People v. Superior Court of San Luis Obispo County

Opinion

THE COURT.

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Petitioner seeks a writ of mandate directing respondent court to grant its motion to appoint separate counsel for real parties because their present counsel has a conflict of interest.

Facts

Real parties stand accused by information of murder; a special circumstance is alleged as to real party Mroczko only which subjects him to possible punishment by death.

[628]

Richard A. Carsel, a law corporation, is court-appointed counsel of record for both real parties. Apparently, the Carsel law firm performs the duties of the public defender in San Luis Obispo County pursuant to a contract which is not before us.

1

On March 29, 1979, petitioner filed a motion to appoint separate counsel for real parties due to alleged conflict of interest of the public defender.

On April 9, 1979, a hearing was held upon petitioner’s motion. The following procedure was generally followed at this hearing: petitioner stated the alleged conflicts of interest upon which its motion was grounded, respondent court restated and explained the alleged conflicts, and, thereafter, real parties waived the alleged conflict by expressly accepting the risk of resulting prejudice therefrom.

However, this procedure was not followed when petitioner asserted that a conflict of interest arose because petitioner had offered real parties “inconsistent” plea bargain offers. Petitioner defined an inconsistent plea offer to be an offer to one real parly to plead

guilty to an offense with a greater penalty than the offense offered

to the other real party and also “. . . an offer to have one defendant plead to a lesser charge in exchange for his testimony against the other defendant.” Petitioner then stated that “both of these approaches” were formally made to the public defender in this case.

Respondent court