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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

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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 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

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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

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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.


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