Filed 2/27/18 P. v. Leal 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----

THE PEOPLE,

Plaintiff and Respondent,

v.

STANLEY JOHN LEAL,

Defendant and Appellant.


C084562

(Super. Ct. No. CRF16-1472)



Defendant Stanley John Leal pleaded no contest to felony vandalism. (Pen. Code, § 594, subd. (b)(1).) The trial court sentenced him to a two-year state prison term.
Defendant now contends the trial court violated his state constitutional right to counsel by removing his appointed counsel without providing him notice or an opportunity to be heard. We conclude that although the substitution of counsel violated Code of Civil Procedure section 284, the error was harmless and did not violate the state constitutional right to counsel. We will affirm the judgment.
BACKGROUND
In September 2016, defendant went to the home of his sister, but they had a troubled relationship and his sister wanted him to leave. Defendant did not want to leave and eventually attacked his sister’s car with a baseball bat, causing substantial damage to the vehicle.
Defendant’s appointed counsel was a Yuba County Assistant Public Defender. Defendant pleaded no contest to felony vandalism and was given a Cruz waiver as part of the plea. He also executed a Harvey waiver as to another incident in which defendant vandalized the door of the same car.
A hearing was set for October 11, 2016, to determine if the damages met the $400 minimum for felony vandalism. The matter was subsequently continued to October 24, 2016. At the October 24 hearing, it was agreed that if defendant paid $1,486 in restitution to his sister, the felony charge would be reduced to a misdemeanor. The case was continued for sentencing to December 19, 2016, but defendant did not appear at the December 19 sentencing hearing. The trial court found that defendant had violated the Cruz waiver and issued a no-bail warrant for his arrest.
On January 25, 2017, defendant appeared before the trial court. The trial court ordered a probation report and set sentencing for February 21, 2017. The trial court also set arraignment for a new case involving defendant that had been charged on January 4, 2017.
On January 30, 2017, the Yuba County Public Defender sent a letter to the trial court stating that, due to the office’s previous representation of another individual, it “must declare a conflict of interest in the matter of Stanley John Leal.” The letter stated it was regarding the case of People v. Leal, Yuba County case No. CRM17-105. The letter also stated that defendant’s case was scheduled for a pretrial conference on February 21, 2017, and that the public defender was willing to discuss the matter ex parte with the court if needed. The trial court, on its own motion, relieved the public defender and appointed substitute counsel for defendant on February 10, 2017.
The probation report recommended an upper term state prison sentence in light of defendant’s extensive criminal record and the lack of mitigating circumstances. Substitute counsel filed a memorandum setting forth mitigating circumstances related to defendant’s sentence. During argument at the March 20, 2017 sentencing hearing, substitute counsel stated he inherited defendant as a client only recently and was not present when defendant made the Cruz waiver. Following argument from both sides and a statement from defendant, the trial court imposed the middle term for defendant’s crime.
DISCUSSION
Defendant contends the trial court violated his state constitutional right to counsel.
Both the federal and California Constitutions guarantee a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right to effective assistance of counsel includes the right to conflict-free counsel and the right to counsel of choice. (Wheat v. United States (1988) 486 U.S. 153, 158-159 [100 L.Ed.2d 140, 148-149] (Wheat); People v. Bonin (1989) 47 Cal.3d 808, 834, 836-837; People v. Courts (1985) 37 Cal.3d 784, 789.) A court’s decision to remove appointed counsel is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1187.)
In Wheat, the United States Supreme Court concluded that trial courts have broad discretion under the federal Constitution’s Sixth Amendment right to counsel to remove a criminal defense attorney facing a potential conflict regardless of a defendant’s desire to waive the conflict. (Wheat, supra, 486 U.S. at pp. 159, 161.) Wheat concluded that the Sixth Amendment is concerned more with effective representation than with preferred representation. (Ibid.)
Nevertheless, defendant relies on a series of California cases holding that judges have “limited” discretion to remove, over objection, a criminal defense attorney in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings. (See, e.g., People v. McKenzie (1983) 34 Cal.3d 616, 629-630; Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613-615; People v. Daniels (1991) 52 Cal.3d 815, 846.) As the California Supreme Court explained, the state not only has a duty to insure fairness in the trial, but it also has a “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.” (People v. Crovedi (1966) 65 Cal.2d 199, 206; id. at p. 208.) Based on those cases, some courts have rejected Wheat, supra, 486 U.S. 153 and concluded the California Constitution makes a defendant the master of his or her own fate. (Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 957; People v. Burrows (1990) 220 Cal.App.3d 116, 123.) The decisions hold that the state Constitution provides broad protection for a defendant’s right to waive a conflict of interest in order to keep counsel of his or her own choosing. (Alcocer, supra, at pp. 956-957; Burrows, supra, at pp. 122-123.)
But in People v. Jones (2004) 33 Cal.4th 234 (Jones), the California Supreme Court upheld the removal of appointed counsel over the defendant’s objection due to counsel’s conflict of interest because a former client might have been involved in the murder for which the defendant was charged. (Id. at pp. 237-238, 241-242, 244-245.) The Supreme Court questioned the earlier decisions affording broad protection for a defendant’s right to choose counsel, finding those cases would be superseded by Wheat, supra, 486 U.S. 153 if they relied on the federal Constitution. (Jones, supra, at pp. 243-244.) The California Supreme Court did not decide whether the state Constitution permits a defendant to insist on being represented by a retained attorney who has a potential conflict of interest, because in that case, as in this one, the defendant’s attorney was appointed by the court, not privately retained by the defendant. (Jones, supra, at p. 245, fn. 3.) Nevertheless, the Court held that removing an indigent defendant’s appointed counsel based on conflict of interest did not violate the state constitutional right to counsel. (Id. at p. 244; see People v. Noriega (2010) 48 Cal.4th 517, 524 [“as this court held in Jones, a trial court does not violate a defendant’s right to counsel under the state Constitution when it ‘removes a defense attorney because of a potential conflict of interest’ ”].)
Based on the holding in Jones, supra, 33 Cal.4th 234, defendant’s claim that the trial court violated his state constitutional right to counsel lacks merit.
In addition, the trial court did not abuse its discretion in removing counsel based on the asserted conflict of interest. A conflict may exist “ ‘whenever counsel is so situated that the caliber of services may be substantially diluted’ ” (People v. Hardy (1992) 2 Cal.4th 86, 135), and courts generally defer to counsel’s good faith representation that there is a conflict. (Holloway v. Arkansas (1978) 435 U.S. 475, 485-486 [55 L.Ed.2d 426, 435].) Accordingly, “we reject the contention that in the absence of conflicting evidence, the court may not rely on the word of the defense lawyer alone.” (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 593.) The fact that a different case number was referenced in the public defender’s letter is not a basis, by itself, to conclude the trial court’s reliance on the public defender’s representation was an abuse of discretion.
Defendant argues the misdemeanor case number referenced in the public defender’s letter cannot support a conflict of interest in his case because the misdemeanor case was dismissed at the sentencing hearing. But the court could not know whether a conflict might not still exist in the future. The misdemeanor case referenced in the letter was pending when the letter was written and when the trial court relieved the public defender; defendant was not sentenced until more than a month later.
However, the trial court’s ruling did violate the statute governing removal of counsel. “The attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: [¶] . . . [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.) This provision applies to criminal cases. (In re Haro (1969) 71 Cal.2d 1021, 1029.) Assuming the public defender’s letter constitutes a motion to withdraw, there is no record of defendant or the prosecutor being notified of the motion, although the court notified defendant and the prosecution of its order substituting counsel for defendant.
Any error in complying with Code of Civil Procedure section 284 is subject to harmless error analysis and forfeiture. (People v. Ward (1972) 27 Cal.App.3d 218, 234.) The fact that counsel was recently substituted was mentioned at the sentencing hearing; neither defendant nor substitute counsel objected to the substitution. Substitute counsel argued vigorously on behalf of defendant at sentencing, and the trial court imposed a term lower than the one recommended in the probation report. The error here is both harmless and forfeited.
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
RAYE, P. J.



/S/
BUTZ, J.