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Name: People v. Lopez et al.
Case #: F053389
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 11/24/2008

To obtain relief for a conflict of interest, appellant must show either (1) an actual conflict which adversely affected trial counsel’s performance, or (2) informed speculation with a factual basis in the appellate record regarding a potential conflict that adversely affected counsel’s performance. During trial the parties became aware that the public defender’s office had previously represented one of the prosecution’s witnesses. While the witness was willing to waive any conflict of interest, appellant was not. But, the county public defender told the court it saw no conflict because the deputy representing appellant never represented the witness, did not possess confidential information about him, and had been instructed not to look at the file or discuss the case with the colleague who had represented the witness. The trial court found no conflict. Acknowledging that California case law was against his position, appellant relied on State Bar rules of professional conduct and State Bar opinions to argue that the entire public defender’s office should have been disqualified from representing him. The appellate court said reliance on these was misplaced because there was no showing in the record that the deputy defender ever received any confidential information from the witness. Appellant did not meet his burden of establishing a conflict. A mid-trial Marsden motion is timely, unless it belatedly challenges a pretrial ruling and amounts to a disruption of the orderly process of justice. Before trial, appellant had made three Marsden motions, each time alleging a conflict of interest with the public defender’s office. When the developments about the representation of the prosecution witness came to light at trial, and the court declared there was no conflict of interest with the public defender’s office, appellant made another Marsden motion arising from his position on the conflict issue. The court ruled the motion was untimely. Appellant challenged this ruling on appeal. The appellate court noted it was not clear from the record exactly what the court meant when it said the motion was “untimely.” If it meant a mid-trial motion was untimely per se, the case law is to the contrary. If it meant that the conflict of interest issue had already been raised at the previous Marsden motions, those hearings pre-dated the developments that had come to light at trial. The court remanded for a post-trial Marsden hearing.