People v. Baylis

Procedural Background

In October 2003, the District Attorney for the County of Alameda filed a second amended information alleging that defendant Patrick Baylis committed four counts of rape (Pen. Code, § 261, subd. (a)(2); counts 1-4),^[1] one count of penetration with a foreign object (§ 289; count 5), one count of forcible oral copulation (§ 288a, subd. (c); count 6), one count of kidnapping with the intent to commit rape or oral copulation (§ 208, former subd. (d); count 7), and one count of robbery (§211; count 8). As to counts one through six, it was alleged that defendant kidnapped the victim and that the movement of the victim substantially increased the risk to her (§ 667.61, subds. (d)(2) & (e)(1)) and that defendant personally used a firearm (§§ 667.61, subd. (e)(4), 12022.3). As to counts seven and eight, it was alleged that defendant personally used a firearm. (§ 12022.5.) Defendant was represented at trial by an attorney other than Hove. A jury found defendant guilty on all counts and found that all the alleged enhancements were true. In April 2004, the trial court imposed a total prison term of 44 years to life.

Factual Background

The Prosecution Case

On the morning of February 23, 1997, as the victim was walking to work, a man she described as Black and heavyset walked toward her. He grabbed her arm, put his hand over her mouth, and put a gun to her cheek. He told her not to scream or he would kill her, and he told her to keep walking.

They walked through a parking lot and he covered her face with her jacket. The assailant forced her into a car and drove her to an apartment in Hayward. He led her to a walk-in closet, covered her eyes with a T-shirt, and told her to take off her clothes. He forced her to have intercourse in the closet and on a mattress in another room, and, holding a gun to her head, made her orally copulate him. As the assailant handed the victim her clothes, she heard him go through her pockets. She later discovered that approximately $17 was missing. The assailant told the victim that he should just kill her, led her back to the mattress, and forced her to have intercourse again.

They left the apartment. The assailant drove for a while and told the victim to get out of the car. She contacted the police, describing her assailant as a Black male in his early 30’s, five feet five inches tall, about 200 pounds, with a full beard and closely cut hair.

In a photo lineup, the victim picked out defendant’s brother, Rodney Baylis, as her assailant. She was not confident of the identification, although

court found that he freely and voluntarily waived Hove’s conflict of interest arising from Hove’s former representation of Rodney, he was entitled under the federal and state Constitutions to substitute Hove for his appointed counsel. He also contends that the trial court erred both in concluding that Rodney was required to waive the conflict and that Rodney’s waiver was inadequate. We hold that the trial court properly concluded that Rodney did not adequately waive the conflict raised by representation of defendant by Hove and that denial of the substitution motion was not an abuse of discretion or a violation of defendant’s right to counsel.

A. Procedural Background

In 2003, well before trial, defendant requested that Richard Hove be substituted as counsel of record in place of appointed counsel, Michael Berger. The prosecutor opposed the request on the ground that Hove had previously represented Rodney in prosecutions for sexual assaults that occurred in Alameda in August 1996 and in Oakland in April 1997. The rape at issue in this case occurred in Hayward in February 1997. Originally Rodney was charged with the Hayward offenses as well, and the victim identified Rodney as her assailant at the preliminary hearing, but the charges were dismissed after DNA analysis implicated defendant.

Hove never represented Rodney in relation to the Hayward offenses. Rodney’s attorney at the preliminary hearing on the charges arising out of the Alameda, Oakland, and Hayward incidents was Roger Patton. Hove represented Rodney at trial for the Alameda and Oakland incidents. Hove raised a mistaken identity defense and pointed to Patrick as the assailant who committed the Oakland sexual assault. Rodney testified that the last time he had seen the gun used in the Oakland assault Patrick had it. Hove attempted to question Rodney about the misidentification in this case, but the trial court did not allow the questioning. Hove called Patrick as a witness, and he admitted ownership of the gun used in the Oakland assault but refused to answer whether he took the gun to the store where the rape took place; the trial court struck Patrick’s testimony about the gun. In closing, Hove argued that Patrick was responsible for the Oakland assault. Rodney was convicted of both the Alameda and Oakland offenses.^[2]

The trial court found that an actual conflict of interest would exist were Hove to represent defendant. The trial court explained: “Rodney Baylis, defendant’s brother, was originally identified as the perpetrator of the crimes for which defendant now stands accused. The sexual assault in Oakland, for which Rodney Baylis was convicted, occurred within a few months of the instant incident. Therefore, notwithstanding the alleged DNA evidence, mistaken identification remains a potentially viable defense in this case. Defendant admits that he may introduce evidence that his brother, Rodney Baylis, committed the offenses in this case . . . Mr. Hove will be placed in the untenable position of presenting evidence inculpating his former client, Rodney Baylis, directly contradicting the position taken at Rodney Baylis’ trial, in which Mr. Hove attempted to prove that Patrick Baylis committed this rape. (The Court notes that double jeopardy has not attached to Rodney Baylis in this case.) [f] Other potential conflicts of interest exist. The District Attorney asserts that he may call Mr. Hove as a witness in this case because, during Mr. Hove’s representation of Rodney Baylis, Mr. Hove had discussions with the defendant Patrick Baylis regarding the events involving the instant charges. Those discussions are not privileged attorney client communications because the defendant was not Mr. Hove’s client at the time. Furthermore, the District Attorney points out the possibility that Mr. Hove’s privileged communications with Rodney Baylis may be subject to disclosure at trial, given that Rodney Baylis, as Hove’s former client, must also waive the conflict.”^[3]

Defendant submitted two declarations purporting to waive the conflict of interest. The court appointed independent counsel to advise defendant regarding the conflict. Independent counsel was charged with explaining to defendant the “existence, implications, and ramifications of having Mr. Hove represent him in this matter and to explain the consequences of defendant’s purported waiver of conflict-free counsel.” The trial court held two hearings on the issue and questioned defendant extensively regarding his understanding of Hove’s conflict of interest at each hearing. Ultimately, the trial court found that defendant knowingly and intelligently waived the conflict of interest.^[4]

However, the trial court denied the substitution request because it found that Rodney had not adequately waived the conflict. The court concluded that the Rules of Professional Conduct required Hove to obtain Rodney’s consent

before undertaking the representation of defendant. The court emphasized its “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” The sum of Rodney’s declaration read, “I understand that Patrick Baylis is now seeking to have Mr. Hove represent him. Since I was represented by Mr. Hove and was charged with these offenses, I have been advised that a conflict of interest may exist with Mr. Hove representing Patrick Baylis. I am aware of this and herby [sic] waive any conflict of interest regarding same.” After explaining the inadequacy of Rodney’s waiver and reviewing case authority, the trial court concluded: “Mr. Hove’s former client, Rodney Baylis, has not submitted an intelligent and knowing waiver of the conflict of interest nor has he waived the confidentiality of his attorney-client communications. When representing Rodney, Mr. Hove attempted to place responsibility for the instant charges upon defendant. Now, he seeks to implicate his former client for these crimes. To that end, Mr. Hove will have the benefit of what he learned when he represented Rodney at trial. Mr. Hove may be called to testify in this case and could possibly be forced to disclose privileged communications. Under these facts, the Court finds Rodney Baylis’ written waiver to be wholly insufficient and further finds that Mr. Hove’s representation of Patrick Baylis, if allowed, poses a significant threat to the integrity of the judicial process.”

B. The Existence of a Conflict Implicating Counsel’s Duties to Rodney

Defendant contends that the trial court erred in concluding that there was a conflict requiring a waiver from Rodney. We disagree. Professional ethics demand that an attorney avoid conflicts of interest in which duties owed to different clients are in opposition. (Flatt v. Superior Court (1994) 9 Cal.4th 275 , 282, & fn. 2 [ 36 Cal.Rptr.2d 537 , 885 P.2d 950 ] (Flatt); Rules Prof. Conduct, rule 3-310.)^[5] A conflict of interest may arise from an attorney’s concurrent or successive representation of clients with adverse interests. (Flatt, at pp. 283-284.) These two situations implicate distinct ethical concerns and public policies. (Ibid.)

The trial court focused on rule 3-310(C), which relates to concurrent representation and requires informed written consent from clients where an attorney seeks to represent in a single matter multiple clients with potential or

actual conflicts or where an attorney seeks to represent clients with adverse interests in separate matters. (Rule 3-310(C).)^[6] Concurrent representation of clients with adverse interests compromises an attorney’s duty of loyalty. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135 , 1146 [ 86 Cal.Rptr.2d 816 , 980 P.2d 371 ] (SpeeDee Oil).) Defendant contends that his substitution request did not implicate rule 3-310(C) because Hove did not seek to represent defendant and Rodney concurrently either in a single matter or in separate matters. Respondent counters only that the “record does not affirmatively show that Hove was not representing Rodney in some capacity” at the time the trial court considered the substitution request. On this record, we cannot determine whether the substitution request would have created a concurrent representation conflict implicating rule 3-310(C).

Whether or not granting the substitution request would have led to a concurrent representation, it is clear that the substitution request implicated ethical concerns applicable to the successive representation of clients with adverse interests. (See rule 3-310(E).) In the successive representation context, “the chief fiduciary value jeopardized is that of client confidentiality not loyalty. (Flatt, supra, 9 Cal.4th at p. 283; accord, SpeeDee Oil, supra, 20 Cal.4th at p. 1146.) The former client’s expectation of confidentiality must be preserved to ensure “ ‘ “the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.” ’ ” (SpeeDee Oil, at p. 1146.) The attorney must maintain those confidences inviolate and preserve them at every peril to himself or herself. (Bus. & Prof. Code, § 6068, subd. (e).) Because of this duty, an attorney in actual possession of material confidential information from a former client may not represent an adverse party without the former client’s consent. (Rule 3-310(E).)^[7] Rule 3-310(E) addresses the conflict between a lawyer’s duty to use all information at his or her disposal in order to represent a current client competently and the lawyer’s continuing duty of loyalty to a former client with respect to information obtained during the course of the prior representation. (See Cal. State Bar, Com. on Prof. Responsibility, Ethics Opn. No. 1998-152 (1998) p. 5.)

trial court properly concluded that there is a substantial relationship between the former representation of Rodney and the proposed representation of defendant. Hove was disqualified from representing defendant, absent an effective waiver of the conflict by Rodney.

C. Adequacy of Rodney’s Waiver

Defendant contends that even if there was a conflict of interest arising from Hove’s former representation of Rodney, Rodney waived the conflict. The trial court concluded that Rodney’s brief written waiver was inadequate, stating “[Rodney’s waiver] is not the full and complete, knowing and intelligent waiver that this Court believes is required here. Rodney Baylis does not acknowledge the possibility that his brother, Patrick, will seek to inculpate him as the perpetrator of these offenses. The waiver makes no mention of the possibility that the District Attorney may attempt to call Mr. Hove as a witness or that Mr. Hove may be forced to disclose otherwise privileged attorney-client communications made to Mr. Hove. . . . The waiver is silent as to the possibility that information that Mr. Hove gained while representing Rodney may be used to assist Patrick, to Rodney’s possible detriment. In sum, in contrast to Patrick Baylis’ waiver, Rodney’s waiver contains no evidence that he is aware of the drawbacks to waiving the conflict of interest.”^[8]

Denial of defendant’s substitution request was effectively a determination that Hove was disqualified from representing Patrick. The trial court’s power to disqualify an attorney derives from Code of Civil Procedure section 128, subdivision (a)(5), which authorizes a trial court to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it . . . .” (See People v. Jones (2004) 33 Cal.4th 234 , 244, fn. 2 [ 14 Cal.Rptr.3d 579 , 91 P.3d 939 ] (Jones).) This section applies in criminal cases, and the trial court’s decision is reviewed for abuse of discretion. (Ibid.) The trial court’s authority to deny a motion to substitute rests on similar grounds and should be given similar deference on appeal.

We conclude that the trial court did not abuse its discretion in requiring an informed waiver from Rodney in the circumstances of this case. Where a defendant seeks to waive his counsel’s conflict of interest, the waiver must be a knowing and intelligent act “ ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” (People v.

In the circumstances of this case, the trial court did not err in concluding that Rodney’s waiver was inadequate and denying the motion to substitute on that ground.^[9]

Defendant contends that Rodney’s written waiver was adequate to waive any conflict arising from Hove’s representation of defendant. Defendant cites People v. Johnson (1980) 105 Cal.App.3d 884 , 892 [ 164 Cal.Rptr. 746 ], which held that a defendant, by failing to object, “impliedly consented” to being prosecuted by a district attorney who previously was the head of a law office that represented the defendant on a prior criminal complaint based on the same facts. Defendant contends that if the Johnson defendant could impliedly consent, then Rodney’s express written consent must be adequate. Johnson is distinguishable, because there the defendant failed to object, entered a guilty plea, and then attempted to overturn the sentence on appeal. (Ibid.) The defendant thereby denied the trial court an opportunity to develop a factual record and determine whether an actual conflict existed. (Ibid.) Similarly distinguishable are decisions in civil cases such as River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297 [ 234 Cal.Rptr. 33 ], in which a former client was found to have impliedly consented to an adverse representation. There, the former client had knowledge of the adverse representation but unreasonably delayed asserting an objection; a finding of implied waiver was appropriate because of the unreasonableness of the delay and the great prejudice that would have resulted to the current client if disqualification were granted. (Id. at pp. 1309, 1313.)

In this case we are not confronted with an attempt by a defendant to overturn a conviction by raising a conflict that he could have—but did not—raise before the trial court. Neither are we confronted with an untimely motion to disqualify by a former client in a civil matter. Instead, we are dealing with denial of a motion to substitute due to the trial court’s pretrial concerns about the adequacy of a former client’s waiver. Where a trial court preparing for a criminal trial is confronted with an actual conflict of interest that may affect the integrity of those proceedings, the trial court is not obligated to accept as adequate a consent or waiver in whatever form it appears.

D. Defendant’s Constitutional Claim

Finally, we mm to defendant’s contention that even if there was a conflict involving Rodney and even if Rodney did not adequately waive that conflict,

former client (who was also a codefendant) even at the expense of depriving the defendant of his choice of counsel.” (Id. at p. 538, citing Yorn, supra, 90 Cal.App.3d 669 .)

In Yorn, supra, 90 Cal.App.3d 669 , defendant Yorn retained Attorney Morgan. Yom’s codefendant, Hesemeyer, sought to disqualify Morgan because Morgan had previously represented Hesemeyer and had obtained confidential information relevant to the pending case. (Id. at p. 672.) The trial court granted the motion to disqualify and Yom filed a petition for writ of mandamus, contending the removal of Morgan violated his constitutional right to counsel of his own choice. (Id. at p. 673.) The court noted that the case demonstrated a classic confrontation between an accused’s right to counsel of choice and counsel’s duty to preserve his former client’s confidences. (Id. at p. 674.) Although Yom was willing to waive any error arising from Morgan’s conflicting interests, Yom could not waive Hesemeyer’s right to confidentiality. The court concluded, “Yom’s qualified right to be represented by counsel of choice is outweighed by significant countervailing considerations ... to submit to Yom’s claim of unfettered choice of counsel would work an unnecessary but serious prejudice to the interests of his codefendant and unreasonably infringe upon her own right of due process. [][] Balancing Yom’s limited right to retain counsel of his own choice against his codefendant’s right to a fair trial coupled with the paramount objective of maintaining public confidence in the impartiality of the courts and the integrity of its professional bar, the former must yield 1 “to considerations of ethics which mn to the very integrity of our judicial process.” ’ ” (Id. at p. 677.)

Here, Rodney was a former indicted suspect who conceivably could have been prosecuted again^[10] had Hove been successful in implicating him or had Hove been successful in undermining the DNA evidence.^[11] Although Rodney signed a declaration waiving the conflict of interest, there is no indication that Rodney was actually aware of the potential adverse consequences of the representation. Furthermore, this case involved denial of a motion to substitute rather than involuntary removal of a defendant’s counsel. Removal of counsel poses a greater threat to the right to counsel because the removal interferes with an attorney-client relationship that has already been established. (Jones, supra, 33 Cal.4th at p. 244.)

It appears that defendant would have us adopt a blanket rule that a conflict involving a former client who is not a codefendant will not justify denial of a motion to substitute so long as the defendant on trial freely and intelligently waives the conflict. It would seriously impact the integrity of the judicial process and subvert the basic purpose of the relevant standards of professional responsibility were we in every instance to compel trial courts to disregard defense counsel’s serious ethical conflicts affecting nondefendant former clients in the name of preserving the defendant’s right to choose counsel. (See People v. Peoples, supra, 51 Cal.App.4th at p. 1599; Yorn, supra, 90 Cal.App.3d at p. 676.)

“[U]ltimately the issue involves a conflict between a client’s right to counsel of his choice and the need to maintain ethical standards of professional responsibility. ‘The preservation of public trust both in the scrupulous administration of justice and in the integrity of the bar is paramount. . . . (The client’s recognizably important right to counsel of his choice) must yield, however, to considerations of ethics which run to the very integrity of the judicial process.’ ” (Comden v. Superior Court (1978) 20 Cal.3d 906 , 915 [ 145 Cal.Rptr. 9 , 576 P.2d 971 ]; accord, SpeeDee Oil, supra, 20 Cal.4th at p. 1145.) Comden applies in a criminal case presenting a sufficiently serious ethical conflict. (See People v. Peoples, supra, 51 Cal.App.4th at p. 1599.) Even if the California Constitution is interpreted as more protective of the right to retained counsel of choice than the federal Constitution, a criminal defendant’s right to counsel of choice may be forced to yield where it would result in a “disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” (People v. Crovedi, supra, 65 Cal.2d at p. 208.) Here, the trial court was faced with the possibility that Hove would use confidential information acquired during the representation of Rodney in order to implicate Rodney in the offenses with which defendant was charged. “Protecting the confidentiality of communications between attorney and client is fundamental to our legal system.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1146; see also Yorn, supra, 90 Cal.App.3d at p. 675.)^[12] We conclude that where confronted with an actual and substantial conflict of interest involving counsel’s duty of confidentiality to a former client, a trial court may exercise its discretion to disqualify the conflicted attorney absent an informed waiver from the former client.

II., III.^[13]

Disposition

The judgment is affirmed.

Jones, P. J., and Simons, J., concurred.

Appellant’s petition for review by the Supreme Court was denied September 13, 2006, S144619.