WEKDEGAR, J., Dissenting. The majority concludes the trial court did not violate defendant Daniel Loreto Noriega’s constitutional rights (and did not prejudicially violate his statutory rights) when, over his objection, it removed his appointed attorney and replaced him with another attorney. Because I conclude the trial court’s action violated defendant’s right to counsel under article I, section 15 of the California Constitution, I dissent.
I
The majority provides the reader with a brief statement of facts it deems “pertinent” (maj. opn., ante, at p. 520), but I believe a fuller statement is helpful to understand what happened below. Defendant Noriega and codefendants Manuel Ortega Paredes and Juan Diego Vasquez jointly conspired to collect an unpaid drug debt from Cesar Cortez. Paredes armed himself with an assault rifle, but Vasquez warned them not to do anything “stupid.” When Noriega and Paredes drove off to Cortez’s house to collect the debt, Vasquez did not accompany them. Noriega and Paredes arrived at Cortez’s house and killed him over the unpaid debt. Noriega, Paredes and Vasquez were charged jointly for these crimes. The trial court appointed James Ashworth, a deputy public defender in the Riverside County Public Defender’s Office, to represent Noriega. Ashworth worked on the case diligently for over one year, representing Noriega at the preliminary hearing and at arraignment, and dealing with a “huge volume” of discovery.
At some point, Vasquez pleaded guilty to reduced charges and agreed to testify against Noriega and Paredes.
In December 2002, the prosecutor raised the possibility that Attorney Ashworth might have a conflict of interest in representing Noriega. A hearing was held at which the prosecutor explained that he might call a jail inmate named Coin Tran as a prosecution witness. Tran allegedly had been on a sheriff’s transport bus with Noriega and had observed him first accuse Vasquez of being a “snitch” and then assault him. The alleged conflict of interest arose because the Riverside County Public Defender’s Office had previously represented Tran in an unrelated criminal matter. In that prior case, Tran had been represented by a different deputy, not by Ashworth.
[527]The prosecutor assured the trial court he had no objection to Ashworth’s continued representation of Noriega, but opined: “I just bring it to the court’s attention as an officer of the court. I don’t have an opinion as to who represents Mr. Noriega. I just don’t want to try the case twice. I don’t want to trample his rights to counsel of his choice, but when I feel there’s a situation that comes to my attention . . . that there may well be a conflict of interest, as an officer of the court, I’m obliged to raise it.”
Apprised of the problem, defendant offered to waive the potential conflict. In addition, Supervising Deputy Public Defender Nicholas DePrisco informed the trial court he had personally examined Tran’s file from the earlier case. He assured the court Tran’s case was unrelated to Noriega’s murder case, a different deputy public defender had represented Tran, and Tran’s file contained no confidential information that would prevent Ashworth from fully and vigorously representing Noriega. When pressed, DePrisco said he could not, in open court,1 reveal what was in Tran’s file, but he offered to disclose its contents in camera. The trial court declined this offer. Over Noriega’s objection, the court then relieved Deputy Public Defender Ashworth and appointed different counsel.
Tran eventually did testify at Noriega’s trial. On cross-examination, new Defense Counsel Peter Morreale asked Tran whether the assailant—allegedly defendant Noriega—was a “big guy,” “bigger than you?” Tran answered in the affirmative. Morreale asked just one more question, to which Tran answered that the man he observed “use[d] his head” to strike Vasquez “in the face.” Noriega was convicted of murder and sentenced to life in prison without the possibility of parole.
II
Like the Sixth Amendment to the United States Constitution, the California Constitution guarantees a criminal defendant the right to counsel for his or her defense. Article I, section 15 of the state Constitution provides that “[t]he defendant in a criminal cause has the right ... to have the assistance of counsel for the defendant’s defense . . . .” This is a right independent from that guaranteed by the federal Constitution. Indeed, when in 1963 the United State Supreme Court decided the justly famous case of Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792] and interpreted the federal Constitution to require states to provide indigent criminal defendants with attorneys free of charge, the high court simply mandated that which the State of California had already required for decades under the California Constitution. As this court explained in 1940: “The right of an accused to the [528]assistance of counsel in his defense is guaranteed by both the federal and state Constitutions. To supplement the requirements of the fundamental law the legislature in 1872 adopted section 987 of the Penal Code, which provides: [1] ‘If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.’’ ” (In re Connor (1940) 15 Cal.2d 161, 164 [99 P.2d 248], italics added.)2
In short, the right to counsel springs from two different sources, and the scope of the right under the state Constitution has never been identical to the right under the federal Constitution. (See discussion in People v. Jones (2004) 33 Cal.4th 234, 250-253 [14 Cal.Rptr.3d 579, 91 P.3d 939] (cone. opn. of Werdegar, J.).) Because I find the state Constitution dispositive of the case before the court, I do not join the majority’s discussion of the federal right to counsel and express no views on that subject.
None disputes that the right to select one’s own counsel applies only to retained, not appointed, counsel. (People v. Mungia (2008) 44 Cal.4th 1101, 1122 [81 Cal.Rptr.3d 614, 189 P.3d 880]; see United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151 [165 L.Ed.2d 409, 126 S.Ct. 2557] [same rule under the 6th Amend, to the federal Const.].) This case, however, involved not the appointment, but the removal of counsel. The issue, therefore, is whether an indigent defendant has a state constitutional right to the continuous representation of his or her court-appointed attorney.
We addressed this issue in Smith v. Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65]. In that case, the trial court had appointed an attorney named Kanarek to represent the defendant, Smith. When the trial court later removed Kanarek for alleged incompetence, the defendant petitioned for a writ of mandate. This court issued the writ, explaining that although an indigent defendant “is not entitled to demand” a particular attorney be appointed, “that principle ... is obviously inapplicable to the situation now before us: Mr. Kanarek was himself the counsel appointed by the court ... to represent Smith in these proceedings, and Smith is demanding not to change that appointment but only to enforce it.” (Id. at p. 561.)
[529]The majority acknowledges that a significant difference exists between the original selection of appointed counsel for an indigent defendant and the removal of that counsel over the defendant’s objection. “The removal of an indigent defendant’s appointed counsel . . . poses a greater potential threat to the defendant’s constitutional right to counsel than does the refusal to appoint an attorney requested by the defendant, because the removal interferes with an attorney-client relationship that has already been established.” (People v. Jones, supra, 33 Cal.4th at p. 244, quoted with approval in maj. opn., ante, at p. 523.) In this case, however, the majority’s deference to, and affirmance of, the trial court’s decision to remove Ashworth from the case does not reflect the foregoing concerns.
The importance of an established attorney-client relationship to the overall fairness of a trial (and, by extension, the legitimacy of our adversarial system of jurisprudence) cannot be overstated. As I explained in my separate opinion in Jones: “ ‘[E]ffective assistance is linked closely to representation by counsel of choice. When clients and lawyers lack rapport and mutual confidence the quality of representation may be so undermined as to render it an empty formality.’ By terminating the existing attorney-client relationship over defendant’s objection, the trial court’s decision here risked destroying the trust and confidence that had developed between [his attorney] and defendant over almost two years.” (People v. Jones, supra, 33 Cal.4th at p. 248 (cone. opn. of Werdegar, J.).) And “[although an indigent accused is not initially entitled to choose his or her own counsel at state expense [citations], once the defendant establishes an attorney-client relationship with his or her attorney, the law recognizes a protectable interest in that relationship.” (Id. at pp. 246-247, italics added.)
What, then, is the legal standard this court should apply under the state Constitution when evaluating whether a lower court erred in removing a defendant’s appointed lawyer? Citing this court’s decision in People v. Jones, supra, 33 Cal.4th 234, the majority states without elaboration that “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.’ ” (Maj. opn., ante, at p. 524, quoting Jones, at p. 244.) Reliance on Jones, however, is unpersuasive. Although the majority declares that “[t]his case falls within [Jones's] holding” (maj. opn., ante, at p. 524), the two cases are patently distinguishable. In Jones, the nature of the counsel’s conflict was significant and palpable. Roberts, an attorney, was appointed to represent Jones against a charge of murder. But, in a previous case, Roberts had personally represented a man named Wert, who was an alternate suspect for the same murder with which Jones was charged. After initially declaring himself unconcerned with the potential conflict, Roberts later expressed substantial misgivings about continuing his representation, noting several facts suggesting Wert’s possible involvement in the murder. (Jones, at [530]pp. 237-239; id. at p. 249 (cone. opn. of Werdegar, J.).) Under those circumstances, this court correctly held that removing Attorney Roberts from the case did not violate the defendant’s rights under the state Constitution. (Jones, at pp. 244-250.)
Here, in contrast, the potential conflict was minor, almost trivial. The prosecution announced it might call Tran as a witness. Tran had been involved in a prior criminal case that was completely unrelated to the murder charged against Noriega. In that case, Tran had been represented by the public defender’s office now representing Noriega, but not by Ashworth personally. Indeed, Ashworth told the court he was unfamiliar with Tran and that “Mr. Tran could walk in here and I wouldn’t know him.” Ashworth expressed no misgivings about his continued representation, and his supervising attorney assured the court that no grounds for a conflict existed in Tran’s file. The trial court declined the opportunity to review the file itself.
As is clear, the two cases are not at all comparable. Yet the majority treats them as legally equivalent, simply citing Jones as support for its conclusion that Ashworth’s removal did not violate Noriega’s right to counsel under the state Constitution. In so doing, the majority elevates the holding in Jones, appropriate under the facts there, into an inflexible rule pursuant to which the deference paid to the trial court’s decision to remove appointed counsel is such that no appellate court likely could ever subject such a ruling to meaningful review nor act to protect a defendant’s right to counsel as guaranteed by the state Constitution.
I am not so willing to relegate our independent state constitutional right to counsel to the historical dustbin. Rather, I would consider the circumstances confronting the trial court at the time it ruled to assess how disabling the potential conflict was and whether removal of counsel appeared necessary to ensure a fair trial, thereby overriding the defendant’s interest in maintaining an established relationship with his or her attorney. Although ascertaining the extent of a conflict in advance of trial is sometimes difficult (Wheat v. United States (1988) 486 U.S. 153, 162 [100 L.Ed.2d 140, 108 S.Ct. 1692]; People v. Jones, supra, 33 Cal.4th at p. 241), here the trial court knew this much when it ruled: (1) defendant had objected to Ashworth’s removal; (2) Ashworth had actively represented defendant for more than one year; (3) Ashworth had not personally represented the witness, Tran; (4) Tran’s prior criminal case was completely unrelated to defendant’s alleged crimes; (5) after examining Tran’s file, the supervising deputy public defender assured the court no conflict existed; and (6) the prosecutor did not request that Ashworth be removed. Under these circumstances, even accepting that a trial court, faced with a potential conflict of interest, has greater discretion to remove appointed counsel than retained counsel (see People v. Easley (1988) 46 Cal.3d 712, 732 [531][250 Cal.Rptr. 855, 759 P.2d 490]), I find the conclusion inescapable that the trial court violated the California Constitution by removing Ashworth as Noriega’s attorney. Because the majority holds otherwise, I dissent.
III
My conclusion, based as it is on the California Constitution (Cal. Const., art. I, § 15), renders it unnecessary to reach the Sixth Amendment issue. (People v. Reyes (1998) 19 Cal.4th 743, 767 [80 Cal.Rptr.2d 734, 968 P.2d 445] (cone. & dis. opn. of Werdegar, J.); People v. Bennett (1998) 17 Cal.4th 373, 393 [70 Cal.Rptr.2d 850, 949 P.2d 947] (cone. opn. of Werdegar, J.).) Nevertheless, I find noteworthy the United States Supreme Court’s pronouncement on a similar issue. In discussing whether, for retained counsel, the improper denial of a defendant’s counsel of choice is structural error3 and thus automatically reversible without a showing of prejudice, the high court recently explained: “We have little trouble concluding that erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.” ’ [Citation.] Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds,’ [citation]—or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150.)
All of these stated concerns regarding the difficulty of assessing the prejudice flowing from the improper removal of retained counsel, of course, apply equally to the removal of appointed counsel. I therefore find it odd that a trial court’s unwarranted interference with an established attorney-client [532]relationship is, in the case of retained counsel, structural error reversible per se under the federal Constitution, while, according to the majority, in the case of appointed counsel, it is neither prejudicial nor even error under the state Constitution. Even were the Sixth Amendment to the federal Constitution to permit this disproportionality between the rights of those with means to hire their own lawyers and those without—a question as yet undecided—we need not, and should not, accept such a rule under article I, section 15 of the California Constitution. Because the majority in this case holds otherwise, I dissent.
Appellant’s petition for a rehearing was denied June 9, 2010. Werdegar, J., was of the opinion that the petition should be granted.
The prosecutor, Vasquez and his trial counsel, and codefendant Paredes (who was representing himself) were all present at the hearing.
This interplay between state constitutional law and statutory law is essentially unchanged today. Subdivision (a) of Penal Code section 987 now provides: “In a noncapital case, if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ counsel the court shall assign counsel to defend him or her.’' (Italics added.) Subdivision (b) in the same manner provides for the appointment of counsel in capital cases.
The high court has explained that a structural error “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself. ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” (Arizona v. Fulminante (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 111 S.Ct. 1246].)