P. v. Hola
Filed 4/11/13 P. v. Hola CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
REGINALD HOLA,
Defendant and Appellant.
C069643
(Super. Ct. No. 09F00267)
Defendant
Reginald Hola entered a negotiated plea of no contest to receiving stolen
property, attempted second degree robbery
and two counts of second degree robbery, and admitted a principal was armed
with a firearm. He entered his plea in
exchange for a stipulated state prison
sentence and dismissal of the remaining counts with a waiver pursuant to
754 for purposes of restitution only.
After
entering his plea, defendant sought substitute counsel pursuant to
118 (Marsden) on three occasions (May
28, July 9, and Dec. 21, 2010)
and each time his request was denied.
Defendant also sought to withdraw his plea (July 9, 2010) and that motion was denied as well. On January
14, 2011, the court expressed a doubt as to defendant’s
competency. After an evaluation by a
doctor and referral to CONREP
name="_ftnref1" title="">[1]
for placement, defendant was committed to Napa
State Hospital
on April 15, 2011, for no
more than three years. Six months later,
the court found defendant competent. On November 4, 2011, defendant again
sought substitution of counsel. After
denying defendant’s Marsden motion,
the court sentenced defendant to state prison.
Defendant
appeals. His request for a
§ 1237.5) was granted. He contends
that during the Marsden hearing on December 21, 2010, his attorney
created a conflict of interest by her statements and that she should have been
immediately relieved. He argues the
trial court’s error in failing to replace his attorney requires reversal and
remand. We disagree and shall affirm the
judgment.
FACTUAL BACKGROUND
On December 27, 2008, defendant and two
others, one of whom was armed with a shotgun, entered a Game Stop store on Calvine
Road. Two
victims were inside the store. One
victim gave the robbers the money out of the cash register. The same day, defendant and two others, one
of whom was armed with a sawed-off shotgun, entered the Game Stop store on
Bruceville Road and committed a robbery.
Five victims were inside the store.
Another robbery of the Game Stop store on Calvine Road occurred in
January 2009 and the suspects fled with money containing an electronic tracking
device, leading to their arrest. One of
these suspects identified defendant as having been involved in the other
robberies. A search of defendant’s home
revealed several video games and clothing worn in the robberies.
PROCEDURAL BACKGROUND
December 21, 2010 Hearing and Related Proceedings
On
December 21, 2010, defendant personally filed a written motion to relieve
counsel “due to inadequate representation.â€
Defendant declared that there were conflicts between him and his
attorney and he would “provide the necessary evidence to support†his claim at
the hearing scheduled for the same date.
He claimed that due to counsel’s inadequate representation, he had
suffered prejudice “such as to justify dismissal of charges currently pending,
or in the alternative, enjoy the substitution of counsel.†He stated that counsel had failed and/or
refused “to confer with [him] concerning the preparation of [his] defense; [¶] . . . to communicate with
[him]; [¶] . . . [to] subpoena
witnesses favorable to [his] defense and deprived [him] of the testimony
critical to the defense; [¶]
. . . to perform and/or to have performed investigation(s) critical
and necessary to the defense; [and] [¶] . . . to prepare and file
motion(s) critical to the defense.†He
attached points and authorities in support of his motion, indicating that the
trial court was required to inquire on the record.
At the
closed Marsden hearing on December
21, 2010, defendant personally confirmed on the record that he was making a
motion to relieve counsel and understood that what was said at the hearing was
in confidence. When the court inquired
as to defendant’s specific reasons, defendant responded, “Can’t work with
her.†When asked why, defendant remained
silent for “well over a minute.†When
the court inquired again, defendant did not respond.
The court
then turned to counsel and asked how long she had represented defendant. Counsel responded that she had represented
defendant for almost two years. When the
court asked whether she had met with defendant several times, counsel responded
“numerous times†and then recounted the procedural history of the case, noting
the preliminary hearing, the plea agreement, the prior Marsden motions, defendant’s motion to withdraw his plea, which was
presented by an attorney appointed for that purpose only (that attorney found
no basis for a motion to withdraw plea), counsel’s declaration of doubt as to
defendant’s competency, and the court’s appointment of Dr. Schaffer (who opined
defendant was competent and possibly malingering), Dr. Roof (who opined
defendant was incompetent), and Dr. Nakagawa (who opined that defendant was
competent and malingering). Counsel
stated that she had set the matter for a hearing on defendant’s competency and
had met with defendant several times during which he seemed very normal.
Counsel
then provided the following information to the court. When she advised defendant a few days before
the December Marsden hearing that she
had given the other doctor’s reports to Dr. Roof who then changed his opinion
and concluded defendant was, more likely than not, malingering, defendant
“became very upset and said that he felt that [she] was working against him,
that [she] took the only doctor who was on his side and turned that doctor
against him by showing him the reports of the other doctor[s].†She explained to defendant that Dr. Roof
would be asked about the other reports and their tests when he testified. Defendant had asked counsel to determine how
long he had met with the other doctors, telling counsel that he had met with
Dr. Schaffer for only five or six minutes and with Dr. Nakagawa for only 30
minutes. Counsel learned that Dr.
Schaffer had met with defendant for three and one-half hours. She contacted “C.C.D.†but it was unable to
locate the information in order to determine how long defendant had met with
Dr. Nakagawa.
Counsel
also stated that defendant had given her the names of three inmates. When she asked what those inmates would
testify to, he asked her “what did they need to testify to.†Counsel “explained to [defendant] that [she]
could not assist him in trying to present some kind of fraud to the Court as to
his mental condition.â€
The court
asked defendant to respond. Defendant
reiterated that he “can’t work with her†and added that when he started to
talk, she would yell at him. When the
court inquired as to what defendant meant, defendant stated “I try to speak
out, tell her my opinion or whatever, and she—she—she gets up yelling. And you know, I just cut it off right
there. That’s it. Can’t do it no more.â€
The court
determined that counsel would remain as defendant’s attorney and denied his
motion. The court then stated, “I don’t
know whether you’re malingering or whether you are in fact incompetent. [¶]
But the point is is that [counsel] has your best interests at
heart. I know her. I have worked with her. She has been an attorney in my court over
several years. And she is an effective
advocate for defendants, as good as they come in this county. [¶]
And because you decide you can’t work with her is not good enough
reason. I’ve asked you to be specific
and you can’t give me one example.â€
Defendant claimed that he had been specific, that is, she had yelled at
him. The court commented, “I have tried
to talk to you. You can’t talk to
me.†Then the court stated, “You know,
I’m tempted to—to have another [Penal Code section] 1368 [hearing] but it
doesn’t make sense. I’ve got three
doctors’ reports.â€
Counsel
then added the following: “[Defendant]
during one of our visits asked me if we were on the same page. And he basically indicated to me, and this
was on one of our last visits, either the one on December 2nd or December 10th,
that when I asked what he meant by the same page, he explained that his plan,
since he has been convicted of multiple strikes, is to establish that he
suffers from a severe mental illness.
[¶] So that in the future if
something were to happen, that he would be able to show that he suffers from
mental illness and hopefully would somehow avoid a sentence of 25 to life if he
committed a crime in the future.
[¶] I explained to him that
that—that that kind of—of conversation—that I could not be part of. And that I would do what—what I needed to do
as far as where we were, but I could not assist him in trying to commit a fraud
upon the Court.†She also stated that she
had met with defendant numerous times, each meeting would be lengthy, and that
there had not been yelling.
When
counsel started to talk about a particular meeting with defendant, the court
asked counsel to be succinct. She stated
that on December 17th, defendant got “extremely angry†when given the
“letters,†said he was finished and would not listen to her. The court inquired whether she had failed to
file any motions as defendant had complained in his written motion and counsel
denied it.
The court
turned to defendant and asked him about his written motion to substitute
counsel wherein he stated that counsel had failed or refused to file motions
critical to his defense. The court
asked, “What motions are you talking about?â€
Defendant responded, “my friend hand me that†and that the court was
“supposed to know what’s that’s for.â€
The court then denied the Marsden motion.
Upon
reconvening in open court, the court inquired whether the matter of defendant’s
competency was submitted on the reports and both parties agreed. The court found defendant competent and
continued sentencing to January 14, 2011.
At
sentencing on January 14, 2011, defendant appeared not to understand the
proceedings. The judge declared a doubt
as to defendant’s competency, suspended proceedings, and appointed a doctor to
evaluate defendant. In March 2011, upon
the return of Dr. Newman’s report finding defendant not competent, counsel
stated that the issue of defendant’s competence “did not arise until after the
time period of the plea†and that she “did not see any evidence prior to that
of that issue.†She also noted that
“sometimes when someone is in custody they can, um, decompensate, and I think
that that is what has happened here.â€
The court found defendant not competent and referred him to CONREP.
Defendant
subsequently spent several months at a state hospital and was returned to court
on August 2, 2011. The hospital
diagnosed defendant as malingering and certified that defendant was competent.
On August
17, 2011, after meeting with defendant for “over an hour,†counsel had “some
concerns about his competency level despite the report†and requested a
hearing. On October 20, 2011, both
parties submitted on the hospital’s report and the court found defendant
competent, reinstated criminal proceedings and continued the matter to November
4, 2011, for Judge Kenny to sentence defendant.
November 4, 2011 Hearing
At
sentencing, defendant claimed he did not understand the proceedings and again
sought substitution of counsel pursuant to Marsden. At the closed hearing, the court inquired as
to why defendant did not want counsel as his attorney. Defendant claimed that she had called him a
“liar.†When asked why she had called
defendant a liar, defendant responded, “She said it, you know.†When asked when she said it, defendant
claimed, “Last time we went to court†and then explained it occurred before he
went to the hospital. Defendant also
complained that counsel was “working with the D.A.†and against him. When asked to be more specific, defendant
claimed everything she did was inappropriate in that they had meetings and were
finding a way to “turn everything against [him].†Defendant claimed counsel was “telling peopleâ€
including the judge presiding at the hearing that defendant was a “liar.†Defendant explained that a man in “a suitâ€
whose name defendant did not know told defendant that counsel had told the
judge that defendant was a liar. The
judge denied it.
Counsel
claimed that she had done everything that she could professionally do to help
defendant, including having Dr. Newman review the state hospital’s competency
report. After testing defendant, Dr.
Newman opined that even though defendant probably had some kind of
psychological or psychiatric issue, defendant was malingering. Counsel denied calling defendant a liar but
admitted that during a prior Marsden
hearing, she had indicated to the court that defendant “was being disingenuous
in some of the things he was saying to the Court.†Counsel denied secretly meeting with the
prosecutor and claimed the meetings were normal, professional discussions about
the case.
Upon the
court’s inquiry, defendant had nothing further to add. The court denied the Marsden motion. Upon
reconvening, the court sentenced defendant to state prison for eight years four
months.
DISCUSSION
I. Defendant’s
Contentions
Defendant
contends that during the Marsden hearing
in December 2010, his attorney’s “gratuitous statements effectively accusing
[him] of trying to perpetrate a fraud on the court and, potentially, commit
crimes constituted a violation of her ethical duty to [him]†and “created a
conflict of interest between her and [him] such that she should have been
immediately relieved as [his] trial attorney.â€
Defendant contends the trial court’s error in failing to replace his
attorney once she disclosed confidential information requires reversal, remand,
restoration of the status quo as of December 2010, and reevaluation of his
competency.
title="">[2] Defendant also contends that the court
erroneously denied his Marsden motion
in November 2011. We conclude that
defendant has failed to demonstrate error and even assuming error, it was not
prejudicial.
Defendant
claims counsel violated California State Bar Rules of Professional Conduct,
rule 3-100
and Business and Professions Code section 6068, subdivision (e)(1)
and created a conflict of interest. He
argues counsel had alternatives such as refusing to assist him in his plan, and
that counsel certainly “does not tell the court.†He claims his complaints at the December 2010
Marsden hearing were vague in that he
said nothing and counsel’s comments were not in response to direct questioning
by the court. He argues the
circumstances here are distinguishable from those in People v. Cox (1991) 53 Cal.3d 618 (Cox) (disapproved on other points in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22 (Doolin)),
52 Cal.4th 610, 637-644, and People
v. Hartsch (2010) 49 Cal.4th 472, 512-513. He claims counsel “should have been guided by
the principles found in Nix v. Whiteside
(1986) 475 U.S. 157 [89 L.Ed.2d 123] [(Whiteside)].†Citing
166 Cal.App.4th 343, 357-358 (Bolton),
defendant argues that counsel “has no obligation and, in fact, is not permitted
to disclose the perjury but, instead, is simply obligated not to directly
facilitate the perjury.†Defendant
claims that counsel’s gratuitous disclosure of confidential information
amounted to acting against defendant.
The
People respond that counsel did not violate her ethical duties, claiming that
“defendant accused defense counsel of working against him and sharing the
doctors’ reports with the only doctor that believed he was mentally
incompetent†and that counsel was defending herself by providing full
disclosure as required by Marsden. Citing People
v. Henning (2009) 178 Cal.App.4th 388 (Henning), the People argue that clearing the courtroom allowed
defendant and counsel to “speak freely, without the concern of violating the attorney-client
privilege.†The People argue that
of a Marsden hearing. With respect to prejudice, the People claim
that a substitute counsel would not provide anything that counsel did not
provide.
Defendant
replies that the People have mischaracterized the hearing in that he never
accused counsel of anything at the hearing but instead remained silent when
asked to explain his complaints.
We
conclude the trial court did not err in refusing to relieve counsel.
II. Analysis
“A
criminal defendant is guaranteed the right to the assistance of counsel by the
Sixth Amendment to the United States Constitution and article I, section 15 of
the California Constitution. This constitutional
right includes the correlative right to representation free from any conflict
of interest that undermines counsel’s loyalty to his or her client. [Citations.]
‘It has long been held that under both Constitutions, a defendant is
deprived of his or her constitutional right to the assistance of counsel in
certain circumstances when, despite the physical presence of a defense attorney
at trial, that attorney labored under a conflict of interest that compromised
his or her loyalty to the defendant.’
[Citation.] ‘As a general
proposition, such conflicts “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 his own interests.†’ â€
(Doolin, supra, 45 Cal.4th at
p. 417; Cox, supra, 53 Cal.3d at p. 653.)
“In
162 [152 L.Ed.2d 291] (Mickens), the
high court confirmed that claims of Sixth Amendment violation based on
conflicts of interest are a category of ineffective assistance of counsel
claims that, under Strickland [
688 [80 L.Ed.2d 674]], generally require a defendant to show (1) counsel’s
deficient performance, and (2) a reasonable probability that, absent counsel’s
deficiencies, the result of the proceeding would have been different. [Citations.]
In the context of a conflict of interest claim, deficient performance is
demonstrated by a showing that defense counsel labored under an actual conflict
of interest ‘that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.’ [Citations.]
‘[I]nquiry into actual conflict [does not require] something separate
and apart from adverse effect.’
[Citation.] ‘An “actual
conflict,†for Sixth Amendment purposes, is a conflict of interest that
adversely affects counsel’s performance.’ â€
(Doolin, supra, 45 Cal.4th
at pp. 417-418.)
“[A]
determination of whether counsel’s performance was ‘adversely affected’ under
the federal standard ‘requires an inquiry into whether counsel “pulled his
punches,†i.e., whether counsel failed to represent defendant as vigorously as
he might have, had there been no conflict.
[Citation.] In undertaking such
an inquiry, we are . . . bound by the record.†(Doolin,
p. 418.) Doolin “adopt[ed] the federal constitutional standard for
evaluating claims of conflict of interest under our state Constitution.†(Id.
at p. 419.) Other than multiple
concurrent representation where a presumption of prejudice may apply to
conflicts of interest, defendant must demonstrate outcome-determinative
prejudice. (Id. at pp. 418, 420-422.)
“[T]he
Sixth Amendment does not require any particular response by counsel to a
problem that may arise. Rather, the
Sixth Amendment inquiry is into whether the attorney’s conduct was ‘reasonably
effective.’ To counteract the natural
tendency to fault an unsuccessful defense, a court reviewing a claim of
ineffective assistance must ‘indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’ [Citation.]
In giving shape to the perimeters of this range of reasonable
professional assistance, Strickland
mandates that ‘[prevailing] norms of practice as reflected in American Bar
Association Standards and the like, . . . are guides to determining
what is reasonable, but they are only guides.’
[Citation.] Under the Strickland standard, breach of an ethical standard does not
necessarily make out a denial of the Sixth Amendment guarantee of assistance of
counsel.†(Whiteside, supra,
[89 L.Ed.2d at pp. 133-134], italics added.)
“In
resolving claims of ineffective assistance, we must ‘assess counsel’s overall
performance throughout the case’ [citation], evaluating it ‘from counsel’s
perspective at the time of the alleged error and in light of all the
circumstances.’ †(Cox, supra,
Here, the
alleged conflict arose during a hearing on defendant’s Marsden motion. A brief
discussion of the practice with Marsden motions
is thus warranted. “A trial judge is
unable to intelligently deal with a defendant’s request for substitution of
attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct
and events relevant to the diligence and competence of his attorney which are
not apparent to the trial judge from observations within the four corners of
the courtroom. Indeed, ‘[w]hen
inadequate representation is alleged, the critical factual inquiry ordinarily
relates to matters outside the trial record: whether the defendant had a
defense which was not presented; whether trial counsel consulted sufficiently
with the accused, and adequately investigated the facts and the law; whether
the omissions charged to trial counsel resulted from inadequate preparation
rather than from unwise choice of trial tactics and strategy.’ [Citation.]
Thus, a judge who denies a motion for substitution of attorneys solely
on the basis of his courtroom observations, despite a defendant’s offer to
relate specific instances of misconduct, abuses the exercise of his discretion
to determine the competency of the attorney.
A judicial decision made without giving a party an opportunity to
present argument or evidence in support of his contention ‘is lacking in all
the attributes of a judicial determination.’ â€
(Marsden, supra, 2 Cal.3d at
pp. 123-124.) Marsden held it was error to deny the defendant the opportunity to
explain the basis for his claim and found the error in that case prejudicial
because the court could not “conclude beyond a reasonable doubt that this
denial of the effective assistance of counsel did not contribute to the
defendant’s conviction.†(
p. 126.)
“Once a
defendant is afforded an opportunity to state his or her reasons for seeking to
discharge an appointed attorney, the decision whether or not to grant a motion
for substitution of counsel lies within the discretion of the trial judge.†(People
v. Clark (2011) 52 Cal.4th 856, 912.)
Here,
defendant personally filed a written motion to substitute counsel prior to the
written motion. He had written
complaints about counsel’s failure and/or refusal to do many things, including
“to confer with [him] concerning the preparation of [his] defense; [¶]
. . . to communicate with [him]; [¶]
. . . to subpoena witnesses favorable to the defense and
deprived [him] of the testimony critical to [his] defense; [¶] . . . to perform and/or to have
performed investigation(s) critical and necessary to the defense; [and]
[¶] . . . to prepare
and file motion(s) critical to the defense.â€
He stated that he would have the evidentiary proof at the hearing.
At the
hearing, when the court asked for specifics, defendant provided none. The court turned to counsel to respond. Counsel could only respond to defendant’s
general written complaints. Defendant
filed the written Marsden motion just
days after a conversation between defendant and counsel during which counsel
explained that she had given the reports of the doctors who found defendant
competent to the doctor who found him incompetent. Because defendant became extremely angry, counsel
could reasonably assume at the Marsden hearing
that that was the specific complaint that defendant really had.
Even if
there was a specific complaint about counsel giving the unfavorable reports to
the only favorable doctor, defendant argues that counsel should have just
explained her tactical reason for doing so and there was no reason to disclose
any additional information. Even when
defendant specifically complained that counsel yelled at him, defendant claims
counsel should have responded by denying the same or explaining the reason for
doing so. Defendant asks that this court
“make it clear†that counsel must limit disclosures of confidential information
to that which is necessary to respond to a defendant’s specific complaints and
to direct questioning by the court.
Defendant states that “[i]f a defendant wants a new attorney, trial
counsel should not go out of her way to block that request.†We reject defendant’s arguments.
“As is
the usual practice with Marsden
motions, the trial court heard from defendant and his attorney only after the
courtroom ha[d] been cleared of all persons except for court personnel and the
defense team. [Citation.] The cleared courtroom allowed the trial court
to hear from defendant and defense counsel in a manner that preserved
attorney-client privileges and avoided revealing tactical decisions to the
prosecution.†(Henning, supra,
178 Cal.App.4th at p. 404.)
Defendant
claims Henning is distinguishable
because the defendant in that case had specific complaints. Again, defendant failed to discuss let alone
acknowledge his written motion to substitute counsel wherein he listed several
complaints. Counsel explained her
actions in response to defendant’s complaints and did not create a conflict. Counsel divulged no privileged communications
until she was required to do so in response to defendant’s complaints about her
performance at the Marsden hearing. (Henning,
p. 404.) Notably, defendant never
disputed counsel’s representations to the court about defendant’s plans. Any conflict was of defendant’s own
making. Defendant has cited no authority
to support a claim that he has a right to require that counsel keep
confidential his plan to feign mental incompetence or that he has a right to
insist that counsel assist him in obtaining perjured testimony from fellow
inmates or in presenting false evidence.
Instead, the law is quite the opposite.
“ ‘[A]n
attorney owes no duty to offer on his client’s behalf testimony which is
untrue.’ [Citations.] Stated slightly differently, an attorney,
including a criminal defense attorney, has a ‘special duty . . . to
prevent and disclose frauds upon the court . . . .’ †(People
v. Riel (2000) 22 Cal.4th 1153, 1217 (Riel), citing Whiteside,
testimony is or will be false unless
there is a firm factual basis for doing so.
Such a basis exists when facts
known to the lawyer or the client’s own
statements indicate to the lawyer that the testimony or other evidence is false.†’ †(Riel,
In
defendant from testifying falsely by threatening: to reveal to the court that his story was
perjured, to withdraw from representation, and to impeach the defendant. The defendant testified and gave a story that
the attorney did not believe was perjured.
Whiteside held the attorney
did not render ineffective assistance by threatening to disclose the
defendant’s plan to testify falsely, reasoning that the defendant had no right
to testify falsely. (
pp. 161-162, 171-173 [89 L.Ed.2d at pp. 130-131, 137-139].) “An attorney’s duty of confidentiality, which
totally covers the client’s admission of guilt, does not extend to a client’s
announced plans to engage in future criminal conduct.†(Id.
p. 139].) Here, defendant announced
to counsel his plan to feign mental incompetence, a fraudulent claim. (Henning,
supra, 178 Cal.App.4th at p. 405.)
In
and later moved for a new trial on the ground of newly discovered evidence,
that is, information from a potential witness that would be favorable to the
defense. The defense had not obtained
the witness’s declaration by the time of the hearing on the new trial
motion. Both defense attorneys stated
they had a conflict with respect to the witness that could not be discussed in
open court or in the presence of the prosecutor. At an in camera hearing absent the
prosecutor, a defense attorney explained that the witness had made various
statements about the case but stated that he would give a very favorable
statement which would be a lie. The
defense attorneys were not interested in producing perjured testimony and the
witness then indicated that the favorable statement might not be a lie. The defense attorneys explained to the court
that they were not willing to produce potentially perjured testimony but did
not reveal the witness’s specific statements.
In open court, the court denied the new trial motion. (Riel,
at pp. 1215-1216.) On appeal, the
defendant claimed counsel rendered ineffective assistance in failing to present
the evidence. (Id. at p. 1216.) Noting
that the defense attorneys were “intentionally vague,†Riel rejected the claim, “hypothesiz[ing] on this record that [the
witness] may have said something that fully justified their actions.†(Id. at
p. 1217.) “Although attorneys may not present evidence they know to be false or
assist in perpetrating known frauds on the court, they may ethically
present evidence that they suspect, but do not personally know, is false. Criminal defense attorneys sometimes have to
present evidence that is incredible and that, not being naive, they might
personally disbelieve. Presenting
incredible evidence may raise difficult tactical decisions—if counsel finds
evidence incredible, the fact finder may also—but, as long as counsel has no specific undisclosed factual knowledge of its
falsity, it does not raise an ethical problem.†(Ibid.,
italics added.) Riel
held that there was “no basis to find that counsel acted other than as diligent
advocates consistent with ethical constraints.â€
(Id. at p. 1218.) Here, defendant disclosed to counsel his plan
to falsely claim mental incompetence and wanted her assistance in obtaining
false statements of other inmates.
Counsel could not ethically present evidence to assist defendant in
perpetrating a fraud on the court.
In
supra, 53 Cal.3d 618, defense counsel revealed during an in camera
hearing that based on his investigation, there was a “ ‘possibility that there
may be an escape attempt in this case.’ â€
(Cox at p. 653.) On appeal, the defendant claimed that the
trial court should have “pursued this revelation to assure he was represented
by ‘conflict free’ counsel or obtained his express waiver of such
representation.†(Ibid.) Cox determined that the trial court was not required to inquire
further or obtain a waiver of conflict, distinguishing cases involving dual
representation. (Id. at p.654.)
also observe that the American Bar Association Code of Professional
Responsibility permits an attorney to reveal ‘[t]he intention of his client to commit
a crime and the information necessary to prevent the crime.’ (DR 4-101(C)(3); see also ABA Model Rules
Prof. Conduct, rule 1.6(b)(1) [attorney may reveal confidential information ‘to
prevent the client from committing a criminal act . . . likely to
result in imminent death or substantial bodily harm’]; cf. Evid. Code,
§ 956 [no attorney-client privilege
‘if the services of the lawyer were sought or obtained to enable or aid anyone
to commit or plan to commit a crime [or
a fraud]’]; see generally Matter of
Shay (1911) 160 Cal. 399, 406; Falloon
v. Superior Court (1926) 79 Cal.App. 149, 157-158.)[
admonish against knowingly ‘fail[ing] to disclose a material fact to a tribunal
when disclosure is necessary to avoid assisting a criminal or fraudulent act by
the client . . . .’ (ABA
Model Code Prof. Conduct, rule 3.3(a)(2).)
Under most circumstances, this obligation would include alerting the
court to matters that might threaten the security of the proceedings.†(Cox,
supra, 53 Cal.3d at
pp. 654-655, italics added.) Here,
defendant sought the assistance of counsel to commit a fraud on the court; no
attorney-client privilege applied.
Citing
not obligated and in fact was prohibited from disclosing defendant’s “alleged
intent to commit misconduct.â€
Defendant’s reliance upon Bolton
is misplaced. In Bolton, based on defense counsel’s belief that the defendant would perjure himself on the witness
stand, defense counsel sought to be relieved as counsel several days before the
final date for trial. The trial court
relieved defense counsel based on an alleged conflict of interest and required
the defendant to choose between his right to counsel and his
supra, 166 Cal.App.4th at
pp. 350, 356.) The defendant
decided to represent himself rather than waive his speedy trial right. (Id.
at pp. 349-350.) Finding that there
was no legitimate conflict of interest, Bolton
reversed, concluding that the defendant’s waiver of his right to counsel was
not voluntary. (Id. at pp. 358-361.)
testify, notwithstanding counsel’s wishes.
(People v. Nakahara (2003)
30 Cal.4th 705, 717.) Here,
defendant had already entered a negotiated plea of no contest to several
offenses. Defendant’s fundamental right
to testify was not at issue. Further,
“it was not at all clear that Bolton was in fact going to perjure himself. While Cline [Bolton’s counsel] may have
doubted Bolton's claim that one of the victims had a razor blade, Cline did not
know that this was false. In addition, Cline had only a hunch that
Bolton was ‘hiding’ his girlfriend from Cline.
Further, Bolton was not given an opportunity to respond to Cline's
claims before the court determined that a conflict existed and agreed to
relieve Cline.†(Bolton, supra,
166 Cal.App.4th at p. 357.)
to be relieved was not proper, concluding that counsel “should have utilized
the narrative approach if he was concerned about the veracity of Bolton’s
testimony.†(Id. at p. 358.) Here,
at the Marsden hearing, counsel
represented that defendant had told her of his plan to feign mental
incompetence and he did not dispute her representations at the
the trial court did not err in refusing to relieve her.
In any
event, defendant has failed to demonstrate prejudice. The most recent medical report from the state
hospital after defendant’s commitment for several months indicated that
defendant was malingering. Counsel
delivered that report to Dr. Newman who reviewed the report, conducted testing
on defendant and concluded that defendant was malingering even though he may
have some kind of psychological or psychiatric issue. Defendant argues the error was not harmless
because the Marsden hearing predated
litigation of his competency, suggesting another attorney would have found
“stronger or better evidence†to support an incompetence determination. Defendant’s suggestion that other doctors
could have been retained who would have provided a more favorable opinion is
sheer speculation. Because the trial
court erred in appointing an attorney for the sole purpose of evaluating
defendant’s motion to withdraw his plea (People
v. Sanchez (2011) 53 Cal.4th 80), defendant argues that attorney may
have based her evaluation on the assumption defendant was competent. Sanchez
“specifically disapprove[d] of the procedure . . . , namely,
the appointment of a substitute or ‘conflict’ attorney solely to evaluate
whether a criminal defendant has a legal ground on which to move to withdraw
the plea on the basis of the current counsel’s incompetence.†(Sanchez,
attorney’s assumption concerning his competency is based on pure speculation.
DISPOSITION
The
judgment is affirmed.
BUTZ ,
Acting P. J.
We concur:
MAURO , J.
MURRAY , J.
name="_ftn1" title="">[1] CONREP refers to the state Department of
Mental Health’s Forensic Conditional Release Program. The goal of CONREP is to ensure greater
public protection in California communities via an effective and standardized
community outpatient treatment system. (
[as of Apr. 11, 2013].)
his complaints at the Marsden hearing
about his attorney’s performance justified granting the motion.
