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People v. Frye7/30/1998
ad developed an irrational dislike of him to the point "she might need some help." Moreover, there is no indication Hawk ever sought or contemplated the prosecutor's intervention on his behalf. The prosecutor's involvement was limited to joining in the trial court's written request to postpone the finality of Hawk's suspension order. Hawk's expression of surprise when the prosecutor announced her intention to take this action belies defendant's assertion of a conflict. Aside from the fact the prosecutor joined the trial court's request to postpone Hawk's suspension, nothing in the record supports a finding of an actual or potential conflict of interest between defendant and his counsel.
Nor does the record support the Conclusion that the pending suspension or the attempt to have the suspension postponed adversely affected Hawk's performance. We have already concluded that none of the alleged instances of deficient performance by Hawk fell outside the range of reasonable professional assistance. (See ante, at pp. 67-68.) The mere assertion, without citation to the record, that Hawk refrained from providing vigorous and effective representation because of divided loyalty between his client and the prosecutor is insufficient to establish a violation of the right to conflict-free counsel.
1. Failure of the trial court to inquire into the purported conflict
Defendant contends finally that he was deprived of the right to conflict-free representation by the trial court's failure to inquire into the possible conflict of interest between defendant and his counsel, and by the court's failure to elicit from defendant a knowing and intelligent waiver of any conflict.
When a trial court is aware, or should be aware, of a possible conflict of interest between a criminal defendant and defense counsel, the court is required to inquire into the circumstances of the possible conflict and take whatever action may be appropriate. (Jones, supra, 53 Cal.3d at p. 1136.) A trial court's failure to carry out its duty to conduct such an inquiry, or to take action based on the results of its inquiry, denies the defendant the right to due process. (Wood v. Georgia (1981) 450 U.S. 261, 271-273.) A conviction will be reversed on the ground the trial court failed to satisfy its duty to inquire into a possible conflict, or to adequately respond to its inquiry, only where the defendant demonstrates that an actual conflict of interest existed, and that the conflict adversely affected counsel's performance. (Jones, supra, 53 Cal.3d at p. 1137; Bonin, supra, 47 Cal.3d at pp. 837-838.)
Applying these principles to the record on appeal, we conclude that the trial court took appropriate action under the circumstances. While conferring with the parties prior to jury selection in the case, the court was informed about the pending disciplinary proceedings and the possibility Hawk would be suspended before the completion of defendant's trial. At the prosecutor's request, the court asked defendant whether he wished to proceed with Hawk as his counsel in light of the possible suspension, and defendant responded affirmatively. The potential problem posed by the pending disciplinary proceedings involved the possibility that Hawk would not be able to continue to represent defendant for the entire trial. The court responded to this potential problem in an appropriate manner by giving defendant the opportunity to decline Hawk's representation, which defendant refused to do.
A similar contention was raised and rejected in People v. Jones, supra, 51 Cal.3d 1115. The defendant in Jones claimed that his fee arrangement, giving counsel a financial interest in the defendant's rental property, crea
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