5.1.5

C.C.P. §128:  Removal of Criminal Defense Counsel

Case:

People v. Paredes (2008) 158 Cal.App.4th 1516

Issue:

Did the disqualification and replacement of court-appointed counsel for an indigent defendant based on a potential conflict of interest, and over the objection of counsel and the defendant, violate the defendant’s state and federal constitutional rights, rendering the judgment reversible per se?

Holding:

Yes.  The Court of Appeal held that the trial court abused its discretion in disqualifying and ordering the removal of existing court-appointed counsel, and that the removal order violated the defendant’s federal and state constitutional right to effective assistance of counsel, and his state constitutional right to counsel of choice.  The Court concluded that the error rendered the judgment reversible per se.  The California Supreme Court held in Maxwell v. Superior Court (1982) 30 Cal.3d 606 that “the mere possibility of a conflict does not warrant pretrial removal of competent counsel in a criminal case over defendant’s informed objection.”  The Court of Appeal found the trial court did not follow the protocol set out in Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, did not appoint independent counsel to advise the defendant concerning the potential conflict, and did not allow the public defender to explain, in camera, why it did not have an actual conflict of interest.  In contrast to situations in which the attorney’s conflict is substantial and cannot be eliminated by less drastic measures, the removal order here violated the defendant’s state constitutional right to continue to be represented by an attorney with whom he had an existing relationship.

Note:

The Court of Appeal noted that a trial court’s discretion to remove counsel with an existing attorney-client relationship with an indigent defendant is more limited under California law than it is under the federal constitution.  The Court of Appeal acknowledged that the removal order did not violate the defendant’s right to counsel under the federal constitution.  Under the federal constitution, courts have “substantial latitude” to refuse to honor a defendant’s waiver of counsel’s conflict or potential conflict of interest.  California decisions severely limit the judge’s discretion to “intrude on defendant’s choice of counsel to eliminate potential conflicts, ensure adequate representation, or serve judicial convenience.”