People v. Foley

Filed 11/29/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C097140

Plaintiff and Respondent, (Super. Ct. No. 94F617)

v.

MARK DAMON FOLEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Shasta County, Daniel E. Flynn, Judge. Reversed.

James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brook A. Bennigson and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

The trial court appointed the same attorney (counsel) to represent Mark Damon Foley (defendant) and Raymond Edward Gladden, who had been a codefendant in the underlying criminal trial, at a consolidated evidentiary hearing after both had filed separate petitions for resentencing. Both men were not the actual killer, but both had

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been convicted of murder on a felony-murder theory. At the hearing, to save the murder convictions, the prosecution was required to prove that defendant’s and Gladden’s individual participation in the underlying felony of kidnapping made them major participants in the kidnapping and that they acted with reckless indifference to human life. The prosecution argued those elements were satisfied for defendant and Gladden. Counsel then argued factors she considered favorable to defendant and also argued factors favorable to Gladden. But the same factors did not favor both, and counsel stated Gladden “certainly [had] the stronger petition.” The court granted Gladden’s petition only. We reverse the denial of defendant’s petition because the court violated defendant’s constitutional right to conflict-free representation. We remand for a new evidentiary hearing. FACTUAL AND PROCEDURAL BACKGROUND I The Underlying Crimes In 1995, defendant and two codefendants, Gladden and Patrick Francis Cummings, were convicted of first degree murder arising out of a plot to kidnap, assault, and extort Duane McBroome. Cummings was the actual killer. In both the trial and direct appeal, defendant and Gladden had separate counsel. We summarize the facts of the crimes based on our prior opinion in the direct appeal because the parties stipulated to these facts at the evidentiary hearing. (People v. Foley (Sept. 30, 1999, C022388 & C022361) [nonpub. opn.].) Defendant spent time in prison with Gladden, Cummings, and McBroome at various times during the 1980s and 1990s. While out on parole, McBroome bought methamphetamine from Gladden on credit but never paid him back. The two also developed a conflict concerning McBroome’s former girlfriend. After defendant was released from custody, he acted as a middleman and debt collector for Gladden’s drug