Coronado
Filed 3/26/13 Coronado v. Super Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
JUAN RAMON CORONADO, JR.,
Petitioner,
v.
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Respondent;
THE PEOPLE,
Real
Party in Interest.
E055313
(Super.Ct.No.
RIF141160)
OPINION
ORIGINAL
PROCEEDINGS; petition for writ of mandate.
Christian F. Thierbach, Judge.
Petition granted.
Gary
Windom, Public Defender, and Richard V. Myers, Deputy Public Defender, for
Petitioner.
No
appearance for Respondent.
Paul
Zellerbach, District Attorney, and Ivy B. Fitzpatrick, Senior Deputy District Attorney,
for Real Party in Interest.
Defendant
Juan Ramon Coronado, Jr., petitions this court to determine that the trial
court acted improperly and without substantial evidence in disqualifying the
public defender’s office from representing him in the current prosecution for
capital murder and being a felon in possession
of a firearm. Although we believe
there is substantial evidence to show that the public defender’s office has a
potential conflict of interest, we conclude that the trial court should have
first informed defendant of this conflict and inquired whether he was willing
to make a voluntary and knowing waiver of it.
Accordingly, we grant the petition and remand the matter to the trial
court with direction to make such an inquiry.
FACTUAL
AND PROCEDURAL BACKGROUND
Coronado
and a codefendant, Eusebio “Cheeto†Fierros,
also charged with being a felon in possession of a firearm and
indicating that Fierros was the shooter, but then admitting that he was.
At
a trial readiness conference on November 22, 2011, the prosecution submitted a
list of discovery and other issues to be discussed at a hearing. It requested to submit, under seal, certain
documents, including two memos prepared by investigators employed by the
Riverside County Public Defender’s Office—Coronado’s counsel. These memos were submitted to a defense
mental health expert and were inadvertently sent to the prosecution. The prosecution refused the defense’s request
that they return the first memo and ignore its contents.
The
first memo dated June 11, 2008, is by investigator Sam Merenda and summarizes
an interview he conducted with a potential witness named Marquan Lee, a friend
of Coronado’s. Merenda reported that Lee
said he had seen Coronado in possession of a gun similar in appearance to the
weapon suspected to have been used in killing the victim. Coronado told Lee that he and “ ‘Cheeto’
had ‘put a lick on an old man and took his car.’ †Merenda stated: “[Lee] agreed to call me if he comes up with
‘Any’ information that may assist in our defense. I explained Cheeto was bragging he killed the
old man, so it could be useful if we can speak with others he had told, and
possibly put the gun in his hand and not Juan’s. [¶] I
know there may be a sentence or two that may be useful, but didn’t know if you
would want to take a chance at putting him on the stand. He could be a risk, and if interviewed by the
DA, I think he may have trouble controlling his thoughts. [¶]
Let me know if you want an ‘interview’ report and I’ll get you one,
minus the confession.â€
The
second memo, dated August 17, 2011, summarizes a second interview of Lee by
investigator Gene Brisco. During this
interview, Lee never mentions hearing Coronado saying anything about “putting a
lick on an old man†or seeing him in possession of gun. Lee told the investigator that the first time
he heard anything about the murder was when Coronado read him a newspaper
article about Fierros’s arrest. Lee
stated that Coronado seemed surprised about the murder and Fierros’s involvement.
Both
of these memos were given to a psychologist
who was retained by the defense to conduct a neuropsychological evaluation of
Coronado. Attached to the report
prepared by the psychologist was an appendix listing numerous documents,
reports, and transcripts she reviewed and considered in conducting her
examination. The two interview memos
were included in the appendix, and all of these documents were provided by
defense counsel to the prosecutor during the discovery process.
Deputy
Public Defender Addison Steele told the court that his intention was to file a
declaration under seal, but then stated, “quite frankly I don’t care, I will
tell the Court right now how this all happened.†He seemed to acknowledge that there were
portions of Merenda’s report that he would not necessarily like, such as
relaying information to a witness about strategy, and that “a decision was made
. . . this is never, ever going over to the district attorney’s
office, for all kinds of reasons.â€
The
prosecutor pointed out, however, that Coronado was consulting mental health
experts to support a “false confession†claim.
He argued that Brisco’s memo would explain to such experts how Coronado
became aware of the details of the crime in his purportedly false
confession. The district attorney also
argued that Merenda’s memo could be construed to show that Merenda was
informing Lee of the defense strategy.
The
trial court ordered that these documents be filed under seal with no further
dissemination of the information contained in them.
Later
during the November 22 hearing, the parties discussed a situation involving
Kristina Allen, who had been charged in a separate information with the same
homicide as Coronado and Fierros. The
district attorney had reached a plea agreement with her and, pursuant to that
agreement, she made statements about the events and identified Coronado as the
shooter. Subsequently, love letters
between Allen and Coronado were discovered in their respective jail cells. Steele and investigator Brisco went to
interview Allen without talking to her attorney. A portion of the interview was taped in which
she now states that Coronado was not the shooter. The district attorney has taken the position
Allen failed to comply with her plea agreement and informed her attorney and
the trial court that the district attorney’s office will pursue homicide
charges against her using her statements.
At
subsequent hearings in December 2011, the trial court expressed growing concern
about actions of the public defender’s office with respect to the two memos and
the interview of Allen, and it indicated that there was a potential conflict of
interest. On December 16, the court
indicated that it and the parties had to address at the next hearing “the false
confession expert and to what extent, if any, the memos that were filed under
seal come into play and whether they should be provided to [codefendant]
Fierros.†In the court’s view, the big
issue was Merenda’s memo alluding to a suggestion in the terms of a strategy
that might involve the fabrication of evidence.
On
December 22, 2011, the trial court stated that after reading the record it was
convinced that the “ability of a meaningful defense for defendant Coronado has
been severely compromised if not totally eliminated by the breach of the
attorney-client privilege committed by defense counsel Addison Steele. The ultimate result is that defendant
Coronado has been denied effective assistance of counsel. Furthermore there is a very real appearance that
defense investigators employed by the public defenders office have engaged in
conduct suggesting a willingness to fabricate or alter evidence up to and
including the subornation of perjury in an effort to mount a defense.â€
Public
Defender Windom appeared at this hearing and indicated that the investigators
could be walled off. The court, however,
ordered that the public defender’s office be recused from any further
representation of Coronado.
Steele
requested that the court conduct an in camera hearing where he could be placed
under oath and explain what happened. He
states that there was an incomplete record and the appellate court would only
have the face of the two documents but that there was information having to do
with communications with Coronado that he could not say in open court. The court denied this request.
A
petition for writ of mandate was filed in this court seeking to vacate the
order of recusal. Coronado
stating that the Riverside County Public Defender’s Office has been
representing him since January 29, 2008, with Steele being the lead counsel
since April of that year. He believes
they are doing a wonderful job and are fighting for his life while any
replacement counsel would only want to earn a paycheck. He wants the public defender’s office, and
Steele in particular, to continue to represent him.
After
issuing a Palma
and considering the district attorney’s informal response, this court summarily
denied the petition. The Supreme Court
granted Coronado’s petition for review and transferred the matter to this court
with directions to issue an order to show cause.
DISCUSSION
“It
is well established that in considering a motion to disqualify counsel, the
‘paramount concern is the preservation of public trust in the scrupulous
administration of justice and the integrity of the bar.’ †(Rhaburn
v. Superior Court (2006) 140 Cal.App.4th 1566, 1573 [Fourth Dist., Div.
Two].) On appeal, a trial court’s
removal of counsel for an indigent criminal defendant is reviewed for abuse of
discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1187.)
Coronado
first challenges the trial court’s finding of ineffective assistance of
counsel, noting that damaging statements attributable to the defendant are
often inadvertently disclosed during a death penalty prosecution and are not
necessarily fatal or amount to an inability to conduct a meaningful defense as
the trial court found. Here, in particular,
the first investigator—Merenda—noted that Lee was not a particularly credible
witness.
Furthermore,
Coronado asserts that there was insufficient evidence to support the finding
that the investigators had fabricated, altered, or suborned perjury. He points out that Merenda is employed by the
capital defender’s office while Brisco works for the public defender’s
office. Thus, they were not two
investigator’s working for the same office who were engaged in a sinister plot
to suborn perjury. Rather, they produced
divergent memos based on separate interviews with an unreliable witness. Indeed, he notes that as a result of the
removal order, counsel from the capital defender’s office will end up being
appointed to represent him.
name="_ftnref5" title="">[5]
However,
whether or not members of the public defender’s office are actually guilty of
suborning perjury or any misconduct
name="_ftnref6" title="">[6] is not as significant as the fact that the
nature of the investigation may become an issue during trial. Even if the defense does not call Lee as a
witness, the prosecution may very well do so, particularly if the public
defender asserts a “false confession†defense.
His statements given to the investigators will then become an issue.
another deputy from the public defender’s office, may very well be placed in
the position of defending the actions of the investigators and the entire
defense team compromising his efforts on defending his client. A conflict of interest encompasses situations
in which an attorney’s loyalty to or efforts on behalf of his client are
threatened by his responsibilities to a third party or his own interests. (See People
v. Doolin (2009) 45 Cal.4th 390, 417.)
It is also possible that their conduct may tarnish defendant in the eyes
of the jury.
We
believe that this situation can more appropriately be analyzed as a potential
conflict case. The disclosure of the
investigators’ memos has already taken place and defense counsel, be it the
public defender or another attorney, must deal with that fact in going
forward. Thus, the past actions of the
public defender’s office do not justify recusal; rather, their effect on the
future conduct of the defense does.
The
public defender argues that the trial court predicated its recusal on the
violation of the attorney-client privilege
any conflict of interest. Therefore, it
is argued that this court must decide the matter on the actual ground for
removal articulated by the trial judge.
We must point out that several times during these hearings the trial
court expressed concern about a potential conflict of interest, although it did
not expressly refer to conflict of interest in its ruling. In reviewing the recusal order, we accept as
correct all of the trial court’s express or implied findings supported by
substantial evidence. (
Cal.App.4th 315, 322.) Moreover, claims
that a defendant has been denied his Sixth Amendment right to conflict-free
counsel is a category of ineffective assistance of counsel. (See People
v. Doolin, supra, 45 Cal.4th 390,
417.) The circumstances the trial court
cited raise a genuine concern about the public defender having a possible
conflict of interest. The public
defender dismisses these concerns as merely speculative. This is not a typical conflict case and none
of these possibilities may arise.
However, we are not viewing this with the benefit of hindsight on
appeal, but only with such information that shows that a potential conflict may
arise.
Counsel
may be relieved on the trial court’s own motion, even over the objection of the
defendant or his counsel, to eliminate potential conflicts, ensure adequate
representation, or prevent substantial impairment of court proceedings. (People
v. Cole, supra, 33 Cal.4th 1158,
1187.) During oral argument, the People
urged us simply to deny the petition citing People
v. Jones (2004) 33 Cal.4th 234. We
certainly recognize the authority to do so.
In People v. Jones, the
Supreme Court found no error in removing defendant’s appointed counsel for a
potential conflict notwithstanding defendant’s offer to waive that conflict
because the trial court was seeking to protect the defendant’s right to
competent counsel. (Id. at pp. 244-245; see also People v. Richardson (2008) 43 Cal.4th 959, 994-997.)
holds only that the removal of potentially conflicted counsel did not violate a
defendant’s right to counsel. The
defendant did not argue that the trial court abused its discretion in doing
so. (See People v. Jones, supra,
33 Cal.4th at p. 244, fn. 2.)
Similarly in the case of People v.
Noriega (2010) 48 Cal.4th 517, the Supreme Court held that there was no
violation a defendant’s state or federal constitutional right to counsel, and
went further and held that assuming the trial court abused its discretion in
removing counsel under its statutory authority, the defendant had failed to
show prejudice. We are confronted with
deciding the exact issue that the Supreme Court did not decide—whether the trial
court did abuse its discretion in removing the public defender from
representing the defendant. Moreover, we
must decide the issue at the pretrial stage, not on appeal where we would have
the benefit of hindsight. Thus,
although removal of appointed counsel does not involve a defendant’s
constitutional rights, some consideration should be given to the right of a
defendant “to decide for himself who best can conduct the case must be
respected wherever feasible.†(
606, 615, fn. omitted, disapproved on another ground in People v. Doolin, supra,
45 Cal.4th 390.) Prior to removing
appointed defense counsel, we believe the better course is for the court to
advise the defendant of the problem and, if possible, to secure a knowing and
intelligent waiver. Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, set forth
general guidelines for a trial court to follow when confronted with a potential
conflict. We believe that these
guidelines remain viable and, in general, a trial court should advise the
defendant of the problem and inquire whether he wishes to waive any conflict.
this court is insufficient to show a knowing and intelligent waiver, but we
believe that the trial court abused its discretion by failing to follow these
guidelines when confronted with this situation.
Before recusing the public defender, the court should have explained to
Coronado the potential pitfalls of keeping counsel and advised him of alternatives. It should have appointed independent counsel
to confer with Coronado and, if after conferring with counsel Coronado stilled
wished to continue with his attorney, the court should have secured a knowing
and intelligent waiver.
Finally,
the public defender does not contend in its traverse that the trial court erred
in failing to grant the request for an in camera hearing.
the removal order cannot stand, we should issue an order to that effect and let
the trial judge exercise his discretion from there. In other words, the trial court is free to
conduct a conflict inquiry and obtain waivers from Coronado if it so desires—at
any time during trial—but, in the public defender’s view, there should be no
joint venture between this court and the trial court in making the decision to
conduct such an inquiry. We reject the
notion that we are making a de novo determination that a potential conflict
exists. We are reviewing the recusal
order to determine whether the trial court’s express or implied findings are
supported by substantial evidence. (
p. 322.)
DISPOSITION
Let
a writ of mandate issue requiring the trial court to set aside its order
recusing the Riverside County Public Defender’s Office and to hold a new
hearing in conformance with the views expressed herein.
Petitioner
is directed to prepare and have the writ of mandate issued, copies served, and
the original filed with the clerk of this court, together with proof of service
on all parties.
The
stay of proceedings previously issued by this court is vacated.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.
to Coronado’s case, on February 12, 2012, a jury convicted Fierros of first
degree murder and rendered true findings on the robbery and kidnapping special
circumstances, as well as the firearm enhancement. On March 7, 2012, after a penalty phase, the
jury returned a death verdict for Fierros.
trial court stayed the recusal order so that writ review could be sought, the
public defender’s office remains Coronado’s attorney of record and the petition
is brought in his name.
