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Name: People v. Bhasin
Case #: E046137
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/20/2009
Summary

A defendant’s constitutional right to counsel of choice may be limited by the court’s authority to maintain the orderly process of justice under the circumstances. Appellant was initially prosecuted for loan fraud and identity theft in Riverside County. Using the identity of Ferguson, he obtained a $50,000 bank loan for an inoperable 1994 Mercedes Benz possessed by Auto Market, a business owned by the Dawood brothers. Appellant enlisted Ferguson to tow the vehicle, which had no engine or transmission, from Orange County to Riverside County and to sign the bill of sale on the car. A few days before commencement of the initial trial, appellant went to the the Department of Motor Vehicles in San Bernardino County, and, giving false information, obtained a report of deposit of fees [RDF], listing Ferguson as the registered owner of the Mercedes. He gave this document to counsel who used it to cross-examine Ferguson. The prosecution investigated the issuance of the document, discovered it contained false information, and a mistrial was declared. Appellant then was prosecuted for preparing false documentary evidence and offering forged evidence at trial. Attorney Exum represented one of the Dawood brothers who had been acquitted at a previous trial. At his second trial, appellant’s request for substitution of attorney Dunlop with attorney Exum was denied by the trial court which insisted that Dawood first sign a waiver, which he declined to do. The appellate court upheld the denial. Although a defendant has a Sixth Amendment right to counsel of choice, the right is not absolute and may be required to yield if there is a finding that it would result in disruption of the judicial process. Due to the potential conflict arising from Exum’s representation of both appellant and Dawood, who might be called as a witness in appellant’s trial, the court did not abuse its discretion in denying appellant’s request for substitution of counsel and there was no violation of appellant’s constitutional rights.
If a defendant seeks the service of the lawyer to commit or plan to commit fraud, under the crime-fraud exception, there is no attorney-client privilege. At the second trial, the court permitted the prosecution to call Dunlop as a witness and testify as to how he came into possession of the RDF. The appellate court rejected appellant’s claim that this was a violation of the attorney-client privilege. Although the handing of the RDF to Dunlop by appellant was a confidential privileged communication, appellant thereby used his attorney to commit a crime. As such, the crime-fraud exception to the attorney-client privilege applied and the evidence was admissible.
Venue for a crime that it is committed, in part, in one jurisdiction and, in part, in another rests with both jurisdictions. Under Evidence Code section 781, jurisdiction for the charged offenses rested with both counties. The preparatory act was committed in San Bernardino County where appellant obtained the RDF, and the offering of the document occurred in Riverside County. The court also found that sufficient evidence supported the convictions for Penal Code sections 132 (offering forged evidence) and 134 (preparing false evidence).