PEOPLE v. PINKINS

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Johnnie Lee PINKINS, Defendant and Appellant. IN RE: Johnnie Lee PINKINS on Habeas Corpus.

Nos. F012232 and F013789.†

Decided: July 31, 1990

Fern M. Laethem, State Public Defender and Steven Meinrath, Deputy State Public Defender, Sacramento, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

OPINION

An information filed October 19, 1988, charged appellant Johnnie Lee Pinkins with two counts of residential burglary, violations of Penal Code section 460, subdivision (1).1  The information also contained six enhancement allegations for prior prison terms and prior serious felonies, based upon three earlier convictions of burglary or attempted burglary.   Appellant pleaded not guilty and denied the allegations.

On December 13, 1988, the court granted appellant's motion to bifurcate the issue of the prior convictions from the guilt phase;  the court denied his motion to exclude use of the prior burglary convictions for purposes of impeachment if he chose to take the stand.   The court permitted the district attorney to amend the information in several minor ways.

Jury trial began on December 14 after the trial court denied appellant's motion to exclude two witnesses from identifying appellant based upon his claim of unduly suggestive in-field identifications.   The trial concluded the next day and the jury found appellant guilty of first degree burglary in the first count and of the lesser offense of trespass in the second count.

The court heard and found true allegations of three serious prior felony convictions.  (§ 667.)   Various post-conviction assaults on the verdict and enhancements were turned aside by the court.   At sentencing the court denied probation, imposed the aggravated term on the burglary conviction of six years in state prison;  the sentence was enhanced by fifteen years for the three prior serious felony convictions.   Concurrent time in county jail was imposed on the trespassing conviction.   The court also imposed a fine of $100.

Appellant filed a timely notice of appeal.

I

FACTS

Late in the night of September 20, 1988, Ruben Rubio heard an unusual noise in his children's bedroom.   A night light was on in the room.   Rubio saw a bulge behind the window curtains and began yelling to his wife.   He pulled the curtains aside and saw a man, identified as appellant, with his upper torso inside the room.   Appellant pulled back out of the window.   Rubio set out to chase him away but soon realized he was wearing only his shorts.

Police arrived five to ten minutes later.   They got Rubio's description of the intruder.   Perhaps 45 minutes later the police returned and asked Rubio to come and see if he could identify a suspect.   When taken to where appellant was detained, Rubio identified him as the intruder.

Santiago Gonzalez testified that on the same night, he too heard a sound and investigated.   Someone had opened the window in the living room and he thought someone was inside.   When he opened the curtains he saw a man, identified as appellant, running away.

A short time later appellant was apprehended.   Gonzalez also went to an in-field identification and identified appellant.

Appellant's counsel questioned the witnesses closely on the accuracy of their identification;  he also questioned the witnesses and arresting officer about whether appellant appeared to be under the influence of drugs or alcohol that night.

It came out at the preliminary hearing that Mr. Rubio, the victim of the burglary, had been a client of the Kern County Public Defender's office:

“CROSS EXAMINATION [¶] BY MR. GONZALEZ [Public defender]:

“Q. Sir, what's your middle name?

“A. Soliz.

“Q. What's your date of birth?

“A. 2/4/58.

“Q. You have been represented by the public defender here in Kern County?

“A. Yes, I have.

“Q. Are you on probation right now?

“A. Yes.”

Material presented in a request for judicial notice on the current appeal and as an exhibit in the consolidated petition for writ of habeas corpus shows Rubio had used the services of the public defender's office on several occasions between 1982 and 1986.   In five cases involving misdemeanor counts of driving under the influence of alcohol, being under the influence of a controlled substance and possession of hashish, Rubio was represented by the Kern County Public Defender's office.   At the time of trial he was on probation.

Appellant contends on appeal his appointed public defender had a conflict of interest which the court failed to act upon;  that his counsel provided ineffective assistance mandating reversal, and that the trial court improperly enhanced his sentence based upon his 1977 conviction of first degree burglary.

DISCUSSION

IIThe Court's Failure to Act on the Conflict of Interest is Not a Dispositive Issue in This Case.***

III

Trial Counsel Did not Provide Ineffective Assistance of Counsel Mandating Reversal.2

A. Conflict of Interest

Appellant contends he was deprived of his constitutionally protected right to effective counsel because of his counsel's conflict of interest involving one of the complaining witnesses.   Appellant also claims counsel's neglect to secure the services of an expert to explore the failings of eyewitness identification and the unadvised withdrawal of the defense of intoxication evidenced ineffectiveness.

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.  [Citations.]  The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result.

“․

“Under this right, the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake.   But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation․

“ ‘A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components.’   [Citations.]  ‘First, the defendant must show that counsel's performance was deficient.’  [Citations.]  Specifically, he must establish that ‘counsel's representation fell below an objective standard of reasonableness ․ under prevailing professional norms.’  [Citations.]

“In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny.  [Citations.]”  (People v. Ledesma (1987) 43 Cal.3d 171, 215–216, 233 Cal.Rptr. 404, 729 P.2d 839.)

 First, we must consider the claim surrounding the conflict of interest.  “Included in the right to the effective assistance of counsel is ‘a correlative right to representation that is free from conflicts of interest.’   [Citations.]”  (People v. Bonin, supra, 47 Cal.3d at p. 834, 254 Cal.Rptr. 298, 765 P.2d 460.)   On such an ineffectiveness claim appellant must demonstrate that his counsel actively represented conflicting interests.  (See People v. Easley, supra, 46 Cal.3d at p. 724, 250 Cal.Rptr. 855, 759 P.2d 490.)

 In Leversen v. Superior Court (1983) 34 Cal.3d 530, 194 Cal.Rptr. 448, 668 P.2d 755, the California Supreme Court held that the trial court erred in failing to allow a defense attorney to withdraw because of a conflict of interest where his law firm previously had represented a prosecution witness in a different proceeding.   Counsel emphasized that the conflict was based upon the possession of privileged information.   Thus, based on Leversen, we can say that a potential conflict of interest exists where an attorney, or member of his firm, represents a criminal defendant and has previously represented a witness for the prosecution.

 Here, appellant's attorney, Mr. Owens, a member of the public defender's office, did not personally represent Rubio in any of the prior proceedings.   However, several of his colleagues in the public defender's office did represent Rubio.   With private law firms, the conflict of one member becomes the conflict of all members.   In the private setting, if one attorney could not represent a client because of a conflict of interest, then all other attorneys at the firm would be similarly disqualified.  (See ABA Model Code Prof. Responsibility, DR 5–105(D);  ABA Model Rules Prof. Conduct, rule 1.10.)

 A threshold question here is whether we will hold a public defender's office to the same standards as a private law firm when evaluating the existence of a conflict of interest.   This appears to be an open question in California.   Other jurisdictions are split on the issue.

Favoring a finding that the public defender's office should be treated like a private firm is, first, the California State Bar Rules of Professional Conduct, rule 1–100(B).

“(1) ‘Law Firm’ means:

“․

“(d) a publicly funded entity which employs more than one lawyer to perform legal services.”

The Standing Committee on Professional Responsibility and Conduct of the State Bar of California has interpreted rule 4–101 (now rule 3–310(D)) of the State Bar Rules of Professional Conduct, which proscribes employment by an attorney that is adverse to a client or former client, as applying to the public defender in a situation similar to ours.  (Formal Opinion No. 1980–52.)

“For all of the above reasons, the Committee is of the opinion that the public defender (or any counsel) should not undertake to represent a client where it is reasonably forseeable [sic ] that the confidences or secrets of a former client may be, or reasonably appear to the client to be, used.   Normally such situations will involve only cases in which the credibility or capacity of the first client is or may be in issue, but may reach to other questions, such as the culpability of the first client or the client's motive in working with or for the authorities.”  (Ibid.)

The American Bar Association's Model Rules of Professional Conduct, rule 1.10, states its general rule of imputed disqualification, and in its comment to the rule included, “․ lawyers in legal aid,” as coming under the rule.

Further, the Attorney General at one time opined that the public defender's office must be treated similarly to private firms where conflicts of interest are involved.   The question presented was:

“May a public defender maintain two separate and distinct divisions within his office, the sole purpose of one such division being to handle criminal defendants entitled to representation by the public defender where there is a conflict between the interest of that defendant and another defendant represented by the other division?”  (59 Ops.Cal.Atty.Gen. 27 (1976).)

The Attorney General concluded:

“Where a public defender cannot represent a criminal defendant because of a conflict of interest, none of his deputies may represent such defendant even though they are part of a separate division of the office established for that purpose.”  (Ibid.)

He found:

“In cases handled by the public defender's office it is the officeholder who is the attorney of record.   The members of his staff are deputies.   As such they exercise the powers and perform the duties of the public defender.  Gov.Code §§ 7, 1194, 24100.   They act on behalf of the public defender.   Where two deputies represent conflicting interests in the same case, it is the same as one public defender representing both interests.”  (Id. at p. 29.)

Finally, Associate Justice Mosk in his dissent in People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859—believing immediate relief should have been afforded the defendant—recited additional grounds for relief based upon the public defender's ongoing representation of a witness whom the defendant intended to accuse of the crime.  (Id. at pp. 434–435, 152 Cal.Rptr. 732, 590 P.2d 859.)   This was a patent conflict of interest necessitating reversal, according to the dissent.   In the course of this finding the dissent noted:

“With respect to conflicts of interest, it is clear that a public defender's office must be treated the same as a law firm.   Thus, as one commentator has observed, ‘The reason for viewing the office of the public defender as a firm for purposes of ethical regulation is a sound one․  [T]he close association of the attorneys in the public defender's office makes it possible that confidential information will be inadvertently circulated.   The necessity of utilizing the services of the same investigator, the inevitable discussions occurring in the office among the attorneys, and the overlapping sources of information from identical witnesses all contribute to this possibility.   Furthermore, public confidence in the public defender and the Bar as a whole must be maintained.   In order to do this, lawyers must “not only avoid evil, but also the appearance of evil.”  ․ By appointing separate attorneys for individual defendants where there is alleged conflict, the courts uphold not only the individual's constitutional rights and protections, but also the integrity of the entire criminal justice system.’  (Fns. omitted.)  (Comment, (1977) 5 Fla.St.L.Rev. 492, 504–505).”  (Id. at p. 435, fn. 2, 152 Cal.Rptr. 732, 590 P.2d 859.)

The only contrary state authority appears to be People v. Anderson (1976) 59 Cal.App.3d 831, 131 Cal.Rptr. 104.   In that case, the defendant claimed ineffectiveness of counsel as the public defender's office had represented a witness in the matter two years previously;  the witness was on probation at the time of defendant's trial.   The public defender moved pretrial to be relieved and the trial court denied the motion.   The court found defendant failed in his burden to show ineffectiveness as a demonstrable reality or that such ineffectiveness of counsel reduced the trial to a “ ‘farce or a sham.’ ”  (Id. at p. 844, 131 Cal.Rptr. 104.)   The case appears to be of limited usefulness as it predates both Pope, which set a lesser standard in establishing ineffectiveness, and a series of United States Supreme Court cases which clarified what constitutes an adequate showing of a conflict.   (E.g., Wood v. Georgia (1981) 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220;  Cuyler v. Sullivan (1980) 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333;  Holloway v. Arkansas (1978) 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426.)

The only other California case we find which has some bearing on the question is Vangsness v. Superior Court (1984) 159 Cal.App.3d 1087, 206 Cal.Rptr. 45.   In that case the public defender twice before had represented a prosecution witness.   The public defender, apparently a different deputy, representing the defendant brought the issue before the court.   The defendant desired to waive the conflict.   However, at the insistence of the witness, who refused to waive the conflict, the court relieved the public defender over defendant's protests.   The appellate court overruled the trial court.   It found no basis to disbelieve the public defender's assurance that he would not use against the witness any information gathered in the brief, prior contacts with the witness.   The court was unhappy with the notion that a prosecution witness could force the defendant to lose his attorney of choice.  (Id. at p. 1091, 206 Cal.Rptr. 45.)

We find the relevant California law favors treatment of the public defender's office in a manner similar to that in which private law firms are treated in conflict of interest situations.

The courts of several other jurisdictions have faced the same issue.   Some courts unequivocally have found that public defenders' offices or legal aid offices are to be treated like law firms for purposes of conflicts of interest.  (Babb v. Edwards (Fla.1982) 412 So.2d 859, 861;  Com. v. Westbrook (1979) 484 Pa. 534, 400 A.2d 160, 162;  State v. Stevenson (1978) 200 Neb. 624, 264 N.W.2d 848, 853;  Allen v. District Court in and for Tenth Jud. Dist. (1974) 184 Colo. 202, 519 P.2d 351, 353;  see also Estep v. Johnson (D.Conn.1974) 383 F.Supp. 1323, 1325–1326.)   Other courts have declined to apply a per se rule of disqualification for conflict of interests when dealing with public legal service entities.  (State v. Bell (1982) 90 N.J. 163, 447 A.2d 525, 527;  People v. Robinson (1980) 79 Ill.2d 147, 37 Ill.Dec. 267, 272, 402 N.E.2d 157, 162;  and see People v. Wilkins (1971) 28 N.Y.2d 53, 320 N.Y.S.2d 8, 9, 268 N.E.2d 756, 757;  Annot. (1982) 18 A.L.R.4th 360, 394.)

In Wilkins, a New York case, which held that public legal groups would be treated differently than private firms, the court noted the large size of the Legal Aid Society, with four branches, three units and over one hundred fifty lawyers, made it unlikely that confidential information would pass from one deputy to another.  (People v. Wilkins, supra, 320 N.Y.S.2d at p. 10, 268 N.E.2d at p. 758.)   While this might apply to cities like New York, Los Angeles and San Francisco, we do not think the same can be said of many of the rural counties served by this court.   Also, Wilkins was decided in 1971 when an association of 150 lawyers apparently was thought to be beyond the ken of private firms.   Such is not the case now;  no matter the size of the private firm, imputation of confidential knowledge will take place.

In State v. Bell, a New Jersey case, the court considered three factors in declining to apply a per se rule of imputing confidential knowledge to all public defender deputies when the office was representing codefendants with adverse interests.   The court looked to the factors of confidential information, the nonexistence of a financial incentive and the nature of public confidence if no disqualification occurred in deciding the matter.  (State v. Bell, supra, 447 A.2d at p. 527.)

Perhaps more persuasively, the court in Robinson, supra, 37 Ill.Dec. 267, 402 N.E.2d 157, after considering many of the cases cited here, concluded:

“Upon review of the authorities and consideration of the diversity of organization of the offices of the public defenders, we conclude that the avoidance of conflicts of interest which result in failure to provide effective assistance of counsel does not require us to hold that the individual attorneys who comprise the staff of a public defender are members of an entity which should be subject to the rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation.   In many instances the application of such a per se rule would require the appointment of counsel with virtually no experience in the trial of criminal matters, thus raising, with justification, the question of competency of counsel.   Balanced against this is the possibility, in most instances quite remote, that an experienced member of the public defender's staff might labor under a conflict of interest because another member of the staff was so burdened.”  (Id. 37 Ill.Dec. at p. 272, 402 N.E.2d at p. 162.)

While financial gain does not play a role in creating a community of interest among the attorneys in a public defender's office, perhaps the ideals which lead attorneys to practice in the public service and champion the causes of the accused bind as strongly.   It certainly seems no less likely that information could be shared in the context of a public defender's office than in a private law firm.   Finally, while in some venues the finding of a conflict in the public defender's office because of its representation of some other person might result in a dearth of competent counsel for an accused, it seems appropriate to allow the accused to decide and balance the nature of the conflict versus the availability of other acceptable counsel rather than for this court to state abstractly that such does not constitute a conflict.   The defendant can often waive any perceived conflict of interest.  (See People v. Bonin, supra, 47 Cal.3d at pp. 836–837, 254 Cal.Rptr. 298, 765 P.2d 460;  Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 956–957, 254 Cal.Rptr. 72.)

 The fact that the offenses of the former client who is now a witness are unrelated and concluded at the time of trial does not negate the possibility of a conflict of interest.   This was the holding in Gordon v. State (Mo.App.1984) 684 S.W.2d 888, 891.   We agree.

 After reviewing and considering all of the above, we conclude that public defenders should be treated similarly to, and be subject to the same rules of conduct as, attorneys in private law practice in matters of conflict of interest.   The tension between the duties owed to the former client, including the trust reposed in counsel and confidential matters shared, and the duties owed to the current client to present the most vigorous defense possible, including assailing the credibility of the former client but now prosecution witness, creates a natural conflict of interest.   Therefore, we find here a conflict of interest did exist as to appellant's public defender where the office of the same public defender had previously represented the complaining witness who was currently on probation.  (See Leversen v. Superior Court, supra, 34 Cal.3d at pp. 539–540, 194 Cal.Rptr. 448, 668 P.2d 755.)

 However, in order to prevail on appeal on a claim of ineffectiveness of counsel flowing from a conflict of interest, appellant must demonstrate not only that a conflict existed but that it adversely affected counsel's trial performance.   As the court explained in People v. Easley, supra, 46 Cal.3d at page 725, 250 Cal.Rptr. 855, 759 P.2d 490, we need see whether counsel “ ‘pulled his punches,’ ” that is, whether the conflict affected the vigor of counsel's representation.

The fear of adverse effect in this type of case stems not so much from what counsel did, but rather from what counsel forbore from doing.   We must examine the record for the omission of any arguments or actions which likely would have been made by counsel not laboring under a conflict, and examine counsel's actions for tactical reasons to support the omission.  (People v. Easley, supra, 46 Cal.3d at p. 727, 250 Cal.Rptr. 855, 759 P.2d 490.)

Appellant notes it was crucial to his defense to impeach the correctness of the eyewitness identification.   He contends that had counsel been conflict-free he would have questioned Mr. Rubio more rigorously, including probing an apparent conflict between testimony at the preliminary hearing that he had had nothing to drink on the night of the break-in and his admission at trial that he had had a couple of beers with dinner.   Appellant also seems to suggest that counsel should have sought to use the misdemeanor convictions to impeach the witness.

 Counsel's cross-examination of Mr. Rubio, including his ability to perceive and recall, spans 24 pages of reporter's transcript.   His questioning appears adequate, touching all important issues.   We are fortunate to have counsel's questioning of Mr. Gonzalez, a victim-witness with whom he had no conflict, to compare.   The cross-examination of both men appears very comparable;  certainly, the questions asked Mr. Rubio were no less probing than those asked Mr. Gonzalez.

Appellant emphasizes that counsel failed to develop fully the inconsistencies in Mr. Rubio's testimony at the preliminary hearing where he denied having anything to drink on the night of the intrusion, and his admission at trial that he had had two beers with dinner.   First, it should be noted counsel questioned Mr. Rubio about the consumption of alcohol and drugs;  he did not do so of Mr. Gonzalez.

Counsel did not impeach Mr. Rubio with his inconsistent testimony on the matter of alcohol consumption.   In closing argument he did note other inconsistencies and argue that, taken with other matters, they should raise a reasonable doubt.   Counsel did assail Mr. Rubio's credibility;  failure to impeach with this additional matter does not seem reasonably assignable to a conflict of interest.   We cannot say the failure to impeach because of the inconsistent statements stemmed from the conflict or that it demonstrates “pulling punches.”

 Appellant also complains counsel failed to impeach Mr. Rubio with his history of substance abuse.   While it appears now that there is no absolute ban on the use of misdemeanor convictions for the purpose of impeachment of credibility (see People v. Harris (1989) 47 Cal.3d 1047, 1090, fn. 22, 255 Cal.Rptr. 352, 767 P.2d 619), use of any prior conviction still would have to meet the test of evincing moral turpitude.  (See People v. Castro (1985) 38 Cal.3d 301, 314, 211 Cal.Rptr. 719, 696 P.2d 111.)   Drunk driving and being under the influence of drugs or possession of drugs do not appear to meet this criterion.  (Id. at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.) Also, any use of the evidence in any other context probably would have to pass an Evidence Code section 352 objection and concomitant exercise of discretion by the trial court.

Tactical reasons support the failure of counsel to press heavily on this point.   Every defense attorney must observe that ephemeral line where “persecution” of the victim begins to call forth the sympathies of the jury.   (See People v. Pangelina (1984) 153 Cal.App.3d 1, 7, and fn. 4, 199 Cal.Rptr. 916.)   The evidence of prior conduct is of suspect or, at best, marginal, relevance.   Counsel may have felt the possibility of backlash was too great.   We, therefore, find his representation here to be adequate.

B.–IV †

V

DISPOSITION

Insofar as the court found true the allegation relating to the 1977 conviction, the judgment is modified by striking the five-year enhancement for the 1977 prior conviction imposed under section 667 and the trial court is directed to amend the abstract of judgment to so reflect.   As modified, the judgment is affirmed;  we deny the petition for a writ of habeas corpus.

FOOTNOTES

FOOTNOTE.  

1.   All statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

2.   This issue is raised both on appeal and by way of petition for writ of habeas corpus.

FOOTNOTE.   See footnote *, ante.

BLAINE PETTITT, Judge.** FN** Retired Judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.

MARTIN, acting P.J., and BAXTER, J., concur.

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