Summary
In Johnson, the intermediate California appellate court held that committing a crime of moral turpitude did not necessarily establish incompetence as a matter of law.
Summary of this case from Cantu v. StateOpinion
Review Denied Dec. 20, 1990 (B044094).
Previously published at 231 Cal.App.3d 1124
Carlo Andreani, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Mark Alan Hart and Frederick Grab, Deputy Attys. Gen., for plaintiff and respondent.
LILLIE, Presiding Justice.
The court sitting without a jury found defendant guilty of sale of cocaine (Health & Saf.Code, § 11352), and to be not true the allegations of prior felony convictions. He was sentenced to state prison for the upper term of five years. On appeal from the judgment, defendant claims the sentencing court erred in failing to consider as mitigating factors that a "very small one [.22 gram] rock sale" was involved, and that his waiver of jury served the interests of judicial economy. In a petition for writ of habeas corpus, which we ordered to be considered with the appeal, defendant contends he was deprived of his constitutional rights to effective assistance of counsel and due process because his trial attorney, Mr. Hane, had been suspended from the practice of law after being convicted of violating Penal Code section 288, subdivision (a).
FACTS
In the evening of March 27, 1989, Officer Fenoglio was conducting a surveillance at 811 Rose Avenue for drug activity; he was crouched down behind some trash cans and a five-foot high wood fence with some missing slats near an alley by the rear courtyard of that address; at times the officer would look through the slats with his binoculars or over the top of the fence.
With binoculars, from a distance of about fifty or sixty feet, Officer Fenoglio saw defendant cross the alley and go into the courtyard at 811 Rose; after five or ten minutes, another man, later identified as Mario Miller, jogged up to defendant and talked to him from the other side of an iron fence; defendant reached through the fence with his finger and thumb and dropped a small white rock which appeared to be cocaine into Miller's open palm; Miller handed defendant some money, turned and jogged out of the alley to Eighth Street. Fenoglio made a police broadcast of Miller's description; within a few minutes, two officers saw Miller come out of the alley; the officers waited for Miller to get away some distance, then arrested him. When the two officers approached Miller, Miller dropped the white rock on the sidewalk and one of the officers picked it up. Later examination revealed the rock weighed .22 grams and contained a cocaine base.
Defendant stayed in the back of 811 Rose and talked to a couple of other people, but Fenoglio saw no other transactions. After learning that the officers had arrested Miller, Fenoglio radioed defendant's description to them; within an hour after arresting Miller, Fenoglio saw defendant walking down the rear stairwell of the apartment at 811 Rose; the two other officers had just entered the courtyard and Fenoglio radioed to them that defendant was to be arrested; the officers arrested defendant on the stairwell; they found $200 on his person.
Defendant did not take the stand, and no witnesses testified for the defense. I
NO SENTENCING ERROR
Appellant contends that the sentencing court, which imposed the upper term of five years, erred in failing to take into account two mitigating factors--that he waived jury and that the sale of cocaine involved a "very small one rock." He argues that the matter should be remanded for resentencing "for an informed exercise of discretion to determine whether the four-year midterm should be imposed."
The record fails to show any error or abuse of discretion by the trial court. The probation report stated that the "defendant has a felony record of two prior cocaine-related convictions in this jurisdiction and is currently on parole (which has been revoked) as the result of those convictions. Apparently a clerical error prevented the court from receiving evidence as to the defendant's priors.[ The defendant immediately recognized the undersigned as being his probation officer from a prior grant." The probation report concluded that there "appear to be no circumstances in mitigation," and that the circumstances in aggravation "clearly outweigh those in mitigation." The five circumstances in aggravation listed in the report are the planning, sophistication or professionalism with which the crime was carried out indicated premeditation; defendant's prior convictions were numerous or of increasing seriousness; he had served prior prison terms; he was on parole when the crime was committed; and his prior performance on probation or parole was unsatisfactory.
At trial, the prosecutor informed the court that he had been unable to obtain documents to prove the prior: "Basically, I have a photo of [a] Mr. Johnson, who is clearly not the defendant. And I spent the lunch hour trying to prove [the prior]. And I have been unable." The court then stated that "The prior is then found to have been not proved."
One of the Federal Circuit Courts quoted in the majority opinion likewise saw no difference and held the rule of per se reversal applies to defendants represented by lawyers "not authorized to practice law ... for a reason going to legal ability, ... or want of moral character, ..." (Solina v. United States, supra, 709 F.2d 160, 167, quoted in the maj. opn., p. 452, fn. 4.) In another case, a public defender who had proved his intellectual capacity and legal knowledge by earning a J.D. and passing the bar examination did not qualify as a "counsel" for purposes of the Sixth Amendment because he had been denied admission to the bar solely on character grounds. (Huckelbury v. State (Fla.App.1976) 337 So.2d 400, 403 ["The right to court-appointed counsel presupposes appointment of counsel fully accredited by competency and moral standards to practice law"].)
At the time of sentence, defense counsel argued that "I think the case was, first off, a close call on the case. And I think that it was a very small deal, one rock, if you will, and no other dope or no other indication that Mr. Johnson sold or did anything else in this area.... [I]t was just a one time small affair." The trial court disagreed that the case was close, stating: "Well, Mr. Johnson doesn't have much going for him. He was on parole I believe when he committed this offense, had several previous convictions. I don't think it was a close case, as I recall it.... [p] And I would like to accommodate Mr. Johnson. He did waive the jury. It is something [about which] we would be less than candid if we didn't take that into consideration. But I think the fact that he was able to beat the two enhancements, which I would have been more willing to play around with if proven, makes it difficult. [p] I am going to select the high base term. There isn't much you can say about Mr. Johnson. And I agree with the probation department that there doesn't seem to be any significant circumstances in mitigation. [p] But the fact that he has prior convictions, prior prison term, on parole when he committed the offense, committed an offense very similar to this ... for which he was on parole, so the court selects the high base term of five years...."
Our record thus establishes that the court was aware of the two factors cited by appellant and did take them into account in sentencing, but either rejected them as insignificant mitigating factors under the circumstances of this case (see People v. Thompson (1982) 138 Cal.App.3d 123, 127, 187 Cal.Rptr. 612), or of little weight when balanced against the aggravating factors.
Appellant concedes that a jury trial waiver does not ipso facto establish a mitigating factor, but claims that his conduct nevertheless served the interests of judicial economy. Inasmuch as many alleged factors in mitigation are disputable either because they may not be established by the evidence or because they may not be mitigating under the circumstances of a particular case (In re Handa (1985) 166 Cal.App.3d 966, 973, 212 Cal.Rptr. 749), the trial court did not err in impliedly concluding that the jury waiver and the small size of the rock of cocaine were "disputable" in the sense that under the facts of this case they were not mitigating factors. The probation report indicated that appellant admitted using cocaine for 10 years; at one point he had a habit of $300 to $400 per day; to pay for this habit, he "hustles"; he had never been in a drug treatment program. The court also found to be significant that the crime was similar to a prior crime for which he was on parole. Under these circumstances, in which appellant was clearly neither a first offender nor an occasional user, nor apparently interested in treatment for his habit, the fact that the crime involved a small rock is insignificant. Substantial evidence supports the trial court's implied conclusion that the "small rock" sale was not an isolated occurrence but part of a continuing course of criminal conduct that appellant was not interested in changing, and thus not deserving of consideration as a mitigating factor.
Appellant's citation to People v. Jackson (1987) 196 Cal.App.3d 380, 242 Cal.Rptr. 1 is unavailing. In Jackson, the trial court apparently found "small sales" as a circumstance in mitigation where the defendant pleaded guilty to sale of two bindles of powder for $15 each and the powder containing heroin weighed "a mere .03 gram." (196 Cal.App.3d at p. 391, 242 Cal.Rptr. 1.) The court stated that although "small sales" was not one of the circumstances in mitigation listed in California Rules of Court, rule 423, the list is not exclusive, and the "trial court was entitled to consider 'small sales' as a circumstance in mitigation and to give that circumstance the weight to which the trial court believed it was entitled." (196 Cal.App.3d at p. 391, 242 Cal.Rptr. 1.)
That the trial court in Jackson was held to have acted within its discretion in concluding the "small sales" there to be a mitigating factor, does not establish that the trial court in this case abused its discretion in impliedly concluding the "small sale" herein was not a mitigating factor. There is no evidence as to how much money defendant received for the .22 gram rock of cocaine, which admittedly is a greater amount than the .03 grams of powder in Jackson. Appellant has failed to demonstrate that the court abused its discretion in impliedly deeming the size of the rock of cocaine to be an insignificant mitigating factor.
The fact that appellant waived a jury, under the instant facts, does not necessarily indicate, as claimed by him, his purported "respect for and cooperation with the criminal justice system." The jury waiver pales in significance beside the facts of his violation of parole and continued offenses. Accordingly, the court properly impliedly rejected the jury waiver and size of the narcotics as mitigating circumstances.
Further, inasmuch as the trial court has wide discretion in weighing aggravating and mitigating factors, and may balance them against each other in qualitative as well as quantitative terms (People v. Roe (1983) 148 Cal.App.3d 112, 119, 195 Cal.Rptr. 802), appellant has failed to show that the court abused its discretion in weighing the factors before it.
II
EFFECTIVENESS OF COUNSEL (PETITION FOR WRIT OF HABEAS CORPUS)
Petitioner contends that "he was deprived of his constitutional rights to competent counsel and due process as a matter of law where his trial attorney had been suspended from the practice of law for conviction of lewd and lascivious conduct, a crime of moral turpitude." However, petitioner does not point to any incompetent act or omission by Hane, nor does he claim prejudice. Rather, he apparently contends that Hane's suspension due to conviction of a crime involving moral turpitude deprived him of his Sixth Amendment right to counsel as a matter of law, and that such deprivation renders his conviction reversible per se. He further contends that Hane's failure to advise him of his conviction and suspension from the practice of law, which occurred before his June 27, 1989 trial, deprived him of the right to private counsel of choice, which deprivation renders his conviction also reversible "regardless of whether in fact [he] had a fair trial." A. Facts
In support of his petition for writ of habeas corpus, petitioner submits court records establishing that on March 5, 1987, his attorney, Raymond E. Hane, was charged with four counts of committing a lewd act upon a child (Pen.Code, § 288, subd. (a)), and one count of committing a forcible lewd act upon a child (Pen.Code, § 288, subd. (b)); in August 1987, Hane pleaded guilty to one count of violation of Penal Code section 288, subdivision (a); in March 1988, Hane was sentenced to state prison for eight years; sentence was suspended and he was placed on probation for five years; an April 6, 1988 order of the California Supreme Court provided that "Since [Hane] has been convicted of violating Penal Code section 288, subdivision (a), a crime involving moral turpitude, it is ordered pursuant to Business and Professions Code section 6102, subdivision (a), that he be suspended from the practice of law in this state pending final disposition of this proceeding"; on May 10, 1989, Hane filed with the State Bar Court written resignation from the State Bar; a September 7, 1989 order of the Supreme Court stated that "Since [Hane] has resigned as a member of the State Bar of California and his resignation has been accepted ..., the order filed herein on October 26, 1988 is vacated and the above entitled proceeding is dismissed without prejudice to further proceedings therein should he hereafter seek reinstatement."
Petitioner also presents his own declaration in which he states that he had no knowledge of the criminal charges and conviction of his attorney, Raymond E. Hane, during the pendency of the superior court proceedings; had he known of the criminal charges or conviction, he would not have consented to Hane's representation of him.
The Attorney General does not dispute the above facts. The declaration of Frederick Grab, Deputy Attorney General, states that the Los Angeles District Attorney's office informed him that Mr. Hane had engaged in at least five representations in criminal cases since his suspension and he also has been the subject of a probation revocation proceeding as a result of his unauthorized practice.
B. Discussion
The issue for our resolution is whether Hane's suspension from practice for conviction of a crime involving moral turpitude per se denied petitioner his federal and state constitutional rights to effective assistance of counsel. Petitioner relies heavily on People v. Hinkley (1987) 193 Cal.App.3d 383, 238 Cal.Rptr. 272, which is distinguishable from the instant case and which does not convince us that a per se rule applies under the circumstances here. In order to explain why Hinkley does not support petitioner's contentions, we first discuss the appropriate focus of inquiry for evaluation of his Sixth Amendment claim.
Under both the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment, and article I, section 15 of the California Constitution, a defendant in a criminal case has a right to the assistance of counsel. (People v. Bonin (1989) 47 Cal.3d 808, 833, 254 Cal.Rptr. 298, 765 P.2d 460.) "The right to the assistance of counsel was designed to assure fairness in the adversary criminal process.... [In other words,] the purpose of providing assistance of counsel is simply to ensure that criminal defendants receive a fair trial, [citation].... [I]n evaluating Sixth Amendment claims, the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such. [Citation.] Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." (People v. Bonin, 47 Cal.3d 808, 834, 254 Cal.Rptr. 298, 765 P.2d 460; internal quotation marks omitted.)
"An effective attorney must play the role of an active advocate, rather than a mere friend of the court. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 835, 83 L.Ed.2d "Although the underlying issue in an ineffectiveness claim is always the adversary nature of the process, the Court's decisions in Strickland and [United States v. Cronic (1984) 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657] suggest that the convicted defendant can pursue an ineffectiveness claim in two ways. He can assert that the process was not adversarial because of affirmative state interference or a conflict of interest, and/or he can argue that his attorney was so inadequate that he was effectively denied the benefit of full adversarial testing of his guilt. [Citations.] When a defendant challenges the adequacy of his counsel's performance, he must meet the Strickland reasonableness and prejudice requirements. [Citation.] Conversely, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." (Osborn v. Shillinger, supra, 861 F.2d at p. 626; internal quotation marks omitted.)
The United States Supreme Court addressed the conflict of interest issue in Cuyler v. Sullivan (1980) 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333, wherein a state prisoner sought a federal writ of habeas corpus on the ground that his counsel, who also represented his two codefendants, represented potentially conflicting interests. (Id., at p. 337, 100 S.Ct. at p. 1712, 64 L.Ed.2d at p. 339.) The Court rejected the argument that a potential conflict was sufficient to show that defendant was deprived of his right to counsel, and held that "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance" ( id., at p. 348, 100 S.Ct. at p. 1718, 64 L.Ed.2d at pp. 346-347), and that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." ( Id., at p. 349, 100 S.Ct. at p. 1719, 64 L.Ed.2d at p. 347.)
Petitioner argues that "Hane's turpitudinous conviction, felonious crime, and contempt of court did not meet the requisite level of a reputably competent attorney," and claims that such moral turpitude automatically renders Hane an ineffective counsel under the Sixth Amendment. We do not quarrel with petitioner's characterization of Hane's conduct, or with his recitation of the duties of attorneys, the moral character required for admission to the Bar, and the authority of the Bar to impose discipline for failing to meet certain standards. But all of these matters are beside the point; our proper inquiry is whether Hane's conviction and suspension from the practice of law deprived petitioner of his constitutional right to counsel.
We do, however, take exception to the dissent's characterization of Hane's conduct in representing petitioner without revealing to him that he (Hane) had been suspended and had resigned from the Bar as worse conduct than Hane's crime of committing a lewd act upon a child.
Petitioner fails to cite any authority to support his claim that representation by an attorney suspended for conviction of a crime involving moral turpitude constitutes a per se violation of the right to counsel. We do agree with petitioner, however, that People v. Medler (1986) 177 Cal.App.3d 927, 223 Cal.Rptr. 401, is not dispositive.
In Medler, the court rejected the defendant's contention that his conviction was reversible per se solely because his attorney had been suspended from practice for nonpayment of State Bar dues. The court in Medler distinguished the circumstances therein from those of the case in which a layman masquerades as a qualified attorney, and noted that "an attorney who has been suspended from membership to the State Bar remains an attorney at law, but is precluded from practicing law," and that the nonpayment of dues "has nothing to do with the legal ability of the attorney." (Id., at pp. 930, 931, 223 Cal.Rptr. 401; original emphasis.) The court concluded that Medler was not denied the effective
Although Medler establishes that a per se rule of reversibility is not warranted simply because an attorney is suspended, and that we must examine whether the reason for the suspension was related to legal ability, it does not address the issue of moral character, or the issue of whether good moral character is included in its term "legal ability." What is curiously absent in Medler is also a consideration of whether representation of clients when the attorney has not paid his bar dues reflects on the attorney's ethical or moral character, and whether such a concern impacts on the Sixth Amendment right to counsel.
While we agree with petitioner that Medler is not dispositive, we disagree with him that People v. Hinkley (1987) 193 Cal.App.3d 383, 238 Cal.Rptr. 272 is dispositive.
The court in Hinkley did not reach the issue of the attorney's actual performance under the standard of People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, and held the defendant "was deprived of his Sixth Amendment right to competent counsel as a matter of law by reason of the findings of the State Bar Court and judgment of the Superior Court of San Joaquin County pursuant to [Business and Professions Code] section 6190, resulting in his enrollment as an inactive member of the State Bar of California...." (193 Cal.App.3d at p. 387, 238 Cal.Rptr. 272.)
At the time of Hinkley's trial and conviction, his attorney, Mr. Mays, who had been suspended a year earlier for nonpayment of dues, was also enrolled as an inactive member of the State Bar under Business and Professions Code section 6007, subdivision (b)(2), after the State Bar had found "probable cause to believe [Mays] has become incapable of devoting the time and attention to, and providing the quality of service for, his law practice which is necessary to protect the interest of his clients," and probable cause to believe that Mays "has willfully and intentionally abandoned his law practice and failed to protect the interests of his clients" (193 Cal.App.3d at p. 386, 238 Cal.Rptr. 272), and after the San Joaquin Superior Court issued an Order Assuming Jurisdiction of Law Practice under Business and Professions Code section 6190 et seq. The superior court also found Mays "has become incapable of devoting the time and attention to, and providing the quality of service for, his law practice which is necessary to protect the interest of his clients." (193 Cal.App.3d at p. 390, 238 Cal.Rptr. 272.)
Effectively applying a per se rule of reversibility in the above circumstances, the court in Hinkley relied on two rationales: (1) "To hold otherwise would constitute judicial interference with the authority of the legislative branch [set out in Business and Professions Code sections 6007 and 6190 et seq.] to establish appropriate policy in this area" (193 Cal.App.3d at p. 390, 238 Cal.Rptr. 272); and (2) the failure of Mays to advise Hinkley of the State Bar and superior court proceedings deprived him "of his right to participate meaningfully in the case and amounted to a violation of Mays's professional responsibility to supply important information to his client," and "destroyed the fiduciary relationship with the client." (193 Cal.App.3d at p. 391, 238 Cal.Rptr. 272.)
It is interesting to note that neither of the two rationales offered by the court in Hinkley focuses on the "benchmark for judging any claim of ineffectiveness" of counsel enunciated by the United States Supreme Court--the proper functioning of the adversarial process. While we do not quarrel with the result in Hinkley, we believe Most significant for the instant case is the fact that Hinkley does not address the issue of whether a finding of moral turpitude, as opposed to a finding of incompetence, is sufficient to establish a violation of the right to counsel.
We find People v. Garrison (1989) 47 Cal.3d 746, 254 Cal.Rptr. 257, 765 P.2d 419 instructive. In Garrison, defendant's attorney, Mr. Beardsley, was arrested during jury selection for driving to the courthouse with a .27 blood-alcohol content; the judge made a detailed inquiry of the matter and asked defendant if he wanted the court to appoint new counsel; defendant insisted he wished to continue with Beardsley; the judge stated that Beardsley's courtroom behavior had not given him any reason to believe that Beardsley should not continue to represent defendant, and at the conclusion of the penalty phase of the trial, the judge praised Beardsley's performance. (47 Cal.3d 746, 786-787, 254 Cal.Rptr. 257, 765 P.2d 419.)
On petition for habeas corpus, Garrison claimed that because it was undisputed that Beardsley was an alcoholic at the time of trial, he should be held ineffective as an attorney as a matter of law. Our Supreme Court concluded: "Defendant's position cannot be sustained, however, because it would render irrelevant Beardsley's actual performance in court. Our review of the facts indicate [sic ] that Beardsley did a fine job in this case.... [T]here is no authority for the type of per se rule espoused by defendant. He must still prove specific deficiency.... [p] At present, a presumption exists in favor of the effectiveness of counsel. A defendant has the burden of showing by a preponderance of the evidence that counsel's representation was deficient. [Citations.] A per se rule would create a presumption against the competence of attorneys with drinking problems and would invite defendants to challenge their convictions on the basis of speculation about the drinking habits of their attorneys, rather than on the basis of the attorney's actual performance in court. [p] Furthermore, any bright line definition of alcoholism itself would be arbitrary and impractical to administer. We therefore decline to adopt a per se rule of deficiency on the mere showing of alcohol abuse." (47 Cal.3d 746, 787-788, 254 Cal.Rptr. 257, 765 P.2d 419.)
Although the court in Garrison did acknowledge petitioner's evidence in support of his petition for habeas corpus, that "a chronic alcoholic loses the ability to think through new problems or tasks and often cannot make judgment calls" (47 Cal.3d at p. 787, 254 Cal.Rptr. 257, 765 P.2d 419), it refused to find such a person ineffective as a matter of law.
Although Beardsley's alcoholism is admittedly a different situation than Hane's lewd conduct under Penal Code section 288, subdivision (a), we conclude that a per se rule of ineffectiveness similarly should not be sustained in the instant case because it would render irrelevant Hane's actual performance in court.
Petitioner has failed to bring to our attention any authority which requires automatic reversal of a conviction because counsel was convicted of an unrelated crime involving moral turpitude. We note that one federal court has refused to apply the per se rule, enunciated in Solina v. United States (2d Cir.1983) 709 F.2d 160, In Waterhouse, the court refused to apply a per se rule of reversibility where, unknown to the defendant's lawyer, the lawyer was disbarred for want of moral character during the pendency of a hearing in the lower court, and ceased his representation of the defendant immediately after learning of the disbarment. The court in Waterhouse went out of its way to recast the holding of Solina (ante, fn. 5) as based on a conflict of interest rationale as well as on a "jurisdictional defect" rationale, and found neither supported the conclusion that "Waterhouse 'lacked counsel' in any way implicating the concerns behind the per se rule of Solina." (848 F.2d at p. 383.)
The court in Solina adopted a per se rule of reversibility when the defendant was represented by a person with a law school degree although never admitted to the practice of law in any state; however, the court embraced a per se rule "without enthusiasm" and under compulsion of the teachings of the Supreme Court in Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, which, according to the court in Solina, adopted the "somewhat surprising thesis that absence of counsel constituted a jurisdictional defect." (709 F.2d at p. 169.) The court in Solina, however, was careful to "limit our decision in this case to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character...." (709 F.2d at p. 167.) The court also stated that "we do not intimate that any technical defect in the licensed status of a defendant's representative would amount to a violation of the Sixth Amendment." (Ibid.)
We are not presented with the same fact situation as in Solina (ante, fn. 5), which case does not support petitioner's contentions herein. Although petitioner does not claim the existence of any actual conflict of interest, to the extent that the circumstances in our case may be likened to those in Waterhouse, we conclude that Waterhouse does not support the application of a per se rule here. As in Waterhouse, there is no evidence that Hane's suspension or conviction created an actual conflict of interest with petitioner, or that there was any relationship between the charges underlying his suspension and his representation of petitioner.
Petitioner impliedly raises the conflict of interest issue by his argument that Hane's failure to advise him of his suspension and conviction deprived him of his right to participate meaningfully in his defense. The conflict of interest analysis in Cuyler (ante, fn. 2) was discussed in United States v. Hoffman (9th Cir.1984) 733 F.2d 596, involving the issue of whether suspension from practice before the state bar of an attorney representing a defendant in federal court "automatically results in a lack of representation by counsel as guaranteed by the sixth amendment." ( Id. at p. 599.)
The court in Hoffman distinguished cases like Solina, involving representation by a person posing as a lawyer, and concluded that Hoffman cited no precedent convincing it that a per se rule was warranted. (733 F.2d at p. 599.) The court in Hoffman also noted that "Even though Vernell [Hoffman's attorney] was suspended from practice in the State of Florida and was in violation of the rule requiring him to report his suspension to the judge in the District of Arizona, he was not suspended from practice in the District of Arizona until after Hoffman's trial.... Despite the impropriety of Vernell's failure to inform the court, as a matter of law we conclude that Hoffman was not denied his right to counsel because of a conflict of interest. [p] Significantly, Vernell's alleged conflict did not place him in an adversarial position relative to Hoffman. At best, Hoffman has shown only a remote possibility of a conflict and not an actual conflict that adversely affected Vernell's performance." (733 F.2d at p. 602; see also United States v. Mouzin (9th Cir.1986) 785 F.2d 682, 699.)
While Hane's failure to inform petitioner of his bar status and conviction may have constituted a breach of duty to him, there is no evidence that such breach created an actual conflict of interest between Hane and petitioner or placed Hane in an adversarial position relative to petitioner. We thus conclude that Hane's failure to inform petitioner did not create a conflict of interest In conclusion, petitioner fails to persuade us that it is appropriate to apply a per se rule of reversibility under these circumstances. Petitioner has not even attempted to show that Hane did not act as a reasonably competent attorney and that he was prejudiced by his representation; indeed, our review of the entire record discloses that Hane performed a lawyerlike job at trial and sentence. The record reflects no error was committed in the trial court.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WOODS, J., concurs.
JOHNSON, Associate Justice.
I respectfully dissent.
This unlike some others this court has confronted in recent months (see, e.g., People v. Sanders (1990) 221 Cal.App.3d 350, 271 Cal.Rptr. 534) is another of those close cases where persuasive arguments can be marshalled on either side of the disputed issue (see, e.g., People v. Weatherill (1989) 215 Cal.App.3d 1569, 1588-1589, 264 Cal.Rptr. 298). In this case, however, the issue no matter how close is also fundamental--whether this defendant has been denied his constitutional right to counsel. I am persuaded albeit by a rather narrow margin that he has.
The majority views the issue in this case as a question whether this criminal defendant received effective representation at his trial from the person he thought was a lawyer and personally chose to represent him. If that is the proper characterization of the constitutional issue the majority opinion is quite persuasive. Indeed appellant had not bothered to argue the representation was ineffective. It remains an open question whether he failed to do so because Hane actually performed well or because some courts have made it near impossible to find a licensed lawyer incompetent enough to justify reversal on a claim of ineffective assistance of counsel. (See, e.g., People v. Sanders, supra, 221 Cal.App.3d 350, 271 Cal.Rptr. 534.) In either event, however, if non-lawyers who represent criminal defendants are to be judged by the same standards of competence as lawyers, the majority opinion is correct almost by default.
I differ with the majority because, on balance, I am not persuaded they have correctly characterized the constitutional issue. The Sixth Amendment guarantees every criminal defendant the assistance of counsel. The term "counsel", in turn, means a fully licensed lawyer. (Solina v. United States (2d Cir.1983) 709 F.2d 160; 166-169; Achtien v. Dowd (7th Cir.1941) 117 F.2d 989, 992; United States v. Wilhelm (3d Cir.1978) 570 F.2d 461, 465; Turner v. American Bar Ass'n (N.D.Ind.1975) 407 F.Supp. 451, 474-477, affd. sub nom. Taylor v. Montgomery (7th Cir.1976) 539 F.2d 715; People v. Felder (1979) 47 N.Y.2d 287, 418 N.Y.S.2d 295, 297, 391 N.E.2d 1274, 1276. See also other federal and state cases collected in 68 A.L.R.2d 1141, Representation of accused by person not licensed to practice law as compliance with constitutional right to counsel. But see dictum in United States v. Whitesel (6th Cir.1976) 543 F.2d 1176, cert. denied, 431 U.S. 967, 97 S.Ct. 2924, 53 L.Ed.2d 1062 [defendant knew person representing him was not a licensed lawyer] criticized at length in Solina v. United States, supra, 709 F.2d at pp. 166-167.)
This right to a licensed lawyer is enjoyed by defendants who retain what they suppose are attorneys to represent them as well as those for whom counsel is appointed by the court. (Solina v. United States, supra, 709 F.2d 160, 165 [reversing conviction of defendant who retained a law school graduate who had not yet been admitted to the bar]; Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 ["The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection"].) Furthermore, if a criminal defendant is represented by someone other than a licensed lawyer his conviction is reversible per se. The trial court is considered to have lacked jurisdiction to proceed. (Johnson v. Zerbst (1938) 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461; Chapman v. California (1967) 386 U.S. 18, 22-23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 [listing right to counsel among rights "so basic to a fair trial their infraction can never be treated as harmless error"]; Holloway v. Arkansas (1978) 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426; Solina v. United States, supra, 709 F.2d 160, 168 ["Application of a per se rule appears to us to be required ... by the teachings of the Supreme Court"]; People v. Felder, supra, 418 N.Y.S.2d 295, 296, 391 N.E.2d 1274, 1275.)
In this case, the defendant did not have the assistance of counsel. Instead he had the assistance of a former counsel, a person found morally unfit for the practice of law who had resigned from the profession. As far as the Sixth Amendment guarantee of the assistance of counsel is concerned, I see no difference between a person who is a non-lawyer because of moral unfitness than I do one who is a non-lawyer because of intellectual inferiority. 1 Moreover, this non-lawyer committed a further immoral deed--in many respects worse than his original crimes--by allowing this defendant to hire him as a counsel without revealing he no longer was a counsel within the meaning of the Sixth Amendment. This misled the defendant into believing he had the assistance of counsel when he did not and thus deprived him of his right to have "the assistance of counsel " guaranteed by the Sixth Amendment.
To underscore the import of the above analysis, what the defendant lost by this former lawyer's behavior was not just his rather limited right to counsel of his choice but his absolute right to the "assistance of [some person who qualifies as a) counsel." What disqualified Hane as a counsel in this case was far worse than the kind of "technical defect" in his licensure considered irrelevant in some cases cited in the majority opinion. (See, e.g., People v. Medler (1986) 177 Cal.App.3d 927, 223 Cal.Rptr. 401; Solina v. United States, supra, 709 F.2d 160, 167.) Beyond that, Hane had resigned from the bar, a far cry from the status of a member whose privileges are temporarily suspended pending his payment of dues.
I do not rely exclusively on the authority of People v. Hinkley (1987) 193 Cal.App.3d 383, 238 Cal.Rptr. 272. But I do observe it is closer on its facts to the instant case than the opinions the majority appears to prefer. Moreover, I find the rationale of the Hinkley court more persuasive than the arguments the majority makes in attempting to discredit that opinion.
I disagree that "adversariousness," as such, is the touchstone of a Sixth Amendment claim to "assistance of counsel." The cases the majority cited for this proposition related to two other issues--whether a defendant has an absolute right to counsel of his own choosing (People v. Bonin (1989) 47 Cal.3d 808, 254 Cal.Rptr. 298, 765 P.2d 460) and whether the counsel he retained or the one appointed for him rendered effective assistance. (Evitts v. Lucey (1985) 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821; Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Osborn v. Shillinger (10th Cir.1988) 861 F.2d 612.) Both of these issues presuppose the defendant is represented by some counsel. Representation by a non-lawyer--including a defrocked Nor am I persuaded to a different view by the cases which the majority discusses at length and on which they evidently rely. People v. Garrison (1989) 47 Cal.3d 746, 254 Cal.Rptr. 257, 765 P.2d 419 (discussed in the maj. opn., pp. 453-454), for instance, involved a drunk, but fully licensed lawyer whom the defendant in that case knowingly allowed to continue representing him. The question of whether that lawyer rendered effective assistance of counsel is an entirely different question than whether Hane, a person who had been criminally convicted, found morally unfit and actually resigned from the bar, qualified as a "counsel" within the meaning of the Sixth Amendment.
Waterhouse v. Rodriquez (2d Cir.1988) 848 F.2d 375 (discussed in maj. opn., p. 454), another case featured in the majority opinion, involved the question whether an entire conviction should be reversed because the defendant was represented for a brief period of time by a lawyer who withdrew prior to the trial and as soon as he knew he had been disbarred. Contrast that with the instant case where Hane had resigned from the bar before the defendant employed him, represented the defendant in the proceedings from beginning to end, and affirmatively concealed his non-lawyer status from the defendant throughout.
Finally, United States v. Hoffman (9th Cir.1984) 733 F.2d 596 (discussed in maj. opn., p. 454) raises a question of unique application to the federal courts which has nothing to do with the instant case. The Ninth Circuit held the failure to report suspension from practice in a state court some two thousand miles away did not deny a lawyer of his status as a member of the bar of the Federal District Court. Since he remained a member of the bar of the federal court there was no question the defendant received the assistance of counsel. The only issue was whether it was conflict-free counsel. In contrast, there is no dispute here Hane was not a member of the bar of the court before whom he appeared. So he was in the very posture the Ninth Circuit concluded would justify per se reversal.
Appellant has a constitutional right to the assistance of counsel--not a morally unfit, former lawyer who had resigned from the profession--but to a true counsel. The right is absolute and its denial requires per se reversal of this conviction. Accordingly, I would reverse and remand for a retrial with a real lawyer defending appellant.