Winkler v. Superior Court CA3

Filed 11/8/13 Winkler v. Superior Court CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

TODD WINKLER,

Petitioner,

v. C072569

THE SUPERIOR COURT OF EL DORADO (Super. Ct. No. P12CRF0118) COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

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

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defendant; and she needed to get a 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: “the 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.