Filed 3/26/13 P. v. Lozano CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D059304
Plaintiff and Respondent,
v. (Super. Ct. No. SCS216495)
ANTONIO JESUS LOZANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed as modified.
Antonio Lozano was convicted by jury of five felonies arising out of shooting and
kidnapping incidents 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 assault with a semi-
automatic firearm (Pen. Code,1 § 245, subd. (b)), and jury findings that he personally
1 All undesignated statutory references shall be to the Penal Code. 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).)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.
2 Because several individuals involved in this record are named Garcia, we will utilize their first names or titles to identify them.
2 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
3 the conditional exam. On either ground, Lozano claims the admission of that evidence
irretrievably tainted these convictions. (Crawford v. Washington (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
4 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
INTRODUCTION
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
5 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
6 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
7 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.
8 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 legal representation.
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.
9 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.3
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
3 On appeal, Lozano makes no argument that the prosecution was not diligent in attempting to produce Verduzco as a witness.
10 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.
11 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.
12 II
STANDARDS FOR EVALUATING CONSTITUTIONAL 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." (Rundle, supra,
43 Cal.4th 76, 168.)
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." (People v. Bonin (1989) 47 Cal.3d 808, 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; Mickens,
supra, 535 U.S. 162, 166, 172-176; Strickland, supra, 466 U.S. 668, 694.)
In Doolin, the Supreme Court outlined the 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
13 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 Mickens, supra, 535 U.S. 162, 176, the 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 Sixth Amendment right to counsel,
the 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.)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
4 Under rule 3-310(B)(1), an attorney may not accept or continue representation of a client without disclosure where "(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter." Under rule 3-310(E), an attorney shall not, without informed written consent of the client or former client, "accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." Under rule 3-700(B)(2), an attorney who represents a client in one matter shall withdraw from that employment, if the attorney "knows or should know that continued employment will result in violation of these rules."
14 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 federal constitutional rights.
(Chapman v. California (1967) 386 U.S. 18, 24.)5
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
5 Where use of former testimony violates a defendant's right to confrontation, the test for error is whether the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24; Lilly v. Virginia (1999) 527 U.S. 116, 139-140.) The " ' "indicia of reliability" prong of the confrontation clause analysis is satisfied if there was an adequate opportunity for the defendant to cross-examine the witness and counsel took advantage of that opportunity." ' " (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1434-1435, 1444.)
15 (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 In re Darr, supra, 143 Cal.App.3d 500, 509.)
16 III
APPLICATION OF STANDARDS
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." (Id. at p. 971.) In that case, the witness cooperated with the
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. (Ibid.) 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 In re Darr, supra, 143 Cal.App.3d 500, 510-511, the record showed that the
same 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
17 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.
18 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
19 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 In re Darr, supra, 143 Cal.App.3d
500, 512-514 or LaVallee, supra, 282 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
20 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); People v. Bonin, supra, 47 Cal.3d at p. 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.
21 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 Jackson, supra, 3 Cal.4th 578, 616, the problem was that defense counsel had
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 Strickland v. Washington, supra, 466 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,
22 supra, at p. 614.) "[T] here is no reasonable probability that the judgment . . . was
affected by counsel's failure to conduct such an investigation." (Id. at p. 616.) "Although
another attorney reasonably 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,
23 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
24 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.
25 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.