Alcocer

*955 Opinion

In a criminal case, a defendant has a right to be represented by an attorney who has no conflict of interest. May a defendant waive this right, even though by doing so he may not receive a fair trial? We hold he may if he knowingly and intelligently waives that right.

Facts

Defendant Ramiro Alcocer is charged with lying to the grand jury during the course of an investigation. (Pen. Code, § 118.) Alcocer is alleged to have testified that he was unaware that a former Santa Maria Municipal Court judge had been using drugs. The judge later pled guilty to such charges.

Alcocer retained Attorney lian Funke-Bilu to represent him. Funke-Bilu also represents Tommy Jackson in a case in which Jackson pled guilty to possession of drugs for sale. The prosecution has evidence that Jackson sold drugs to the former judge. The prosecution states it may call Jackson to testify that Alcocer was present when Jackson sold drugs to the former judge. Jackson, acting upon advice of Funke-Bilu, has refused to speak to the prosecutor.

On July 24, 1987, the district attorney moved to recuse Funke-Bilu upon the ground of conflict of interest. (See People v. Mroczko (1983) 35 Cal.3d 86 [ 197…

I respectfully dissent.

The issue in this case, as I see it, is whether a defendant in a criminal case may foreclose a trial court from recusing retained counsel who has a potential conflict of interest by purportedly waiving his right to conflict free counsel.

In People v. Mroczko (1983) 35 Cal.3d 86, 110 , footnote 26 [ 197 Cal.Rptr. 52 , 672 P.2d 835 ], the California Supreme Court stated that the issue has not been considered directly by it.

However, the United States Supreme Court has recently considered this issue. In Wheat v. United States (1988) 486 U.S. 153, 159 [ 100 L.Ed.2d 140, 148 , 108 S.Ct. 1692 ] the court stated: “. . . the essential aim of the [Sixth] 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. [Citations.]” “Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver . ...” A trial court, “. . . must be allowed substantial latitude in refusing waivers of conflicts of interest . . . where a potential for conflict exists . . . .” (Id., at pp. 162-163 [100…

Thomas W. Sneddon, Jr., District Attorney, and Gerald McC. Franklin, Deputy District Attorney, for Real Party in Interest.

OPINION

GILBERT, J.

In a criminal case, a defendant has a right to be represented by an attorney who has no conflict of interest. May a defendant waive this right, even though by doing so he may not receive a fair trial? We hold he may if he knowingly and intelligently waives that right.

Defendant Ramiro Alcocer is charged with lying to the grand jury during the course of an investigation. (Pen. Code, § 118.) Alcocer is alleged to have testified that he was unaware that a former Santa Maria Municipal Court judge had been using drugs. The judge later pled guilty to such charges.

Alcocer retained Attorney Ilan Funke-Bilu to represent him. Funke-Bilu also represents Tommy Jackson in a case in which Jackson pled guilty to possession of drugs for sale. The prosecution has evidence that Jackson sold drugs to the former judge. The prosecution states it may call Jackson to testify that Alcocer was present when Jackson sold drugs to the former judge. Jackson, acting upon advice of Funke-Bilu, has refused to speak to the prosecutor.

On July 24, 1987, the district…