Opinion
HANSON (Thaxton), J.
Procedural History
Defendant Noday and codefendant Smart were by indictment each charged with seven counts, including grand theft, conspiracy to commit [510]*510grand theft, conspiracy to cheat and defraud, and conspiracy to commit murder. Noday’s codefendant Maldonado was charged in two of the seven counts; Noday’s codefendant Jones was charged in three of the counts.
Severance was granted to codefendants Smart and Jones; defendant Noday was tried with codefendant Maldonado. Both defendant and Maldonado were represented throughout the proceedings by Attorney Stephen Gillis. The matter of the joint representation of defendant and Maldonado was brought to the attention of two different trial judges by the prosecution. Twice, prior to trial, defendant Noday and codefendant Maldonado indicated, in response to questioning by the court, that they did not wish to retain separate counsel.
After trial codefendant Maldonado was acquitted. Defendant Noday was convicted of count III—conspiracy to commit grand theft and conspiracy to cheat and defraud, count IV—conspiracy to commit murder, and count VII—grand theft; he was sentenced to a life term in state prison. He appealed from the judgment of conviction, still represented by Attorney Gillis. This court affirmed the judgment on February 17, 1978, in an unpublished opinion (2 Grim. 30387). A hearing in the California Supreme Court was denied on April 13, 1978.
Represented by a new attorney, Noday filed a petition for a writ of habeas corpus in the trial court. That petition was denied. A petition for a writ of habeas corpus was then filed in this court, and we denied relief. On May 13, 1981, the California Supreme Court directed us to issue an order to show cause why the relief sought by defendant should not be granted. This was done, and we now consider the merits of this matter.
The Underlying Case
The three counts of which Noday was acquitted involved the purchases from Downey Savings and Loan on two separate occasions of certificates of deposit in the amounts of $100,000 and $220,000, respectively, with bad checks, one of which was written on Noday’s account at a bank in the Bahamas, and the transfer of these certificates to others who attempted to use them as security for loans.
The charges of which defendant Noday was convicted were the consequence of a series of transactions in which he convinced Harold [511]*511Porter to deposit with Reliance Escrow, a company being purchased by defendant Noday, a cashier’s check for $100,000 to be used short term to improve the balance sheet of that company and thus help Noday to qualify as purchaser of a bank. Noday promised that once he owned the bank he would assist Porter and Richard Allen to obtain a loan which they needed to purchase a business. Noday, then a signatory on the Reliance Escrow bank account, took Porter’s $100,000. When Porter began to ask for the return of his funds, Noday apparently found him an obstacle to his plans and paid George Pelham $11,500 to murder Porter. Pelham reported that the homicide had been accomplished but in fact absconded with the money without carrying out the execution. When Noday discovered the deception, he sought to place a contract on the life of Pelham as well. Pelham finally contacted the FBI and helped them set up the events leading to Noday’s arrest.
Following his conviction on the charges specified, Noday filed an appeal limited to his conviction on the conspiracy to commit murder. This court affirmed his conviction and the relevant facts are set forth in the unpublished opinion (2 Crim. 30387) attached hereto as appendix A.
Defendant Noday’s Application for a Writ of Habeas Corpus
Defendant Noday presently claims, in essence, that he was deprived of effective assistance of counsel as a consequence of his own express waiver of the right to separate counsel, which he now seeks to invalidate. Previously retained counsel, Stephen Gillis, represented both defendant Noday and his codefendant and mother-in-law Consuelo Maldonado. Defendant Noday now claims his representation was impaired due to conflicts in the defense of the two defendants arising during or prior , to trial.
The lengthy petition for habeas corpus is accompanied by exhibits, including the declarations of trial counsel, codefendant Maldonado and a codefendant (William Beverly Smart) whose trial was segregated, originally filed with the superior court. The complete trial record was ordered up and has been reviewed together with the reporter’s transcript of the trial proceedings. The record reflects that codefendants Noday and Maldonado were by two different judges on two separate occasions questioned prior to trial and fully admonished with respect to the potential adverse consequences of multiple representation by Mr. Gillis.
[512]*512The record shows that on September 23, 1976, prior to trial, defendant Noday and codefendant Maldonado were present in the trial court for a hearing initiated by the People to determine whether Noday and codefendant Maldonado waived their rights to separate counsel. The trial court (Judge William B. Ritzi) remarked, “. .. I want to advise you most emphatically— ... [If] that Mr. Gillis apparently is representing both of you. [If] Now, that may present a very substantial conflict so far as your defense is concerned. In other words, Mrs. Maldonado and Mr. Noday, you may have defenses that are basically in conflict with the other. And, if so, you should be advised that it may injure you. [1f] Now, in my opinion, it would not be appropriate; however, the decision is yours. If you want Mr. Gillis to represent both of you, you are entitfed to have him represent both of you. But you should realize—and I want to make it emphatically understood—that there may be a conflict of interest here that would injure either one or both of you.” The judge asked codefendant Maldonado if she understood his remarks, and she replied: “Yes, I do.” The judge then asked Maldonado if she wanted Mr. Gillis to represent her, and she replied: “Yes, I would, Your Honor.” He then asked Maldonado, “With that understanding, do you waive any conflict of interest?” She replied: “Yes, sir.” After Maldonado’s reply, the judge asked Noday, “Now, do you understand that also, Mr. Noday.” He replied: “Yes, I do.” The judge then inquired whether Noday wanted Mr. Gillis to represent him, and he replied: “Yes.” Upon receiving that answer, the judge asked Noday, “Do you waive any conflict of interest?” He replied: “Yes.”
A second hearing on the subject took place on December 6, 1976, the day that trial was scheduled to commence before Judge Kathleen Parker. The district attorney indicated that the trial judge desired that the question of a “conflict of interest waiver” be explored and the waiver once more, confirmed prior to trial. The following colloquy thereafter occurred: “The Court: It occurred to the court that there might be a conflict of interest between you [Noday] and Mrs. Maldonado. I know nothing about the case at this point, and I wanted to be sure that you understand that there is a possibility where you have two defendants represented by the same counsel that there may be a conflict of interest. [11] I believe you have been advised of this previously, have you not? [If] Defendant Noday: Yes. [If] Defendant Maldonado: Yes. [If] The Court: And it is my understanding that, despite a possible conflict of interest that may develop, you wish to have Mr. Gillis represent you in this case. [If] Defendant Maldonado: Yes, ma’am. [If] The Court: You also, Mr. Noday?- [1f] Defendant Noday: Yes. [If] The Court: [513]*513And you have talked that over with counsel, and you have talked about any possible conflict of interest? [11] Defendant Maldonado: I have not talked with him at all, except what we talked about out in the corridor. [11] The Court: Well, Mr. Gillis is of the opinion that there is no conflict of interest between the two of you, and he has so stated. [If] Almost invariably where you have two defendants charged in a case, there is somewhere along the line a conflict of interest, or it might develop during the trial. [If] Now, I just want to be sure that, despite that possibility, you still want Mr. Gillis to represent you. [If] Defendant Maldonado: Yes, ma’am. [1f] The Court: And you also, Mr. Noday. [If] Defendant Noday: Yes. [If] The Court: All right. [1Í] Mr. Gillis: Your Honor, for the record, I have discussed the charges with both defendants, and I know of no circumstances which could create a conflict.”
After Noday and his codefendant Maldonado had agreed to their joint representation by Attorney Gillis, Gillis further stated that discovery obtained from the district attorney had not revealed any conflict of interest. The district attorney then advised Attorney Gillis and the court that some discovery material offered to Gillis 10 days before trial, but which Gillis had not yet obtained from the district attorney’s office, consisting of tapes of telephone conversations between Noday and a government agent contained a reference to codefendant Maldonado which might implicate her. Attorney Gillis admitted that he had not read the transcripts of those tapes. The prosecutor then offered to brief him on how Maldonado’s name came up. The court permitted an off-the-record discussion between counsel. The prosecutor then announced “I have told Mr. Gillis, as best my memory allows me, how Mrs. Maldonado comes up in the case.” Without further discussion the trial proceedings resumed. Neither defendant Noday nor his codefendant Maldonado signed written consents to their joint representation by Attorney Gillis.
Attorney Gillis continued to conduct the defense of both defendants. However, in his opening statement for the defense he concentrated his comments on the innocence of Mrs. Maldonado. Mrs. Maldonado was involved only as an employee of Reliance Escrow during the period in question. He thereafter called her as a defense witness to explain that she started to work there in mid-November 1975, primarily answering-the phones and delivering messages, and that she quit in January 1976. Meanwhile, she was there when the escrow agent, Louise Jones, discovered that her files had been burglarized. Mrs. Maldonado had not [514]*514disclosed her relationship to Ron Noday. Maldonado on direct testified that Louise Jones, a part-owner of Reliance Escrow (one of the three victims in the grand theft count), told Maldonado that “I believe this is the work of Steven Jones and Ron [Noday].” Mrs. Maldonado remained until January 21, 1976, when her apartment was burglarized. She reported this to Louise Jones who said that “maybe the same people that robbed me [Louise Jones] robbed you [Maldonado].” Noday claims that although this testimony was damaging to him Gillis made no attempt to impeach Maldonado or to have this evidence stricken. Gillis did, however, elicit testimony from Louise Jones, subsequently called, that Maldonado never told her about the burglary at Maldonado’s apartment, thus implicitly denying the comment.
Defendant Noday did not testify in his own defense and claims that Gillis prevented him from so doing. Gillis presented no evidence to refute the prosecution’s case with respect to Noday, explaining in his declaration that he had relied on the testimony of codefendant William Beverly (Bev) Smart, whose trial was segregated from that of defendants Noday and Maldonado, to exculpate Noday.
In his declaration dated August 8, 1980, Bev Smart alleges that he is currently imprisoned at Chino; that during the Noday trial he maintained almost daily contact with Stephen Gillis and obtained daily reporter’s transcripts of the trial; that he repeatedly assured Gillis of his willingness to testify and to give exculpatory evidence on behalf of No-day; that he was acquitted of the charges of which Noday was convicted; that he often ate breakfast or lunch with Gillis or Mr. Noday’s father in the criminal courts building; that he recalled that he had been seen eating alone with Gillis more than once by two or more trial jurors; and that his identity was well known to the jurors. Smart alleges specifically that “At some point in [Noday’s] trial, without my knowledge or consent, Mr. Major [Smart’s attorney] appeared and indicated I would not testify and if compelled to do so would decline based on the Fifth Amendment to the United States Constitution”; that his attorney was not authorized to do this; and that “[thereafter I continued to meet with Mr. Gillis and closely follow the progress of the trial. The topic of my testimony was never again discussed.”
Gillis in his declaration alleges agreement with Smart’s declaration and states: “My entire strategy in the proceedings in question depended on the testimony of Mr. Smart. Due to the availability of that testimo[515]*515ny I felt I could represent both defendant Noday and defendant Maldonado without a conflict of interest. I now feel such a conflict existed even prior to the trial.” Gillis further alleges that having Smart’s testimony he believed Noday would not have to testify and there would be no chance of either client damaging the other; that he was caught off-guard and by surprise by a last minute change of heart by the now-deceased counsel for Smart; that due to the intervention of his attorney Smart did not testify and Gillis had no evidence with which to defend Noday on the conspiracy to commit murder and grand theft counts; that Noday wanted to testify and a conflict of interest developed because Gillis felt if Noday testified he might implicate Maldonado; that had he had any indication prior to trial that Smart would not testify he would have declared a conflict and declined multiple representation. Gillis finally alleges that the only offer made in pretrial negotiations by the prosecution was a dismissal of Maldonado in return for a plea by Noday, and that during the period of trial proceedings prior to opening argument defendant Noday was before the jury in jail garb.
Maldonado in her declaration alleges that after she and Noday were indicted by the grand jury Noday’s father agreed to obtain defense counsel for her; that he obtained Stephen Gillis; that she paid no fee to Gillis; that prior to commencement of trial she never met with Gillis “other than in court”; that when questioned by the judge she did as she was told and said it was fine for Gillis to represent her as well as No-day; that she didn’t understand the import of this; and that Gillis did not prepare her to testify or review her testimony with her prior to the time she took the stand.
The trial of these defendants was concluded on January 3, 1977. A review of the record as a whole discloses that throughout the trial Gillis vigorously opposed introduction of various items of evidence by the prosecution and engaged in cross-examination of various witnesses, some of whom were recalled to testify further during the defense. However, following the representation of Smart’s counsel that his client would base his refusal to testify on the Fifth Amendment, Gillis declined to call Smart and rested the defense. Closing arguments to the jury were not transcribed.
There is no indication in the record that Gillis at any time informed the court that a conflict of interest had arisen or was present or that it influenced his decision to advise Noday not to testify and he did not [516]*516move for a mistrial. The issues of conflict of interest and ineffective assistance of counsel were not raised on Gillis’ motion for new trial or on appeal.
Issues
By this petition for a writ of habeas corpus defendant attacks the judgment of conviction basically contending (1) that his waiver of the right to separate counsel was ineffective; and (2) that he was deprived of effective assistance of counsel by an actual conflict of interest which adversely affected his trial lawyer’s performance.
Discussion
I
The constitutional right of a criminal defendant to the effective assistance of counsel is among those most zealously protected in both state and federal courts and it encompasses the right to retain counsel of defendant’s own choosing. (People v. Byoune (1966) 65 Cal.2d 345, 348 [54 Cal.Rptr. 749, 420 P.2d 221].) The California Supreme Court has pointed out that the “state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources —and that that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” (People v. Crovedi (1966) 65 Cal.2d 199, 207-208 [53 Cal.Rptr. 284, 417 P.2d 868].)
In accord with this principle, a criminal defendant may request and obtain separate court-appointed or retained counsel (People v. Chacon (1968) 69 Cal.2d 765 [73 Cal.Rptr. 10, 447 P.2d 106]) or he may freely and voluntarily agree to dual or multiple representation by the same attorney, whether retained or court-appointed (Klemm v. Superior Court (1977) 75 Cal.App.3d 893 [142 Cal.Rptr. 509]; People v. Superior Court (Mroczko) (1979) 94 Cal.App.3d 626 [156 Cal.Rptr. 487]). A criminal defendant may also waive, knowingly and intelligently, the right to counsel and elect self-representation to present his case. (Faretta v. California (1974) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].)
[517]*517Defendant Noday in the petition before this court attacks the validity of his waiver of dual representation on grounds that it was not knowingly and intelligently given. The record, however, discloses that this defendant is a man of intelligence with the capability of planning and carrying forward transactions of a business nature which require considerable knowledge and sophistication.
In addition, he had by the time of these trial proceedings acquired some prior experience with courtroom proceedings as indicated by the fact that he was already incarcerated for a 15-year term in federal prison. The superior court file shows that at time of sentencing on February 7, 1977, before the trial judge (Kathleen Parker) the probation report was not ready and the probation officer requested another week to complete the report. Defendant Noday’s counsel (Mr. Gillis) advised the court that “Mr. Noday is serving a 15-year federal sentence now, Mr. Noday was charged and convicted of first-degree murder, ..."1 The defendant would not agree to a week’s continuance for the purpose of completing the probation report and requested immediate sentencing. He then waived a probation report and was sentenced as previously indicated. The foregoing is supported by the reporter’s transcript of September 23, 1977, at the sentencing of Smart to state prison by Judge Delbert E. Wong, in which Smart’s counsel advised the court that Noday was in the federal penitentiary at Leavenworth, Kansas.
When defendant Noday appeared before the court in the case at bench, he was questioned by two different judges. On both occasions he clearly and unequivocally declared his intention that Stephen Gillis was his free choice as counsel, and in respect to the court’s admonition regarding the likelihood of a conflict, he indicated that he understood and accepted the risk.
[518]*518Judge Ritzi on September 23 stated to defendants Noday and Maldonado, amongst other things, “[I] want to make it emphatically understood—that there may be a conflict of interest here that would injure either one or both of you.” The court asked Noday personally, “Now, do you understand that also, Mr. Noday?” Defendant Noday replied, “Yes, I do.” Judge Ritzi then asked Noday if he wanted Mr. Gillis to represent him and Noday replied “Yes.” Judge Ritzi then asked defendant Noday, “Do you waive any conflict of interest?” to which Noday replied, “Yes.”
At the December 6 hearing before Judge Parker defendant Noday acknowledged that he had been previously advised that “there is a possibility where you have two defendants represented by the same counsel that there may be a conflict of interest.” Judge Parker then asked of defendant Noday “and it is my understanding that, despite a possible conflict of interest that may develop, you wish to have Mr. Gillis represent you in this case.” Defendant Noday replied, “Yes.”
Thus, the Sixth Amendment waiver was established by clear, unequivocal and unambiguous language. (United States v. Garcia (5th Cir. 1975) 517 F.2d 272, 278.)
The trial court upon inquiry was in addition advised by Gillis that no conflict existed. In view of the ethical obligation of attorneys to avoid conflicting representation and to advise the court when a conflict arises, the court was entitled to rely upon this representation. Defendant Noday gave no hint of doubt or objection with respect to Gillis’ representation. The only person to express doubt was the prosecutor at time of trial, when he mentioned the tape that revealed Maldonado’s name. However, an off-the-record discussion with Gillis apparently satisfied him since he pursued the subject no further. In fact, with the aid of hindsight we observe that the reference to Maldonado on the tape obviously did not sufficiently implicate her to influence the jury which acquitted her on both counts.
Clearly a criminal defendant is not prohibited from retaining and utilizing the services of an attorney who represents additional codefendants, even though that course may to others seem unwise. (People v. Cook (1975) 13 Cal.3d 663, 671-672 [119 Cal.Rptr. 500, 532 P.2d 148]; see also Holloway v. Arkansas (1977) 435 U.S. 475 [55 L.Ed.2d 426, 98 S.Ct. 1173].) The United States Supreme Court has held that a defendant in a state criminal trial may knowingly waive his [519]*519right to counsel and represent himself regardless of the potential for serious adverse consequences resulting from such choice, and that in the aftermath of such self-representation the defendant may not complain with respect to the self-inflicted damages. (Faretta v. California, supra, 422 U.S. 806.) Similarly, although a criminal defendant is entitled to an effective defense, courts have carefully protected his right to choice of representation which necessarily includes the right to use the services of a retained lawyer who represents multiple defendants. Therefore, while it is incumbent upon the trial court to inquire into the circumstances sufficiently to ascertain that the waiver of separate counsel is knowing and intelligent, there is a limit upon the court’s interference and the court need not initiate inquiries in every case. “[AJbsent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. ...” (Cuyler v. Sullivan (1980) 446 U.S. 335, 346-347 [64 L.Ed.2d 333, 345-346, 100 S.Ct. 1708], fn. omitted.) In the case at bench the trial court was aware that at prior proceedings the trials of codefendants Bev Smart and Jones had been segregated, thus presumably reducing the potential for conflict, and was assured by counsel that there was an absence of conflict between the two codefendants appearing for trial.
In summary, defendant has failed to demonstrate any fatal defect in the manner in which the trial court, on two separate occasions, explored his waiver of the right to separate counsel. To the contrary, the record discloses a knowing and intelligent waiver on the part of defendant Noday.
II
Defendant Noday secondly contends that he was deprived of the effective assistance of counsel and has enumerated various alleged errors and omissions on the part of trial counsel in support of his claim. Multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. In this regard it has been held that a defendant who objects to multiple representation should have the opportunity to demonstrate to the trial court the existence of potential conflicts; on the other hand a defendant who raised no objection must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. (Cuyler v. Sullivan, supra, 446 U.S. 335, 348-350 [64 L.Ed.2d 333, 346-347].)
[520]*520We have held that the defendant knowingly and intelligently waived his right to separate counsel in the face of an unambiguous and clear advisement by the court that joint representation could present a very substantial conflict so far as his defense is concerned. This holding constitutes an impediment to his claim that he was deprived of effective assistance of counsel.
Giving defendant the benefit of every doubt, he is nonetheless precluded from claiming this defect, which was not raised on appeal, except, possibly, with respect to actual conflict or evidence of ineffective assistance of counsel which was unrelated to the fact of multiple representation.
To put it another way, in view of the knowing and intelligent waiver and the strong warning given Noday by the court he can no more claim prejudice by reason of joint representation than a defendant could claim by reason of self-representation after a Faretta waiver.
In any event, as a practical matter, Noday’s claims pertaining to any prejudice suffered by reason of the conflict of interest problem which developed are essentially encompassed in or subsumed by Noday’s complaints in respect to ineffective representation discussed below. If Noday could properly establish ineffective representation, he would, in effect, be afforded the very relief sought by reason of any conflict of interest."
Defendant Noday initially claims Gillis rendered ineffective assistance by (1) conducting an inadequate investigation of the case before advising clients and court of the absence of conflict; (2) not advising his clients of the risks in dual representation; (3) failing to obtain their written consents to dual representation; and (4) misleading the court into believing the conflict situation had been adequately handled. Clearly these allegations, even if true, were cured by the court’s interrogation of defendant Noday as to his waiver on two occasions, set forth above.
Gillis admits the truth of defendant Noday’s further allegations that Gillis frequently and in view of jurors lunched with Bev Smart, charged as a coconspirator, and that Gillis permitted defendant to appear in court during jury voir dire in jail clothing. At the time trial commenced and opening argument was made to the jury defendant appeared in a business suit and Gillis’ declaration discloses no reason for his earlier [521]*521appearance in jail apparel. Defendant apparently gave no indication of a preference for more suitable dress nor does he suggest that he objected at trial to having Smart in the courtroom or to Smart’s socializing with defense counsel. It cannot be said that these circumstances alone, neither of which is related to Gillis’ dual representation, constituted significant evidence of ineffective assistance of counsel.
Defendant Noday, in addition, alleges that Gillis slighted Noday in his opening statement for the defense and elicited testimony damaging to Noday from Maldonado. The record discloses that Gillis emphasized Maldonado’s ignorance and innocence in opening argument while making minor reference to defendant Noday. Again this does not constitute sufficient evidence that Noday had ineffective assistance of counsel since we may surmise that this was a tactical decision. As to Maldonado’s testimony, her reference to a hearsay statement by Louise Jones was directly refuted by Louise Jones’ own testimony when she specifically denied the conversation. In the absence of a record, we may not assume that Gillis’ closing argument to the jury pointed out Maldonado’s credibility thereby by implication discrediting defendant or defendant’s failure to testify, as he argues.
We turn now to the principal thrust of defendant Noday’s claims which relate to Gillis’ failure to present an exculpatory defense for him, his refusal to permit defendant to testify, his failure to make the existence of a conflict known to the court when he became aware of it or to make a record of its existence, and to fail to raise the presence of conflict on his motion for new trial or on appeal. It may be inferred from the declarations of Gillis and Smart that Gillis in planning trial strategy relied heavily upon the promised exculpatory testimony of Smart, who established himself as a friendly witness, lunched with Gillis, obtained trial transcripts presumably for his own benefit, yet was not called as a witness after his attorney (allegedly without Smart’s knowledge or consent) represented that Smart would seek Fifth Amendment protection. Gillis in the absence of Smart’s testimony nonetheless advised Noday not to take the witness stand out of a purported concern that he would implicate Maldonado and thus we are told an actual and unforeseen conflict arose.
Accepting as true the assertion that the circumstances were unforeseen, this does not supply grounds for relief. Nowhere in the entire record, in the declarations of Gillis or Smart or the allegations and petition filed by Noday, is there a hint of the nature of the allegedly [522]*522exculpatory testimony Smart might have given, or to which Noday might have testified.
It is now well established that in order for a criminal defendant to raise the issue of ineffective assistance of counsel he must demonstrate that by counsel’s failure to perform his obligations the defendant was deprived of a “potentially meritorious defense.” (People v. Pope (1979) 23 Cal.3d 412, 424-425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R. 4th 1].) While the conduct of trial counsel insofar as he failed to draw his predicament to the attention of the trial court to seek a solution, or to seek review of the issue on subsequent appeal should not be condoned, the record presented to this court fails to demonstrate grounds for habeas corpus relief.
As recently as 1980 in People v. Jackson (1980) 28 Cal.3d 264, 294 [168 Cal.Rptr. 603, 618 P.2d 149], the California Supreme Court in affirming a death penalty case on automatic appeal also denied the defendant’s petition for habeas corpus relief based on his claim that he was ineffectively represented by trial counsel citing as authority and thereby reaffirming its holding in 1969 in the case of People v. Hill (1969) 70 Cal.2d 678 [76 Cal.Rptr. 225, 452 P.2d 329],
In People v. Hill, supra, 70 Cal.2d 678, the state Supreme Court said at pages 690-691: “To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him. (People v. Lugo, supra, 220 Cal.App.2d 54, 59 [3] [33 Cal.Rptr. 572].)”
In the case at bench defendant Noday has failed to make a showing that there were in fact exculpatory circumstances, and that Smart’s testimony would have disclosed a meritorious defense, or that the reasons defendant Noday failed to testify were in fact the result of a conflict rather than a strategy formulated on other grounds.
Defendant Noday, who is presumably most intimately familiar with the events, fails to allege the substance of the testimony which he claims he might have given in his own defense. For example, of particular significance would be his (Noday’s) testimony to rebut the evidence consisting of the FBI taped telephone conversations between himself (Noday) and Pelham on April 8, 1976, wherein Noday offered Pelham [523]*523$50,000 (less $11,500 he had already given Pelham to murder Porter) to murder Dave Powers and Mark Coffman, government witnesses in a federal prosecution against him (Noday). (See appen. A.)
Although defendant Noday argues that Gillis presented no evidence in his defense as a result of Smart’s defection, the record shows that Gillis vigorously attacked the admission of various items of prosecution evidence and cross-examined witnesses on behalf of the defense. There is no showing that defendant was prejudiced by his failure to testify.
Ill
In summary, this case involves a defendant who is presently serving a federal sentence (see fn. 1, ante) concurrently with the sentence in the instant case and who now seeks this court to afford him a new trial in the instant case and a second bite at the apple after being convicted by jury for conspiracy to commit murder in early 1976 (over five years ago), a conviction which was affirmed by this court in early 1978 (over three and one-half years ago).
Defendant Noday is subject to the same laws as all convicted California felons—no more and no less.
We hold that defendant Noday knowingly and intelligently waived his right to separate trial counsel having first been clearly advised by the court that joint representation could “present a very substantial conflict so far as [his] defense is concerned.”
We further conclude that the defendant’s claim of ineffective representation of counsel, which essentially comprises his claims pertaining to prejudice suffered by him by reason of the conflict of interest problem, also fails in that he has not disclosed to this court the testimony of the alleged additional defense witness(es) from which we can determine whether or not such testimony is material, necessary or admissible or whether or not the defense counsel did not exercise proper judgment in failing to call such witness(es), as required by law.
We agree with the dissent that a ban on joint representation in felony matters or, alternatively, the mandatory severance of trials in which co-defendants employ joint representation would be an expedient means of eliminating the problems of joint representation. However, we are mindful both of the increasing expense of legal representation and the [524]*524onerous burden which the mandatory severance of trials could impose upon the courts. At present, meaningful data on the scope of the problems of joint representation—the percentage of instances in which conflicts occur of sufficiently substantial magnitude to interfere with effective representation—simply is not available. Accordingly, we consider the problem to be one which is primarily the responsibility of the State Bar and call upon that body to meet the challenge of investigating the facts and developing rules of professional conduct sufficiently stringent to alleviate the worst aspects of joint representation.
Disposition
The petition for a writ of habeas corpus is denied.
Spencer, P. J., concurred.