Winkler v. Superior Court

 

 

 

 

 

 

Filed 11/8/13  Winkler v. Superior Court 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

 

(El Dorado)

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>

TODD WINKLER,                           Petitioner,               v.   THE SUPERIOR COURT OF EL DORADO COUNTY,                           Respondent;   THE PEOPLE,                           Real Party in Interest.

C072569   (Super. Ct. No. P12CRF0118)

 

            In this proceeding,
the People requested the trial court remove retained defense counsel, David
Weiner (retained counsel), from representing petitioner Todd Winkler (defendant)
because the People believed retained counsel had an “appearance of []
conflict.”  Retained counsel was representing
defendant on charges he had murdered his wife.  

            A possible witness at the murder trial was Dean
Essenmacher.  Essenmacher spoke to the
victim the evening before she was killed and told him the following:  she was planning to fax divorce papers to her
lawyer the next day; she was afraid of defendant; and she needed to get a href="http://www.fearnotlaw.com/">restraining order because one week prior,
defendant had told her she would end up like his second wife.  Many months prior to this conversation, the
victim told Essenmacher she thought defendant killed his second wife. 

            The appearance of conflict was the following:  Eight and one-half years before defendant’s
murder charge, Essenmacher was arrested for sodomy in concert and anal and genital
penetration.  Essenmacher paid retained
counsel, met with him for “[a]pproximately 30 minutes,” and told him about the circumstances
surrounding the allegations.  The two had
no contact after the initial 30-minute meeting. 
Essenmacher previously had talked to police for “[a]bout an hour.”  Essenmacher was truthful with both retained
counsel and police and told both the same information.  Retained counsel received no confidential information
from Essenmacher.  No charges were ever
filed against Essenmacher.  Defendant
signed a waiver stating he “waive[d] all conflicts and the right to separate
counsel.” 

            The court held a hearing on the People’s request to remove
retained counsel from the murder case. 
The People argued they “have no beef against [retained counsel]
representing [defendant].  We just don’t
want this to come back on appeal, and we don’t want any appearance of
impropriety by any type of representation that [defendant] can get.”  The court ruled as follows:  “I reluctantly find that there is a potential
conflict that is a real conflict between [retained counsel] and [defendant].  [¶] 
I’m mindful that the Defendant wants to keep [retained counsel] as his
counsel.  I’m also of the view that the
conflict potential cannot be waived. 
It’s serious enough that it is a problem and, therefore, the Court would
relieve you as counsel of record.”  In so
ruling, the court noted the following:  â€œthe People’s concern is a legitimate concern”
because if defendant was convicted, his “appellate lawyer will simply say,
‘[Retained counsel]’ was not effective. 
He didn’t go after [Essenmacher] vigorously enough.  That’s the problem . . . .” 

            Defendant (through appointed counsel) filed a petition
for a writ prohibiting the trial court from removing retained counsel and mandating
it reinstate retained counsel.  This court
issued an alternative writ and stayed all proceedings in the case, including
enforcing the order removing retained counsel. 
As explained below, we issue a writ of mandate requiring the trial court
to set aside its order removing retained counsel because there was no evidence
of a potential conflict.

DISCUSSION

            “A criminal defendant is guaranteed the href="http://www.mcmillanlaw.com/">right to the assistance of counsel by
the Sixth Amendment to the United States Constitution and article I, section 15
of the California Constitution.”  (>People v. Doolin (2009) 45 Cal.4th
390, 417.)  The constitutional guarantee
of the right to the assistance of counsel “comprehend[s]” “the right to select
and be represented by one’s preferred attorney.”  (Wheat
v. United States (1988) 486 U.S. 153, 159 [100 L.Ed.2d 140, 148].)  “[T]he right to counsel being conceded, a
defendant should be afforded a fair opportunity to secure counsel of his own
choice.”  (Powell v. Alabama (1932) 287 U.S. 45, 53 [77 L.Ed. 158, 162].)  While this constitutional guarantee is not
absolute, the Sixth Amendment has a “presumption in favor of counsel of . . . choice.”  (Wheat,
at pp. 168 [100 L.Ed.2d at p. 155].)

            The United States Supreme Court has articulated both the
standard a trial court must use in evaluating whether to accept a defendant’s
waiver of his right to conflict-free counsel and the standard an appellate
court must use in evaluating the trial court’s decision.  The trial court “must recognize a presumption
in favor of [defendant’s] counsel of choice, but that presumption may be
overcome not only by a demonstration of actual conflict but by a showing of a
serious potential for conflict.”  (>Wheat v. United States, >supra, 486 U.S. at p. 164 [100 L.Ed.2d at p. 152].)  On appeal, the reviewing court must allow the
trial court “substantial latitude in refusing waivers of conflicts of interest
not only in those rare cases where an actual conflict may be demonstrated
before trial, but in the more common cases where a potential for conflict
exists which may or may not burgeon into an actual conflict as the trial
progresses.”  (Id. at p. 163 [100 L.Ed.2d at p. 151].)  Thus, the question we must ask here is whether
the trial court abused its discretion when it rejected defendant’s waiver of
conflict of interest because there was a potential for conflict.  As we explain, because there was no evidence
of a potential for conflict, we will mandate the trial court set aside its order
removing retained counsel.

            The trial court accepted as “legitimate” the People’s
concern of an appellate challenge to defendant’s possible future conviction
based on ineffective assistance for failing to vigorously cross-examine
Essenmacher if retained counsel were allowed to represent defendant.  The problem with the People’s concern is, as
this court has recognized, “even prior direct contact between an attorney and
the former client does not necessarily result in disqualification when the
attorney subsequently represents an adverse party, as long as the contact was
not substantially likely to have compromised client confidences.”  (Adams
v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1335.)  The California Supreme Court has more
recently explained the relationship between client confidences and potential
conflicts.  “A conflict >may arise if a former client is a
witness in a new case because the attorney is forbidden to use against a former
client any confidential information acquired during that attorney-client
relationship. [Citation.]  >But if the attorney possesses no such
confidential information, courts have routinely held that no actual or
potential conflict of interest exists.” 
(People v. Cox (2003) 30 Cal.4th
916, 949, first italics original, second italics added, overruled in part on other
grounds in People v. Doolin, >supra, 45 Cal.4th at p. 421, fn.
22.)  The Supreme Court in >Cox then gave examples of three of its
cases where it held no conflict existed because trial counsel possessed no
confidential information stemming from his prior representation of prosecution
witnesses or a codefendant.  (>People v. Cox, supra, 30 Cal.4th at
pp. 949-950, citing People v. Lawley (2002)
27 Cal.4th 102, 145-146 [the California Supreme Court upheld the trial
court’s ruling that no conflict existed, given that advisory counsel possessed
no confidential information stemming from his prior representation of a
prosecution witness in several factually unrelated cases]; People v. Clark (1993) 5 Cal.4th 950, 1001-1002 [the
California Supreme Court held that no actual or potential conflict existed
where the public defender possessed no confidential information stemming from
his prior representation of three prosecution witnesses];  People
v. Belmontes (1988) 45 Cal.3d 744, 774-777 [the California Supreme Court
held the record did not establish that counsel had an actual or potential
conflict of interest stemming from his firm’s prior representation of the
codefendant, because the attorney possessed no confidential information
stemming from that earlier representation].)

            Here, retained counsel specifically stated he had no
confidential information about Essenmacher. 
And the People alleged only there was an “appearance of impropriety” based
on the People’s concern that future appellate counsel for defendant (if
defendant was convicted because of the murder charges) would simply say that
retained counsel did not go after Essenmacher vigorously enough.  However, there is nothing in the record to
show that retained counsel could not effectively cross-examine Essenmacher.  Indeed, retained counsel had no confidential
information acquired during the former representation.  As such, we find no evidence of a potential
conflict of interest, and the trial court must set aside its order removing
retained counsel.

DISPOSITION

            Let a writ of mandate issue requiring the trial court to
set aside its order removing retained counsel. 
The stay of proceedings previously issued by this court is vacated and
the alternative writ is discharged.

 

 

                                                                                         ROBIE          , J.

 

 

We concur:

 

 

          NICHOLSON      , Acting P.J.

 

 

          DUARTE         , J.