Filed 3/26/13 Coronado v. Super Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



JUAN RAMON CORONADO, JR.,

         Petitioner,                                                     E055313

v.                                                                       (Super.Ct.No. RIF141160)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate. Christian F.

Thierbach, Judge. Petition granted.

         Gary Windom, Public Defender, and Richard V. Myers, Deputy Public Defender,

for Petitioner.

         No appearance for Respondent.




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       Paul Zellerbach, District Attorney, and Ivy B. Fitzpatrick, Senior Deputy District

Attorney, for Real Party in Interest.

       Defendant Juan Ramon Coronado, Jr., petitions this court to determine that the

trial court acted improperly and without substantial evidence in disqualifying the public

defender’s office from representing him in the current prosecution for capital murder and

being a felon in possession of a firearm. Although we believe there is substantial

evidence to show that the public defender’s office has a potential conflict of interest, we

conclude that the trial court should have first informed defendant of this conflict and

inquired whether he was willing to make a voluntary and knowing waiver of it.

Accordingly, we grant the petition and remand the matter to the trial court with direction

to make such an inquiry.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Coronado and a codefendant, Eusebio “Cheeto” Fierros,1 were charged with

capital murder; Coronado is also charged with being a felon in possession of a firearm

and receiving stolen property. Coronado gave a statement to the police first indicating

that Fierros was the shooter, but then admitting that he was.

       At a trial readiness conference on November 22, 2011, the prosecution submitted a

list of discovery and other issues to be discussed at a hearing. It requested to submit,


       1  After this court stayed proceedings with respect to Coronado’s case, on
February 12, 2012, a jury convicted Fierros of first degree murder and rendered true
findings on the robbery and kidnapping special circumstances, as well as the firearm
enhancement. On March 7, 2012, after a penalty phase, the jury returned a death verdict
for Fierros.


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under seal, certain documents, including two memos prepared by investigators employed

by the Riverside County Public Defender’s Office—Coronado’s counsel. These memos

were submitted to a defense mental health expert and were inadvertently sent to the

prosecution. The prosecution refused the defense’s request that they return the first

memo and ignore its contents.

       The first memo dated June 11, 2008, is by investigator Sam Merenda and

summarizes an interview he conducted with a potential witness named Marquan Lee, a

friend of Coronado’s. Merenda reported that Lee said he had seen Coronado in

possession of a gun similar in appearance to the weapon suspected to have been used in

killing the victim. Coronado told Lee that he and “ ‘Cheeto’ had ‘put a lick on an old

man and took his car.’ ” Merenda stated: “[Lee] agreed to call me if he comes up with

‘Any’ information that may assist in our defense. I explained Cheeto was bragging he

killed the old man, so it could be useful if we can speak with others he had told, and

possibly put the gun in his hand and not Juan’s. [¶] I know there may be a sentence or

two that may be useful, but didn’t know if you would want to take a chance at putting

him on the stand. He could be a risk, and if interviewed by the DA, I think he may have

trouble controlling his thoughts. [¶] Let me know if you want an ‘interview’ report and

I’ll get you one, minus the confession.”

       The second memo, dated August 17, 2011, summarizes a second interview of Lee

by investigator Gene Brisco. During this interview, Lee never mentions hearing

Coronado saying anything about “putting a lick on an old man” or seeing him in

possession of gun. Lee told the investigator that the first time he heard anything about


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the murder was when Coronado read him a newspaper article about Fierros’s arrest. Lee

stated that Coronado seemed surprised about the murder and Fierros’s involvement.

       Both of these memos were given to a psychologist who was retained by the

defense to conduct a neuropsychological evaluation of Coronado. Attached to the report

prepared by the psychologist was an appendix listing numerous documents, reports, and

transcripts she reviewed and considered in conducting her examination. The two

interview memos were included in the appendix, and all of these documents were

provided by defense counsel to the prosecutor during the discovery process.

       Deputy Public Defender Addison Steele told the court that his intention was to file

a declaration under seal, but then stated, “quite frankly I don’t care, I will tell the Court

right now how this all happened.” He seemed to acknowledge that there were portions of

Merenda’s report that he would not necessarily like, such as relaying information to a

witness about strategy, and that “a decision was made . . . this is never, ever going over to

the district attorney’s office, for all kinds of reasons.”

       The prosecutor pointed out, however, that Coronado was consulting mental health

experts to support a “false confession” claim. He argued that Brisco’s memo would

explain to such experts how Coronado became aware of the details of the crime in his

purportedly false confession. The district attorney also argued that Merenda’s memo

could be construed to show that Merenda was informing Lee of the defense strategy.

       The trial court ordered that these documents be filed under seal with no further

dissemination of the information contained in them.




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       Later during the November 22 hearing, the parties discussed a situation involving

Kristina Allen, who had been charged in a separate information with the same homicide

as Coronado and Fierros. The district attorney had reached a plea agreement with her

and, pursuant to that agreement, she made statements about the events and identified

Coronado as the shooter. Subsequently, love letters between Allen and Coronado were

discovered in their respective jail cells. Steele and investigator Brisco went to interview

Allen without talking to her attorney. A portion of the interview was taped in which she

now states that Coronado was not the shooter. The district attorney has taken the position

Allen failed to comply with her plea agreement and informed her attorney and the trial

court that the district attorney’s office will pursue homicide charges against her using her

statements.

       At subsequent hearings in December 2011, the trial court expressed growing

concern about actions of the public defender’s office with respect to the two memos and

the interview of Allen, and it indicated that there was a potential conflict of interest. On

December 16, the court indicated that it and the parties had to address at the next hearing

“the false confession expert and to what extent, if any, the memos that were filed under

seal come into play and whether they should be provided to [codefendant] Fierros.” In

the court’s view, the big issue was Merenda’s memo alluding to a suggestion in the terms

of a strategy that might involve the fabrication of evidence.

       On December 22, 2011, the trial court stated that after reading the record it was

convinced that the “ability of a meaningful defense for defendant Coronado has been

severely compromised if not totally eliminated by the breach of the attorney-client


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privilege committed by defense counsel Addison Steele. The ultimate result is that

defendant Coronado has been denied effective assistance of counsel. Furthermore there

is a very real appearance that defense investigators employed by the public defenders

office have engaged in conduct suggesting a willingness to fabricate or alter evidence up

to and including the subornation of perjury in an effort to mount a defense.”

       Public Defender Windom appeared at this hearing and indicated that the

investigators could be walled off. The court, however, ordered that the public defender’s

office be recused from any further representation of Coronado.

       Steele requested that the court conduct an in camera hearing where he could be

placed under oath and explain what happened. He states that there was an incomplete

record and the appellate court would only have the face of the two documents but that

there was information having to do with communications with Coronado that he could

not say in open court. The court denied this request.

       A petition for writ of mandate was filed in this court seeking to vacate the order of

recusal. Coronado2 has submitted a declaration with this petition stating that the

Riverside County Public Defender’s Office has been representing him since January 29,

2008, with Steele being the lead counsel since April of that year. He believes they are

doing a wonderful job and are fighting for his life while any replacement counsel would



       2  Because the trial court stayed the recusal order so that writ review could be
sought, the public defender’s office remains Coronado’s attorney of record and the
petition is brought in his name.




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only want to earn a paycheck. He wants the public defender’s office, and Steele in

particular, to continue to represent him.

       After issuing a Palma3 notice and considering the district attorney’s informal

response, this court summarily denied the petition. The Supreme Court granted

Coronado’s petition for review and transferred the matter to this court with directions to

issue an order to show cause.4

                                       DISCUSSION

       “It is well established that in considering a motion to disqualify counsel, the

‘paramount concern is the preservation of public trust in the scrupulous administration of

justice and the integrity of the bar.’ ” (Rhaburn v. Superior Court (2006) 140

Cal.App.4th 1566, 1573 [Fourth Dist., Div. Two].) On appeal, a trial court’s removal of

counsel for an indigent criminal defendant is reviewed for abuse of discretion. (People v.

Cole (2004) 33 Cal.4th 1158, 1187.)

       Coronado first challenges the trial court’s finding of ineffective assistance of

counsel, noting that damaging statements attributable to the defendant are often

inadvertently disclosed during a death penalty prosecution and are not necessarily fatal or


       3   Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179.

       4  The Supreme Court’s action is not necessarily an expression of its disagreement
with our earlier ruling, but that it may believe that an opinion is warranted under the
circumstances of this case. Thus, we are in no way precluded from reaching the same
result. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1389,
fn. 4; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2011) ¶ 13:125.1, p. 13-1.)




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amount to an inability to conduct a meaningful defense as the trial court found. Here, in

particular, the first investigator—Merenda—noted that Lee was not a particularly

credible witness.

       Furthermore, Coronado asserts that there was insufficient evidence to support the

finding that the investigators had fabricated, altered, or suborned perjury. He points out

that Merenda is employed by the capital defender’s office while Brisco works for the

public defender’s office. Thus, they were not two investigator’s working for the same

office who were engaged in a sinister plot to suborn perjury. Rather, they produced

divergent memos based on separate interviews with an unreliable witness. Indeed, he

notes that as a result of the removal order, counsel from the capital defender’s office will

end up being appointed to represent him.5

       However, whether or not members of the public defender’s office are actually

guilty of suborning perjury or any misconduct6 is not as significant as the fact that the

nature of the investigation may become an issue during trial. Even if the defense does

not call Lee as a witness, the prosecution may very well do so, particularly if the public

defender asserts a “false confession” defense. His statements given to the investigators



       5  It must be pointed out that Merenda’s report is clearly identified as one
originating from the public defender’s office. The record does not reflect that he is or
was employed by the capital defender’s office.

       6 We note that the trial court did not find that fabrication of evidence and
subornation of perjury had in fact occurred, but that there was a very real appearance that
they had.




                                             8
will then become an issue.7, 8 Thus, trial counsel, whether it be Steele or another deputy

from the public defender’s office, may very well be placed in the position of defending

the actions of the investigators and the entire defense team compromising his efforts on

defending his client. A conflict of interest encompasses situations in which an attorney’s

loyalty to or efforts on behalf of his client are threatened by his responsibilities to a third

party or his own interests. (See People v. Doolin (2009) 45 Cal.4th 390, 417.) It is also

possible that their conduct may tarnish defendant in the eyes of the jury.

       We believe that this situation can more appropriately be analyzed as a potential

conflict case. The disclosure of the investigators’ memos has already taken place and

defense counsel, be it the public defender or another attorney, must deal with that fact in

going forward. Thus, the past actions of the public defender’s office do not justify

recusal; rather, their effect on the future conduct of the defense does.

       The public defender argues that the trial court predicated its recusal on the

violation of the attorney-client privilege9 and ineffective assistance of counsel—not on



       7  Indeed, questions about these memos may impact the decision whether to pursue
such a strategy.

       8 We glean from the record that neither the prosecution nor defense will be calling
Kristina Allen as a witness in this case, and the trial court did not mention Steele’s
contact with her in its ruling.

       9   Throughout the course of these hearings dealing with the investigator memos,
the trial court and the parties indicated that the problem concerned attorney work
product—not attorney-client privilege. We presume that the court’s reference to a breach
of the attorney-client privilege was simply a slipup in its oral pronouncement that was
incorporated without change into the written order.


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any conflict of interest. Therefore, it is argued that this court must decide the matter on

the actual ground for removal articulated by the trial judge. We must point out that

several times during these hearings the trial court expressed concern about a potential

conflict of interest, although it did not expressly refer to conflict of interest in its ruling.

In reviewing the recusal order, we accept as correct all of the trial court’s express or

implied findings supported by substantial evidence. (City National Bank v. Adams (2002)

96 Cal.App.4th 315, 322.) Moreover, claims that a defendant has been denied his Sixth

Amendment right to conflict-free counsel is a category of ineffective assistance of

counsel. (See People v. Doolin, supra, 45 Cal.4th 390, 417.) The circumstances the trial

court cited raise a genuine concern about the public defender having a possible conflict of

interest. The public defender dismisses these concerns as merely speculative. This is not

a typical conflict case and none of these possibilities may arise. However, we are not

viewing this with the benefit of hindsight on appeal, but only with such information that

shows that a potential conflict may arise.

       Counsel may be relieved on the trial court’s own motion, even over the objection

of the defendant or his counsel, to eliminate potential conflicts, ensure adequate

representation, or prevent substantial impairment of court proceedings. (People v. Cole,

supra, 33 Cal.4th 1158, 1187.) During oral argument, the People urged us simply to deny

the petition citing People v. Jones (2004) 33 Cal.4th 234. We certainly recognize the

authority to do so. In People v. Jones, the Supreme Court found no error in removing

defendant’s appointed counsel for a potential conflict notwithstanding defendant’s offer

to waive that conflict because the trial court was seeking to protect the defendant’s right


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to competent counsel. (Id. at pp. 244-245; see also People v. Richardson (2008) 43

Cal.4th 959, 994-997.)

       Jones is distinguishable because it holds only that the removal of potentially

conflicted counsel did not violate a defendant’s right to counsel. The defendant did not

argue that the trial court abused its discretion in doing so. (See People v. Jones, supra,

33 Cal.4th at p. 244, fn. 2.) Similarly in the case of People v. Noriega (2010) 48 Cal.4th

517, the Supreme Court held that there was no violation a defendant’s state or federal

constitutional right to counsel, and went further and held that assuming the trial court

abused its discretion in removing counsel under its statutory authority, the defendant had

failed to show prejudice. We are confronted with deciding the exact issue that the

Supreme Court did not decide—whether the trial court did abuse its discretion in

removing the public defender from representing the defendant. Moreover, we must

decide the issue at the pretrial stage, not on appeal where we would have the benefit of

hindsight. Thus, although removal of appointed counsel does not involve a defendant’s

constitutional rights, some consideration should be given to the right of a defendant “to

decide for himself who best can conduct the case must be respected wherever feasible.”

(Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615, fn. omitted, disapproved on

another ground in People v. Doolin, supra, 45 Cal.4th 390.) Prior to removing appointed

defense counsel, we believe the better course is for the court to advise the defendant of

the problem and, if possible, to secure a knowing and intelligent waiver. Alcocer v.

Superior Court (1988) 206 Cal.App.3d 951, set forth general guidelines for a trial court

to follow when confronted with a potential conflict. We believe that these guidelines


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remain viable and, in general, a trial court should advise the defendant of the problem and

inquire whether he wishes to waive any conflict.10 Here, the declaration Coronado

submitted to this court is insufficient to show a knowing and intelligent waiver, but we

believe that the trial court abused its discretion by failing to follow these guidelines when

confronted with this situation. Before recusing the public defender, the court should have

explained to Coronado the potential pitfalls of keeping counsel and advised him of

alternatives. It should have appointed independent counsel to confer with Coronado and,

if after conferring with counsel Coronado stilled wished to continue with his attorney, the

court should have secured a knowing and intelligent waiver.

       Finally, the public defender does not contend in its traverse that the trial court

erred in failing to grant the request for an in camera hearing.11 Instead, it is argued that if

we find that the removal order cannot stand, we should issue an order to that effect and

let the trial judge exercise his discretion from there. In other words, the trial court is free

to conduct a conflict inquiry and obtain waivers from Coronado if it so desires—at any


       10 We recognize that exceptions may occur where the misconduct or
incompetence is so flagrant that the fairness of the trial would be undermined if the
attorney were allowed to remain. (People v. Burrows (1990) 220 Cal.App.3d 116, 125;
see also People v. Jones, supra, 33 Cal.4th 234, 252 (conc. opn. of Werdegar, J.).) We
do not believe that this is such a case.

       11 At this point, we cannot fault the trial court for failing to conduct an in camera
hearing as requested by Steele on December 22, 2011. As discussed ante, the mere fact
that the memos had been disclosed is the significant fact and not what had happened
leading to their disclosure. Moreover, we note that Steele had previously proclaimed in
open court that he had explained how everything had happened and constituted
everything he would have put under seal.




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time during trial—but, in the public defender’s view, there should be no joint venture

between this court and the trial court in making the decision to conduct such an inquiry.

We reject the notion that we are making a de novo determination that a potential conflict

exists. We are reviewing the recusal order to determine whether the trial court’s express

or implied findings are supported by substantial evidence. (City National Bank v. Adams,

supra, 96 Cal.App.4th at p. 322.)

                                       DISPOSITION

       Let a writ of mandate issue requiring the trial court to set aside its order recusing

the Riverside County Public Defender’s Office and to hold a new hearing in conformance

with the views expressed herein.

       Petitioner is directed to prepare and have the writ of mandate issued, copies

served, and the original filed with the clerk of this court, together with proof of service on

all parties.

       The stay of proceedings previously issued by this court is vacated.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 RAMIREZ
                                                                                         P. J.
We concur:


RICHLI
                           J.


KING
                           J.


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