People v. Rodriguez

[1020]

Opinion

BROWN (Gerald), P. J.

Convicted of robbery (Pen. Code, § 211) William Rodriguez appeals the judgment and seeks a writ of habeas corpus, contending he was denied effective assistance of counsel at his trial, because one of his attorneys was required to testify as a prosecution witness.

On August 3, 1979, someone robbed a Safeway store of about $23,000 shortly after an armored car delivery. The two witnesses, Darrell Wantoch, the store manager, and Francisco Tapia, a grocery clerk, described the robber as a male Latin, 45 years old, 5 feet 3 inches tall, 160 pounds, with a stocky build and having a mustache and brown-rimmed glasses. Eleven days after the robbery, Tapia was shown five photographs, including one of Rodriguez, whom he identified as the robber. Rodriguez was arrested on August 17, 1979. At a live lineup on August 22d, both Wantoch and Tapia identified Rodriguez as the robber. After the lineup, the prosecutor asked Rodriguez’ attorney, Marc Frenkel, what he thought of the lineup and Frenkel replied with the opinion, “That was not a bad lineup” or “It’s not bad.”

At trial Rodriguez was jointly represented by Frenkel and Ronald Allen. His defense was mistaken identification. Allen thoroughly cross-examined Wantoch and Tapia about their opportunities to observe the robber and the soundness of their observations and recollections, and he elicited discrepancies between their descriptions of the robber. He cross-examined both witnesses extensively about the conduct of the live lineup and Tapia about his identification of Rodriguez’ photo. In cross-examining the arresting officer, Allen developed inconsistencies between the first description of the robber given to police and the witnesses’ trial testimony. He also questioned the officer extensively about the conduct of the live lineup and the physical characteristics of the participants.

During redirect examination of the officer, the prosecutor asked him what Frenkel had said about the lineup after it had been completed. Allen objected on hearsay grounds. When the court asked whether he wished to be heard in opposition to the objection, the prosecutor responded, “I can handle that in another way,” and the court sustained the objection. When the examination of the officer ended, the prosecutor, without warning and in the jury’s presence, called Frenkel as a witness. Allen immediately objected. Following a bench conference in which the court indicated it would overrule the objection and order