PEOPLE v. RHODES

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Court of Appeal, Fifth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Douglas Lamar RHODES, Defendant and Appellant.

Cr. 1534.

Decided: October 29, 1973

John F. Bowman, Fair Oaks, for defendant and appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Roger E. Venturi and W. Scott Thorpe, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

On October 24, 1972 an information was filed in Superior Court charging appellant with forgery in that he passed as genuine an altered money order with intent to defraud. Lawrence W. Clawson (hereinafter ‘Clawson’) was appointed as counsel for appellant and Clawson represented appellant at a jury trial in which appellant was found guilty.

Appellant does not challenge the sufficiency of the evidence to support his conviction. He contends, however, that he was denied his constitutional right to effective assistance of counsel on two bases: First, that because Clawson was a part-time city attorney for the City of Hanford (Kings County) he could not give his undivided loyalty to appellant. Second, that Clawson's representation at trial was inadequate.

STATEMENT OF FACTS

On October 2, 1972 the manager of the Royal Liquor Store in Visalia issued to appellant a Traveler's Express Company money order for the sum of $2. On October 3 appellant paid for some groceries at Finster's Market in Avenal with a money order made out to ‘Trester Bryson’ by ‘George Bryson’ in the amount of $62. This was the same money order which had been issued to the appellant in the amount of $2 the previous day.

Appellant endorsed the money order ‘Trester Bryson’ and listed a false address. Finster, the owner of the market, did not ask him for identification because ‘Tex’ Jordan, a customer in the store, said he had known appellant for a long time. Appellant received groceries and approximately $48 change from the transaction.

After appellant left the store, Finster talked to Jordan for three or four minutes; because of something Jordan said, Finster decided to examine the money order. When he looked at it he noticed that the ‘6’ appeared to be in heavier print, slightly elevated and smeared. He then contacted the Kings County Sheriff's Department.

Later the same day, the appellant attempted to pass a $91 money order at a store in Huron. Appellant identified himself as ‘Trester Bryson’ and produced a Nebraska driver's license in the name of ‘Trester Bryson’ when asked for identification by an officer of the Huron Police Department. Appellant apparently gave Finster as a reference because Finster received a call from somebody at the appliance store while the defendant was trying to pass the second money order.

At trial appellant denied purchasing the $2 money order at Royal Liquor Store; he stated that he saw the money order in question, along with the other one for $91, for the first time on the kitchen table at home. He said the instrument in question was made out in the sum of $62 and that his wife told him the money orders were wedding presents.

Appellant also testified that he had assumed the name ‘Trester Bryson’, and typed that name on the money orders, in order to prevent anyone from discovering that he had been previously convicted of forgery and ‘overdrawing his checking account.’

DISCUSSION

An indigent accused is entitled to have effective counsel appointed by the court at state expense. (In re Williams, 1 Cal.3d 168, 174, 81 Cal.Rptr. 784, 460 P.2d 984; Ligda v. Superior Court, 5 Cal.App.3d 811, 823–824, 85 Cal.Rptr. 744.) Where there is an actual or potential conflict of interest which deprives the accused of the undivided loyalty of his counsel, the injured defendant has been denied his right to effective counsel. (People v. Johnson, 5 Cal.App.3d 851, 861, 85 Cal.Rptr. 485; People v. Pineda, 30 Cal.App.3d 860, 865, 106 Cal.Rptr. 743.)1 Stated another way, effective assistance of counsel is assistance ‘untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.’ (Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680; People v. Chacon, 69 Cal.2d 765, 774, 73 Cal.Rptr. 10, 447 P.2d 106.)

Although the record gives no indication that Clawson was city attorney for Hanford at the time he represented appellant, the identity of a public official is a proper subject for judicial notice. (Evid. Code §§ 452(g) and 459(a); Himmelmann v. Hoadley, 44 Cal. 213, 226; Perry v. Meikle, 102 Cal.App.2d 602, 604, 228 P.2d 17; In re Spiers, 15 Cal.App.2d 487, 491, 59 P.2d 838.) We take notice that Clawson served as city attorney for the City of Hanford at the time he acted as counsel for appellant.

We find in considering the question of whether a city attorney can properly undertake criminal defense work that there is little authority on this point. While Government Code section 26540 prohibits a district attorney during his incumbency from defending or assisting in the defense of any person accused of a crime,2 the statutes contain no provision similarly designed to prevent a potential conflict of interest where a city attorney is involved. Nor have we found any case law in California where the problem has arisen. There are, however, two out-of-state cases which have dealt with the question.

In State v. Garaygordobil, 89 Ariz. 161, 359 P.2d 753, the Nogales city attorney was retained by a defendant accused of wrongfully appropriating public funds. The Arizona Supreme Court held that there was no inherent conflict of interest because (1) such representation did not conflict with the official duties of the city attorney to represent the city and (2) the city attorney was not identified in the minds of the public with the prosecution of criminal cases.

In Karlin v. State, 47 Wis.2d 452, 177 N.W.2d 318, the Wisconsin Supreme Court considered a case in which a part-time city attorney for Manitowac was appointed by the court to represent an indigent defendant accused of burglary. After the preliminary hearing the defendant pled guilty to the charge. Though the court held that there was no actual conflict which served to deny the defendant his Sixth Amendment right to effective representation, the court recognized the potential conflict arising from the city attorney's relationship with the police in the city which he served. Because the city attorney in his role as prosecutor for violations of city ordinances must constantly deal with the police of that city, ‘the temptation might well arise to be not too hard on a police witness who is against your client today but would be the star witness for your prosecution tomorrow.’ (177 N.W.2d at 321.)

Under the reasoning in these cases, a potential conflict could deprive an indigent defendant of effective legal assistance in two situations: The first would be where the representation conflicts with the city attorney's official duties. This would clearly be the case where the city attorney sought to represent a defendant in a case involving a violation of a municipal ordinance which he has a duty to prosecute. There would also be a conflict where the city attorney, under the provisions of Government Code section 41803.5,3 is given authority by the district attorney to prosecute crimes arising out of state law which occur within the city. Indeed, because the city attorney essentially acts as an agent of the district attorney in the prosecution of these cases, he should come under the same restriction as to criminal defense work as is imposed on a district attorney by Government Code section 26540.

The second situation where a potential disabling conflict would exist is where the city attorney represents a defendant in a case in which members of the police department of his city carried out the investigation, made an arrest in the case, or appear as witnesses on behalf of the prosecution. Here it may be said the attorney's loyalty would be divided between the defendant and the police.

In the instant case, Clawson's role as defense attorney did not conflict with his official duties as city attorney of Hanford. Those duties are set forth in general terms in Government Code sections 41801 to 41803,4 and including advising the city on legal matters, framing ordinances and resolutions and ‘other legal services' required by the city's legislative body. One of the other legal services provided by a city attorney is the prosecution of violations of city ordinances. (People ex rel. Chapman v. Rapsey, 16 Cal.2d 636–643, 107 P.2d 388.) Since appellant was tried for forgery, a violation of state law under Penal Code section 470, Clawson's role as defense counsel did not conflict with any duties he had in connection with the enforcement of municipal ordinances. Similarly, there is no indication in the record before us nor does appellant contend that Clawson prosecuted crimes arising out of a violation of state law.5

Likewise, there is no showing that members of the police department of Hanford were involved in the case. The record indicates that appellant was arrested in the town of Avenal by an officer of the Kings County Sheriff's Office. At trial only two police officers testified—the deputy sheriff who booked appellant at Kings County Jail and an officer of the police department of the town of Huron who asked appellant for identification when he tried to negotiate another money order at the store at Huron.

Under the circumstances we find no conflict of interest on the part of defense counsel which violated appellant's constitutional right to effective counsel.6

Turning now to appellant's contention that Clawson's representation at trial was inadequate in the constitutional sense, we preliminarily note that to justify relief on this ground an extreme case must be disclosed; it must appear that counsel's lack of diligence or competence reduced the trial to a farce or sham. (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) Only where counsel's lack of competence results in the withdrawal of a crucial defense can it be said that the defendant has not had the effective assistance to which he is entitled. (People v. Najera, 8 Cal.3d 504, 516, 105 Cal.Rptr. 345, 503 P.2d 1353.) Also, except in rare cases, an appellate court will not exercise judicial hindsight by second-guessing defense counsel's trial tactics. (See People v. Beagle, 6 Cal.3d 441, 458, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Williams, 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Floyd, 1 Cal.3d 694, 709–710, 83 Cal.Rptr. 608, 464 P.2d 64.)

Appellant's contention that Clawson should have called ‘Tex’ Jordan as a witness is without merit. After appellant left Finster's store Finster apparently had another conversation with Jordan and as a result of that conversation he (Finster) took a closer look at the money order which appellant had passed at the market. Finster noticed that the number ‘6’ had been altered and he contacted the police. Appellant does not challenge Finster's testimony that he passed the money order at his market nor does he explain how Jordan's testimony might have helped his defense. We cannot speculate as to how Clawson's decision not to call Jordan to testify deprived appellant of a crucial defense.

Appellant contends that Clawson should have made a motion for judgment of acquittal after the prosecution had presented its case in chief; he argues that intent to defraud, an essential element of forgery under Penal Code section 470, had not been proved. However, the prosecution had shown that appellant passed an altered money order, signed a fictitious name, gave a fictitious address, and used false identification in another similar transaction.

The crime of forgery under Penal Code section 470 is completed when the defendant passes a forged instrument; he has misrepresented the genuineness of the instrument for the purpose of obtaining cash or property and his intent to defraud is inferred from the very act of passing the check. (See People v. Weitz, 42 Cal.2d 338, 350, 267 P.2d 295; People v. Wing, 32 Cal.App.3d 197, 200, 107 Cal.Rptr. 836; People v. Maldonado, 221 Cal.App.2d 128, 134, 34 Cal.Rptr. 168.) A motion for judgment of acquittal if made would have been denied.

Appellant's other assertions of misconduct by Clawson in cross-examining witnesses and calling appellant to the stand in his own defense are undeserving of discussion; these acts can be explained on the basis of a knowledgeable choice of trial tactics. (See People v. Najera, supra, 8 Cal.3d 504, 516, 105 Cal.Rptr. 345, 503 P.2d 1353.)

Under the circumstances and considering the evidence of the prosecution, Clawson rendered effective assistance as counsel for appellant.

The judgment is affirmed.

FOOTNOTES

1.  These cases, like the others found in this state involving alleged conflict of interest, arose where codefendants were represented by the same counsel. However, the standard set forth in these cases is applicable to the instant case.

2.  Government Code section 26540 reads:‘A district attorney shall not during his incumbency defend or assist in the defense of, or act as counsel for, any person accused of any crime in any county.’

3.  Government Code section 41803.5 provides in part:‘With the consent of the district attorney of the county, the city attorney of any general law city or chartered city within the county may prosecute any misdemeanor committed within the city arising out of violation of state law. . . .’

4.  These sections of the Government Code read:‘§ 41801. Legal advice. The city attorney shall advise the city officials in all legal matters pertaining to city business.‘§ 41802. Framing ordinances and resolutions. He shall frame all ordinances and resolutions required by the legislative body.‘§ 41803. Additional legal services. He shall perform other legal services required from time to time by the legislative body.’

5.  Actually appellant attempts to supply evidence that Clawson did not prosecute misdemeanors under Government Code section 41803.5. Attached to his opening brief are unsworn statements by Clawson and Kings County District Attorney John G. O'Rourke. Clawson states that his prosecutorial duties were limited to violations of city ordinances; O' Rourke states that Clawson was never given consent by his office pursuant to Government Code section 41803.5 to prosecute violations of state law.

6.  We do not suggest that the practice of appointing a city attorney to represent indigent defendants is a sound one. Prudence dictates that the appointing court should, if possible, avoid appointments which could lead to the type of challenge made in this appeal.

FRANSON, Associate Justice.

GEO. A. BROWN, P. J., and GARGANO, J., concur.