PEOPLE v. DOOLEY (1980)

OPINION

An information was filed charging that appellant David Jerald Dooley and codefendant Martha Christina Mora had committed a robbery (Pen.Code, s 211) and attempted robbery (Pen.Code, ss 664, 211). The public defender was appointed to represent both appellant and Mora. Shortly before trial, appellant (acting in propria persona) moved for severance and appointment of separate counsel; the motions were denied and jury trial commenced soon thereafter. The jury found that both defendants were guilty of having committed a robbery. Dooley appeals.

At 6 p. m. on January 28, 1978, Ignacio Godinez Barajas (a Mexican national without legal immigration papers) and his brother Avigail left their residence on C Street in Madera to buy some groceries at the Sunrise Market. Ignacio was employed during the grape season at a work camp located on Road 241/2, Madera, owned by Julio Pistoresi. Ignacio testified that both he and his brother had been paid on January 28, and that he had approximately $180 (about $150 by check and $30 in cash) on his person when he left for the store. After Ignacio cashed his check and he and his brother purchased some groceries, they began to walk back towards their house. At this point, appellant pulled up in a black pickup truck and asked the brothers if they wanted a ride. Ignacio stated that Mora and an unidentified male were also in the truck. Ignacio indicated that appellant's hair was shorter at trial than it had been on January 28.

Ignacio and Avigail climbed into the bed of the truck. Appellant drove in the direction of a cemetery and eventually stopped at the edge of a dry canal. Ignacio then testified that appellant told the brothers to get down off the truck. Mora stayed in the truck as the brothers initially departed from the back of the vehicle. After Ignacio and Avigail got off the truck, Ignacio was called to Mora. At the same time, appellant called Avigail towards him and the unidentified male, who happened to be located a short distance from the pickup. The unidentified male then grabbed Ignacio by his throat and held him while Mora went through the victim's pockets and took his money. During this occurrence, Ignacio said that he saw appellant holding his brother Avigail. Avigail corroborated this testimony and stated that, in the course of the above activities, Mora referred to appellant as “partner.” Avigail further testified that appellant grabbed him by his throat, attempted to beat him, and asked him for money. He indicated that he did not have any cash, since he had earlier purchased a money order from the grocery store with his paycheck.

Sometime during the course of the fray, the groceries (which had been left in the bed of the pickup) were thrown on the ground. Avigail indicated that Dooley and the other man had opened up two beers from the groceries. He indicated that they “then threw them away”; furthermore, Dooley and the man allegedly broke some milk while they were tossing the groceries around. Shortly after the money was taken from Ignacio, appellant, Mora, and the other individual “rapidly” left from the scene in the pickup.

In a follow-up investigation on the next day, police officers found two Olympia beer cans which were opened and partially full of liquid at the scene of the robbery.

Several prosecution witnesses had testified that, in the past, they had seen appellant and Mora at the Pistoresi farm labor camp.¹ Ignacio testified at trial that, following the robbery, he saw appellant and Mora at the liquor store in a green passenger car with a white top. He again observed them about 20 days after the theft in an El Camino pickup. Ignacio also stated that, prior to the robbery, appellant had on one occasion asked to borrow $10; Ignacio indicated that he did not have any money at the time.

Ralph Baraldi, a criminal laboratory identification officer with the Madera County Sheriff's Department, stated that he investigated the scene of the alleged robbery. He found two beer cans, although he could not find the remains of any milk containers. He dusted the beer cans but found no fingerprints which could be identified.

Appellant testified in his own behalf. He denied robbing anyone on January 28, 1978; he further denied going to any canal or creekbed that day or evening. Appellant indicated that on January 28 he went to Fresno at approximately 2 or 2:30 p. m. for purposes of visiting Larry Brown's (a friend's) mother who was convalescing in a hospital. Appellant stated that he and his friend did not get back from Fresno until about 7 or 7:15 p.m. that night. Appellant stated that he ate dinner at Brown's house, and his friend took him home around 8:30 p. m. Appellant further testified that he did not see Mora that evening.

Appellant indicated that on January 28 he wore a crew cut, as he did in court. He also denied that he knew codefendant Mora prior to the court action or that he had ever been to a labor camp with her.

Codefendant Mora also took the stand. She denied that she robbed Ignacio Barajas or that she had accompanied some people to a canal on January 28. She admitted to having been at the labor camp in the fall of 1977 and that she had performed one act of prostitution with Ignacio. Moreover, she indicated that she had seen Dooley on a couple of occasions, although she did not know him personally.

Bob Holmes, a detective with the sheriff's office, testified that when he arrested appellant on February 16, 1978, his hair was longer than it was during the trial.

Jerry Lee Cox, a police officer for the Madera City Police Department, stated that he had known appellant for at least five years and had known Mora for two to three years. He indicated seeing the two together on several occasions near Parker's Liquors on Tenth Street in Madera, a location facing the 600 block of C Street. Cox also testified that when he had seen appellant in the past his hair was longer than it was in the courtroom.

Appellant's principal contention is that the court below erred in refusing his request for appointment of separate, private counsel. At the motion for separate trial, the following dialogue occurred between the trial court, appellant and the public defender:

“THE DEFENDANT: Mr. Peterson has been trying to cop my co-defendant.

“THE COURT: He is trying to what?

“THE DEFENDANT: He is trying to cop he is trying to make her cop a guilty plea.

“THE COURT: I don't know that that is correct. I understand what you are saying. Mr. Peterson, you heard the accusation, what

“MR. PETERSON: No, Your Honor, that is not true. I have mentioned to Miss Mora that there was a possibility of a way to plea bargain in her case because there are two cases that she has pending against her. But I did tell her this was something that I hadn't even at that time discussed in any detail with the D.A.‘s Office, I don't know whether there was a chance. But I indicated to her that there should be an offer of some kind, for her to give it some consideration. That's about what I said to her. I didn't try to get her to cop a plea to anything.

“THE COURT: All right. Now, Mr. Dooley, would you like to respond to that?

“THE DEFENDANT: No.

“THE COURT: Do you know of any real reason why Mr. Peterson cannot represent you?

“THE DEFENDANT: I don't think we'll get a fair trial.

“THE COURT: Why? Is it just an opinion that you have?

“THE DEFENDANT: Yes.”

Codefendant Mora then had the following comment to make at the hearing on the motion for separate counsel:

“DEFENDANT MORA: He did offer me he did say that, you know, if I made a deal, pleaded guilty to one they would probably drop the other, and that if I didn't, you know, that they would probably run both my times consecutive.

“THE COURT: That may very well be true.

“MR. PETERSON: I did talk along those lines, Your Honor.”

Finally, appellant reiterated his request for appointment of separate counsel and it was denied in the following language:

“DEFENDANT DOOLEY: Your Honor, with two defendants represented by the same counsel there could be a conflict of interest any time in a jury trial.

“THE COURT: It is possible. If a conflict of interest occurs Mr. Peterson will be the first to note the conflict of interest and request that appropriate action be taken to remedy that situation.

“I have no reasonable choice here but to deny your motions, Mr. Dooley.”

I

Relying upon the case of Holloway v. Arkansas (1978) 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, it is appellant's argument that error was committed in not appointing separate counsel because of the potential for a conflict of interest. Although recognizing that a defendant must now show an actual conflict of interest under the Sixth Amendment, we agree with appellant based upon the right-to-counsel provision in our state Constitution.

An egregious conflict situation was faced by the United States Supreme Court in Holloway. There, three defendants were charged with having committed rape and robbery and were appointed the same counsel. At a pretrial motion, defense counsel moved for appointment of separate counsel based upon his assertions, as an officer of the court, that there existed a conflict of interest. Specifically, the attorney mentioned that if one or two of the defendants took the stand, he would be unable to cross-examine them. The motion was denied. Although defense counsel renewed his motion during various points of the trial, it was again summarily denied by the trial judge. Subsequently, at trial, all three defendants took the stand against counsel's advice. Based on the fact that the lower court callously ignored defense counsel's expression of concern, the high court ruled that defendants were deprived of their constitutional right to assistance of counsel. (Holloway v. Arkansas, supra, 435 U.S. at pp. 484-486, 98 S.Ct. at pp. 1178-1180.) In addition, the court determined that an erroneous failure to grant separate counsel is the type of mistake which is reversible per se. (Id., at p. 489, 98 S.Ct. at p. 1181.)² Nevertheless, Holloway noted that, “ appellate courts have differed on how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed, before it will conclude that the defendants were deprived of their right to the effective assistance of counsel.” (Id., at p. 483, 98 S.Ct. at p. 1178.) The court expressly reserved decision on this issue until a later occasion. (Id., at p. 484, 98 S.Ct. at p. 1178.)

By 1980, a substantial majority of federal intermediate courts had required that a defendant identify an actual conflict of interest in joint representation cases. (See Cuyler v. Sullivan (1980) 446 U.S. 335, 100 S.Ct. 1708, 1718, fn. 14, 64 L.Ed.2d 333.)³ A minority of Courts of Appeal insisted upon either showing a “substantial possibility” of conflict, “a possible conflict of interest,” or an “informed speculation” that a conflict existed. (See U.S. ex rel. Sullivan v. Cuyler (3d Cir. 1979) 593 F.2d 512, 520, fn. 9, vacated 1980, 446 U.S. 335, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333; Com., Joint Representation of Defendants Violates Sixth Amendment Right to Effective Assistance of Counsel (1979) Wash.U.L.Q. 235, 238; Com., Multiple Criminal Representation Examined : Holloway v. Arkansas (1979) 40 Ohio State L.J. 251, 270.) The leading circuit case to adopt the “informed speculation” standard was Lollar v. United States (D.C.Cir.1967) 376 F.2d 243, 247.

In cases involving appointed counsel, California adopted the Lollar “informed speculation” test for demonstrating the existence of a conflict. (See People v. Cook (1975) 13 Cal.3d 663, 670-671, 119 Cal.Rptr. 500, 532 P.2d 148, cert. den. 1975, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100; People v. Chacon (1968) 69 Cal.2d 765, 776, fn. 3, 73 Cal.Rptr. 10, 447 P.2d 106.) The court in Cook articulated the pertinent standard in the following language:

“ 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.” (People v. Cook, supra, 13 Cal.3d at p. 670, 119 Cal.Rptr. 500, 532 P.2d 148, emphasis added.) 4

Once a conflict is shown, the prior decision in Chacon clarified that the conviction must be reversed unless the error was harmless beyond a reasonable doubt. (People v. Chacon, supra, 69 Cal.2d at p. 776, fn. 3, 73 Cal.Rptr. 10, 447 P.2d 106; see also People v. Cook, supra, 13 Cal.3d at p. 672, 119 Cal.Rptr. 500, 532 P.2d 148; Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 532, 112 Cal.Rptr. 478; People v. Ramsey (1971) 17 Cal.App.3d 731, 734, 95 Cal.Rptr. 231; People v. Baker (1968) 268 Cal.App.2d 254, 256, 73 Cal.Rptr. 758.) Importantly, the standard enunciated in Cook was based upon the federal constitutional guaranty found in the Sixth Amendment. (See Cook, supra, at pp. 667, 670, 119 Cal.Rptr. 500, 532 P.2d 148.)⁵

Recently, however, the “informed speculation” test met its death knell under the Sixth Amendment. In Cuyler v. Sullivan, supra, 100 S.Ct. 1708, the United States Supreme Court held that “the possibility of conflict is insufficient to impugn a criminal conviction.” (Id., 100 S.Ct. at p. 1719.) The court followed the majority approach which had been adopted by federal Courts of Appeal, namely, that the defendant must demonstrate an actual conflict of interest which adversely affected his lawyer's performance. (Ibid.)⁶ Once an actual conflict was shown, Cuyler reaffirmed the Holloway thesis of automatic reversal. (See ibid.)

Cuyler teaches that it is not enough to demonstrate a Sixth Amendment problem by showing a potential conflict of interest, one of the fundamental elements of the “informed speculation” standard. Nonetheless, because we deem the Chacon-Cook standard as an effective method of protecting a defendant from a conflict of interest, it is our opinion that the “informed speculation” standard retains viability under section 15 of article I of the California Constitution.⁷

Article I, section 15 of our state Constitution provides in relevant part that: “The defendant in a criminal cause has the right to have the assistance of counsel for the defendant's defense (and) to be personally present with counsel, ” Although the language is similar to that contained in the Sixth Amendment of the United States Constitution, we believe it allows adoption of the “informed speculation” standard on independent state grounds.⁸ Chacon recognized that “the right to counsel at trial (is) guaranteed by the Sixth Amendment and article I, (section 15) of the California Constitution ” (People v. Chacon, supra, 69 Cal.2d at pp. 773-774, 73 Cal.Rptr. 10, 447 P.2d 106.) It is our belief that the California Supreme Court, evidenced by Chacon and Cook, was correct in promulgating a more relaxed appellate burden for defendants attempting to demonstrate a conflict of interest. The ratio decidendi of these precedents is articulated in the following passage from Cook :

“When codefendants who have possible conflicting interests are jointly represented at trial such counsel may be inhibited from producing evidence or from arguing matters or by objecting to the introduction of evidence which may be exculpatory as to one of his clients because such a course may be prejudicial to another of the codefendants. The very failure to produce or emphasize such information, moreover, produces a void and results in a record which shields the fact of any possible conflict and makes it difficult to demonstrate on appeal that a conflict did in fact exist.” (People v. Cook supra, 13 Cal.3d at p. 670, 119 Cal.Rptr. 500, 532 P.2d 148.)

This rule recognizes that the right to counsel guaranteed by section 15 of article I to our Constitution “contemplates the service of an attorney devoted solely to the interests of his client” (see United States ex rel. Hart v. Davenport (3d Cir. 1973) 478 F.2d 203, 209), providing an appellate burden which is commensurate with ferreting out violations of that obligation.

Although eschewing the more liberal standard under the Sixth Amendment, various justices of the United States Supreme Court have recognized that conflicts are often difficult to ascertain from a state appellate record. The Third Circuit discussed this concern in U.S. ex rel. Sullivan v. Cuyler, supra, 593 F.2d 512, 520:

“ an attorney with divided loyalties cannot negotiate a plea agreement on behalf of one client which includes an agreement by that client to testify against a co-defendant the attorney also represents. Id. He may refrain from introducing evidence favorable to one client but harmful to another; or he may refrain from challenging evidence that harms one client but is helpful to another. These and similar conflicts of interest ordinarily do not appear in the record. The Supreme Court recently discussed this problem in Holloway v. Arkansas, supra, and noted:

‘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. 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.’

“435 U.S. at 490-91, 98 S.Ct. at 1182.” (First emphasis added.)

Furthermore, in his concurring and dissenting opinion to Cuyler, Justice Marshall pointed out the dangers of a restrictive interpretation of the “actual conflict” standard, noting: “ a showing that an actual conflict adversely affected counsel's performance is not only unnecessary, it is often an impossible task.” (Cuyler v. Sullivan, supra, 100 S.Ct. at p. 1722. (conc. & dis. opn. of Marshall, J., fn. omitted).) These considerations manifest abundant support for the appellate burden enunciated in Chacon and Cook. Based upon our state Constitution, we hold that the “informed speculation” test has continued viability in California. (See Cal.Const., art. I, s 15.)

For sake of clarity, we summarize the means by which a defendant can show the existence of a conflict of interest. The first method is for a defendant to demonstrate an actual conflict of interest on the record. When this is shown, reversal is automatic. (Cuyler v. Sullivan, supra, 100 S.Ct. at p. 1719.) The second method, and the one reaffirmed on state grounds here, is for the defendant to show a potential conflict of interest based upon an informed speculation grounded on a factual basis which can be found in the record. (People v. Cook, supra, 13 Cal.3d at pp. 670-671, 119 Cal.Rptr. 500, 532 P.2d 148.) When such a potential conflict is found, the conviction must be reversed unless the People can show that there was no harm under the Chapman⁹ standard.

Before applying this methodology to the present case, we consider the People's opposing arguments to retention of the “informed speculation” test upon state grounds.

II

Initially, the People argue that adoption of any other standard than the “actual conflict” test would be inappropriate in light of the substantial similarity between the Sixth Amendment and article I, section 15. As support for this contention, the People cite several California cases which have relied upon the Sixth Amendment when interpreting the scope of article I, section 15. (See, e. g., People v. Pope (1979) 23 Cal.3d 412, 422, 428, fn. 18, 152 Cal.Rptr. 732, 590 P.2d 859 (reliance on federal precedent in determining ineffective assistance of counsel); People v. Mattson (1959) 51 Cal.2d 777, 795-796, 336 P.2d 937 (pro. per. defendant not entitled to advisory assistance of court-appointed counsel under either federal or state Constitution); People v. Lanigan (1943) 22 Cal.2d 569, 574-577, 140 P.2d 24 (federal precedent utilized in resolving a conflict of interest case; “(a)lthough the Sixth Amendment is applicable only to trials in federal courts , the same right is protected in this state by article I, (former) section 13 of our Constitution ”).) Although these cases do indicate that the right involved is substantially similar in both constitutional provisions, we critically note that nothing in the precedents bars a more relaxed appellate burden for demonstrating a conflict of interest. Pope merely relied upon federal precedent (United States v. DeCoster (D.C.Cir.1973) 487 F.2d 1197) in framing the test for inadequate representation. Although Lanigan stated that the “same (Sixth Amendment) right” is protected by article I, section 15 (Lanigan, supra, 22 Cal.2d at p. 575, 140 P.2d 24), it did not suggest that federal precedent was binding. Furthermore, in Mattson, the court stated:

“It has been said that (former) section 13 of article I of the California Constitution accords to California defendants ‘the same right’ as is accorded to federal defendants by the Sixth Amendment of the United States Constitution. (People v. Lanigan (1943), 22 Cal.2d 569, 575 (140 P.2d 24, 148 A.L.R. 176).) Of course this does not mean that the California right to counsel is or must be identical with the federal right to counsel. Consonant with the federal Constitution the state right could be less comprehensive than the federal right. (Betts v. Brady (1942), 316 U.S. 455, 471 (62 S.Ct. 1252, 1260, 86 L.Ed. 1595).) Actually, in some respects the California right is more comprehensive than the federal right. But since the California right is substantially similar to the federal right, we may appropriately inquire whether the federal right includes the right to services of assigned counsel merely as an assistant and advisor and not as a legal representative.” (People v. Mattson, supra, 51 Cal.2d at p. 795, 336 P.2d 937, fn. omitted, emphasis added.)

This demonstrates that, in appropriate instances, it is proper for the California right to be more protective than the federal right. The court in Mattson felt, however, that California did not have to safeguard a pro. per. defendant with appointment of advisory counsel; accordingly, it sided with the federal approach in this area. Thus, nothing in the cases cited by the People compels us to follow the federal interpretation on the nature of a defendant's burden in conflict cases. In fact, language in Mattson allows article I, section 15, to be interpreted differently in appropriate situations.

The People concede that our Supreme Court has frequently adopted more stringent standards pursuant to the state Constitution than those guaranteed under federal law. (See, e. g., People v. Glaze (1980) 27 Cal.3d 841, 844, fn. 2, 166 Cal.Rptr. 85, 614 P.2d 291 (California freedom-of-expression clause more protective than First Amendment); People v. Chavez (1980) 26 Cal.3d 334, 351-352, 161 Cal.Rptr. 762, 605 P.2d 401 (“ ‘state courts in interpreting provisions of the state Constitution are not necessarily concluded by an interpretation placed on similar provisions in the federal Constitution.’ ”); People v. Hannon (1977) 19 Cal.3d 588, 608, 138 Cal.Rptr. 885, 564 P.2d 1203 (state constitutional right to a speedy trial provides “higher standard of protection”); People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272 (state Constitution prohibits impeachment by extrajudicial statements violative of Miranda ; federal precedent found unpersuasive and state decision relying on federal authority overruled); People v. Brisendine (1975) 13 Cal.3d 528, 545, 548-552, 119 Cal.Rptr. 315, 531 P.2d 1099 (state constitutional provision virtually identical with Fourth Amendment imposed “more exacting standard” with regard to full-body searches of an arrested person); see also People v. Ramey (1976) 16 Cal.3d 263, 277, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. den. 1976, 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (dis. opn. of Clark, J.).) We believe that article I, section 15, supports the more relaxed burden announced in Chacon and Cook. Moreover, our Supreme Court in Chacon was adopting a federal approach, albeit a minority view, by following the “informed speculation” formulation. Although Cuyler made the minority approach untenable for federal courts, it does not impair reinstatement of the standard pursuant to a relevant provision of the state Constitution. Since an “informed speculation” standard more adequately safeguards a defendant in cases of multiple representation, we have no difficulty in retaining the Chacon-Cook test on state grounds.

The People then criticize continued adherence to Cook based upon the appellate standards of review set forth in People v. Pope, supra, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859. Since one of the claims mentioned by the court in Pope involved a potential conflict of interest, it is the People's argument that Pope sub silentio eliminated the “informed speculation” standard when ruling that inadequate representation matters are more adequately explored in a habeas corpus evidentiary hearing. (Id., at pp. 426, 429-430, 152 Cal.Rptr. 732, 590 P.2d 859.) We reject this argument for several reasons.

First, we do not read Pope as overruling the basis for Cook. In mentioning the conflict claim in Pope, the court noted that Pope's appellate counsel had not raised the conflict contention on appeal; it suggested that “resolution of this potential issue should await an evidentiary hearing in which all claims of inadequate assistance may be fully explored in a single proceeding.” (People v. Pope, supra, 23 Cal.3d at p. 430, 152 Cal.Rptr. 732, 590 P.2d 859.) This shows that Pope was dealing with a situation in which the unraised conflict issue could be explored, since the court had previously suggested an evidentiary hearing on the raised ineffective assistance claims. Contradistinguished, the Chacon-Cook rationale was concerned with a silent record which makes it difficult in many instances to raise the potential conflict before the trial court for an evidentiary hearing. Since only an appellate court's “informed speculation” can divulge the possible conflict, nothing in Pope indicates that Cook had been overturned.

Second, we feel that the habeas corpus procedure suggested by Pope was uniquely devised for gauging claims of ineffective assistance. As noted in Pope, the reason for an evidentiary hearing is to permit counsel to explain why certain voluntary tactical acts or omissions were made at or occurred during trial. (People v. Pope, supra, 23 Cal.3d at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.) This same aspect of voluntariness is missing when counsel represents multiple defendants. Rather than making voluntary choices, an attorney is often forced to engage in an involuntary strategy compelled by the very circumstances of joint representation. Indeed, in Holloway, the court recognized that the inherent restraint involved with multiple representation may “effectively (seal the attorney's) lips on crucial matters.” (Holloway v. Arkansas, supra, 435 U.S. at p. 490, 98 S.Ct. at p. 1181.) Thus, since multiple representation by its nature limits the tactical choices of the attorney, the Pope procedure for development of an appellate record does not undercut the use of “informed speculation” in conflict cases.¹⁰

Third, we briefly observe that our Supreme Court has frequently condoned a type of “informed speculation” test when dealing with issues which may evade an examination at the trial level. (See, e. g., Johnson v. Superior Court (1975) 15 Cal.3d 248, 255, 124 Cal.Rptr. 32, 539 P.2d 792 (district attorney cannot withhold “evidence reasonably tending to negate guilt” from grand jury); People v. Ruthford (1975) 14 Cal.3d 399, 406, 121 Cal.Rptr. 261, 534 P.2d 1341 (district attorney must disclose “all substantial material evidence favorable to an accused” during progress of defendant's trial).) Since the appellate court employing such standards must engage in an amount of speculation based upon the record below, this is another persuasive reason for retention of the “informed speculation” standard in conflict cases, where judicial review is sometimes difficult.

The People finally contend that it would be anomalous to adopt the informed speculation test accompanied by a Chapman standard of error, since Cuyler clearly specified an automatic reversal standard under the Sixth Amendment. This argument fails to realize that Cuyler only specified per se reversal once an actual conflict was shown. Since we retain the more liberal “informed speculation” standard under our state Constitution, it is fitting that the prosecution be allowed to show no prejudice under Chapman. The independent state ground for this opinion reveals no inconsistency with the showing of prejudice required under Cuyler.

Having determined that appellant can either show an actual conflict or potential for conflict, we apply the legal standards to the present case.

III

First, we decide that appellant can point to no circumstances which demonstrate an actual conflict of interest. Responding to appellant's concern about the attempt of the public defender to “make (codefendant Mora) cop a guilty plea,” the trial judge questioned the appointed attorney. The lawyer revealed that he only mentioned the possibility of plea bargaining to Mora and had not even discussed the matter “in any detail” with the district attorney. Although such a course of conduct may have resulted in a conflict if a plea had been offered to Mora (see People v. Superior Court (Mroczko), supra, 94 Cal.App.3d 626, 629-630, 156 Cal.Rptr. 487), the present record shows that joint counsel merely informed a codefendant of her alternatives. Such preliminary conduct does not constitute an actual conflict of interest. (Cf. United States v. Mavrick (7th Cir. 1979) 601 F.2d 921, 931.)

We do find, however, that there was a potential conflict of interest based upon an informed speculation grounded in the record. The facts clearly show, and the People concede in their opening brief, that appellant had to be convicted as an abettor.¹¹ This circumstance placed appellant in a more innocuous position than either Mora or the other unidentified male.¹² It is highly probable that the dual representation of appellant and Mora prevented the public defender from more aggressively depicting Mora as the active participant and painting appellant as an individual who was merely at the scene of the crime, thereby negating his status as an aider and abettor. This disadvantage that appellant's counsel could not vigorously cross-examine Mora was listed by the court in Holloway as one of the dangers attendant from dual representation. (See Holloway v. Arkansas, supra, 435 U.S. at pp. 489-490, 98 S.Ct. at pp. 1181-1182.) The fact that the alibis of appellant and Mora were consistent at trial has no bearing, since the public defender might have adopted a different strategy had Mora or appellant been represented by separate counsel. Since the dual representation problem raised by appellant may have sealed the public defender's lips on crucial matters to the defense, the reasoning in Holloway, coupled with use of the informed speculation standard, warrants reversal in this case.¹³

Based upon People v. DeShannon (1970) 11 Cal.App.3d 982, 987, 90 Cal.Rptr. 300, cert. den. sub nom., Suggs v. Comstock (1971) 404 U.S. 833, 92 S.Ct. 116, 30 L.Ed.2d 64, respondent submits that no potential conflict of interest among codefendants was shown under the circumstances here. Nonetheless, DeShannon noted that potential conflicts might arise from dual representation if it would profit one defendant to attack the credibility of another or if counsel would be restricted in trial summation because of the possible injury one accused might suffer from argument in favor of the other defendant. (See also People v. Johnson (1970) 5 Cal.App.3d 851, 861, 85 Cal.Rptr. 485; People v. Sanchez (1969) 2 Cal.App.3d 467, 477-478, 82 Cal.Rptr. 582; People v. Gallardo (1969) 269 Cal.App.2d 86, 89-92, 74 Cal.Rptr. 572.) Since these circumstances were at play in the instant situation, appellant might have received representation of a different nature if his defense had involved no association with codefendant Mora.

Therefore, based upon our adherence to the informed speculation standard under the state Constitution, we find that the trial court erred in denying appellant's motion to obtain separate counsel and to replace the public defender as his attorney of record.

IV

In view of our disposition herein, it is unnecessary to reach appellant's other contentions because these issues are unlikely to recur in the event of retrial. In order to avoid double jeopardy problems, however, we note in closing that there was substantial evidence supporting appellant's conviction as an aider and abettor to the robbery of Ignacio Barajas.¹⁴

The judgment is reversed.

FOOTNOTES

1.  Guillermo Ugarte, a farm labor contractor in Madera, stated that he had seen appellant and Mora on two occasions at the farm labor camp between August and December of 1977.

2.  In deeming reversal automatic for such error, the court stated:“Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell (one of the defendants) from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another. Examples can be readily multiplied. The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters.” (Holloway v. Arkansas, supra, 435 U.S. at pp. 489-490, 98 S.Ct. at pp. 1181-1182, emphasis added.)

3.  The Ninth Circuit held that actual conflict must be shown in order to raise a cognizable claim under the Sixth Amendment. (See Willis v. United States (9th Cir. 1979) 614 F.2d 1200, 1202-1204 (post-Holloway); United States v. Kutas (9th Cir. 1976) 542 F.2d 527, 529, cert. den. 1977, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (pre-Holloway).)

4.  Our Supreme Court also enunciated when an “informed speculation” arises:“Permissible speculation giving rise to a conflict of interest may be deemed an informed speculation but only when such is grounded on a factual basis which can be found in the record. That basis must consist of something more than evidence which merely establishes the commission of and the codefendants' possible participation in the crime or crimes.” (People v. Cook, supra, 13 Cal.3d at pp. 670-671, 119 Cal.Rptr. 500, 532 P.2d 148.)

5.  Although noting that the right to counsel is guaranteed by both the Sixth Amendment and former article I, section 13 (now section 15) of the California Constitution, Chacon does not explicitly base its decision on state grounds. Thus, it appears that the “informed speculation” standard was adopted pursuant to the federal guaranty contained in the Sixth Amendment.

6.  In a footnote to his concurring and dissenting opinion, Justice Marshall explained the difference between a possibility of conflict and actual conflict:“There is a possibility of conflict, then, if the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties. There is an actual, relevant conflict of interests if, during the course of the representation, the defendants' interests do diverge with respect to a material factual or legal issue or to a course of action.” (Cuyler v. Sullivan, supra, 100 S.Ct. at p. 1722, fn. 3.)

7.  Cuyler does not displace two decisions made by us under Holloway. In People v. Angulo (1978) 85 Cal.App.3d 514, 519, 148 Cal.Rptr. 517, we overturned the convictions of two codefendants because “it (was) evident that the strategy of (appellant's) joint counsel was in effect to advocate a finding of (appellant's) guilt in hopes of exculpating (the codefendant) ” Also, in People v. Superior Court (Mroczko) (1979) 94 Cal.App.3d 626, 629-630, 156 Cal.Rptr. 487, we issued mandate when a conflict of interest arose from the fact that one or both defendants in the case had been offered an opportunity to plead guilty to a lesser charge in return for testifying against the other defendant. We found, in Mroczko, that the public defender could not ethically advise the offeree to accept an offer which was adverse to the interest of his other client. These cases clearly show that there was an actual, demonstrable conflict of interest on the record; Angulo and Mroczko involved situations which meet the showing established in Cuyler.

8.  The United States Supreme Court has recognized our ability to adopt more liberal standards pursuant to the state Constitution. In Jankovich v. Indiana Toll Road Commission (1965) 379 U.S. 487, 491-492, 85 S.Ct. 493, 495-496, 13 L.Ed.2d 439, it stated: “ even though a state court's opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment.”

9.  Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

10.  It is also pertinent to observe that the habeas corpus hearing was not a novel creation by the Pope court. Even under the “farce or sham” standard of People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487, California courts had mentioned that defendants could adduce evidence explaining a tactical decision upon a petition for habeas corpus. (See People v. Apodaca (1978) 76 Cal.App.3d 479, 489, fn. 3, 142 Cal.Rptr. 830, and cases cited therein.) Since this evidentiary procedure pre-dated Cook, it cannot be inferred that Pope was sub silentio eliminating the “informed speculation” test; instead, the court was merely implementing a procedure which had aided appellate courts in evaluating ineffective-assistance issues.

11.  Since Ignacio was the only individual physically robbed of money, the prosecution could only secure conviction of appellant under an aiding-and-abetting theory. An attempted robbery count had previously been set aside by the court.

12.  The only direct testimony linking appellant with actual participation in the robbery was Mora's reference to him as “partner.” Although there is evidence of attempted robbery of Avigail, the attempt count was dismissed by the court.

13.  The testimony of Avigail and Ignacio was the only direct evidence linking appellant to the scene of the robbery. Although appellant's nonpresence alibi was obviously discredited by the jury, he might have had a more vigorous defense of nonparticipation under separate counsel. His counsel could have tried to depict Mora and the unidentified male as the culprits, a tactical strategy foreclosed by joint representation. Since the evidence was far from overwhelming, the potential conflict of interest cannot be deemed harmless under the Chapman standard.

14.  We base this determination upon the following evidence from the record. First, testimony showed that appellant and an unidentified male confronted the victims while Mora initially stayed in the truck. Second, it was the appellant who ordered the victims out of the truck, triggering the events which eventually led to the robbery of Ignacio by Mora and the third person. Third, the record shows that appellant was restraining brother Avigail while the other robbers were taking the money from Ignacio. Fourth, appellant and his two companions left the scene of the crime together in a rapid fashion. Fifth, Mora referred to appellant as “partner” as she took money from Ignacio's pockets. Moreover, the record reflects that appellant initiated the events by offering Avigail and Ignacio a ride to their home in the pickup following their trip to the grocery store. Among the factors which may be considered in making the determination of aiding and abetting are the following: presence at the scene of the crime, companionship with the principal perpetrator, and conduct before and after the offense (such as flight). (See People v. Fuentes (1976) 64 Cal.App.3d 953, 956, 134 Cal.Rptr. 885; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095, 126 Cal.Rptr. 898.) Since determination of abettor status is a question of fact (In re Lynette G, supra, at p. 1094, 126 Cal.Rptr. 898), the aforementioned evidence constitutes sufficient proof from which a trier of fact could find that appellant instigated and assisted in the commission of the robbery.

ZENOVICH, Associate Justice.

FRANSON, Acting P. J., and HOPPER, J., concur.