co-defendant, Manuel Ortega Paredes, was also convicted and sentenced to life imprisonment without parole. His sentence was affirmed by the Court of Appeal.

A third defendant, Juan Diego Vasquez, pled guilty to voluntary manslaughter and gave videotaped testimony after he was diagnosed with cancer. Vasquez died in November 2005 before Noriega and Paredes went on trial.

Prior to trial, the District Attorney’s Office informed the trial judge that it would call as a witness a jail inmate named Coin Tran, who would testify that he saw Noriega call Vasquez a “snitch” and attack him on a sheriff’s transport bus. Tran, the prosecutor noted, had been represented by the Public Defender’s Office in an earlier case.

Potential Conflict

The deputy public defender assigned to Noriega’s case, who had been representing him for over a year, had not represented Tran. A supervising deputy informed the court that he had reviewed Tran’s file and could find no confidential information that might be used or disclosed in connection with Noriega’s defense.

Noriega was asked whether he was willing to waive any conflict and replied in the affirmative, but Judge Dennis McConaghy—who declined the public defender’s offer to produce Tran’s file for in camera review—concluded that the prior representation created a potential for conflict and appointed a new attorney.

In reversing, the Fourth District Court of Appeal, Div. Two, unanimously held that, under the circumstances, the removal of the public defender violated the Penal Code and constituted an abuse of discretion. Justice Jeffrey King and Justice Barton Gaut—who has since retired—went further, saying that the removal violated Noriega’s state constitutional right to counsel and constituted reversible error per se.

Harmless Error

Justice Douglas Miller, however, while agreeing that the defendant’s state constitutional and statutory rights were violated, said the error was not structural and that it was harmless because there was no claim the replacement counsel was ineffective and it was unlikely the public defender could have obtained a better result.

Justice Joyce L. Kennard, writing yesterday for the Supreme Court, said there was no constitutional violation, and that any statutory violation was harmless because the defendant failed to show prejudice.

She cited People v. Jones (2004) 33 Cal.4th 234, in which the court held that removal of appointed counsel due to a conflict of interest does not violate the constitutional right to counsel.

Kennard distinguished Smith v. Superior Court (1968) 68 Cal.2d 547.

The court held there that then-Los Angeles Superior Court Judge Arthur Alarcon, now a senior judge of the Ninth U.S. Circuit Court of Appeals, violated the right to counsel of Jimmy Lee Smith, later convicted of killing a Los Angeles police officer in what became known as the “Onion Field” case.

Alarcon had removed Smith’s attorney, Irving Kanarek—whom the previous judge in the case had appointed—saying he was incompetent to handle a capital case. The state high court granted a writ of mandate reinstating Kanarek as Smith’s counsel.

But disqualification for conflict of interest is another matter, Kennard said.

“[A] threat that counsel will be summarily removed for incompetence, as occurred in Smith¸ poses a far more inhibiting constraint on counsel’s freedom to mount a vigorous defense than the possibility that an ethical conflict will require counsel’s removal, as occurred here,” the justice wrote.

Kennard was joined by Chief Justice Ronald M. George and Justices Marvin Baxter, Ming Chin, Carlos Moreno, and Carol Corrigan.

Justice Kathryn M. Werdegar argued in dissent that the public defender’s removal, over the defendant’s objection, due to a potential conflict that was “minor, almost trivial,” violated Art. I, Sec. 15 of the state Constitution and required reversal without regard to prejudice.

She drew a distinction between the limited nature of Tran’s role as a witness and the “significant and palpable” conflict in Jones, in which the defendant’s lawyer was replaced when it became known that a former client of his had been an alternate suspect in the murder with which the defendant was charged.

Werdegar wrote:

“As is clear, the two cases are not at all comparable. Yet the majority treats them as legally equivalent, simply citing Jones as support for its conclusion that Ashworth’s removal did not violate Noriega’s right to counsel under the state Constitution. In so doing, the majority elevates the holding in Jones, appropriate under the facts there, into an inflexible rule pursuant to which the deference paid to the trial court’s decision to remove appointed counsel is such that no appellate court likely could ever subject such a ruling to meaningful review nor act to protect a defendant’s right to counsel as guaranteed by the state Constitution.”

The case is People v. Noriega, 10 S.O.S. 1767


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