P. v. Zapata

Filed 10/23/08 P. v. Zapata CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed.

Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

Gabriel Zapata and Nancy Fuchs were charged with robbery (count 1; Pen. Code,  211) and burglary (count 2; Pen. Code,  459). They were further charged with one prison prior within the preceding five years. (Pen. Code,  667.5, subd. (b).) Zapata and Fuchs were tried together before a single jury. The jury convicted them of both charges. In a bifurcated trial, the court found true the prison prior allegations. Zapata was sentenced to a total of four years in prison. Zapata appealed.

Zapata contends that the judgment must be reversed because he was deprived of his right to the conflict-free assistance of counsel. We reject this contention and affirm.

I. Factual Background

In the evening of September 5, 2005, Fuchs entered a Kohls department store in La Quinta with a duffle bag. She checked the bag with a store cashier. Ronald Stewart was the store manager on duty at that time. Stewart saw Fuchs in several of the stores departments, placing merchandise in a shopping cart. Fuchs was in the store for about three hours. As Stewart began the process of closing the store, he noticed Fuchs watching him. Stewart became [v]ery suspicious of Fuchs. As he walked to a location in the store to see what was going on, Fuchs jetted out of the store with a new suitcase. As she passed through magnetic sensors near the door, an alarm sounded.

Stewart followed Fuchs outside and asked to validate her receipt for the suitcase. Fuchs handed Stewart a return receipt. A return receipt shows items that have been returned to Kohls. When Stewart told her it was a return receipt, Fuchs said that she did not steal anything, that everything was hers.

As Stewart was talking to Fuchs, Zapata came up to him, grabbed the receipt out of Stewarts hand, and began cursing at him. Zapata told Stewart, What the fuck do you think youre doing? Shes with me. Ill kick your fucking ass. What the fucks wrong with you. Zapata threatened to shoot Stewart and told Fuchs to go to his car and get his gun. Fuchs ran toward the parking lot, pulling the suitcase behind her. Zapata followed Fuchs as he continued to curse at and threaten Stewart.

Stewart called 911. Riverside County Deputy Sheriff Michael Bolton responded, arriving at the store at approximately 9:30 p.m. Deputy Bolton spoke with Stewart and Brenda Rodriguez, the head cashier of the store. They told Deputy Bolton what happened and gave him descriptions of Zapata and Fuchs. The descriptions were broadcast to other officers. Deputy Bolton collected the duffle bag that Fuchs left at the counter. Inside the bag was a small telephone book with Zapatas name inside.

Indio Police Officer Ricardo Cerna heard the broadcast of the descriptions of the Kohls robbery suspects. At approximately 10:20 p.m., he saw Fuchs, who matched the description of one of the suspects. Officer Cerna stopped Fuchs as she was walking on Indio Boulevard. While Officer Cerna was talking with Fuchs, Zapata arrived. Officer Cerna contacted dispatch to request that the deputy sheriff in charge of the Kohls robbery respond. Officer Cerna obtained Zapatas consent to be searched. Officer Cerna found a Kohls merchandise return credit card, or gift card, in Zapatas wallet.^[1] Zapata told Officer Cerna that he had earlier exchanged some items at Kohls.

Deputy Bolton arrived at the location where Officer Cerna had detained Zapata and Fuchs. Another deputy brought Stewart and Rodriguez to the same location, where they identified Zapata and Fuchs as the perpetrators. Zapata and Fuchs were then arrested. After being advised of her Miranda^[2]rights, Fuchs told Deputy Bolton that she had mistakenly taken a bag or a suitcase out of the store that was not hers. The suitcase was never recovered.

II. ANALYSIS

Zapata and Fuchs were jointly tried before a single jury. Ruben Sanchez represented Fuchs; Thomas Eckhardt represented Zapata. After Sanchez presented his closing argument in Fuchss defense, the court excused the jurors for the evening. The following colloquy took place:

MR. SANCHEZ: Theres one thing that I need to put on the record, Your Honor.

THE COURT: Sure.

MR. SANCHEZ: And with the Courts permission, I discussed this with the People, as well as my co-counsel and my client, Your Honor, this week iswas my scheduled week for vacation with my children. And Im asking permission, and my client has agreed to waive my presence at thefor the instructions and for Mr. Eckhardts closing.

THE COURT: Okay. So Mr. Eckhardt is making a special appearance for you tomorrow?

MR. ECKHARDT: Ill be happy to.

THE COURT: You dont have a conflict? That will be all right with you?

MR. ECKHARDT: That would be fine.

THE COURT: Okay. Thats all right, Miss Fuchs?

DEFENDANT FUCHS: Yes.

THE COURT: Okay.

The next day, Eckhardt gave his closing argument for Zapata, followed by the prosecutions rebuttal argument and the giving of instructions to the jury. The jurors did not ask any questions of the court. Both defendants were found guilty as charged.

Zapata argues that Eckhardts special appearance for Fuchs during Eckhardts closing argument deprived him of his right to a conflict-free attorney.^[3] We disagree.

The right to the effective assistance of counsel under our state and federal Constitutions includes the right to representation free from conflicts of interest. (People v. Rundle (2008) 43 Cal.4th 76, 168; Wood v. Georgia (1981) 450 U.S. 261, 271.) Under federal law, an actual conflict of interest for purposes of the Sixth Amendment means a conflict that affected counsels performanceas opposed to a mere theoretical division of loyalties. (Mickens v. Taylor (2002) 535 U.S. 162, 171.) Under this standard, the courts will consider whether the record shows that counsel pulled his punches, i.e., failed to represent defendant as vigorously as he might have had there been no conflict. [Citation.] (People v. Rundle, supra, at p. 169.)

California courts apply a stricter standard. (People v. Rundle, supra, 43 Cal.4th at p. 175.) Under the California Constitution, a defendant need not establish that there was an actual conflict of interest, but rather it is sufficient if the record provides an adequate basis for an informed speculation that there was a potential conflict of interest which prejudicially affected the defendants right to effective counsel. [Citations.] [] Permissible speculation giving rise to a conflict of interest may be deemed an informed speculation but only when such is grounded on a factual basis which can be found in the record. [Citation.] (Ibid.)

Zapata argues that Eckhardt, by specially appearing as counsel for Fuchs during his closing argument, was precluded from arguing that [Zapata] was less culpable or had unwillingly become involved in the interaction with Mr. Stewart. The contention is not supported with any reference to facts in the record. Our own review reveals no factual basis in the record for the speculative argument. Indeed, the record reveals that Eckhardt argued that there was a lack of evidence that Zapata knew that Fuchs intended to commit theft when she went into Kohls or that the suitcase that Fuchs brought out of the store was stolen. He asserted: Theres no evidence that [Zapata] was present when any other bag was taken in there by which he could later recognize immediately that shes bringing out some other bag, okay. [] Theres no evidence that he was everthat he was ever alerted in any manner that he should be careful, that she might be a thief, if she is. Okay. [] Theres no evidence on the state of his knowledge regarding the status of that bag. And unless he knew that property was stolen, his behavior, however well it may have facilitated that property being effectively moved to a site of temporary safety, is not established, all right. [] . . . [] The mental state at issue here is his level of knowledge regarding what was going to go on in Kohls, okay. [] Theres no evidence that he knew what was going to go on in Kohls. Thus, Eckhardt argued extensively that, if the jury should conclude that Fuchs committed burglary or robbery, Zapata was unaware of her intent or that she had stolen anything from Kohls. Although Zapata contends that Eckhardt could have made much stronger arguments placing the blame on Fuchs, he does not explain how placing greater blame on Fuchs could have resulted in his acquittal.

There is nothing in the record to support an informed speculation that Zapata pulled his punches or felt constrained during closing argument by his brief joint representation of both Zapata and Fuchs. Therefore, we hold that Zapata has failed to show a conflict of interest for purposes of establishing an ineffective assistance of counsel claim under either the Sixth Amendment or the California Constitution.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Gaut

J.

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^[1] Deputy Bolton testified that he believed that he retrieved the card from Zapatas shirt pocket.

^[2]Miranda v. Arizona (1966) 384 U.S. 436.

^[3] Zapata argues, preliminarily, that he did not waive the alleged conflict of interest. The People do not dispute this point. We thus assume, without deciding, that Zapata did not waive the alleged conflict.