California Court of Appeal Mar 26, 2013 No. D059304Unpublished
Filed 3/26/13 P. v. Lozano CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D059304
Plaintiff and Respondent,
v. (Super. Ct. No. SCS216495)
ANTONIO JESUS LOZANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed as modified.
Antonio Lozano was convicted by jury of five felonies arising out of shooting and
kidnapping incidents involving his ex-girlfriend and her visits to her mother's home. The
shooting incident on January 1, 2008 resulted in a guilty verdict of assault with a semi-
automatic firearm (Pen. Code,1 § 245, subd. (b)), and jury findings that he personally
1 All undesignated statutory references shall be to the Penal Code.
used an assault weapon within the meaning of section 12022.5, subdivision (a), and he
personally inflicted great bodily injury (on the mother, Fidelia Garcia) within the
meaning of section 12022.7, subdivision (a). Lozano was also convicted of shooting into
an inhabited structure (§ 246), with findings that he caused great bodily injury
STANDARDS FOR EVALUATING CONSTITUTIONAL CONFLICT OF INTEREST
"It has long been held that under both Constitutions, a defendant is deprived of his
or her constitutional right to the assistance of counsel in certain circumstances when,
despite the physical presence of a defense attorney at trial, that attorney labored under a
conflict of interest that compromised his or her loyalty to the defendant." (Rundle, supra,
43 Cal.4th 76, 168.)
A disqualifying conflict of interest may arise "in situations in which an attorney
represents a defendant in a criminal matter and currently has or formerly had an attorney-
client relationship with a person who is a witness in that matter. [Citations.] [¶] Such a
conflict springs from the attorney's duty to provide effective assistance to the defendant
facing trial and his fiduciary obligations to the witness with whom he has or had a
professional relationship." (People v. Bonin (1989) 47 Cal.3d 808, 835.)
To inquire into the effect of an alleged constitutional level conflict of interest, the
court considers whether the defendant has shown both deficient performance by counsel,
"and (2) a reasonable probability that, absent counsel's deficiencies, the result of the
proceeding would have been different." (Doolin, supra, 45 Cal.4th at p. 417; Mickens,
supra, 535 U.S. 162, 166, 172-176; Strickland, supra, 466 U.S. 668, 694.)
In Doolin, the Supreme Court outlined the appropriate inquiries in this context:
"[A] determination of whether counsel's performance was 'adversely affected' under the federal standard 'requires an inquiry into whether counsel "pulled his punches," i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been
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no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.' " (Doolin, supra, 45 Cal.4th at p. 418.) In Mickens, supra, 535 U.S. 162, 176, the U.S. Supreme Court clarified these
distinctions: " 'Breach of an ethical standard does not necessarily make out a denial of
the Sixth Amendment guarantee of assistance of counsel.' " The variously imposed
ethical duties of an attorney are equally important, but when a defendant seeks the
application of an exclusionary rule for protecting a Sixth Amendment right to counsel,
the defendant must show not just an ethical violation, but also that counsel was actively
representing conflicting interests, and this prejudiced the defendant. (Ibid.; see Doolin,
supra, 45 Cal.4th at p. 418.)4
Both at trial and in Lozano's opening brief on appeal, he argued for dismissal or
per se reversal of his convictions, on the grounds that both federal and state standards
4 Under rule 3-310(B)(1), an attorney may not accept or continue representation of a client without disclosure where "(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter." Under rule 3-310(E), an attorney shall not, without informed written consent of the client or former client, "accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." Under rule 3-700(B)(2), an attorney who represents a client in one matter shall withdraw from that employment, if the attorney "knows or should know that continued employment will result in violation of these rules."
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justified a finding that he was absolutely deprived of any effective assistance of ethical
counsel, through the conflict situation that had developed regarding Verduzco.
In his reply brief, Lozano acknowledges that a prejudice analysis is also required,
but claims that the admission of the testimony from the conditional exam was still
harmful error, as shown by Attorney Stewart's admissions that he knew about a potential
conflict of interest while he was cross-examining Verduzco, even if it is assumed that
Stewart did not subjectively believe it to be an actual conflict at that time. On both
appellate theories, deprivation of counsel and the right of confrontation, Lozano argues
for application of the standard for a deprivation of federal constitutional rights.
(Chapman v. California (1967) 386 U.S. 18, 24.)5
The Attorney General responds that the record does not support a conclusion of
any "complete" denial of assistance of counsel, nor a denial of any such assistance at a
"critical stage of the proceedings," so that a harmless error standard properly applies.
(Mickens, supra, 535 U.S. 162, 166; People v. Watson (1956) 46 Cal.2d 818, 836
[whether it is reasonably probable that the defendant would have obtained a more
favorable result, absent the error].) Thus, the Attorney General claims that the
conditional exam evidence mainly pertained to charges on which the jury did not convict
5 Where use of former testimony violates a defendant's right to confrontation, the test for error is whether the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24; Lilly v. Virginia (1999) 527 U.S. 116, 139-140.) The " ' "indicia of reliability" prong of the confrontation clause analysis is satisfied if there was an adequate opportunity for the defendant to cross-examine the witness and counsel took advantage of that opportunity." ' " (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1434-1435, 1444.)
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(attempted murder or criminal threat toward Christina), and therefore, no undue
interference with Lozano's assistance of counsel can be shown, or any prejudice.
In light of the required prejudice determination and the nature of the arguments
about what Attorney Stewart did or did not do, we apply a harmless error standard and
examine the record to determine " '(i) whether arguments or actions omitted would likely
have been made by counsel who did not have a conflict of interest, and (ii) whether there
may have been a tactical reason (other than the asserted conflict of interest) that might
have caused any such omission.' " (Doolin, supra, 45 Cal.4th at p. 418.) We need not
accept the subjective representations of Stewart about whether there was an actual
conflict of interest. Nor do we find useful the trial court's terminology that Stewart's
previous representation of witness Verduzco created a "per se" conflict of interest. Any
conflict of interest on the part of a defendant's attorney must further be examined for its
effect upon the validity of the proceedings that were conducted, in terms of prejudice to
the complaining party. We consider when the conflict issues arose, and their impact on
the convictions that were ultimately obtained. This requires resolution of questions of
law on review of the record, on whether there was prejudice from the actions taken or not
taken. (See In re Darr, supra, 143 Cal.App.3d 500, 509.)
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III
APPLICATION OF STANDARDS
A. Contentions and Threshold Issue of Waiver
Lozano relies on U.S. ex rel. Williamson v. LaVallee (D.C.N.Y. 1968) 282 F.Supp.
968, 971-972 (LaVallee) as an example of "the potential dangers that faced the
[defendant] by being defended by an attorney who was also representing an important
prosecution witness." (Id. at p. 971.) In that case, the witness cooperated with the
prosecution to receive favorable treatment, and still had a separate felony charge pending
against him, when being questioned by defense counsel (his own counsel as well). That
attorney had an evident conflict of interest that created severe doubt that he could have
vigorously cross-examined his other client, while acting in the supposed defense of the
defendant. (Ibid.) Also, "[a] second danger in being represented by an attorney who is
also representing a prosecution witness is that the scope of examination of the witness by
the attorney might be restricted by the fact that the attorney has learned confidential
information about his client-witness which cannot be revealed." (Ibid.) The subject
convictions were set aside for ineffective representation.
In In re Darr, supra, 143 Cal.App.3d 500, 510-511, the record showed that the
same trial attorney had simultaneously represented clients whose interests were adverse.
The habeas petitioner, one of the clients, was granted relief from conviction due to this
irreconcilable conflict of interest. His trial attorney had previously assisted the witness
against him in reaching a plea bargain, and the witness still had probation revocation
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proceedings pending, when being required to testify against the habeas petitioner. Since
the same trial attorney still represented both clients as of the time of trial of the habeas
petitioner, his cross-examination of the witness on behalf of the petitioner was found to
be impaired. The record showed that the trial attorney was under such continuing
professional obligations to one client, as to preclude him from being able to effectively
and legitimately represent the adverse interests of the petitioner at his own trial. The
conflict issue was identified as causing "unexplained omissions" to exist in the
petitioner's attorney's cross-examination of his other client, the witness, on the question
of bias. (Id. at pp. 512-514.) Accordingly, the petitioner's conviction was set aside.
Relying on such authorities, Lozano argues a similarly grave conflict of interest is
demonstrated on this record, with similar prejudicial effect. We next discuss Lozano's
claims on the merits, and without any reliance on the theories of waiver or forfeiture that
are raised by the Attorney General. Those theories arise from the prosecutor's attempts to
make Verduzco available to testify at a second conditional examination during the
summer of 2010, although inadequate notice was given, counsel for the defense objected,
the effort was abandoned, and Verduzco became unavailable. We think Lozano's
attorney had no obligation to accept the inadequate notice given in order to allow the
prosecutor to make a better record of the conditional exam, to have a "do over" without
Attorney Stewart's participation. We take the record about the admission of the evidence
from the November 2009 conditional exam as we find it, without applying such waiver
principles.
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B. Record: Nature of Actual or Potential Conflict
In the course of making its ruling on the challenge to the admission of the
evidence, the trial court read the transcript of the conditional exam to evaluate the degree
to which Lozano's interests were potentially affected. The court found there had been no
showing that either party had used the conflict of interest problem to strategic advantage,
such as setting up a barrier so that the conditional exam evidence could not be used.
Rather, the court's analysis properly gave priority to protecting the defendant's right to
effective assistance of counsel. This focused on whether Attorney Stewart was able to
provide an adequate opportunity for Lozano to cross-examine Verduzco, under the
confrontation clause. (People v. Sandoval, supra, 87 Cal.App.4th 1425, 1434-1435,
1444.)
As we will show, the court was correct in ruling that a potential conflict existed.
Our task is to identify the nature and extent of that conflict, as well as its potential
prejudice. First, the record about the actions of Attorney Stewart does not demonstrate
this was a case of simultaneous representation. Stewart considered that Verduzco's case
was "closed" when probation was granted to him in June 2009, and Stewart acted on
behalf of Lozano at the conditional exam later, in November 2009. In preparation for the
conditional exam, the court appointed conflict counsel for Verduzco in November 2009.
Stewart did not participate in the immunity discussions for Verduzco.
However, Lozano's defense counsel argued to the trial court that the policy of
Stewart's office, the APD, was to remain as appointed counsel for clients during the
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probationary period. The prosecutor responded that she did not realize until November
2009 that Verduzco had been represented by the same individual, Stewart, and she
previously knew only that he had been represented by the APD office staff. To the extent
Lozano is arguing there was simultaneous representation, this is a new argument on
appeal that is not supported by the record. Lozano admits that the matter was not brought
out at the conditional examination, nor during Stewart's testimony at this trial.
In any case, the record is unclear about the scope of the APD representation of
Verduzco, except to show that Attorney Stewart individually did not remember him
during much of the relevant time period. Nor was Verduzco's theft offense in any way
related to the current charges. Unlike the cases of In re Darr, supra, 143 Cal.App.3d
500, 512-514 or LaVallee, supra, 282 F.Supp. 968, 971-972, this was not simultaneous
representation, but rather successive in nature and not on closely related charges and
proceedings, and must be evaluated as such.
The record is similarly not dispositive on the issue of whether the respective
attorneys followed their own office policies for declaring a conflict of interest, or
notifying the court thereof. Attorney Stewart's office policy was that in case of a
potential conflict, a supervisor should be consulted on whether to declare a conflict to the
court. There was a change of personnel of APD supervisors around that time, and
Stewart did not declare a conflict until May 2010, and was not relieved as counsel until
June 2010. Attorney Garcia of the MCO was appointed in his place. Although the
prosecutor had asked her superiors what to do, she was told not to notify the court in
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connection with the conditional exam proceedings. Certainly, this sequence of events is
most regrettable. Both Stewart and the prosecutor should have informed the court of the
potential conflict at a much earlier stage of the proceedings. We find it difficult to
understand how the parties could have failed to inform the court of this potential conflict.
Whatever series of unfortunate events took place in the respective agencies does
not clearly establish whether the instant example of conflict was actual or potential. The
rules of professional conduct are what they are, and they override such ad hoc office
policies on the governing ethical standards for conflicts of interest. (Rules 3-310(B)(1),
(E); 3-700(B)(2); People v. Bonin, supra, 47 Cal.3d at p. 835.)
Although Attorney Stewart gave conflicting testimony about when he became
aware of the potential conflict of interest, the existence of a conflict was obvious to all by
the time that separate counsel for Verduzco was appointed on November 4, 2009.
However, having such an apparent ethical problem does not necessarily amount to a
disqualifying constitutional conflict. (Mickens, supra, 535 U.S. at p. 176.) The issue
remains about whether Stewart's knowledge about the background of this witness
affected the type or intensity of the cross-examination that he conducted. We take it as
given that Stewart had potentially conflicting interests and an ethical problem, and we
next turn to whether those conflicts were of constitutional dimension, and whether
Lozano was evidently prejudiced from the attorney's performance on his behalf.
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C. Prejudice; Imposition of Fees
Several factors in the record persuade us there was no constitutional level conflict
of interest here. Attorney Stewart's beliefs that he had no actual conflict, even if a
potential one, can be compared to ignorance of the law. "Defense counsel must be
reasonably familiar with significant recent decisions." (5 Witkin, Cal. Criminal Law (4th
ed. 2012) Criminal Trial, § 246, p. 412.) By the same token, trial counsel provides
adequate representation when showing a correct understanding of ethical restrictions on
successive representation. Even if his beliefs "presently can be characterized as
mistaken, such an error, in itself, would not necessarily demonstrate that counsel's
performance was constitutionally deficient." (In re Jackson (1992) 3 Cal.4th 578, 614.)
In Jackson, supra, 3 Cal.4th 578, 616, the problem was that defense counsel had
failed to investigate the availability of certain mitigating evidence, based on his
misunderstanding of still-developing case law. The court found no reversible error,
concluding, "the confusion of defendant's trial counsel on this legal question at the time
of defendant's trial was not so unreasonable as to demonstrate that a tactical decision not
to offer this evidence (or to request a hearing under Evid. Code, § 402), based on such a
mistake, would have fallen below the level of constitutionally adequate representation."
(Jackson, supra, at p. 614.) The court's analysis "eliminate[d], as we must, the
potentially distorting effects of hindsight (see Strickland v. Washington, supra, 466 U.S.
668, 689)," and thus counsel's failure to investigate was deemed not to be prejudicial, in
light of potential tactical reasons to avoid introducing any such evidence. (Jackson,
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supra, at p. 614.) "[T] here is no reasonable probability that the judgment . . . was
affected by counsel's failure to conduct such an investigation." (Id. at p. 616.) "Although
another attorney reasonably might have made a different tactical decision, we cannot say
that defense counsel's tactics rendered his representation constitutionally deficient."
(Ibid.)
Lozano contends Attorney Stewart structured his cross-examination not to
impeach Verduzco's credibility or to contest his version of the facts, in order to avoid
increasing the conflict from a potential one to an actual one. He suggests Stewart did not
question Verduzco about his immunity agreement or his prior convictions, possibly due
to Stewart's ongoing duty of loyalty to his prior client. However, the prosecutor brought
out information about Verduzco's prior convictions, and instructions were given to the
jury about how to evaluate his testimony, including the effect of the grant of immunity.
Those circumstances greatly lessen the impact of these arguments.
Attorney Stewart suggested during his testimony that there were tactical reasons
for conducting the cross-examination of Verduzco in the way he did. Counsel for Lozano
then objected to any efforts by Stewart to identify such tactical considerations, and the
trial court agreed, but also acknowledged that Stewart appeared to be testifying he had
used his knowledge about Verduzco to decide what areas to go into on cross-
examination. This leaves us in a position of assuming that he may have had tactical
reasons for doing what he did. And by admitting the evidence of the conditional exam,
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the trial court made implied findings that there was no prejudice from the manner in
which it was conducted.
In assessing any undue prejudice, we look to the nature of the convictions that
were reached, with relation to the specific evidence being complained of as harmful.
Lozano's shooting incident resulted in guilty verdicts on the assault count, shooting into
an inhabited dwelling, possessing an assault weapon, and the associated findings of great
bodily injury and personal intentional discharge of a firearm. Even without the testimony
of Verduzco about his observations at the scene, there was testimony from Christina,
from her mother, her sister, the investigating police officer, and the firearms experts that
it was Lozano who charged up the stairs and shot the automatic pistol into the door knob
area, and the bullet that hit Fidelia from his gun had wood and paint on it. Those
convictions did not depend at all upon Verduzco as a witness.
The more controversial conditional exam testimony from Verduzco is that about
his observations of Lozano's mental state, before and after they arrived at Christina's
mother's house. He testified about Lozano's evident agitation, gun use, and comments
about how if he could not have Christina, nobody could. It is not persuasive to us that the
jury requested a readback of all of Verduzco's testimony, among other requests. His
information was still mainly probative about the attempted murder count, upon which a
mistrial was declared, or the threat count, of which he was acquitted, or the sanity
finding, which he does not dispute. The information had nothing to do with the
kidnapping incident that took place a few weeks earlier. Although it was somewhat
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supportive of the convictions of shooting into an inhabited dwelling and assault, it was
not essential evidence for the jury to be able to render verdicts convicting him of the
shooting incident counts. The admission of the conditional exam evidence did not
prejudice him in any material way with regard to the critical shooting incident
convictions. (See Doolin, supra, 45 Cal.4th at p. 417.) Stewart's previous representation
of Verduzco, before he was questioning Verduzco at the conditional exam, did not create
any apparent defects in his approach that disadvantaged Lozano, and on this record, we
cannot take any guidance from any tactical considerations he may have had.
Overall, with respect to how the cross-examination was conducted, "we cannot say
that defense counsel's tactics rendered his representation constitutionally deficient."
(Jackson, supra, 3 Cal.4th 578, 615.) Nor have his other acts or omissions been shown to
have changed Lozano's position at trial in any material way. Under either standard of
error, the more stringent Chapman standard of harmless beyond a reasonable doubt, or
the less stringent Watson standard, Lozano's claim of prejudice is unsupported by the
record. The level of conflict of interest that was demonstrated did not undermine the
validity of the trial proceedings or the support for his convictions.
We agree, however, that the trial court erred in imposing a $200 court facilities
fee, when only $150 for the five felony convictions was appropriate. The judgment will
be affirmed as modified and the trial court will be directed to prepare a new abstract of
judgment accordingly.
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DISPOSITION
We remand for the trial court to modify the sentencing order and amend the
abstract of judgment to reflect that the correct fine under Government Code section
70373 is $150; the court is directed to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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AI Brief
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Holding. The court held that while defense counsel's prior representation of a prosecution witness created a potential conflict of interest, the defendant failed to demonstrate that the conflict resulted in actual prejudice or deficient performance at the conditional examination. Consequently, the trial court did not err in admitting the witness's testimony, though the court correctly ordered a reduction in the court facilities funding fee.
Issues
Whether defense counsel's prior representation of a prosecution witness constituted a Sixth Amendment violation requiring reversal.
Whether the admission of testimony from a conditional examination violated the defendant's confrontation rights due to a conflict of interest.
Whether the trial court erred in the assessment of the court facilities funding fee.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The record supports the trial court's conclusions that although there was a potential conflict of interest at the time of the conditional exam, there was no prejudice to Lozano and the evidence was properly admitted.”
“Breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”
“Any conflict of interest on the part of a defendant's attorney must further be examined for its effect upon the validity of the proceedings that were conducted, in terms of prejudice to the complaining party.”