Filed 4/25/14
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                      DIVISION ONE


MELVIN HAROLD HARRIS, JR.,                        B251071
                                                  (Los Angeles County
        Petitioner,                               Super. Ct. No. MA056288)

        v.

SUPERIOR COURT OF CALIFORNIA,
LOS ANGELES COUNTY,

        Respondent;

PEOPLE OF THE STATE OF
CALIFORNIA,

        Real Party in Interest.


        ORIGINAL PROCEEDINGS in mandate. David Walgren, Judge. Petition
granted.
        The Law Office of Peter Swarth and Peter Swarth for Petitioner.
        No appearance for Respondent.
        Jackie Lacey, District Attorney, Roberta Schwartz and Ann H. Park, Deputy
District Attorneys, for Real Party in Interest.
                                  ______________________
       In this original proceeding, petitioner Melvin Harold Harris, Jr., (Harris), asks this
court for relief from denial by respondent Superior Court of the State of California of his
nonstatutory motion to dismiss or set aside the information against him. His motion
contended that Harris was deprived of his right to the effective assistance of counsel at
his preliminary hearing—a substantial right—due to the existence of a conflict of interest
between Harris and his attorney. At the time of Harris’s preliminary hearing, Gustavo
Diaz, Harris’s attorney, had himself been arrested and was facing pending felony charges
by the same prosecuting entity (the Los Angeles District Attorney) that was prosecuting
Harris. Further, the same officer that had arrested Harris, and who was the sole
prosecution witness at Harris’s preliminary hearing, had also previously arrested Diaz,
and therefore was a potential witness in future proceedings against Diaz. These
circumstances were unknown to Harris at the time of his preliminary hearing, but were
known to Diaz, to the arresting officer, and to the People.
       Harris posits that these circumstances gave rise to an actual conflict of interest
between himself and his attorney, and that this conflict of interest deprived him of a
substantial right at his preliminary hearing—the right to the effective assistance of
counsel, uncompromised by a conflict of interest.
       By order served November 7, 2013, this court sought opposition to the petition
and notified the parties that it was considering the issuance of a peremptory writ in the
first instance. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th
1233, 1238; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Having
stayed further proceedings in respondent court, we grant the petition as set forth below.

                               The Facts and Proceedings
The arrest of Harris’s attorney
       On February 2, 2012, Gustavo Diaz, petitioner’s attorney, was arrested by Deputy
Sheriff Joshua Busch of the Los Angeles County Sheriff’s Department, on felony charges
regarding a December 19, 2011 incident. On March 6, 2012, a felony complaint was
filed against Diaz.


                                              2
The charges against Harris
        Harris engaged Diaz as his attorney following his May 19, 2012 arrest, without
knowledge of Diaz’s arrest or the charges pending against him.
        On May 24, 2012, Harris was arraigned on a complaint alleging that on May 19,
2012, he had committed the crimes of possession for sale of a controlled substance
(Health & Saf. Code, § 11378), a felony, and maintaining a place for sale of a controlled
substance (Health & Saf. Code, § 11366), a felony, along with various special
allegations.1 Represented by Diaz, Harris pleaded not guilty to the charges and denied
the special allegations.
        Harris was represented by Diaz at his June 8, 2012 preliminary hearing. The
arresting officer, Deputy Sheriff Busch, testified on direct examination and was cross-
examined concerning the circumstances of Harris’s and his father’s arrest. Following
Busch’s testimony, Harris and his father were each held to answer on count one.
        On June 22, 2012, the information was filed charging Harris with a violation of
Health and Safety Code section 11378. Represented by attorney Diaz, Harris pleaded not
guilty to the charge, and denied the special allegations.
Attorney Diaz’s removal as Harris’s counsel
        On August 1, 2012, the court removed Diaz as Harris’s attorney, and appointed
attorney Peter Swarth to represent Harris on an interim basis.2 Swarth took over as
Harris’s attorney in this case on or about August 17, 2013. After a number of
continuances and waivers of time, Harris’s case was set for pretrial conference on June 6,
2013.




        1
            The complaint charged Harris’s father with the same felony offenses.
        2
         According to the Petition, the court appointed Swarth as Harris’s attorney when
Diaz could not be located. The court also entered an OSC re sanctions against attorney
Diaz, arising from his unexcused failure to appear on Harris’s behalf.

                                               3
Harris’s motion to dismiss or set aside the information
       On May 23, 2013, Harris filed a nonstatutory motion to dismiss or set aside the
information against him in the superior court.3 Swarth’s declaration in support of the
motion alleges that when he visited Harris in jail in September 2012, Harris said that
Deputy Busch, his arresting officer, had just told him that Busch had previously also
arrested attorney Diaz. Swarth promptly requested records from the district attorney
concerning Diaz’s arrest and any subsequent prosecution. On March 27, 2013, the
district attorney’s office provided a report of Diaz’s February 2, 2012 arrest. A month
later Swarth obtained a docket report showing that on December 21, 2012, Diaz had been
held to answer on three felony counts and a misdemeanor charge.4 Based on these facts,
the motion alleged that Harris had been deprived of substantial rights, including the right
to effective assistance of counsel at his preliminary hearing, due to a conflict of interest
with his attorney that was unknown to him, but was known to his attorney and to the
People at his preliminary hearing.
       The People’s written opposition to Harris’s trial court motion admitted “the
apparent conflict between defendant and his attorney of record, Gustavo Diaz, at
defendant’s preliminary hearing,” consisting of “the fact that the witness at the
preliminary hearing also arrested Gustavo Diaz in a separate matter approximately six




       3
         The People did not contend in the trial court or in this court that Harris’s trial
court motion (which was filed less than 30 days after Harris’s new counsel had received
the records relating to Diaz’s arrest and prosecution) was untimely. Nor do we find it to
have been untimely.
       4
          Diaz was charged with theft (Pen. Code, § 487, subd. (a)), embezzlement (Pen.
Code, § 504), taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd.
(a)), felonies, and vandalism (Pen. Code, § 594, subd. (a)), a misdemeanor.

                                              4
months prior to defendant’s preliminary hearing in June of 2012.”5 However, contending
that the conflict of interest was “known only to Gustavo Diaz at the time,” the People’s
opposition argued that the appropriate remedy was to send the case back for a new
preliminary hearing, rather than to dismiss the information.6 While “strongly
object[ing]” to Harris’s request to dismiss the information, the opposition to Harris’s
motion stated that “the People have no objection” to sending the matter back for “a
conflict free preliminary hearing” based on the (potential) conflict between Harris and his
attorney.
       At the trial court’s July 11, 2013 hearing on the motion to dismiss, the court,
David Walgren, Judge, verified the facts on which the motion was based—that on
February 2, 2012, Deputy Busch arrested Diaz for vehicle theft; that on March 6, 2012,
the Los Angeles County District Attorney’s office filed a felony complaint against Diaz
arising from that incident; and that Diaz represented Harris at Harris’s June 8, 2012
preliminary hearing, at which Busch testified about Harris’s arrest and the facts
establishing cause for the charges against him. The People conceded that these facts,
while not necessarily constituting an actual conflict, show “an irregularity, and in the




       5
         “The People believe that an actual conflict of interest between the defendant and
his attorney may have been present at the defendant’s preliminary hearing in that the
witness who testified against the defendant would also be a potential witness against the
defendant’s attorney on the attorney’s separate felony matter. Said potential conflict is
yet to be demonstrated by competent evidence, and wasn’t known to potentially exist
until 2013, when current counsel for the defendant asked the People to obtain the original
arrest report of Gustavo Diaz from the detective handling the case for the LASD.”
       6
          The People contended that Harris and Diaz were not being prosecuted by the
same office branch of the district attorney’s office and there was no evidence that either
the trial court, or the deputy district attorney assigned to handle Harris’s preliminary
hearing, were then aware of the potential conflict.

                                             5
abstract, it is a conflict.”7 Confirming that the right to counsel includes the right to
representation by an attorney who is free of any conflict of interest, the People explained
“that, yes, the appropriate remedy is to have a new preliminary hearing if the defendant
so requested, but not a legal dismissal, which would be the equivalent of a 995.” Harris’s
counsel contended that the conflict of interest shown by the facts entitled Harris to
dismissal of the information.
       The trial court denied the motion to dismiss the information. It explained its
conclusion that dismissal of the information “is not the appropriate remedy in the pretrial
phase when we are in a posture it can be corrected by being referred back to the
magistrate,” citing the case of People v. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-
Ortiz).8 Harris’s counsel expressly declined to seek remand of the matter for a new
preliminary hearing (a remedy the People did not oppose and the court indicated its
willingness to grant), confirming that he wanted “the opportunity to explore a writ before
I make that choice.”

       7
         The People contended at one point that the facts show only a potential future
conflict, not an actual conflict, both because Busch had not yet testified against Diaz at
the time of Harris’s preliminary hearing, and because all the magistrates in the North
District courthouse had been polled and said they could not handle the Diaz matter,
resulting in its transfer to the Van Nuys office of the Los Angeles District Attorney.
       8
         In Pompa-Ortiz, supra, the defendant had moved unsuccessfully under section
995 to set aside the information holding him to answer on a charge of rape, among other
offenses, based the exclusion of the public from his preliminary hearing. The Supreme
Court rejected the defendant’s appeal from his conviction based on the denial of his
section 995 motion. It held that when the denial of a substantial right at a preliminary
hearing is followed by the defendant’s conviction in an error-free trial, “irregularities in
the preliminary examination procedures which are not jurisdictional in the fundamental
sense shall be reviewed under the appropriate standard of prejudicial error and shall
require reversal only if defendant can show that he was deprived of a fair trial or
otherwise suffered prejudice as a result of the error at the preliminary examination”—a
showing the appellant had not made. (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) The
Supreme Court affirmed the appellant’s conviction on that ground without reviewing the
relevant question in this matter—whether setting aside the information would be an
appropriate remedy when a substantial defect in the preliminary hearing is challenged
before trial and conviction.

                                               6
       Recapping the timing of the relevant events:
• February 2, 2012 – Attorney Diaz arrested by Deputy Busch.
• March 6, 2012 – Felony complaint filed against attorney Diaz.
• May 19, 2012 – Harris arrested by Deputy Busch.
• May 24, 2012 – Harris arraigned on felony complaint.
• June 8, 2012 – Harris’s preliminary hearing, represented by attorney Diaz.
• June 22, 2012 – Information charges Harris with felonies.
• August 1, 2012 – Diaz removed as Harris’s attorney.
• September 2012 – Harris learns that Diaz had also been arrested by Deputy Busch.
• March 27, 2013 – Los Angeles District Attorney produces Diaz arrest report.
• April 26, 2013 – Harris’s attorney learns status of proceedings against Diaz.
• May 23, 2013 – Harris files motion to dismiss or set aside the information.
• July 11, 2013 – Trial court hearing on Harris’s motion to dismiss or set aside the
       information.
The writ petition
       On September 19, 2013, Harris petitioned for writ relief, asking this court to
restrain further proceedings in this case. The writ petition contends that he was denied
his federal and state constitutional rights to effective assistance of counsel by the fact that
his attorney was acting under a conflict of interest at his preliminary hearing, arising from
the fact that at the time Diaz had been arrested by the same officer who arrested Harris,
and that when the arresting officer testified at his preliminary hearing, Diaz was being
prosecuted on felony charges by the same prosecuting agency—the office of the Los
Angeles County District Attorney—that was prosecuting Harris. The petition also argues
that the prosecutor’s failure to advise Harris of the conflict of interest arising from these
facts violated its duties under Brady v. Maryland (1963) 373 U.S. 83.
       The People’s opposition argues that this court should reject the petition, because
the information was based on overwhelming evidence of reasonable cause to commit
Harris; because there was no actual conflict of interest at Harris’s preliminary hearing;
because Diaz’s performance at Harris’s preliminary hearing was not affected by any


                                               7
potential conflict of interest; and because the prosecution had no duty under Brady v.
Maryland, supra, 373 U.S. 83, to disclose the existence of the conflict to Harris.9

                                         Discussion
           1. Harris was entitled to the effective assistance of conflict-free counsel at
              his preliminary hearing.
       The right of a criminal defendant to the effective assistance of counsel is a
substantial right guaranteed by the Sixth Amendment to the United States Constitution
and by article I, section 15 of the California Constitution. This constitutionally
guaranteed right includes the correlative right to counsel who is free from any conflict of
interest that undermines counsel’s loyalty to his client’s cause. (People v. Doolin (2009)
45 Cal.4th 390, 417; Wood v. Georgia (1981) 450 U.S. 261, 271 [101 S.Ct. 1097, 67
L.Ed.2d 220].) “As a general proposition, such conflicts ‘embrace all situations in which
an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his
responsibilities to another client or a third person or by his own interests. [Citation.]’”
(People v. Cox (1991) 53 Cal.3d 618, 653.) If a conflict of interest impedes defense
counsel from asserting his client’s contentions without fear of consequences to himself or
herself, the integrity of the adversary system is cast into doubt because counsel cannot
“play[] the role necessary to ensure that the trial is fair.” (Strickland v. Washington
(1984) 466 U.S. 668, 685 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
       The right to the effective assistance of conflict-free counsel attaches during the
pretrial stage of a proceeding. If a defendant is denied the effective assistance of counsel
at the preliminary hearing, a substantial right has been denied. (People v. Coleman
(1988) 46 Cal.3d 749, 772-773.)



       9
          On October 16, 2013, this court granted Harris’s request for a temporary stay of
his trial pending further order. On November 7, 2013, we notified the parties that the
court is considering the issuance of a peremptory writ in the first instance. (Brown,
Winfield & Canzoneri, Inc. v. Superior Court, supra, 47 Cal.4th at p. 1238; Palma v. U.S.
Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 180.)

                                               8
           2. Undisputed facts show a conflict of interest in Diaz’s representation of
              Harris at the preliminary hearing.

       A conflict of interest exists when the attorney owes duties to someone whose
interests in the proceeding are adverse to those of his or her client. (People v. Mroczko
(1983) 35 Cal.3d 86, 104, disapproved on other grounds in People v. Doolin, supra, 45
Cal.4th at p. 421, fn. 22; United States v. Allen (9th Cir. 1987) 831 F.2d 1487, 1496,
disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) In
this case, that “someone” is Diaz himself. (People v. Bonin (1989) 47 Cal.3d 808, 835
[“Conflicts of interest broadly embrace all situations in which an attorney’s loyalty to, or
efforts on behalf of, a client are threatened by his responsibilities to . . . his own
interests”]; see Mannhalt v. Reed (9th Cir. 1988) 847 F.2d 576, 580 [involving conflict
between client and lawyer’s personal interest].)
       The trial court did not articulate a finding that an actual conflict of interest existed
between Harris and Diaz at the preliminary hearing; but it confirmed the undisputed facts
that give rise to the conflict. Both Harris and his attorney had been arrested by the same
arresting officer; while Harris was being prosecuted for felony charges by the Los
Angeles District Attorney, the same prosecuting entity was simultaneously prosecuting
felony charges against Diaz, Harris’s attorney; and the deputy sheriff who arrested Harris,
and who testified against him and was subject to his attorney’s impeachment and cross-
examination at the preliminary hearing (and potentially at trial), was the same officer who
had earlier arrested Diaz, and who therefore potentially was also a witness with respect to
the charges against Diaz.
       These facts give rise to an actual—not merely potential—conflict of interest on the
part of Diaz, as the trial court apparently concluded. The court identified the Pompa-
Ortiz decision as authority for its referral of the case back to the magistrate, “for
proceedings free of the charged defects.” Because there would be no basis under Pompa-




                                               9
Ortiz for that remedy unless the preliminary hearing was substantially flawed, the court’s
identification of that authority implies its conclusion that the conflict existed.10
       The trial court’s implied conclusion that the undisputed facts give rise to a conflict
of interest between Harris and his attorney at the preliminary hearing is well supported.
The fact that during Harris’s preliminary hearing Diaz faced criminal prosecution by the
district attorney of Los Angeles County, the same entity that was prosecuting his client,
and the fact that Diaz had been arrested by Deputy Sheriff Busch, the same officer who
had arrested and was testifying against his client, could reasonably be thought to exert a
conscious or unconscious influence on Diaz’s own judgment and conduct in representing
Harris’s interests.
       As a criminal defendant, it can reasonably be assumed that Diaz had an interest in
maintaining a cordial and cooperative (if not even subservient) relationship with the
district attorney’s office—a relationship that might be beneficial to Diaz in achieving a
favorable disposition of the charges facing him. But Harris had no interest in achieving a
beneficial disposition of the charges against Diaz. And Diaz’s duties with respect to the
charges simultaneously facing Harris almost certainly called for a different—perhaps
somewhat less conciliatory and more adversarial—relationship with the prosecutor’s
office, were it not for his own contrary self-interest.
       So too, the fact that Deputy Busch had arrested Diaz a few months before he
arrested Harris, and that he was also a potential witness at Diaz’s upcoming preliminary
hearing and trial, gives rise to additional legitimate concerns about Diaz’s ability to
vigorously defend Harris’s interests. Diaz’s representation of Harris’s interests involved
questioning Deputy Busch at Harris’s preliminary hearing and trial. Busch was the
officer who had arrested Harris, who was the sole witness at Harris’s preliminary hearing,
and who very likely was destined to be a central witness at his trial. It was Busch’s
preliminary hearing testimony that had provided the only evidence justifying the search

       10
          The People did not actually concede in the trial court the existence of a conflict
of interest; they conceded only that the facts alleged by Harris, but not yet established by
evidence, would give rise to an “apparent” conflict.

                                              10
of Harris’s home, and the only identification of what Busch believed to be the illegal
activity that justified the seizure of the evidence and contraband for which he had arrested
Harris. The fact that Diaz might well be facing Busch again at his own preliminary
hearing and trial gives rise to a reasonable concern about Diaz’s ability to put aside his
own interests and to objectively exercise the judgment required to impeach a witness’s
testimony without fear of antagonizing the witness. The potentially conflicting
influences on Diaz’s relationship with the prosecuting entity, and with Deputy Busch,
give rise to a genuine and understandable uncertainty whether Diaz could be depended
upon to be wholly uninfluenced and unaffected by his own interests while defending
Harris’s.
       The existence of a conflict of interest does not depend on a finding that the
attorney’s judgment or conduct actually was affected by the circumstances. “Conflicts of
interest broadly embrace all situations in which an attorney’s loyalty to, or efforts on
behalf of, a client are threatened by his responsibilities” to the attorney’s other interests.
(People v. Bonin, supra, 47 Cal.3d at p. 835, italics added.) It is the threat that the
attorney’s conduct might be affected by the conflicting interests that give rise to an actual
conflict. Whether the attorney’s conduct actually was affected might well be something
of which even the attorney is unaware, and could rarely be subject to certainty or proof.
       In American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96
Cal.App.4th 1017, 1034, for example, the Court of Appeal held that the attorney was
subject to an actual conflict of interest when the attorney was presented with
circumstances that might reasonably compel him to disclose information, some of which
had its source in another client’s confidential communications. It is the potential that the
attorney might be forced to choose which of two loyalties he would honor that gives rise
to the actual conflict, without proof that the need to make such a choice actually arose.
“It is precisely this compromised situation, when the burden of deciding which client to
favor is placed solely on the attorney’s shoulders and within the attorney’s sole power to
decide, that [the rule precluding attorney conflicts of interest] is designed to avoid.” (Id.
at p. 1039; see also People v. Conner (1983) 34 Cal.3d 141, 148 [Conflict of interest


                                              11
under statute governing disqualification of prosecuting attorneys “exists whenever the
circumstances of a case evidence a reasonable possibility that the DA’s office may not
exercise its discretionary function in an evenhanded manner”].) Was some question that
might have been pursued in the absence of the conflict left unformulated and unasked?
Was a less authoritative and less inquisitive tone taken due to the attorney’s current
vulnerabilities? Were possible plea arrangements unavailable that might otherwise have
emerged? These matters cannot be discerned from any transcript or record, and are likely
to be beyond the conscious awareness even of those who have been influenced by the
conflict’s existence.
         The prosecution of a lawyer by the same prosecuting entity that is prosecuting his
or her client, “may induce the lawyer to pull his punches in defending his client lest the
prosecutor’s office be angered by an acquittal and retaliate against the lawyer.”
(Thompkins v. Cohen (3d Cir. 1992) 965 F.2d 330, 332.) We do not assume that such a
fear on the part of Diaz, or such a reaction by him to that fear, would be proper or
justified, nor even that it would be likely to occur; “still the defense lawyer may fear it, at
least to the extent of tempering the zeal of his defense of his client somewhat.” (Ibid.,
citing Wood v. Georgia, supra, 450 U.S. 261, 272.)
         Diaz’s conflict of interest at Harris’s preliminary hearing—where Diaz faced the
same prosecuting agency and potentially the same prosecution witness he would soon
face at his own preliminary hearing—therefore was an actual conflict, not merely a
potential conflict of interest. The circumstances he actually faced could reasonably be
thought to exert an influence (conscious or unconscious) on his decisions (both conscious
and subconscious) concerning which of two loyalties—his own or his client’s—he would
honor.
         We are not alone in concluding that an attorney acts under a conflict of interest
when both he and his client are simultaneously under indictment and being prosecuted by
the same prosecuting entity. In State v. Cottle (2008) 194 N.J. 449, 452, counsel for a
number of defendants charged with murder was himself simultaneously (and unknown to
his clients) under indictment in the same county for criminal stalking. The court held that


                                              12
the attorney had a “per se”—i.e. inherent—conflict of interest. (Id. at p. 452.) As the
court explained, “it is not difficult to imagine that [counsel] might not have had the zeal
to engage in a bruising battle with the very prosecutor’s office that would be weighing his
fate. Given his own criminal jeopardy and its threat to his professional career, [counsel]
surely had no personal incentive—even if it were in his client’s best interest—to take on
the office that he would need to help him. . . . [T]he way [to favorable sentence options]
would be smooth only with the cooperation and consent of the Prosecutor’s Office.” (Id.
at pp. 464-465.) It is the circumstances’ potential impact on the attorney’s conduct that
gives rise to an actual conflict. The New Jersey Supreme Court concluded that “an
attorney who is contemporaneously under indictment in the same county as his client, and
being prosecuted by the same prosecutor’s office, is engaged in a per se conflict of
interest, absent a valid waiver by the client. In such a circumstance, the representation is
rendered ineffective under our State Constitution. . . . Because [the attorney’s]
representation of defendant constituted a per se conflict, and because defendant did not
waive the conflict, prejudice is presumed. We therefore are compelled to conclude that
defendant has been denied the effective representation of counsel . . . .” (Id. at p. 473.)
       The People unpersuasively attempt to distinguish the circumstances that led the
court in State v. Cottle to conclude that an actual conflict existed. They argue
that Diaz had not yet been indicted or held to answer when he represented Harris at his
preliminary hearing; and Deputy Sheriff Busch did not testify at Diaz’s later preliminary




                                             13
hearing and trial.11 But these facts do not eliminate the conflict of interest. They confirm
that when Diaz represented Harris at his preliminary hearing, he had been arrested by
Deputy Sheriff Busch and was facing prosecution on felony charges by the same
prosecuting entity that was prosecuting his client. And the facts confirm that when Diaz
represented Harris and cross-examined Busch at Harris’s preliminary hearing, he was
looking forward to a preliminary hearing and trial of his own, at which he might well face
Deputy Busch as a witness. It is the awareness of these circumstances by Diaz, by
Busch, and by the district attorney’s office the time of Harris’s preliminary hearing that
gave rise to the conflict of interest.
       This sequence of events distinguishes the case at hand from the circumstance in
People v. Pennington (1991) 228 Cal.App.3d 959. The defendant in that case had been
represented at his preliminary hearing by a public defender whose office had previously
represented a prosecution witness. The Court of Appeal held that the defendant had not
been deprived of a substantial right, because his attorney was unaware of the conflict at
the time of the defendant’s preliminary hearing, eliminating any possibility that the
conflict could have exerted any influence on the defendant’s representation. (Id. at pp.
965-966.) In this case the sequence of events was reversed. Not only did the conflict of
interest actually exist at the time of Harris’s preliminary hearing, but Harris’s attorney,

       11
          The People support this argument with lengthy narratives taken from Deputy
Busch’s incident report purporting to describe the events surrounding Diaz’s arrest. The
incident report had been attached as an exhibit to Harris’s trial court motion, to establish
the fact of Diaz’s arrest, Busch’s status as the arresting officer, and the timing of Harris’s
awareness of these facts. Because we discern nothing in the report that could establish
whether Deputy Busch either would or would not be a material witness in the prosecution
against Diaz, however, we need not address whether the report would be admissible for
that purpose. The People also rely on references to testimony taken at Diaz’s preliminary
hearing (apparently about six months after Harris’s preliminary hearing was complete),
and minute orders reflecting the progress of Diaz’s trial, attached as exhibits to the
People’s Opposition to the petition in this court (without authentication or request for
notice). Because the record does not indicate that these documents were before the trial
court, and in the absence of relevance to the issues in this proceeding, we decline to
consider them. (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540,
546.)

                                             14
Diaz, was fully aware of the circumstances that gave rise to the conflict. It arose from the
then-present potential (of which Diaz was aware, but Harris was not) that the judgments
Diaz would exercise in defending Harris might affect his own interests in the future.
Whether subsequent events might later have changed the circumstances giving rise to the
then-present conflict of interest cannot retroactively negate the conflict’s existence—and
potential impact—at the earlier time when Harris had needed his attorney’s undivided
loyalty.
       The People argue that the existence of an actual conflict of interest is negated by
the fact that Diaz’s cross-examination of Deputy Busch at Harris’s preliminary hearing
seemed to be vigorous (citing examples of perceived concessions in Busch’s testimony
and points scored by Diaz in argument). (See fn. 11, above.) From this the People urge
this court to conclude that Diaz’s performance was unaffected by any actual or potential
conflict of interest. But, as most courts and attorneys are aware, a court is rarely able to
determine in retrospect whether some different approach, tone, or further line of
questions, might have been more effective in a witness’s cross-examination. It is the
attorney, not the court, that is in possession of the knowledge and understanding of the
intricacies of his or her client’s case, and is in the best position to discover and exploit
any weaknesses in the prosecution’s case. Moreover, in this case the conflict of interest
seems to have had an impact on Diaz’s conduct, and probably on the conduct of other
participants at Harris’s preliminary hearing as well. Diaz’s arrest by Deputy Busch and
his prosecution by the office of the Los Angeles District Attorney must at that time have
been the proverbial 800-pound gorilla in the room, about which only Harris and the court
were in the dark.12 Yet no one disclosed the existence of these facts to Harris—who
unquestionably was entitled to know them, and to obtain new counsel—or to the court,

       12
          The facts underlying the conflict of interest were certainly known to Diaz, and
they were known to the office of the Los Angeles District Attorney, the prosecuting
entity for both Harris and Diaz, and therefore also to the prosecutor handling Harris’s
preliminary hearing, at least constructively. They were also known to Deputy Busch, the
key prosecution witness who had arrested both Diaz and Harris, and who knew at
Harris’s preliminary hearing that Diaz was representing Harris.

                                              15
which would have been obligated to inquire into the matter in depth. (Oasis West Realty,
LLC v. Goldman (2011) 51 Cal.4th 811, 822.)
       Far from dispelling the fact that Diaz’s personal circumstances constituted an
actual conflict of interest, potentially impacting his ability to represent Harris, the
People’s argument actually confirms the legitimate concern that Diaz’s performance at
Harris’s preliminary hearing might have been affected by his personal circumstances.
The People argue that because of his personal situation, “[i]n fact, Attorney Diaz might
have been more confrontational and aggressive in challenging Deputy Busch opinion
[sic]” than he would otherwise have been. The People thus agree that Diaz’s
performance at Harris’s preliminary hearing was probably altered in some manner as a
result of Diaz’s personal situation. That potential—that Diaz’s personal circumstances
might have affected his judgment and his representation of Harris in some way—is the
very definition of an actual conflict of interest with a resulting impact.
       Harris was denied the effective assistance of counsel because—unknown to him—
his counsel had a material conflict of interest with him at the time of his preliminary
hearing, as discussed above. We are unaware of any authority that the deprivation of the
effective assistance of counsel is not the denial of a substantial right, nor do the People
make that contention.

           3. Harris’s nonstatutory motion to dismiss the information was an
              appropriate vehicle for his challenge to the preliminary hearing’s
              validity.

       Harris’s motion in the trial court alleged that the information charging him was
invalid because he had been denied a substantial right—the right to the assistance of
conflict-free counsel—at his preliminary hearing. He alleged that his counsel had been
acting under a conflict of interest at his preliminary hearing, which was not apparent from
the preliminary hearing transcript and was unknown to him at the time.
       Harris’s nonstatutory motion was the appropriate procedural vehicle for his
challenge. The denial of a substantial right at the preliminary examination renders the



                                              16
ensuing commitment illegal, entitling defendant to dismissal of the information on timely
motion. (Pompa-Ortiz, supra, 27 Cal.3d at p. 523.) When the error is apparent from the
“four corners” of the preliminary hearing transcript, the appropriate motion is brought
under Penal Code section 995; when the error is not known and is not reflected in the
transcript of the preliminary hearing, it “may be called to the court’s attention through a
nonstatutory motion to dismiss.” (People v. Duncan (2000) 78 Cal.App.4th 765, 772;
Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1596; Stanton v. Superior Court
(1987) 193 Cal.App.3d 265, 270 [nonstatutory motion to dismiss the information is
appropriate when preliminary hearing record does not show deprivation of rights]; see
also Murgia v. Municipal Court for Bakersfield Judicial Dist. (1975) 15 Cal.3d 286, 293-
294, fn. 4; People v. McGee (1977) 19 Cal.3d 948, 967-968; People v. Superior Court of
Alameda County (1977) 19 Cal.3d 338, 348; People v. Crudgington (1979) 88
Cal.App.3d 295, 299 [cases recognize the propriety of a pretrial motion to set aside the
information on grounds other than those specified in section 995].)13 The People do not
contend that use of a nonstatutory motion to challenge his preliminary hearing procedure
was inappropriate under the circumstances, or that a motion under Penal Code section
995 could have been used.14
       The times for seeking review of the denial of motion brought under section 995 to
set aside the information are subject to statutory limits. (§§ 999a, 1510.) However, there
is no statutory limit on the time to petition for review of the denial of a nonstatutory
motion to dismiss the information due to denial of rights in the preliminary hearing
procedure. (Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 671.) The
September 11, 2013 petition, was filed in this court 60 days after the trial court’s July 11,
2013 ruling. The People’s opposition does not contend that either Harris’s trial court


       13
         Penal Code section 995 provides that “the . . . information shall be set aside,” if
“before the filing thereof the defendant had not been legally committed by a magistrate.”
(Pen. Code, § 995, subd. (a)(2)(A).)
       14
            Further statutory references are to the Penal Code unless otherwise specified.


                                              17
motion or the petition in this court was untimely, or that the petition should not be
reviewed on its merits. Harris’s nonstatutory motion was timely filed, and is the
appropriate procedural vehicle to raise these issues.

           4. Counsel’s conflict of interest at Harris’s preliminary hearing requires
               dismissal of the information without an affirmative showing of
               prejudice.

       Harris’s motion in the trial court sought dismissal of the information, the remedy
that section 995 mandates for the deprivation of substantial rights at the preliminary
hearing stage of the proceedings. (§ 995, subd. (a)(2)(A).) In the trial court, the People
acknowledged “the apparent conflict between defendant and his attorney of record” at the
preliminary hearing.
       Setting aside the information is the required remedy when the defendant is denied
the conflict-free assistance of counsel—a substantial right—at the preliminary hearing.
That was the Supreme Court’s holding 54 years ago in People v. Elliot (1960) 54 Cal.2d
498: “[W]here it appears that, during the course of the preliminary examination, the
defendant has been denied a substantial right, the commitment is unlawful within the
meaning of section 995, and it must be set aside upon timely motion.” (Id. at p. 503; see
People v. Napthaly (1895) 105 Cal. 641, 644-645 [failure to advise defendant of right to
counsel at preliminary hearing renders commitment illegal, requiring that information be
set aside].)
       The rule stated in the People v. Elliot decision, requiring that the information must
be set aside when the defendant is deprived of substantial rights at his or her preliminary
hearing, was reaffirmed in 1980, when the Supreme Court reconsidered and overruled
another portion of the People v. Elliot decision in Pompa-Ortiz, supra, 27 Cal.3d 519. In
Pompa-Ortiz, the court limited the application of People v. Elliot, holding that the earlier
decision had too broadly assigned the automatic-dismissal remedy to errors of
insubstantial magnitude.




                                             18
       But in Pompa-Ortiz the Supreme Court expressly reaffirmed the rule of the People
v. Elliot decision, that the right to relief—setting aside the information without any
affirmative showing of prejudice—would continue to be available when the challenge is
made before the defendant has been tried or convicted. (People v. Letner and Tobin
(2010) 50 Cal.4th 99, 139; see also People v. Konow (2004) 32 Cal.4th 995, 1025 [trial
court properly set aside information without showing of prejudice, where magistrate had
deprived defendant of substantial right at preliminary hearing].) When the issue is raised
in the trial court before the defendant’s conviction, a challenge to counsel’s conflict of
interest does not depend on a showing that conflict-free counsel would have obtained a
better result. (Pompa-Ortiz, supra, 27 Cal.4th at p. 529 [If the issue is raised before trial,
prejudice is presumed]; People v. Booker (2011) 51 Cal.4th 141, 157 [“the need for a
showing of prejudice depends on the stage of the proceedings at which a defendant raises
the claim in a reviewing court”]; see also Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [in
order to establish constitutionally ineffective assistance of counsel based upon an alleged
conflict of interest, “a defendant who raised no objection at trial must demonstrate that
an actual conflict of interest adversely affected his lawyer’s performance,” italics added];
United States v. Balzano (7th Cir. 1990) 916 F.2d 1273, 1293 [same]; United States v.
Barnes (7th Cir. 1990) 909 F.2d 1059, 1065 [same].)15
       It is true that recent decisions have narrowed the rule that no prejudice need be
shown to justify dismissal of the information for error at the preliminary hearing, in a
number of respects. In Reilly v. Superior Court (2013) 57 Cal.4th 641, the court
explained that the Pompa-Ortiz rule—though valid—does not mean that if the error is
raised before trial, materiality is always presumed and dismissal of the information is

       15
          In United States v. Balzano, supra, 916 F.2d at page 1293, the trial court was
aware before the trial that the defendant’s attorney was under investigation for federal
criminal activities, and had conducted an investigation and hearing to determine whether
he should be discharged. Because the defendant had advised the trial court that he
wanted to retain his attorney after being advised of the conflict, the issue had not been
raised in the trial court. The Court of Appeal held that therefore the defendant’s
challenge on appeal could succeed only if he could demonstrate that the alleged conflict
of interest had adversely affected his lawyer’s performance.

                                              19
always required. Irregularities in preliminary hearing procedures that do not deprive the
defendant of a substantial right require a showing of prejudice to justify relief. (Reilly v.
Superior Court, supra, 57 Cal.4th at p. 653.) And when it is unclear whether the right
that was denied was substantial, the determination requires a showing that the error might
reasonably have affected the hearing’s outcome. (People v. Standish (2006) 38 Cal.4th
858, 863, 882 [dismissal of the information is required only if error might reasonably
have affected outcome of that hearing]; People v. Konow, supra, 32 Cal.4th at pp. 1004-
1005 [same].) However, the court also explained that “we do not mean that the defendant
must demonstrate that it is reasonably probable he or she would not have been held to
answer in the absence of the error”; only that “the error is not minor but ‘reasonably
might have affected the outcome’ in the particular case.” (People v. Standish, supra, 38
Cal.4th at pp. 882-883, original italics [because failure to release defendant on own
recognizance was not denial of a substantial right, showing of prejudice would be
required]; People v. Konow, supra, 32 Cal.4th at p. 1024 [trial court may set aside
information on basis of magistrate’s “erroneous and prejudicial” failure to consider
statutory right to dismiss complaint in furtherance of justice].)
       The rule set forth in Pompa-Ortiz held that some showing of prejudice would be
required for post-conviction relief from error at the preliminary hearing stage of the
proceedings: “Henceforth irregularities in the preliminary examination procedures which
are not jurisdictional in the fundamental sense shall be reviewed under the appropriate
standard of prejudicial error and shall require reversal only if defendant can show that he
was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the
preliminary examination.” (Id. at p. 528; People v. Letner and Tobin, supra, 50 Cal.4th
at p. 139.) But that limitation applies only where the preliminary hearing procedures are
challenged after the defendant’s conviction. As Pompa-Ortiz makes clear, the rule
requiring a showing of prejudice does not apply when the denial of a substantial right at
the preliminary hearing stage of the proceedings is challenged before the defendant’s trial
and conviction. When the challenge is made before the defendant’s trial and conviction,
the rule remains the information must be set aside without any affirmative showing of


                                              20
prejudice. If the issue is raised before trial, the court reaffirmed in Pompa-Ortiz,
“prejudice is presumed and the information is dismissed” without any affirmative
showing. (Pompa-Ortiz, supra, 27 Cal.3d at pp. 529, 530.) That rule applies here,
because Harris brought his motion to dismiss the information based on his failure to
receive effective assistance of conflict-free counsel, and pursued the matter in his petition
to this court, before he faced trial or conviction.
       In the trial court, the People opposed dismissal of the information, suggesting
instead that the appropriate remedy would be to remand the matter for a new preliminary
hearing, which “would not be the result of a legal dismissal of the information, but would
be based on a conflict of interest known only to Gustavo Diaz at the time.” Under the
reasoning of the Pompa-Ortiz decision, the People argued, “the proper course to take,
even absent the writ procedure, is to return the matter to a magistrate for a new
preliminary hearing”—to which the People would have no objection. But “[t]he People
would strongly object to a legal dismissal prior to any new hearing on the matter.” The
trial court agreed, concluding that setting aside the information “is not the appropriate
remedy in this pretrial phase when we are in a posture it can be corrected by being
referred back to the magistrate.” Faced with the unwillingness of Harris’s counsel to
agree to remand for a new preliminary hearing instead of the remedy of setting aside the
information, the trial court denied Harris’s motion.
       Harris’s petition in this court seeks a writ restraining the superior court “from
holding further proceedings” on the pending information against him. Notably, the
People’s opposition does not repeat its trial court contention that dismissal of the
information is not an appropriate remedy for a conflict of interest at the preliminary
hearing, and it does not suggest any other remedy that would be appropriate for that
circumstance (nor do the People indicate how it would be possible to have a new




                                              21
preliminary hearing without first setting aside the existing information, as the People had
sought and the trial court had suggested).16

                                        Conclusion

       In the preceding sections of this decision we have concluded that the preliminary
hearing is a critical stage of the prosecution, which is validly conducted only when the
defendant is afforded the effective assistance of counsel. (Cal. Const., art. I, § 14;
Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [90 S.Ct. 1999, 26 L.Ed.2d 387, 396-397].)
A valid preliminary hearing is a prerequisite to the filing of an information. (§ 738.)
Because Harris’s preliminary hearing did not meet constitutionally required standards,
the information must be set aside.17

                                        Disposition
       The petition for writ of prohibition is granted. Respondent court is ordered to
dismiss the information and is restrained from further proceedings in Los Angeles County
Superior Court case No. MA056288, consistent with this opinion.
       TO BE PUBLISHED.

                                                          CHANEY, J.

We concur:

              ROTHSCHILD, Acting P. J.                    MILLER, J.*


       16
         Because we grant the petition on other grounds, we do not address whether the
prosecution had a duty under Brady v. Maryland, supra, 373 U.S. 83, to advise Harris of
Diaz’s arrest and prosecution.
       17
         Neither the petition nor the opposition addressed what future procedures may
(or may not) become appropriate with respect to the prosecution of Harris on the charges
for which he was arrested, nor did the trial court purport to determine those potential
issues. We express no opinion on them.
       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                               22
