PEOPLE v. BARBOZA (1980)

OPINION

STATEMENT OF THE CASE

Appellants Rodolfo M. Barboza and Alberto M. Barboza were convicted after jury trial of a violation of Penal Code section 245, subdivision (a), assault with force likely to produce great bodily injury. Both were represented at trial by the public defender. Both were sentenced to state prison for the median term of three years. They appeal alleging the trial court erred in failing to advise them they had a right to separate counsel in the event of a conflict. Both appellants also contend they were deprived of effective assistance of counsel by having joint counsel appointed to represent them. Appellant Rodolfo M. Barboza argues in addition the evidence does not support his conviction. Because of the conclusion we reach on the basic issues presented by appellants' joint contentions we find it unnecessary to state the facts of this case. We proceed immediately to discuss appellants' joint contentions.

DISCUSSION

Initially we consider appellants' contention that the trial court erred in failing to advise appellants they had a right to separate counsel, free from any potential conflict of interest.

This court recently summarized the applicable principles for evaluating this contention in People v. Angulo (1978) 85 Cal.App.3d 514, 148 Cal.Rptr. 517:

“The constitutional right of multiple defendants to effective counsel, including separate counsel where necessary, was considered by our Supreme Court in the case of People v. Chacon (1968) 69 Cal.2d 765, (73 Cal.Rptr. 10, 447 P.2d 106) . . . . There the court said (at p. 773, (73 Cal.Rptr. 10, 447 P.2d 106)): ‘The right to counsel at trial guaranteed by the Sixth Amendment of the United States Constitution (citation) and article I, section 13 of the California Constitution does not include an automatic right to separate counsel for each codefendant. One counsel may represent more than one defendant so long as the representation is effective. (Citation.) Effective assistance of counsel is assistance ”untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. “ (Citations.) If counsel must represent conflicting interests or is ineffective because of the burdens of representing more than one defendant, the injured defendant has been denied his constitutional right to effective counsel. (Citations.)’

“In Chacon, the Supreme Court also makes it clear that absent advice of the right to separate counsel, a waiver cannot be presumed from silence.

“ ‘If defendants were denied the right to effective representation of counsel, we cannot presume that the right was waived by a failure to request separate counsel. The court did not advise them of their right to separate counsel if a conflict was present, and we cannot imply from their silence a waiver of that right. (Citations.)’ (People v. Chacon, supra, 69 Cal.2d at p. 774, (73 Cal.Rptr. 10, 447 P.2d 106).)

“It is further the rule that if the codefendants have not been informed of their right to separate counsel in the event of a potential conflict of interest between them, and if the record later indicates that there was an actual conflict of interest, the matter of separate counsel may be reviewed on appeal. ‘And, significantly, the appellate court may use hindsight to ascertain whether or not there was an actual conflict of interest and, if so, whether appellant was injured (People v. George, 259 Cal.App.2d 424, 432, (66 Cal.Rptr. 442) . . . .)’ (People v. Mitchell (1969) 1 Cal.App.3d 35, 38, (81 Cal.Rptr. 478) . . . ; fn. omitted.)” (Id., at pp. 518-519, 148 Cal.Rptr. at pp. 519-520.)

The trial court's failure to advise appellants of their right to separate counsel in the event of a potential conflict of interest was not error. It does, however, preclude a finding of waiver of the right to separate counsel and preserves the conflict of interest issue for appellate review.

While an inquiry into potential conflict of interest “is highly recommended as appropriate trial court procedure” (People v. Cook (1975) 13 Cal.3d 663, 672, fn. 7, 119 Cal.Rptr. 505 n. 7, 532 P.2d 153 n. 7), it is not error to fail to do so. Indeed, the recent United States Supreme Court case of Cuyler v. Sullivan (1980) —-U.S. ——, 100 S.Ct. 1708, 64 L.Ed.2d 333, holds, “Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” (Cuyler, supra, 100 S.Ct. at p. 1717.)

People v. Cook, supra, does state: “When a trial court undertakes to appoint counsel for indigent codefendants . . . , it must assume the burden of assuring that its appointment does not result in a denial of effective counsel because of some possible conflict.” (People v. Cook, supra, 13 Cal.3d at p. 671, 119 Cal.Rptr. at p. 505, 532 P.2d at p. 153.) A careful reading of People v. Cook, supra, and People v. Chacon (1968) 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106, makes clear that the quoted language from Cook does not impose a burden of inquiry on the trial court. However, because the trial court “assumes the burden, . . . a codefendant claiming he was denied effective assistance of counsel ordinarily need not establish that there was an actual conflict of interest, but rather it is sufficient if the record provides an adequate basis for an ‘informed speculation’ that there was a potential conflict of interest which prejudicially affected the defendant's right to effective counsel.” (Cook, supra, at p. 670, 119 Cal.Rptr. at p. 504, 532 P.2d at p. 152.)

Under the principles of Chacon, Cook and Angulo reviewed above, we conclude that the trial court did not err in failing to advise appellants of their right to separate counsel. The same cases establish that appellants' failure to object to joint representation by the public defender does not constitute a waiver of the right to separate counsel. Even in the absence of such controlling authorities, there could have been no waiver by appellants in this case without actual knowledge of certain provisions of the Madera County Public Defender's contract.¹

Under the terms of the contract between Madera County and the contract public defender which commenced September 1, 1976, and terminated August 31, 1979, the public defender was paid a fixed amount per year. The contract contains the following provision:

“3. (a) At the commencement of this agreement, and at the beginning of each succeeding year that this Agreement is in effect, COUNTY shall subtract from said Contract Price the sum of FIFTEEN THOUSAND DOLLARS ($15,000.00), and deposit said sum in an account designated as ‘Reserve Account.’ The Reserve Account shall be used as a fund from which to pay the services of attorneys appointed by the court to represent persons whom CONTRACTOR cannot represent because of conflict of interest.”

Other provisions of the contract require deductions from periodic payments of the total contract price of amounts necessary to maintain the reserve account at the $15,000 level. The balance in the reserve account at the end of the contract period belongs to the contractor and he is responsible for any deficiency. All of the foregoing provisions are collectively referred to hereinafter as “the contract provisions.”

The effect of the contract provisions is to exact a monetary penalty each time the public defender declares a conflict. A potential conflict between the financial interests of the attorney and the legal interests of the client is universally condemned.²

The record reveals no mention of the contract provisions or knowledge thereof on the part of appellants from any other source. It follows that, without knowledge that any representation of appellants other than joint representation would have been against the public defender's financial interests, appellants cannot be deemed to have waived the right to object to his representing both of them.³ (See People v. Superior Court (Mroczka), (1979) 94 Cal.App.3d 626, 629, 156 Cal.Rptr. 487.)

However, it is apparent the contract provisions have a much greater significance with respect to other issues in this case. They jeopardize the integrity of the judicial process and undermine the interests of the courts and the public in establishing procedures designed to assure fair trials.

We recognize that the public defender, as an officer of the court, cannot intentionally jeopardize his clients' right to a fair trial in order to protect his financial interests. But that does not answer the problem. Potential conflicts of interest between dual defendants are not always easily discovered or anticipated. Out of regard for its own dignity as an agency of justice, the court cannot allow itself to be put in a position of dependence upon the public defender operating under this contract to raise the issue of a potential conflict of interest between the defendants he is appointed to represent. As the Supreme Court pointed out in People v. Rhodes (1974) 12 Cal.3d 180, 185, 115 Cal.Rptr. 235, 239, 524 P.2d 363, 367:

“It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.”

In appointing counsel for appellants, the trial court assumed the burden of assuring that its appointment did not result in a denial of effective counsel because of some possible conflict. (People v. Cook, supra, 13 Cal.3d at p. 671, 119 Cal.Rptr. 500, 532 P.2d 148.) As we have pointed out above, the trial court could not depend upon the public defender to raise the conflict of interest issue. It then failed to advise appellants of their right to separate counsel in case of a potential conflict of interest. Similarly, it failed to initiate an inquiry into the propriety of multiple representation. The cumulative effect of the contract provisions and the trial court's omission of the only procedures which could reasonably have led to appointment of separate counsel for appellants is inadequate assurance of a fair trial. Any other conclusion simply ignores the realities of the situation. The inherent nature of the contract provisions negates any real assurance of effective assistance of counsel absent inquiry on the trial court's initiative as to whether the services of the public defender could be devoted solely to the interest of each appellant undiminished by conflicting considerations. Anything less fails to protect the appellants' right to effective assistance of counsel. (See People v. Chacon, supra, 69 Cal.2d 765, 774, 73 Cal.Rptr. 10, 447 P.2d 106.) That there are exceptions to the general rule that there is no duty on the part of the trial court to inquire into the possibility of a conflict of interests was recognized by the United States Supreme Court in its recent decision in Cuyler v. Sullivan, supra, 100 S.Ct. at page 1717: “Absent 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.” (Emphasis added.) Special circumstances in this case are inherent in the contract provisions, which endanger the proper functioning of the judicial system by nullifying established procedures designed to assure fair trials. The right to counsel guaranteed by the Sixth Amendment is a fundamental right. (Argersinger v. Hamlin (1972) 407 U.S. 25, 29-33, 92 S.Ct. 2006, 2008-2010, 32 L.Ed.2d 530.) The contract provisions combined with the trial court's failure to advise appellants or to inquire into the possibility of a conflict of interests in joint representation operated to deny appellants that fundamental right in this case.

The issue remains whether the trial court's failure to protect appellants' right to effective assistance of counsel requires reversal of appellants' convictions. We believe the decision in Holloway v. Arkansas (1978) 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, controls this issue. The Supreme Court explained its reasons for concluding that this kind of error can never be harmless as follows:

“In the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. Compare Chapman v. California, supra, (386 U.S. 18) at 24-26, 87 S.Ct. (824), at 828-829, (17 L.Ed.2d 705) with Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2902, (41 L.Ed.2d 590) . . . , and United States v. Valle-Valdez, 554 F.2d 911, 914-917 (CA9 1977). But in a case of joint representation of conflicting interests the evil it bears repeating is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client. And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.” (Id., 435 U.S. at pp. 490-491, 98 S.Ct. at pp. 1182.)

Accordingly, we reverse the convictions of both appellants.

Our decision to reverse on the ground that both appellants were denied effective assistance of counsel makes it unnecessary to consider the claim of insufficient evidence in support of Rodolfo's conviction.

We reverse and remand for further proceedings not inconsistent with this opinion.

FOOTNOTES

FOOTNOTE.  

1.  Appellant's request for judicial notice of this contract was granted by order of this court.

2.  The American Bar Association, Code of Professional Responsibility, Ethical Considerations 5-2, states:“A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client. After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interests of his client.”

3.  The American Bar Association, Code of Professional Responsibility, Disciplinary Rule 5-101(A), states:“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.”

HAMLIN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

HOPPER, Acting P. J., and PIERSON,** J., concur.