People v. Walker CA4/2

Filed 4/15/14 P. v. Walker 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E056938

v. (Super.Ct.No. FVI1000852)

DEJON DEANDRE WALKER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Dismissed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and

Respondent.

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 Defendant and appellant Dejon Deandre Walker appeals after a guilty plea. He

contends the trial court improperly allowed his trial counsel to withdraw at sentencing,

violating defendant’s right to representation by counsel of his choice. We agree that the

trial court violated defendant’s Sixth Amendment right, but there is no effective relief

which can be afforded to him. We therefore dismiss the appeal as moot.

FACTS AND PROCEDURAL HISTORY

1. The Crimes

In the night and early morning hours of April 25-26, 2010, the victim Michael

Ramirez was driving along a roadway. He was being followed by a friend, Nico Galsim,

in another car. At approximately 11:30 p.m., defendant and four other men pulled up

next to Ramirez’s passenger side window in a Ford Taurus. The driver pointed a gun at

Ramirez and shouted at him to “Pull over or I’ll shoot you.”

Ramirez pulled into a parking lot and stopped; Galsim followed suit, although he

was unaware of what was happening. Defendant and three men got out of the Taurus;

they were armed. The driver remained inside the Taurus. Defendant and his companions

forced Ramirez and Galsim out of their respective vehicles. Defendant pointed a gun at

Ramirez’s head and demanded, “give me your wallet, your money, your phone,

everything you have.” Defendant ordered Ramirez and Galsim to lie face down on the

ground. He patted them down and took their wallets and phones. He also took Ramirez’s

iPod and some coins from his car. The assailants retreated to the Taurus and drove away,

after ordering Ramirez and Galsim to “act casual.”

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 After the thieves had left, Ramirez and Galsim drove to Ramirez’s house, where

they called the police and reported the crimes.

On the morning of April 26, 2010, Gary Noblado was on a ladder, washing

windows on the outside of a house. Defendant, with half his face hidden by a bandana,

jumped over the fence and approached Noblado. Defendant pointed a gun at Noblado

and demanded money. He pulled Noblado off the ladder, patted down Noblado, and took

Noblado’s cell phone and pocket knife from his pockets. Defendant jumped back over

the fence; Noblado had seen another man waiting on the other side of the fence.

2. The Charges, Defendant’s First Two Changes of Counsel, and the Change of Plea to

Guilty

By information, defendant was charged with three counts of second degree

robbery. The information also alleged enhancements for personal use of a firearm as to

each robbery count.

Defendant was initially represented by attorney Louisa B. Pensanti, who had been

retained to represent defendant through pretrial proceedings for a stated sum. Attorney

Pensanti had negotiated a plea offer, but defendant elected not to accept the offer; he

elected to proceed to jury trial. In the absence of compensation for the preparation

needed for trial, attorney Pensanti asked to be relieved as counsel for defendant. The trial

court granted the motion. In December 2010, the court appointed the public defender.

Several months later, in September 2011, defendant retained new counsel, Stanley

Granville. The public defender was relieved, and attorney Granville substituted in.

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 On January 13, 2012, defendant entered a change of plea. He agreed to plead

guilty to the three robbery counts, with a sentence of 11 years (five years on count 1, plus

four years for the gun use enhancement, plus one year each for counts 2 and 3). The

court continued the matter while the probation department prepared a report, particularly

addressing the issues of restitution and custody credits.

3. Attorney Granville’s Initial Request to Be Relieved for Conflict of Interest, on the

Ground That Defendant Wanted to Withdraw His Plea for Inadequate Advisements

On the day of sentencing, the trial court was ready to proceed to pronouncement

of judgment, when attorney Granville interrupted and asked to be heard. He explained

to the court, “There are some problems that have arisen, your Honor. I am going to

have to declare a conflict of interest . . . in this matter. [Defendant] desires to move

the court to withdraw his guilty plea and . . . the basis of that request is two fold [sic].

[¶] First of all, the Court would look at the plea waiver in Section Three, the hearing

that’s indicated by pre-sentence [sic] credits. There is crossed out a couple of boxes.

[¶] . . . [¶] And . . . you see that old 4019, 4-0-1-9 is crossed out and 2933.1 is X’d?

[¶] . . . [¶] [Defendant] indicates to me he wasn’t aware that he was not going to be

getting the old 4019 credits and that he wasn’t privy to the fact that 2933.1 had been X’d

out. [¶] I personally have no recollection of it. You may very well be right. He tells me

that the People approached him at some point and indicated that it was going to be a

difference, that it should be between the 2933.1 and that actually the prosecuting

attorney crossed out that section. That’s one . . . basis for his request to withdraw his

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guilty plea. [¶] The second is that this happened before I was involved in [defendant’s]

case. I think he was still represented by the Public Defender. He indicates that the Court,

through his Public Defender, indicated to him that he would not be getting a three

strikes—would not be getting a three strikes [sic] involving a three strikes situation, in

other words, pleading guilty to three counts of robbery. [¶] . . . [¶] So I guess

specifically what my request is today is to continue the matter over so that his new

counsel can prepare a motion pursuant to 1018 allowing him to withdraw his guilty

plea.”1

The court inquired, “Now, you are saying new counsel, and why would I appoint

new counsel for you? [¶] . . . [¶] Are you saying . . . that one of the bas[e]s . . . for

withdrawal of the plea would be the claim of ineffective assistance of counsel?”

Attorney Granville agreed: “It may very well be, your Honor. [¶] I don’t have a

recollection of adequately explaining to [defendant] his pre-sentence [sic] credits. I do

note that there is a box that seems to have been scratched out, and it’s his impression that

he would be getting pre-sentence [sic] credits pursuant to the 4019 Rule.” The court

opined that the issue would likely have been addressed at the taking of the plea, but

attorney Granville had no recollection of doing so. The court therefore ordered a

1Notwithstanding attorney Granville’s recitation of what defendant told him had
been discussed by the public defender at the change-of-plea hearing while defendant was
represented by attorney Granville, defendant expressly acknowledged that his guilty plea
would be to three strike convictions for the three robbery counts. As a consequence,
should defendant ever be convicted of another offense, he would be ineligible for
probation; and if he should be convicted of another felony in the future, he would receive
a life (third strike) sentence.

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transcript of the plea hearing to be prepared, and continued the matter. Defendant waived

his right to be sentenced within 20 days of the plea.

The minute order for the day of sentencing states that the court denied defendant’s

oral motion to withdraw his plea, but the reporter’s transcript does not reflect either that

such a motion was actually made or that it was ruled upon. The court did inquire whether

the prosecutor would agree to allow defendant to withdraw his plea, but the prosecutor

declined. Attorney Granville attempted to clarify that the continued hearing was to

review the plea transcript, and “not to litigate the motion to withdraw the guilty plea.”

The court noted that attorney Granville likely wanted to file some papers: “I mean, right

now you’re making just an oral motion. There should be something—I would think you

would want to file something. You are still representing [defendant], I believe.”

4. Appointment of Separate Counsel, Motion to Withdraw Defendant’s Plea, and Denial

of the Motion

At the next hearing date, the trial court appointed the public defender for the

limited purpose of filing a motion to withdraw defendant’s plea. The matter was

continued thereafter to allow the public defender to prepare the motion; the motion was

filed May 24, 2012.

As the discussion at the earlier hearing had suggested, the motion was based on

defendant’s assertion that the plea agreement was altered after he had signed it. That is,

in the portion of the plea agreement dealing with credits, “[a]longside one box is the

printed phrase ‘Old 4019.’ It appears an ‘X’ was placed in that box, but it also shows

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scratching out of the ‘X.’ [¶] . . . To the right of that box is another box, alongside of

which appears the printed phrase ‘2933.1.’ That box has an ‘X’ marked in it.

[¶] . . . [Defendant] asserts the one box was scratched out and the second box marked

with an ‘X’ after he initialed and signed the plea agreement.” The public defender noted

that, because of defendant’s conviction of a violent strike felony, he was eligible to earn a

maximum of 15 percent conduct credits. He was not eligible to earn half-time credits.

The public defender acknowledged that, if attorney Granville had failed to advise

defendant at all about the rate of earning conduct credits, such failure would not have

provided a ground to withdraw the plea. In People v. Barella (1999) 20 Cal.4th 261, the

California Supreme Court held that “The credit limitation contained within the Three

Strikes law serves a role functionally equivalent to a parole eligibility date, and we

conclude that neither the federal [n]or the state Constitution, nor California’s judicially

declared rules of criminal procedure, required the trial court to advise defendant, prior to

his guilty plea, that he would be ineligible for release from prison until he had served

four-fifths of his sentence.” (Id. at p. 263.) The public defender opined that the

restriction on credits would not, in itself, provide a valid ground to withdraw the plea.

However, the allegation that the plea form had been altered after defendant had initialed

and signed the form might arguably form a ground to withdraw the plea.

The People filed a written opposition to the motion. The People pointed out that a

motion to withdraw the plea under Penal Code section 1018 is addressed to the sound

discretion of the trial court, and that denial of the motion would not be an abuse of

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discretion unless the court’s ruling “exceeds the bounds of reason.” The People also

urged that the trial court was entitled to weigh the credibility of defendant’s assertion,

e.g., that the plea form had been altered after he signed it, and the implicit claim that

defendant would not have agreed to the plea bargain had he known that his ability to earn

conduct credits would be restricted. Defendant had made no claim, however, that any

other portion of the plea form had been altered, yet he had initialed provision 10(d),

which expressly advised defendant that a consequence of his plea was “[r]educed earning

of custody credits.” Defendant had also orally told the court that he had had a full

opportunity to discuss the plea with his attorney. The court was therefore not obliged to

accept defendant’s claims at face value.

Defendant sent a handwritten letter to the court, dated July 3, 2012. The letter

stated: “I am giving notice to the Court that I declare the plea agreement VOID and

[c]ancelled because I made a mistake in signing the contract and it is VOID because the

terms and conditions of the plea agreement were misrepresented to me to induce me to

sign the agreement.”

The hearing on the motion to withdraw the plea finally came on for hearing on

August 3, 2012. The court read defendant’s handwritten letter into the record. The

public defender proposed to have attorney Granville testify as to the limited issue of his

knowledge about any changes to the plea document. Defendant waived his attorney-

client privilege for the purpose of that examination. Attorney Granville testified that he

had gone over and discussed the provisions of the plea agreement form with defendant.

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He had prepared the majority of the handwritten portions of the plea agreement, though

he had had some assistance from the prosecutor. Attorney Granville recalled that he had

placed an “X” in the box indicating that defendant would receive “Old 4019” credits, but

the prosecutor informed him that Penal Code section 4019 credits would not apply in this

case; she therefore scratched out the “X” in the “Old 4019” box, and marked an “X” in

the box for credits under Penal Code section 2933.1. Attorney Granville did not

remember precisely, but believed that this had occurred after both he and defendant had

filled in and signed the plea agreement form. He also remembered “mentioning it”—i.e.,

the change—to defendant before the plea was taken. On cross-examination, however, he

stated that he did not recall specifically having any discussion with defendant about

reduced earning of custody credits. However, defendant “was aware of . . . less credits

with a strike than if it was a nonstrike.” In response to questioning by the court, attorney

Granville agreed that he considered the changes in the law that reduced conduct credits

for inmates convicted of violent felonies to be significant, and it was the attorney’s

custom and practice to advise his clients about the credits they could earn. Attorney

Granville testified, “I discussed that with [defendant] at least once. He knew . . . he

would have to do 85 percent of the 11 years. I believe we did the math in a general sense

as to how much actual time that would calculate out to be.”

The public defender argued the motion to the court, conceding that the failure to

advise of reduced credits, in and of itself, would not be a ground to withdraw the plea.

The additional issue, however, was whether the alteration after the plea agreement had

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been initialed and signed had somehow voided the contract. The prosecutor responded

that attorney Granville’s testimony was that he did discuss with defendant that defendant

was pleading to a strike offense, and that such a plea carried with it the reduction in

ability to earn credits. Defendant had undisputedly initialed the plea consequences

portion of the form, including an express advisement that the ability to earn credits would

be reduced. In that context, any alteration to the plea form was insignificant.

Defendant attempted to intervene: “Excuse me, . . . when I signed the—” The

court cut defendant off, however, and instructed that the argument was to be conducted

by the lawyers. Defendant spoke up again, “Well, because it wasn’t—,” but the court

directed defendant to speak to the public defender, and not to address the court directly.

The public defender took the opportunity to consult with defendant at that point. The

court inquired whether the parties had anything else to present on the motion to withdraw

the plea. The public defender replied, “Nothing that makes a legal difference.”

The court then proceeded to summarize the documents and evidence it had

reviewed, as well as the substance of the claim. The court was satisfied that defendant

had been advised of the reduced credits, and it took into consideration that defendant had

expressly told the court at the taking of the plea that he understood everything on the

form. The court therefore denied the motion to withdraw the plea.

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5. Order Relieving Retained Counsel, Appointment of the Public Defender, and

Sentencing

The matter then proceeded to sentencing. The court asked, “Who’s going to

represent [defendant] for the purpose of pronouncement of judgment? [¶] It was my

recollection that Mr. Granville is still attorney of record for the case.” Attorney Granville

confirmed the court’s understanding, but reminded the court of his request to be relieved

because of a conflict of interest. The public defender indicated that he would be able to

conduct the pronouncement of judgment proceedings, as he had previously participated in

representing defendant before attorney Granville had been retained, and he was “attorney

of record at least for the purpose of this motion.”

Attorney Granville advised the court that, notwithstanding the ruling on the

motion to withdraw the plea, he still felt he had a conflict of interest with defendant,

and still wished to be relieved. The court asked, “do you have any objection to that,

Mr. Walker?” Defendant answered, “Yes, I have an objection because—” The court

interrupted before defendant could answer, however, saying, “Just one second. Let me

be real specific. Do you have any objection to me relieving Mr. Granville as your

attorney?” Defendant replied, “Yes, I do.” Defendant started to explain, saying,

“[b]ecause—” but the court cut him off: “I don’t want to hear any becauses. That’s not

going to be something I’m going to listen to at this time unfortunately. I was—I was

interested in what your response was. I’d like to have given you what you wanted,

and if you wanted to have him relieved, then I would be looking at a unanimous

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request. . . . [¶] . . . [¶] As it is, Mr. Granville’s attorney of record, and he’s telling me he

has an actual conflict, and I can’t, nor do I intend, to go behind his representation. I

think, by the way, that the circumstances causing that conflict . . . may not be apparent,

but they could probably be figured out if somebody wanted to look behind the

circumstances of all of the discussions we have had today. [¶] Mr. Granville, I think that

your representation of a conflict is sufficient for me. I’m ordering that you are relieved.”

The court appointed the public defender as attorney of record for all purposes, including

pronouncement of judgment.

The court denied probation and imposed sentence as agreed in the plea bargain:

Five years (aggravated term) on the first robbery count, plus four years for the weapon

enhancement, plus one year each (one-third the middle term) for each of the other two

robberies, for a total of 11 years. The court awarded defendant 713 days of credit in

actual custody, plus 107 days in conduct credits, for a total of 820 days.

6. Notice of Appeal, Denial of Certificate of Probable Cause, and Amended Notice of

Appeal

Defendant filed an initial notice of appeal, requesting a certificate of probable

cause, on the grounds that attorney Granville had given inadequate advice in preparing

and taking the plea, and that the trial court had erred in denying the motion to withdraw

the plea. The trial court denied the certificate of probable cause. Defendant filed an

amended notice of appeal, asserting that the appeal was based on sentencing or other

matters occurring after the plea.

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 Defendant now asserts that the trial court’s granting of attorney Granville’s motion

to be relieved, over defendant’s objection and without hearing the ground of defendant’s

objection, was a deprivation of his constitutional right to counsel of his choice, and

reversible per se.

ANALYSIS

I. THE TRIAL COURT ERRED IN RELIEVING TRIAL COUNSEL OVER

DEFENDANT’S OBJECTION WITHOUT MAKING ANY INQUIRY INTO THE

NATURE OF THE ASSERTED CONFLICT OF INTEREST

A. The Sixth Amendment Right to Counsel Is Independent of the Right to a Fair Trial

In United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [126 S.Ct. 2557; 165

L.Ed.2d 409], the United States Supreme Court wrote, “The Sixth Amendment provides

that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.’ We have previously held that an element of this

right is the right of a defendant who does not require appointed counsel to choose who

will represent him. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100

L.Ed.2d 140 (1988). Cf. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158

(1932) (‘It is hardly necessary to say that, the right to counsel being conceded, a

defendant should be afforded a fair opportunity to secure counsel of his own choice’).

The Government here agrees, as it has previously, that ‘the Sixth Amendment guarantees

a defendant the right to be represented by an otherwise qualified attorney whom that

defendant can afford to hire, or who is willing to represent the defendant even though he

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is without funds.’ Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-

625, 109 S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d 528 (1989).” (Id. at p. 144 [165

L.Ed.2d 409, 416-417].)

The ability to select one’s own counsel (where the defendant does not require

appointed counsel) is a substantive guaranty, independent from general considerations of

fairness implicit in the notions of due process. In other words, it is not merely an adjunct

to the Fifth Amendment’s Due Process Clause. (United States v. Gonzalez-Lopez, supra,

548 U.S. 140, 145 [165 L.Ed.2d 409, 417].) Although “[i]t is true enough that the

purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it

does not follow that the rights can be disregarded so long as the trial is, on the whole,

fair. . . . [¶] So also with the Sixth Amendment right to counsel of choice. It commands,

not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that

the accused be defended by the counsel he believes to be best. ‘The Constitution

guarantees a fair trial through the Due Process Clauses, but it defines the basic elements

of a fair trial largely through the several provisions of the Sixth Amendment, including

the Counsel Clause.’ [Citing] Strickland [v. Washington (1984) 466 U.S. 668,] 684-685,

104 S.Ct. 2052, [2064, 2068,] 80 L.Ed.2d 674. In sum, the right at stake here is the right

to counsel of choice, not the right to a fair trial . . . .” (United States v. Gonzalez-Lopez,

supra, 548 U.S. 140, 145-146 [165 L.Ed.2d 409, 417-418].) In Gonzalez-Lopez, the trial

court had erroneously refused the request of defendant’s preferred attorney for admission

pro hac vice to practice before the court. The United States Supreme Court held that the

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defendant’s Sixth Amendment “right was violated because the deprivation of counsel was

erroneous. No additional showing of prejudice is required to make the violation

‘complete.’” (Id. at p. 146.)

B. The Right to Counsel of Choice Is Not Absolute, But May Be Limited by Other

Circumstances

However, “[t]he Sixth Amendment right to choose one’s own counsel” is not

absolute, but “is circumscribed in several important respects.” (Wheat v. United States

(1998) 486 U.S. 153, 159, [108 S.Ct. 1692, 1697, 100 L.Ed.2d 140, 148].)

For example, the right to counsel requires a minimum standard of competency

(except in the case of self-representation). Constitutionally required competency is

measured at the threshold by qualification as a member of the bar. Therefore, at a

minimum, “Regardless of his persuasive powers, an advocate who is not a member of the

bar may not represent clients (other than himself) in court. [Fn. omitted.]” (Wheat v.

United States, supra, 486 U.S. 153, 159 [100 L.Ed.2d 140, 149].)

Another limitation on the right to counsel of one’s choice is reflected in the

differential treatment of retained, as opposed to appointed, counsel. “Similarly, a

defendant may not insist on representation by an attorney he cannot afford or who for

other reasons declines to represent the defendant.” (Wheat v. United States, supra, 486

U.S. 153, 159 [100 L.Ed.2d 140, 149].) The right to one’s attorney of choice is afforded

greater scope when counsel is retained (i.e., willing to accept employment for whatever

fee is agreed), in comparison to when counsel is appointed.

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 Conflicts of interest may also limit the right to counsel of one’s choice. As the

United States Supreme Court stated in Wheat v. United States, supra, 486 U.S. 153, 159

[100 L.Ed.2d 140, 149], “Nor may a defendant insist on the counsel of an attorney who

has a previous or ongoing relationship with an opposing party, even when the opposing

party is the Government.” (Ibid.) The instant case involved a purported conflict of

interest. We now examine the circumstances in which a conflict of interest might limit a

defendant’s Sixth Amendment right to counsel of his or her choice.

C. The Sixth Amendment Right to Counsel Is Subject to Some Limitations by Potential

or Actual Conflicts of Interest

Under the Sixth Amendment, a defendant in a criminal case has a right to the

assistance of counsel. The constitutional guaranty “entitles the defendant not to some

bare assistance but rather to effective assistance.” (People v. Ledesma (1987) 43 Cal.3d

171, 215.) As noted, admission to the relevant bar is the initial measure of minimum

competency. That is, a defendant is entitled to the reasonably competent assistance of an

attorney acting as a diligent and conscientious advocate. (See, e.g., Strickland v.

Washington (1984) 466 U.S. 668, 686-689 [104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674,

692-694]; United States v. De Coster (D.C. Cir. 1973) 487 F.2d 1197, 1202.) Included in

the right to the effective assistance of counsel is “a correlative right to representation that

is free from conflicts of interest.” (Wood v. Georgia (1981) 450 U.S. 261, 271 [101 S.Ct.

1097, 67 L.Ed.2d 220, 230]; accord, Leversen v. Superior Court (1983) 34 Cal.3d 530,

536-537.)

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 “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 [or her] responsibilities to another

client or a third person or by his [or her] own interests. (See generally ABA, Model

Rules Prof. Conduct (1983) rule 1.7 and com. thereto [hereinafter ABA, Model Rules].)”

(People v. Bonin (1989) 47 Cal.3d 808, 835.) These conflicts of interest may take any of

several forms.

a. Types of Conflict of Interest

i. Multiple Representation

Conflicts of interest may result from representing more than one client in the same

proceeding. The question raised in Wheat v. United States was, “the extent to which a

criminal defendant’s right under the Sixth Amendment to his chosen attorney is qualified

by the fact that the attorney has represented other defendants charged in the same

criminal conspiracy.” (Wheat v. United States, supra, 486 U.S. 153, 159 [100 L.Ed.2d

140, 149].) The United States Supreme Court noted that conflicts of interest arising from

multiple representation “engenders special dangers of which a court must be aware.

While ‘permitting a single attorney to represent codefendants . . . is not per se violative of

constitutional guarantees of effective assistance of counsel,’ Holloway v. Arkansas, 435

U.S. 475, 482, 55 L.Ed.2d 426, 98 S.Ct. 1173 (1978), a court confronted with and alerted

to possible conflicts of interest must take adequate steps to ascertain whether the conflicts

warrant separate counsel.” (Id. at pp. 159-160 [100 L.Ed.2d 140, 149].) Waivers by the

respective defendants in a multiple-representation context are not necessarily sufficient to

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cure all problems arising from the conflicting interests: “Federal courts have an

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. . . . Not only the interest of a criminal defendant but the institutional interest in the

rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple

representation. [¶] For this reason, the Federal Rules of Criminal Procedure direct trial

judges to investigate specially cases involving joint representation.” (Id. at pp. 160-161

[100 L.Ed.2d 140, 149-150].)

ii. Serial Representation

Conflicts of interest may arise not only out of multiple representation in a single

case, but also from representation of different clients in different proceedings. In

Leversen v. Superior Court, supra, 34 Cal.3d 530, defense counsel for one defendant in a

multi-defendant case realized in the middle of trial that his firm had previously

represented a witness for the codefendant. Because the codefendant knew the witness by

a different name, defense counsel had not recognized his firm’s connection to the

witness’s separate case. It was not until the witness appeared in court that he made the

connection. (Id. at pp. 533-534.) Defense counsel informed the court that, as soon as the

witness was called to the stand, he would have to declare a conflict of interest and move

for a mistrial. Even if the witness would claim his Fifth Amendment privilege on the

stand, and would refuse to testify, defense counsel nevertheless reiterated that the conflict

still existed, and he would still have to ask to be relieved. (Ibid.) The defendant declined

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to waive the conflict. The trial court denied defense counsel’s motion to be relieved, on

the theory that the witness was not a codefendant, and his refusal to testify would

eliminate any need for defense counsel to cross-examine him. (Id. at p. 534.)

Having denied defense counsel’s request to be relieved, the court proceeded with

the trial. In front of the jury, the witness was called to the stand, gave his name, and

refused to answer questions whether he was present at the time and place of the crimes.

The witness was excused, and the codefendant re-took the stand, identifying the witness

as one of the persons she claimed had coerced her to participate in the crimes. Defense

counsel announced that he was “not able to examine” the codefendant on cross-

examination, because a conflict of interest still existed. First, the witness “‘has been

asserted as an uncharged codefendant in this particular case,’” whereas, second, defense

counsel’s firm “was representing [the witness] in a similar jewelry store robbery

prosecution,” and third, defense counsel “might have to use confidential information in

calling rebuttal witnesses.” (Leversen v. Superior Court, supra, 34 Cal.3d 530, 534.) He

renewed his request to be relieved on that basis. The trial court denied the motion to be

relieved, “declaring its inability to see any possible conflict in light of the facts that [the

witness] was not a defendant and had declined to testify and that it was too late in the trial

to recall [the defendant] for examination on matters testified to earlier.” (Ibid.)

The court did continue the matter, however, to hear further argument on the

motion to be relieved. At that hearing, defense counsel’s firm submitted a memorandum

signed by several of the firm’s attorneys, representing “‘as officers of the court’ that ‘a

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conflict of interest has arisen between other clients of the firm and [the defendant]’ and

that ‘they cannot adequately or fully represent [the defendant] without violating the

privilege of other clients.’ The memo stated they would immediately ask to be relieved

as [the witness’s] counsel in the other matters in which they represented him, and at the

hearing counsel stated that those requests had been granted. The memo further said that

the firm ‘possesses privileged information from a client other than [the defendant]

germane to [the defendant’s] trial; counsel cannot discuss that information with [the

defendant] without violating the privilege, and cannot independently pursue it without

adversely affecting the interests of another client and further violating the privilege.’”

(Leversen v. Superior Court, supra, 34 Cal.3d 530 at pp. 534-535.) The court again

denied the motion to be relieved, and denied a motion for mistrial. The court “ruled that

the showing of conflict was insufficient, declaring that it, not counsel, must be the ‘final

arbiter’ of the existence of a material conflict of interest.” (Id. at p. 536.) Defense

counsel maintained that “the conflict was based on privileged information of which

counsel could not reveal the nature or source ‘other than to tell the court it is privileged

and that we feel, in accordance with our oath, that it is germane and that it creates a

conflict.’ Counsel further asserted that a substitute attorney might ‘very well get the

information from other sources.’ The court told counsel that ‘there has to be some clue to

the court’ and that here there was no basis for even a ‘reasonable, informed speculation’

that a disqualifying conflict existed.” (Ibid.)

20
 It was in this posture—being directed to proceed with representation when defense

counsel felt that a conflict of interest existed between two clients whom he had

represented in different proceedings—that he sought a writ of mandate. The California

Supreme Court ruled that conflicts of interest between clients in different proceedings, no

less than conflicts between multiple clients in a single proceeding, “may impair a

defendant’s constitutional right to assistance of counsel.” (Leversen v. Superior Court,

supra, 34 Cal.3d 530, 538.) That is, “An attorney is forbidden to use against a former

client any confidential information that was acquired during that client relationship.

[Citations.] Moreover, the attorney has a duty to withdraw, or apply to a court for

permission to withdraw, from representation that violates those obligations. (Rules Prof.

Conduct, rule 2-111(B)(2).) So important is that duty that it has been enforced against a

defendant’s attorney at the instance of his former client (who was also a codefendant)

even at the expense of depriving the defendant of his choice of counsel. [Citation.]”

(Ibid.) The California Supreme Court was persuaded that, with respect to conflicts of

interest requiring withdrawal, “counsel ‘is in the best position professionally and ethically

to determine when a conflict of interest exists or will probably develop,’” and that

“defense attorneys have an obligation to advise the court of any conflict of interest; and

that attorneys are officers of the court, and their representations concerning conflicts

‘should be given the weight commensurate with the grave penalties risked for

misrepresentation.’” (Id. at p. 537.) The Supreme Court noted, however, that “the trial

court remains free to deal with ‘untimely motion[s] for separate counsel . . . made for

21
dilatory purposes’ and to ‘explor[e] the adequacy of the basis of defense counsel’s

representations regarding a conflict of interest without improperly requiring disclosure of

the confidential communications of the client.’” (Ibid.) The court struck a balance

between counsel’s declaration of conflict, which should be given “great weight,” on the

one hand, and the trial court’s power and duty to make inquiries into the basis for the

claim underlying a request to relieve counsel, on the other. In Leversen, the trial court

had had many indicia before it of the conflict, its nature, and its actual existence: trial

defense counsel and members of the firm had expressly asserted the conflict, the court

was informed of the actuality of the representation of two different clients in two

different proceedings, one of the clients was identified by other witnesses as the

(uncharged) “mastermind” of the criminal scheme for which the other client was on trial.

Rather obviously, information obtained in confidence from one client could damage the

interests of the other client, placing the attorney in an untenable position, requiring either

the betrayal of confidences (using the information) or inability to represent the client

adequately (being constrained not to use the information). The inquiry undertaken by the

court, together with the good faith representations of defense counsel to the court,

combined to establish the conflict as a matter of law. The trial court had therefore erred

in denying defense counsel’s motion to be relieved. (Id. at p. 537-540.)

The instant case differs from Leversen in two significant respects. First, unlike the

client in Leversen, defendant here attempted to object to relieving trial counsel, and

maintains that he would waive the asserted conflict of interest. Second, more

22
importantly, the trial court here made no inquiry at all into the nature of the conflict of

interest. Even though, under the state Constitution at least, trial judges should give “great

weight” to an attorney’s assertion of a conflict of interest, the court still has its

independent duty to protect the defendant’s right to representation by retained counsel of

choice. The court’s duty includes the duty to inquire, so far as possible without requiring

counsel to divulge confidential information, into the nature of the claimed conflict. Here,

the court made no such inquiry.

iii. Financial Conflicts of Interest

Another potential source of a conflict of interest affecting representation is the

attorney’s acquisition of a financial interest that may potentially be adverse to the client.

For example, “Conflicts may also arise in situations in which an attorney undertakes

representation of a defendant in exchange for the literary rights to a portrayal or account

based on information relating to the representation. [Citations.]” (People v. Bonin,

supra, 47 Cal.3d 808, 836.) “‘A grave conflict of interest can arise out of an arrangement

between a lawyer and an accused to give to the lawyer the right to publish books, plays,

articles, interviews or pictures, or related literary rights concerning the case. . . . [It] may

place the lawyer under temptation to conduct the defense with an eye on the literary

aspects and its dramatic potential. If such an arrangement or contract is part of the fee, in

lieu of the fee, or a condition of accepting the employment, it is especially reprehensible.’

[Citations.]” (Ibid.; however, cf. People v. Doolin (2009) 45 Cal.4th 390, 420-421 [no

23
financial conflict of interest arose from counsel’s lump-sum compensation agreement in

capital representation case].)

iv. Arguing One’s Own Incompetence and Irreparable Breakdown of the

Attorney-Client Relationship

We are familiar with two additional common sources of conflict of interest, which

might create such a serious conflict between the attorney and the client that

constitutionally adequate representation is not possible.

The California Supreme Court recognized in People v. Smith (1993) 6 Cal.4th

684: “It is true that when a defendant claims after trial or guilty plea that defense counsel

was ineffective, and seeks substitute counsel to pursue the claim, the original attorney is

placed in an awkward position,” which could possibly involve a conflict of interest

sufficient to disable the proper attorney-client relationship. (Id. at p. 694.) The

California Supreme Court discussed the matter of the appointment of separate or

substitute counsel for purposes of bringing a motion attacking the competence of a

defendant’s attorney. The issue was whether the standard was different at an early or late

stage of the proceedings. “The attorney must defend against charges from the very client

he or she is supposed to be representing. The potential for conflict is obvious. But the

same potential for conflict exists before trial as well. And the conflict is

unavoidable. [¶] . . . [¶] Similarly, it is difficult for counsel to argue his or her own

incompetence. However, the possibility that the defense might benefit from such an

argument can arise at any stage of the proceedings. . . . [¶] . . . [¶] Appointment of

24
counsel for the purpose of arguing that previous counsel was incompetent, without an

adequate showing by defendant, can have undesirable consequences. In People v.

Makabali (1993) 14 Cal.App.4th 847 [18 Cal.Rptr.2d 72], the trial court appointed

second counsel to investigate a possible motion to withdraw a guilty plea on the basis of

ineffective assistance of counsel. New counsel did not make the motion. On appeal,

appointed appellate counsel, i.e., the third attorney, claimed (unsuccessfully) that the

second was incompetent for not claiming the first was incompetent. The spectacle of a

series of attorneys appointed at public expense whose sole job, or at least a major portion

of whose job, is to claim the previous attorney was, or previous attorneys were,

incompetent discredits the legal profession and judicial system, often with little benefit in

protecting a defendant's legitimate interests. [¶] We note also that in People v.

Makabali, supra, 14 Cal.App.4th 847, the original attorney was apparently not relieved of

further representation of the defendant. He represented the defendant at sentencing, after

the second attorney did not move to withdraw the plea. (Id. at p. 850.) We are unaware

of any authority supporting the appointment of simultaneous and independent, but

potentially rival, attorneys to represent defendant. When a Marsden2 motion is granted,

new counsel is substituted for all purposes in place of the original attorney, who is then

relieved of further representation. If the Marsden motion is denied, at whatever stage of

the proceeding, the defendant is not entitled to another attorney who would act in effect

as a watchdog over the first. [¶] We stress, therefore, that the trial court should appoint

2 People v. Marsden (1970) 2 Cal.3d 118, 124-125.

25
substitute counsel when a proper showing has been made at any stage. A defendant is

entitled to competent representation at all times, including presentation of a new trial

motion or motion to withdraw a plea. For the reasons identified in People v. Fosselman,

supra, 33 Cal.3d at pages 582-583, justice is expedited when the issue of counsel’s

effectiveness can be resolved promptly at the trial level. In those cases in which counsel

was ineffective, this is best determined early. Thus, when a defendant satisfies the trial

court that adequate grounds exist, substitute counsel should be appointed. Substitute

counsel could then investigate a possible motion to withdraw the plea or a motion for

new trial based upon alleged ineffective assistance of counsel. Whether, after such

appointment, any particular motion should actually be made will, of course, be

determined by the new attorney. [¶] We stress equally, however, that new counsel

should not be appointed without a proper showing. A series of attorneys presenting

groundless claims of incompetence at public expense, often causing delays to allow

substitute counsel to become acquainted with the case, benefits no one. The court should

deny a request for new counsel at any stage unless it is satisfied that the defendant has

made the required showing. This lies within the exercise of the trial court’s discretion,

which will not be overturned on appeal absent a clear abuse of that discretion. [¶] We

thus hold that substitute counsel should be appointed when, and only when, necessary

under the Marsden standard, that is whenever, in the exercise of its discretion, the court

finds that the defendant has shown that a failure to replace the appointed attorney would

substantially impair the right to assistance of counsel (People v. Webster, supra, 54

26
Cal.3d at p. 435), or, stated slightly differently, if the record shows that the first appointed

attorney is not providing adequate representation or that the defendant and the attorney

have become embroiled in such an irreconcilable conflict that ineffective representation

is likely to result [citation]. This is true whenever the motion for substitute counsel is

made. There is no shifting standard for the trial court to apply, depending upon when the

motion is made.” (Id. at pp. 694-696.)

As the California Supreme Court has made clear, appointment of separate counsel

may be required if, and only if, there has been an initial showing that the first attorney

was incompetent, such that the first attorney would be unable, because of a conflict of

interest, to argue his or her own incompetence in bringing a motion, at whatever stage of

the proceedings such a motion would be required. The California Supreme Court’s

pronouncements in Smith took place in the context of discharging one appointed attorney

in favor of a second. If a defendant has retained counsel, the retained attorney may be

discharged (subject to limitations) without necessity of a Marsden showing. (People v.

Ortiz (1990) 51 Cal.3d 975, 984.) Here, unlike Smith, defendant did not seek to

discharge his retained counsel. The issue of a conflict of interest in arguing one’s own

incompetence is, however, a potentiality in either retained or appointed representation.

However, the need to argue one’s own incompetence in a motion for, e.g., a new

trial, or, as here, to withdraw a plea, does not of itself necessarily constitute a conflict of

interest sufficient to interfere with a defendant’s Sixth Amendment right to assistance of

counsel. That is, even if “it is difficult for counsel to argue his or her own

27
incompetence,” (see People v. Smith, supra, 6 Cal.4th 684, 694) the cases do not suggest

that it is impossible for counsel to do so; in other words, it is not necessarily the case that

asking counsel to make a motion arguing his or her own incompetence constitutes a

conflict of interest so severe that representation cannot continue. (See People v. Sanchez

(2011) 53 Cal.4th 80, 89 [“‘It is difficult for counsel to argue his or her own

incompetence’ [citation], but we neither suggested it is impossible for counsel to do so

nor that a trial court should presume a defendant is requesting substitute counsel. . . .”].)

Even a conflict of interest such as requiring an attorney to argue for his or her own

incompetence does not automatically require appointment of separate counsel.

“Instead, . . . ‘substitute counsel should be appointed when . . . necessary under the

Marsden standard, that is whenever, in the exercise of its discretion, the court finds that

the defendant has shown that a failure to replace the appointed attorney would

substantially impair the right to assistance of counsel [citation], or, stated slightly

differently, if the record shows that the first appointed attorney is not providing adequate

representation or that the defendant and the attorney have become embroiled in such an

irreconcilable conflict that ineffective representation is likely to result [citation].’

[Citation.]” (Ibid.)

The instant case involved—at least initially—one of these well-recognized

potential conflicts of interest: requiring an attorney to argue for his or her own

incompetence. When attorney Granville first requested to be relieved, on the ground of

an asserted conflict of interest, he explained that defendant wished to withdraw his plea

28
for two identifiable reasons having to do with the earning of conduct credits, and the

three strikes treatment of his current convictions. Both grounds, inferentially, would

implicate the competence of attorney Granville’s representation of defendant in the

context of the plea bargain. In other words, it would be difficult for attorney Granville to

undertake a motion to withdraw the plea, if the grounds were based upon having to argue

his own incompetence. (See, e.g., People v. Stewart (1985) 171 Cal.App.3d 388, 394-

395.)

Here, the trial court did appoint separate counsel, perhaps too readily and without

making the determination required under Sanchez and Smith, i.e., whether the record

showed that attorney Granville was not providing adequate representation (and so would

be conflicted in arguing for his own incompetence in bringing a motion to withdraw the

plea), or whether the attorney and client had become embroiled in an irreconcilable

conflict. Nevertheless, the court did appoint separate counsel for purposes of bringing

the motion, in an abundance of caution, to address the potentiality for a conflict of

interest. The public defender filed the motion, which was then heard and denied.

D. When the Court Is Informed of a Possible Conflict of Interest, the Court Must Inquire

to Determine Whether a Potential or Actual Conflict Exists, and Whether it Could Impair

the Defendant’s Sixth Amendment Rights

A trial court may become aware, through any of several means, of the possibility

of a conflict of interest between a defendant and his or her counsel. The courts have

consistently recognized that, whenever a trial court “knows or should know that defense

29
counsel has a possible conflict of interest with his [or her] client, it must inquire into the

matter [citations] and act in response to what its inquiry discovers [citation].” (People v.

Jones (1991) 53 Cal.3d 1115, 1136.) In federal jurisprudence, the necessary inquiry may

be made pursuant to a Curcio hearing (United States v. Curcio (2d Cir. 1982) 680 F.2d

881): “At such a hearing, the trial court (1) advises the defendant of his right to

representation by an attorney who has no conflict of interest, (2) instructs the defendant

as to the dangers arising from particular conflicts, (3) permits the defendant to confer

with his chosen counsel, (4) encourages the defendant to seek advice from independent

counsel, (5) allows a reasonable time for the defendant to make a decision, and

(6) determines, preferably by means of questions that are likely to be answered in

narrative form, whether the defendant understands the risk of representation by his

present counsel and freely chooses to run them. [Citation.] The ultimate goal of these

procedures is to permit the court to determine whether the defendant’s waiver of his right

to conflict-free counsel is knowing and intelligent. [Citation.]” (United States v. Perez

(2d Cir. 2003) 325 F.3d 115, 119.)3

In People v. Bonin, supra, 47 Cal.3d 808, 837-838, the California Supreme Court

held that the failure by the trial court to make the necessary inquiry, or to respond to what

the inquiry shows, is reversible error only if the defendant shows “that an actual conflict

of interest existed and that that conflict affected counsel’s performance.” Defendant here

3 Not all federal courts require the formality of a Curcio hearing. See United
States v. Scarfo (E.D. Pa. 1997) 980 F.Supp. 803, 808.

30
relies on cases stating to the effect that the erroneous deprivation of the Sixth

Amendment right to counsel of choice is a structural error, and reversible per se without a

showing of prejudice.

It is difficult, however, to mandate that a defendant must show both that an actual

conflict existed, and that the conflict impaired counsel’s performance, when the

defendant maintains that there was no conflict of interest and that counsel should not

have been discharged.

As we have stated, when attorney Granville first asserted the possible existence of

a conflict of interest, the sole ground of conflict was that defendant wanted to bring a

motion to withdraw his plea, and that the grounds for the motion might involve attorney

Granville having to argue for his own incompetence. That conflict of interest was

addressed by the appointment of separate counsel for the purpose of bringing the motion.

Appointed counsel did file the motion, and the motion was fully explored, heard, and

denied.

Thereafter, all that remained in the case was the imposition of the sentence as

agreed in the terms of the bargain. Nevertheless, attorney Granville asserted that he still

wanted to withdraw, and still felt that a conflict existed. The court refused to make any

inquiry whatsoever into the nature of the conflict.

After denying the motion to withdraw the plea, the trial court remarked, “I think,

by the way, that the circumstances causing that conflict . . . may not be apparent, but they

could probably be figured out if somebody wanted to look behind the circumstances of

31
all of the discussions we have had today.” The previously articulated conflict of

interest—having to argue one’s own incompetence—had been addressed by the

appointment of a different attorney to bring the motion to withdraw the plea. After the

motion was denied, no actions that remained to be performed in defendant’s case would

require any exercise of professional discretion, or legal reasoning or acumen on the part

of the attorney representing defendant. Only pronouncement of the agreed-upon

judgment remained.

In this posture, despite the trial court’s remarks, the ground of conflict of interest

was not apparent. Any conflict of interest engendered by defendant’s desire to bring a

motion to withdraw his plea had been answered. Here, unlike in other cases, the conflict

did not result from the representation of multiple clients. There was no prospect of

compromise of the duty of loyalty or the duty of zealous representation toward one client,

because of confidential information obtained from a different client. Contrary to the

court’s surmise—that the ground of conflict of interest could be “figured out” from the

earlier proceedings—once the motion had been decided, no ground of actual or potential

conflict is readily discernible. Attorney Granville’s concerns had been addressed when

independent counsel had been appointed, and had evaporated with the decision on the

motion. The trial court made no inquiry whatsoever, even a cursory one, to ascertain the

source of the alleged conflict of interest, beyond what had already been addressed

(asserting one’s own incompetence in a motion to withdraw the plea).

32
 Nor does the record support the existence of an irremediable breakdown in the

attorney-client relationship. Attorney Granville, testifying at the hearing on the motion to

withdraw his plea, disagreed with defendant’s assertions in regard to the motion, but his

own memory of the events was not altogether distinct. The matter was drawn as one of

differing recollections between witnesses, rather than accusing defendant of deliberate

falsehood. Attorney Granville may have been left with the belief that defendant falsely

accused him of incompetence, or that defendant may have lied in his hearing testimony,

but such a “conflict” was compatible with continued representation. Defendant

manifestly did not believe there had been an irreparable breakdown in their relationship;

he objected to the motion to relieve counsel, although he was prevented from stating any

grounds. Attorneys commonly represent clients who lie, and who distrust their counsel,

and they are able to do so professionally and competently, within the effective assistance

mandate of the Sixth Amendment.

In this case, there was no occasion for any disagreements between defendant and

attorney Granville to manifest themselves. The only matter that remained was the

pronouncement of the sentence. No advocacy for a particular sentence was required; the

sentence to be imposed was that agreed to in the plea bargain. Moreover, to the extent

there was any issue as to the custody credits defendant would receive, or his three strikes

status, defendant’s concerns in those areas had been addressed in the motion to withdraw

the plea, and those matters had already been determined adversely to defendant. There

was, to all appearances, no actual or potential conflict of interest which would have

33
prevented attorney Granville from competently representing defendant at the sentence

pronouncement proceeding; if such a conflict existed, it was not obvious, and the trial

court should have inquired further to discover an articulable ground of such conflict. The

failure to make the inquiry erroneously deprived defendant of his Sixth Amendment right

to counsel of his choice.

II. ALTHOUGH THE TRIAL COURT ERRED IN FAILING TO INQUIRE INTO THE

NATURE OF AN ASSERTED CONFLICT OF INTEREST, AND EVEN THOUGH

THE ERROR DEPRIVED DEFENDANT OF THE SIXTH AMENDMENT RIGHT TO

COUNSEL OF HIS CHOICE, REVERSAL IS NOT REQUIRED UNDER THE

CIRCUMSTANCES OF THIS CASE BECAUSE NO EFFECTIVE RELIEF CAN BE

AFFORDED TO DEFENDANT; THE APPEAL MUST BE DISMISSED AS MOOT

Even if we accept defendant’s argument that the trial court erred in relieving

attorney Granville, that the error resulted in a deprivation of defendant’s Sixth

Amendment right to counsel of his choice, that the error is a structural error going to the

substance of the Sixth Amendment right, and that structural error requires reversal per se,

without regard to any issue of prejudice, we nevertheless determine that reversal is not

required in this case. Rather, we are confronted with circumstances in which, even if the

judgment were reversed, the reversal would be fruitless because no effective relief can be

granted to defendant.

A reversal and remand for the trial court to conduct an inquiry into the nature of

the alleged conflict of interest would achieve either one of two identical results: The

34
inquiry might establish that there was, indeed, an actual conflict of interest between

attorney Granville and defendant, such that the attorney could not meet the constitutional

obligation to represent defendant effectively. Such a conflict could require the court to

disqualify or discharge the attorney, in which case the court would appoint new counsel

to stand with defendant while the agreed-upon sentence is again pronounced.

Alternatively, a hearing might establish that there was no actual conflict or no serious

potential conflict between defendant and attorney Granville, so that the trial court should

not have relieved the attorney from representation. In such a case, attorney Granville

would be obligated to stand with defendant while the court yet again imposes the agreed-

upon sentence. No purpose would be served by forcing the trial court to go through the

motions of determining whether an actual conflict, or a serious potential for conflict, of

interest existed between defendant and attorney Granville. No matter what the outcome

of the hearing, no matter what attorney would ultimately represent defendant, the

identical sentence and judgment would be re-imposed.

The law does not require the performance of idle acts. (Civ. Code, § 3532; see

also People v. Coelho (2001) 89 Cal.App.4th 861, 889 [“[R]eviewing courts have

consistently declined to remand cases where doing so would be an idle act that exalts

form over substance.”].) Where no effective relief can be granted, the appeal is moot,

and will be dismissed. (People v. Travis (2006) 139 Cal.App.4th 1271, 1280 [“‘When no

effective relief can be granted, an appeal is moot and will be dismissed.’”].) Here, a

reversal and remand would result only in an exercise in futility, and would not alter the

35
outcome of the judgment and sentencing in any respect. Accordingly, we deem the

appeal moot, and we order it dismissed.

DISPOSITION

Even if defendant is correct that the trial court below violated his Sixth

Amendment right to counsel of his choice when it relieved his attorney from

representation over defendant’s objection and without making any inquiry into the nature

of the alleged conflict of interest, no practical purpose would be served by reversal and

remand to conduct a proper inquiry. Either original counsel was improperly relieved, and

would continue to represent defendant while the agreed-upon sentence is re-imposed, or

counsel was properly relieved, and substitute counsel properly represented defendant

while the agreed-upon sentence was imposed. Inasmuch as no effective relief can be

granted to defendant, and the law does not require the courts to engage in idle acts, we

conclude that the appeal is moot. Accordingly, we order the appeal dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:

HOLLENHORST
Acting P. J.

KING
J.

36