P. v. Lozano
Filed 3/26/13 P. v. Lozano CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTONIO JESUS LOZANO,
Defendant and Appellant.
D059304
(Super. Ct.
No. SCS216495)
APPEAL from
a judgment of the Superior Court
of
County, Melinda J. Lasater, Judge. Affirmed as modified.
Antonio
Lozano was convicted by jury of five felonies arising out of
involving his ex-girlfriend and her visits to her mother's home. The shooting incident on January 1, 2008 resulted in a guilty verdict of
(Pen. Code,
title="">[1]
§ 245, subd. (b)), and jury findings that he personally used an assault weapon
within the meaning of section 12022.5, subdivision (a), and he personally
inflicted great bodily injury (on the
mother, Fidelia Garcia) within the meaning of section 12022.7, subdivision
(a). Lozano was also convicted of
shooting into an inhabited structure (§ 246), with findings that he caused
great bodily injury (§ 12022.7, subd. (a)); he intentionally and
personally discharged a firearm causing great bodily injury (§ 12022.53, subd.
(d)); and he possessed an assault weapon
(§ 12280, subd. (b)).
Regarding
an incident a few weeks earlier involving his ex-girlfriend, Christina Garcia,
Lozano was convicted of kidnapping and
false imprisonment. (§ 207, subd.
(a); §§ 236, 237, subd. (a).)
name="_ftnref2" title="">[2] The jury could not reach a verdict on the
charge of attempted murder of Fidelia, and a mistrial on that count was
declared. (§§ 664, 187.) He was acquitted of making a criminal threat
against Christina. (§ 422.) After separate trial proceedings, his defense
of insanity was rejected by the jury.
Lozano was
sentenced to an indeterminate term of 25 years to life for the finding of
personal and intentional discharge of a firearm resulting in great bodily
injury, as well as a determinate term of six years eight months (five years for
shooting into an inhabited structure, and one year eight months for kidnapping;
§ 246, 236, 237, subd. (a) and related enhancements) and fines.
Lozano
appeals, contending the
proceedings violated his rights to effective assistance of counsel, and
he was denied confrontation rights (U.S. Const., 6th Amend.
& Cal. Const., art. I, § 15), when the trial court ruled that
evidence would be admitted from a reported November 2009 conditional
examination of a material witness against Lozano, his friend Hector Verduzco,
who was present at the time of the January 2008 shooting, but who had become
unavailable by the time of trial (the conditional exam). (Evid. Code, § 402.) Lozano challenged the admission of this
evidence on the grounds that his previously appointed attorney, Gaylord Stewart
of the Alternate Public Defender's office (APD), who appeared for him at the conditional
exam of the witness Verduzco, was the same attorney who had earlier assisted
Verduzco as appointed counsel in June 2009, at the time Verduzco pleaded guilty
to an unrelated theft offense and was granted probation. A few months later, at the conditional exam,
Verduzco had his own appointed attorney from another agency. A few more months after the conditional exam,
Attorney Stewart declared a conflict in this respect and was replaced by
different trial counsel for Lozano, Attorney Ricardo Garcia of the Multiple
Conflicts Office.
Lozano
contends that his constitutional rights
to the assistance of counsel at trial were violated as of the time of the
conditional exam, when Attorney Stewart was laboring under a conflict of
interest that arguably undermined his duty of loyalty to Lozano. (People
v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) Lozano also contends that his witness
confrontation rights were violated, because this conflict of interest indicated
that Stewart could not have effectively cross-examined his previous client
Verduzco during the conditional exam. On
either ground, Lozano claims the admission of that evidence irretrievably
tainted these convictions. (
(2004) 541 U.S.
36.)
"[C]laims
of Sixth Amendment violation based on conflicts of interest are a category of
ineffective assistance of counsel claims that, under Strickland [v. Washington
(1984) 466 U.S. 668, 694 (Strickland)]
generally require a defendant to show (1) counsel's deficient performance, and
(2) a reasonable probability that, absent counsel's deficiencies, the result of
the proceeding would have been different."
(Doolin, supra, 45 Cal.4th at p. 417, citing Mickens v. Taylor (2002) 535 U.S. 162, 166 (Mickens); People v. Rundle
(2008) 43 Cal.4th 76, 169 (Rundle).) A reviewing court may assess such conflict of
interest claims by evaluating the relevant evidence independently and drawing
legal conclusions based on the record.
(See In re Darr (1983) 143
Cal.App.3d 500, 509.)
Applying
the relevant standards, we conclude the court did not err as a matter of law or
abuse its discretion in denying Lozano's motion to exclude this evidence. The record supports the trial court's
conclusions that although there was a potential conflict of interest at the
time of the conditional exam, there was no prejudice to Lozano and the evidence
was properly admitted. The convictions
are well supported by the record.
However, we accept Lozano's argument, and the Attorney General's
concession, that the trial court erred in assessing a $200 "Court
Facilities Funding" fee, based on the five felony convictions. At a rate of $30 per conviction, only $150 is
supported by the record. (Gov. Code,
§ 70373 [authorizing a fee of $30 for conviction of "each misdemeanor
or felony"].) We affirm, and order
the abstract of judgment to be corrected and a new abstract of judgment issued
to show this fee of $150.
I
In
considering the issues presented about any potential prejudice from Attorney
Stewart's successive representation, we first take note that Lozano's appeal
does not specifically challenge the sufficiency of the evidence regarding his
convictions of kidnapping and false imprisonment of Christina. (§§ 207, subd. (a); 236, 237, subd.
(a).) Verduzco was not present as a
witness during the commission of those offenses. Also, Lozano's arguments do not directly
attack the evidence or convictions from the shooting incident, when Verduzco
was present as a witness, except by claiming a right to reversal because of the
potential effect that Verduzco's evidence had upon the validity of Lozano's
legal representation that led to that set of convictions, in light of
Verduzco's previous dealings with the same attorney, Stewart.
Verduzco's
testimony pertaining to the charges arising out of the shooting incident
included demeanor evidence about Lozano's mental state at the time, his
apparent intent, and his ultimately unsuccessful insanity defense. Ultimately, a mistrial was declared on the
attempted murder charge, and Lozano was acquitted of the criminal threat charge
regarding Christina. Thus, as part of
the prejudice inquiry about the admission of this conditional examination
testimony, over unsuccessful objections by Lozano raising the conflict of
counsel, we necessarily consider the extent to which Verduzco's evidence had
potentially probative effect, and on which charges. We next describe the facts of the offenses
and set out the time frame of Attorney Stewart's professional representation of
these two clients. We then discuss and
apply the authorities in this area.
A. Kidnapping Facts
Lozano and
Christina were involved and lived together for eight or nine years, and had two
children together. In August 2007,
Christina moved out, but Lozano, who has severe anxiety and personality
disorders, remained dependent on her. He
took a lot of anti-anxiety and anti-depression medications and frequently
sought medical care, with her assistance.
In December
2007, Lozano came to Christina's mother's house and forcibly abducted
Christina. They picked up the children
and Lozano forced them all to stay with him elsewhere for about two weeks,
using handcuffs, a knife, and fists on Christina a few times. By Christmas time, Christina persuaded him to
take them to her mother's house, and they did not return to him. According to Christina's sister Miriam,
Lozano told Christina he would kill her if she did not go back to him, so she
was hiding from him.
B. Shooting Incident
On January 1, 2008, Lozano's 23rd
birthday, he went over to see his friend Verduzco and told him he wanted to see
Christina. Lozano had his M-11
semiautomatic pistol with him, and at his request, Verduzco called Christina
and then drove the two men to Christina's mother's house in Lozano's car. When Verduzco knocked on the door, Christina
answered it, then saw that Lozano was also present on the stairs. Since he looked angry and was heading up the
stairs, hiding something in his jacket, she tried to lock the doors but could
only lock the inner one.
As Lozano
and Christina yelled at each other in Spanish, she, her mother and sister were
inside the house and heard him yell different things. Christina heard him say "Voy a tirar la
puerta" (I will knock down the door or shoot at it). Her sister heard him say he would knock down
the door. Christina's mother heard,
"Te voy a disparar" (I'm going to shoot, or shoot you). Lozano shot out the doorknob, the bullet
hitting Christina's mother in the knee.
Verduzco
saw Lozano bend down, seeming to hide the gun under the house in an open space,
and then they ran away. They drove to a
nearby hotel in San Ysidro, and Verduzco took a cab home.
Christina's
mother went to the hospital and Christina went to a friend's house. Lozano soon got in touch with Christina and
they stayed together in a hotel for two days.
Lozano said he did not know what he was doing that night, and made her
stay with him.
After a few
days, Christina and Lozano went together to a child protective services office
building. She was seeking to recover the
children, who had been taken into protective custody. Christina told the social worker Lozano was
in the area and he was arrested. He had
with him cash, a folding knife, and false identification cards.
Lozano gave
a statement to police that was later admitted at trial. He told the interviewing officer that he had
been trying to open the door with the gun, but it did not open. He said he did not remember shooting the gun,
but he did not want to have·it with him, so he and Hector hid it under the
house and ran away. After being charged,
Lozano entered a plea of not guilty and reserved the right to enter a plea of
not guilty by reason of insanity, and he did so later.
C. November 2009 Conditional Exam Proceedings
Attorney
Stewart of the APD was assigned to represent Lozano around February 2009, and
first appeared in court on his behalf on April 2, 2009. Stewart did not discuss with his supervisors
whether he should withdraw as Lozano's counsel until May 2010. In the meantime, he read the discovery in
Lozano's case intensively in June 2009, and Lozano's preliminary exam took
place on July 8, 2009.
According
to (later) testimony by Attorney Stewart during Lozano's trial in November
2010, he had spent six to eight hours from April through June 2009 representing
Verduzco on a burglary charge. He had a
heavy caseload the day that Verduzco entered a plea, and Verduzco's was "a
briefly handled case." Verduzco
pled guilty and was granted probation.
Stewart turned his attention to other matters, apparently including
Lozano's case. The prosecutor wanted to
ensure that Verduzco would be available as a witness at Lozano's trial, and
Verduzco was granted immunity from prosecution in connection with the shooting
incident. The prosecutor requested that
the court conduct a conditional examination of Verduzco, and appoint new
counsel for him. This request was
granted November 4, 2009. Attorney Grove
of the Office of Assigned Counsel (OAC) appeared for Verduzco at the
conditional exam November 16, 2009, while Stewart appeared for Lozano.
Basically,
Verduzco testified about his participation in bringing Lozano to Christina's
mother's house, seeing the shooting, hiding the gun, and running away with
him. He said Lozano was taking pills and
acting weird when he came over, and he had a creepy look on his face and was
waving the gun around while they were going over to Christina's house. Lozano said Christina was going to be his and
nobody else's.
According
to testimony by Attorney Stewart, he had read Lozano's discovery materials in
June 2009 and decided on his strategy for cross-examining Verduzco. In November 2009, when Lozano's trial was
continued for investigation of a plea of not guilty by reason of insanity or
other negotiations, the conditional exam of Verduzco was scheduled for
November 16, 2009. It was not until
November 2009, either before or after the conditional exam, that Stewart said
he realized he had previously represented Verduzco, in Verduzco's own case. However, Stewart thought that his knowledge
about Verduzco could help Lozano's case, so there should be no actual conflict
of interest or harm to Lozano if he proceeded with that
After the
conditional exam, both witness Verduzco and a District Attorney's office
investigator recognized Attorney Stewart as having previously worked on
Verduzco's defense. The prosecutor
brought that information to Stewart's attention and provided him with documents
from Verduzco's case. The prosecutor
consulted her supervisors about the problem with Stewart's office's prior
representation of witness Verduzco, but was told it would not be appropriate to
inform the court that was supervising the conditional examination. Stewart formally withdrew as Lozano's counsel
in June 2010.
The
prosecutor continued throughout the summer of 2010 to attempt to produce
Verduzco, then on probation, as a witness to appear at Lozano's trial. The prosecutor set up a second conditional
exam date in July 2010, to allow Lozano's new appointed counsel to participate,
but the notice given was inadequate and it was taken off calendar, the minutes
stating that Verduzco was no longer needed as a witness. It was determined that he was in federal
custody, but he could not be located as of November 18, 2010. As of November 29, 2010, the trial court was
notified that Verduzco had been deported and would not be available to testify.
In November
2010, Lozano's trial attorney, Garcia, sought a hearing under Evidence Code
section 402 to have the conditional exam evidence from Verduzco excluded
on the grounds that Lozano's then-attorney, Stewart, had an actual conflict of
interest, due to his previous representation of Verduzco on the other matter,
from April through June 2009. Lozano
thus claimed he was effectively without counsel at the conditional exam, his
rights of confrontation of witnesses were unprotected, and he was absolutely
entitled to exclusion of that evidence.
The
prosecutor opposed the motion, arguing that Stewart's performance for Lozano
had been adequate and there had been no prejudicial conflict of interest.
At the
hearing, the court directly examined Attorney Stewart, and allowed
cross-examination by both the prosecutor and defense counsel. As will be explained in more detail in the
discussion portion of this opinion, Stewart was asked whether he did anything
differently at the conditional exam than he might have done, if his office had
not previously represented Verduzco.
Stewart responded that he did not, because he knew "that I could
effectively represent Lozano [in] Verduzco's examination without creating an
actual conflict without doing anything different. [¶] Specifically I knew I did not have to go
into Verduzco's background because the salient points I wanted from Verduzco
were actually effective to my defense of Mr. Lozano.
. . . I cross-examined Verduzco [and] got beneficial
points for Lozano's defense and to this day, as I sit here, I do not believe
that any actual conflict exists or existed."
In argument
on the motion, the trial court and counsel discussed whether there were issues
about inadequate training at the office of defense counsel, and whether
Attorney Stewart had failed to follow ethical guidelines (Cal. Rules of
Professional Conduct; all further rule references are to the Cal. Rules of
Professional Conduct unless otherwise noted) to advise Lozano earlier about the
potential conflict, and whether the prosecutor or defense counsel should have so
advised the judges that were supervising the conditional exam. Based on defense objections, the trial court
did not allow Stewart to discuss his tactics at the conditional exam. Ultimately, the court ruled that the fact of
Attorney Stewart's previous representation of witness Verduzco amounted to an
unethical and "per se" conflict of interest, but this had caused no
actual prejudice during the cross-examination, and the evidence was ruled to be
admissible at trial.
D. Witnesses at Trial
Christina,
her mother and sister, and numerous other witnesses testified at trial. Christina had changed her story a few times,
explaining she was angry and had lied to police sometimes. Christina's mother was off work for two
months due to her shooting injury, and she still lacked feeling in her injured
knee as of trial time. A transcript of
Verduzco's conditional exam was provided to the jury, and portions read and
reread, on request, to it.
In his
defense, Lozano testified about his mental illness and medication, his lack of
memory of the events, and his lack of intent to shoot either Christina or her
mother. The jury listened to a recording
of his interview with the police investigator and received the transcript.
Following
instruction and deliberations, the jury returned guilty verdicts on the
offenses as outlined above, but acquitted Lozano on the criminal threat charge,
and a mistrial was declared on attempted murder. Separate proceedings were conducted on
Lozano's sanity at the time of the offenses, and the jury found he was
sane. The court imposed an indeterminate
sentence of 25 years to life, and determinate terms of six years and eight
months, along with fines and other assessments, including the challenged $200
court facilities funding fee. (Gov.
Code, § 70373.) Lozano appeals.
II
CONFLICT OF INTEREST
"It
has long been held that under both Constitutions, a defendant is deprived of
his or her constitutional right to the assistance of counsel in certain
circumstances when, despite the physical presence of a defense attorney at
trial, that attorney labored under a conflict of interest that compromised his
or her loyalty to the defendant." (
A
disqualifying conflict of interest may arise "in situations in which an
attorney represents a defendant in a criminal matter and currently has or
formerly had an attorney-client relationship with a person who is a witness in
that matter. [Citations.] [¶] Such a conflict springs from the attorney's
duty to provide effective assistance to the defendant facing trial and his
fiduciary obligations to the witness with whom he has or had a professional
relationship." (
835.)
To inquire
into the effect of an alleged constitutional level conflict of interest, the
court considers whether the defendant has shown both deficient performance by
counsel, "and (2) a reasonable probability that, absent counsel's
deficiencies, the result of the proceeding would have been different." (Doolin,
supra, 45 Cal.4th at p. 417;
172-176; Strickland, supra, 466 U.S.
668, 694.)
In
appropriate inquiries in this context:
"[A]
determination of whether counsel's performance was 'adversely affected' under
the federal standard 'requires an inquiry into whether counsel "pulled his
punches," i.e., whether counsel failed to represent defendant as
vigorously as he might have, had there been no conflict. [Citation.]
In undertaking such an inquiry, we are . . . bound
by the record. But where a conflict of
interest causes an attorney not to do something, the record may not reflect
such an omission. We must therefore
examine the record to determine (i) whether arguments or actions omitted would
likely have been made by counsel who did not have a conflict of interest, and
(ii) whether there may have been a tactical reason (other than the asserted
conflict of interest) that might have caused any such omission.' " (Doolin,
supra, 45 Cal.4th at p. 418.)
In
U.S. Supreme Court clarified these distinctions: " 'Breach of an ethical standard
does not necessarily make out a denial of the Sixth Amendment guarantee of
assistance of counsel.' " The
variously imposed ethical duties of an attorney are equally important, but when
a defendant seeks the application of an exclusionary rule for protecting a
defendant must show not just an ethical violation, but also that counsel was
actively representing conflicting interests, and this prejudiced the
defendant. (Ibid.; see Doolin, supra, 45
Cal.4th at p. 418.)
title="">[4]
Both at
trial and in Lozano's opening brief on appeal, he argued for dismissal or per
se reversal of his convictions, on the grounds that both federal and state
standards justified a finding that he was absolutely deprived of any effective
assistance of ethical counsel, through the conflict situation that had developed
regarding Verduzco.
In his
reply brief, Lozano acknowledges that a prejudice analysis is also required,
but claims that the admission of the testimony from the conditional exam was
still harmful error, as shown by Attorney Stewart's admissions that he knew
about a potential conflict of interest while he was cross-examining Verduzco,
even if it is assumed that Stewart did not subjectively believe it to be an
actual conflict at that time. On both
appellate theories, deprivation of counsel and the right of confrontation,
Lozano argues for application of the standard for a deprivation of
v. California (1967) 386 U.S. 18,
24.)
The
Attorney General responds that the record does not support a conclusion of any
"complete" denial of assistance of counsel, nor a denial of any such
assistance at a "critical stage of the proceedings," so that a
harmless error standard properly applies.
(Mickens, supra, 535 U.S. 162,
166; People v. Watson (1956) 46
Cal.2d 818, 836 [whether it is reasonably probable that the defendant would
have obtained a more favorable result, absent the error].) Thus, the Attorney General claims that the
conditional exam evidence mainly pertained to charges on which the jury did not
convict (attempted murder or criminal threat toward Christina), and therefore,
no undue interference with Lozano's assistance of counsel can be shown, or any
prejudice.
In light of
the required prejudice determination and the nature of the arguments about what
Attorney Stewart did or did not do, we apply a harmless error standard and
examine the record to determine " '(i) whether arguments or actions
omitted would likely have been made by counsel who did not have a conflict of
interest, and (ii) whether there may have been a tactical reason (other than
the asserted conflict of interest) that might have caused any such omission.'
" (Doolin, supra, 45 Cal.4th at p. 418.) We need not accept the subjective
representations of Stewart about whether there was an actual conflict of
interest. Nor do we find useful the
trial court's terminology that Stewart's previous representation of witness
Verduzco created a "per se" conflict of interest. Any conflict of interest on the part of a
defendant's attorney must further be examined for its effect upon the validity
of the proceedings that were conducted, in terms of prejudice to the
complaining party. We consider when the
conflict issues arose, and their impact on the convictions that were ultimately
obtained. This requires resolution of
questions of law on review of the record, on whether there was prejudice from
the actions taken or not taken. (See
III
A. Contentions and Threshold Issue of Waiver
Lozano
relies on U.S. ex rel. Williamson v.
LaVallee (D.C.N.Y. 1968) 282 F.Supp. 968, 971-972 (LaVallee) as an example of "the potential dangers that faced
the [defendant] by being defended by an attorney who was also representing an
important prosecution witness." (
prosecution to receive favorable treatment, and still had a separate felony
charge pending against him, when being questioned by defense counsel (his own
counsel as well). That attorney had an
evident conflict of interest that created severe doubt that he could have
vigorously cross-examined his other client, while acting in the supposed
defense of the defendant. (
Also, "[a] second danger in being represented by an attorney who is
also representing a prosecution witness is that the scope of examination of the
witness by the attorney might be restricted by the fact that the attorney has
learned confidential information about his client-witness which cannot be
revealed." (Ibid.) The subject
convictions were set aside for ineffective representation.
In
trial attorney had simultaneously represented clients whose interests were
adverse. The habeas petitioner, one of
the clients, was granted relief from conviction due to this irreconcilable
conflict of interest. His trial attorney
had previously assisted the witness against him in reaching a plea bargain, and
the witness still had probation revocation proceedings pending, when being
required to testify against the habeas petitioner. Since the same trial attorney still
represented both clients as of the time of trial of the habeas petitioner, his
cross-examination of the witness on behalf of the petitioner was found to be
impaired. The record showed that the
trial attorney was under such continuing professional obligations to one
client, as to preclude him from being able to effectively and legitimately
represent the adverse interests of the petitioner at his own trial. The conflict issue was identified as causing
"unexplained omissions" to exist in the petitioner's attorney's
cross-examination of his other client, the witness, on the question of
bias. (Id. at pp. 512-514.)
Accordingly, the petitioner's conviction was set aside.
Relying on
such authorities, Lozano argues a similarly grave conflict of interest is
demonstrated on this record, with similar prejudicial effect. We next discuss Lozano's claims on the
merits, and without any reliance on the theories of waiver or forfeiture that
are raised by the Attorney General.
Those theories arise from the prosecutor's attempts to make Verduzco
available to testify at a second conditional examination during the summer of
2010, although inadequate notice was given, counsel for the defense objected,
the effort was abandoned, and Verduzco became unavailable. We think Lozano's attorney had no obligation
to accept the inadequate notice given in order to allow the prosecutor to make
a better record of the conditional exam, to have a "do over" without
Attorney Stewart's participation. We
take the record about the admission of the evidence from the November 2009
conditional exam as we find it, without applying such waiver principles.
B. Record:
Nature of Actual or Potential Conflict
In the
course of making its ruling on the challenge to the admission of the evidence,
the trial court read the transcript of the conditional exam to evaluate the
degree to which Lozano's interests were potentially affected. The court found there had been no showing
that either party had used the conflict of interest problem to strategic
advantage, such as setting up a barrier so that the conditional exam evidence
could not be used. Rather, the court's
analysis properly gave priority to protecting the defendant's right to
effective assistance of counsel. This
focused on whether Attorney Stewart was able to provide an adequate opportunity
for Lozano to cross-examine Verduzco, under the confrontation clause. (People
v. Sandoval, supra, 87
Cal.App.4th 1425, 1434-1435, 1444.)
As we will
show, the court was correct in ruling that a potential conflict existed. Our task is to identify the nature and extent
of that conflict, as well as its potential prejudice. First, the record about the actions of
Attorney Stewart does not demonstrate this was a case of simultaneous
representation. Stewart considered that
Verduzco's case was "closed" when probation was granted to him in
June 2009, and Stewart acted on behalf of Lozano at the conditional exam later,
in November 2009. In preparation for the
conditional exam, the court appointed conflict counsel for Verduzco in November
2009. Stewart did not participate in the
immunity discussions for Verduzco.
However, Lozano's
defense counsel argued to the trial court that the policy of Stewart's office,
the APD, was to remain as appointed counsel for clients during the probationary
period. The prosecutor responded that
she did not realize until November 2009 that Verduzco had been represented by
the same individual, Stewart, and she previously knew only that he had been
represented by the APD office staff. To
the extent Lozano is arguing there was simultaneous representation, this is a
new argument on appeal that is not supported by the record. Lozano admits that the matter was not brought
out at the conditional examination, nor during Stewart's testimony at this
trial.
In any
case, the record is unclear about the scope of the APD representation of
Verduzco, except to show that Attorney Stewart individually did not remember
him during much of the relevant time period.
Nor was Verduzco's theft offense in any way related to the current
charges. Unlike the cases of
F.Supp. 968, 971-972, this was not simultaneous representation, but rather
successive in nature and not on closely related charges and proceedings, and
must be evaluated as such.
The record
is similarly not dispositive on the issue of whether the respective attorneys
followed their own office policies for declaring a conflict of interest, or
notifying the court thereof. Attorney
Stewart's office policy was that in case of a potential conflict, a supervisor
should be consulted on whether to declare a conflict to the court. There was a change of personnel of APD
supervisors around that time, and Stewart did not declare a conflict until May
2010, and was not relieved as counsel until June 2010. Attorney Garcia of the MCO was appointed in
his place. Although the prosecutor had
asked her superiors what to do, she was told not to notify the court in
connection with the conditional exam proceedings. Certainly, this sequence of events is most
regrettable. Both Stewart and the
prosecutor should have informed the court of the potential conflict at a much
earlier stage of the proceedings. We
find it difficult to understand how the parties could have failed to inform the
court of this potential conflict.
Whatever
series of unfortunate events took place in the respective agencies does not
clearly establish whether the instant example of conflict was actual or
potential. The rules of professional
conduct are what they are, and they override such ad hoc office policies on the
governing ethical standards for conflicts of interest. (Rules 3-310(B)(1), (E); 3-700(B)(2);
835.)
Although
Attorney Stewart gave conflicting testimony about when he became aware of the
potential conflict of interest, the existence of a conflict was obvious to all
by the time that separate counsel for Verduzco was appointed on November 4,
2009. However, having such an apparent
ethical problem does not necessarily amount to a disqualifying constitutional
conflict. (Mickens, supra, 535 U.S.
at p. 176.) The issue remains about
whether Stewart's knowledge about the background of this witness affected the
type or intensity of the cross-examination that he conducted. We take it as given that Stewart had
potentially conflicting interests and an ethical problem, and we next turn to whether those conflicts
were of constitutional dimension, and whether Lozano was evidently prejudiced
from the attorney's performance on his behalf.
C. Prejudice; Imposition of Fees
Several
factors in the record persuade us there was no constitutional level conflict of
interest here. Attorney Stewart's
beliefs that he had no actual conflict, even if a potential one, can be
compared to ignorance of the law.
"Defense counsel must be reasonably familiar with significant
recent decisions." (5 Witkin, Cal.
Criminal Law (4th ed. 2012) Criminal Trial, § 246, p. 412.) By the same token, trial counsel provides
adequate representation when showing a correct understanding of ethical
restrictions on successive representation.
Even if his beliefs "presently can be characterized as mistaken,
such an error, in itself, would not necessarily demonstrate that counsel's
performance was constitutionally deficient." (In re
Jackson (1992) 3 Cal.4th 578, 614.)
In
failed to investigate the availability of certain mitigating evidence, based on
his misunderstanding of still-developing case law. The court found no reversible error,
concluding, "the confusion of defendant's trial counsel on this legal
question at the time of defendant's trial was not so unreasonable as to
demonstrate that a tactical decision not to offer this evidence (or to request
a hearing under Evid. Code, § 402), based on such a mistake, would have
fallen below the level of constitutionally adequate representation." (Jackson,
supra, at p. 614.) The court's analysis "eliminate[d], as
we must, the potentially distorting effects of hindsight (see
U.S. 668, 689)," and thus counsel's failure to investigate was deemed not
to be prejudicial, in light of potential tactical reasons to avoid introducing
any such evidence. (Jackson, supra, at p.
614.) "[T] here is no reasonable
probability that the judgment . . . was affected by counsel's failure to
conduct such an investigation." (
might have made a different tactical decision, we cannot say that defense
counsel's tactics rendered his representation constitutionally
deficient." (Ibid.)
Lozano
contends Attorney Stewart structured his cross-examination not to impeach
Verduzco's credibility or to contest his version of the facts, in order to
avoid increasing the conflict from a potential one to an actual one. He suggests Stewart did not question Verduzco
about his immunity agreement or his prior convictions, possibly due to
Stewart's ongoing duty of loyalty to his prior client. However, the prosecutor brought out information
about Verduzco's prior convictions, and instructions were given to the jury
about how to evaluate his testimony, including the effect of the grant of
immunity. Those circumstances greatly
lessen the impact of these arguments.
Attorney
Stewart suggested during his testimony that there were tactical reasons for
conducting the cross-examination of Verduzco in the way he did. Counsel for Lozano then objected to any
efforts by Stewart to identify such tactical considerations, and the trial
court agreed, but also acknowledged that Stewart appeared to be testifying he
had used his knowledge about Verduzco to decide what areas to go into on
cross-examination. This leaves us in a
position of assuming that he may have had tactical reasons for doing what he
did. And by admitting the evidence of
the conditional exam, the trial court made implied findings that there was no
prejudice from the manner in which it was conducted.
In
assessing any undue prejudice, we look to the nature of the convictions that
were reached, with relation to the specific evidence being complained of as
harmful. Lozano's shooting incident
resulted in guilty verdicts on the assault count, shooting into an inhabited
dwelling, possessing an assault weapon, and the associated findings of great
bodily injury and personal intentional discharge of a firearm. Even without the testimony of Verduzco about
his observations at the scene, there was testimony from Christina, from her
mother, her sister, the investigating police officer, and the firearms experts
that it was Lozano who charged up the stairs and shot the automatic pistol into
the door knob area, and the bullet that hit Fidelia from his gun had wood and
paint on it. Those convictions did not
depend at all upon Verduzco as a witness.
The more
controversial conditional exam testimony from Verduzco is that about his
observations of Lozano's mental state, before and after they arrived at
Christina's mother's house. He testified
about Lozano's evident agitation, gun use, and comments about how if he could
not have Christina, nobody could. It is
not persuasive to us that the jury requested a readback of all of Verduzco's
testimony, among other requests. His
information was still mainly probative about the attempted murder count, upon
which a mistrial was declared, or the threat count, of which he was acquitted,
or the sanity finding, which he does not dispute. The information had nothing to do with the
kidnapping incident that took place a few weeks earlier. Although it was somewhat supportive of the
convictions of shooting into an inhabited dwelling and assault, it was not
essential evidence for the jury to be able to render verdicts convicting him of
the shooting incident counts. The
admission of the conditional exam evidence did not prejudice him in any
material way with regard to the critical shooting incident convictions. (See Doolin,
supra, 45 Cal.4th at p. 417.) Stewart's previous representation of
Verduzco, before he was questioning Verduzco at the conditional exam, did not
create any apparent defects in his approach that disadvantaged Lozano, and on
this record, we cannot take any guidance from any tactical considerations he
may have had.
Overall,
with respect to how the cross-examination was conducted, "we cannot say
that defense counsel's tactics rendered his representation constitutionally
deficient." (Jackson, supra, 3 Cal.4th
578, 615.) Nor have his other acts or
omissions been shown to have changed Lozano's position at trial in any material
way. Under either standard of error, the
more stringent Chapman standard of
harmless beyond a reasonable doubt, or the less stringent Watson standard, Lozano's claim of prejudice is unsupported by the
record. The level of conflict of
interest that was demonstrated did not undermine the validity of the trial
proceedings or the support for his convictions.
We agree,
however, that the trial court erred in imposing a $200 court facilities fee,
when only $150 for the five felony convictions was appropriate. The judgment will be affirmed as modified and
the trial court will be directed to prepare a new abstract of judgment
accordingly.
DISPOSITION
We remand
for the trial court to modify the sentencing order and amend the abstract of
judgment to reflect that the correct fine under Government Code section 70373
is $150; the court is directed to forward a certified copy of the amended
abstract of judgment to the Department of
Corrections and Rehabilitation. As
modified, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
HALLER,
J.
name="_ftn1" title="">[1] All undesignated statutory references shall be to the Penal
Code.
name="_ftn2" title="">[2] Because several individuals involved in this record are
named Garcia, we will utilize their first names or titles to identify them.
