People v. Christian

• Citation: 41 Cal.App.4th 986,48 Cal.Rptr.2d 867
• Decision Date: 09 January 1996
• Docket Number: No. A067247,A067247
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 249, 96 Daily Journal D.A.R. 331 The PEOPLE, Plaintiff and Respondent, v. Ron Dupries CHRISTIAN and Dishon Jackson, Defendant and Appellant.

Page 867

48 Cal.Rptr.2d 867

41 Cal.App.4th 986, 96 Cal. Daily Op. Serv. 249,

96 Daily Journal D.A.R. 331

The PEOPLE, Plaintiff and Respondent, v. Ron Dupries CHRISTIAN and Dishon Jackson, Defendant and Appellant.

No. A067247.

Court of Appeal, First District, Division 2, California.

Jan. 9, 1996.

Review Denied April 11, 1996.

[41 Cal.App.4th 989] Alfons G. Wagner, Oakland, for Appellant Christian.

David J. Briggs, under appointment by the Court of Appeal, Richmond, for Appellant Jackson.

Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, San Francisco, for Respondent.

KLINE, Presiding Justice.

Ron Dupries Christian and Dishon Jackson appeal their convictions, following a joint jury trial, of several offenses related to the robbery of a Taco Bell restaurant. Christian's counsel filed an opening brief in which he raised no issues and asked this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. Jackson contends the trial court erred in permitting the Contra Costa County Public Defender's Office (PD) to represent codefendant Christian and the Alternate Defender Office (ADO) to represent Jackson. According to Jackson, because both offices are under the supervision of Public Defender Charles James, they are not separate entities for

conflict of interest purposes, and the joint representation of Jackson and his codefendant denied Jackson the right to conflict-free and independent counsel.

STATEMENT OF THE CASE AND FACTS

On March 10, 1994, Jackson and Christian approached the counter at a Taco Bell restaurant in Richmond, California. As Jackson ordered some food, Christian pulled a gun on Rudolfo Gomez, who was working behind the counter. ¹ Jackson demanded money from Gomez, who gave him money from the cash register. Jackson then jumped over the counter, followed by Christian. Jackson attempted to open another cash register, but was unsuccessful; the clerk opened the register and Jackson took money from it.

Christian went to the back of the restaurant where he demanded that Melvin Lopez, the shift manager, give him money from the safe. Lopez opened the safe and Christian took the money. Jackson also went to the back of the restaurant, where he tried to exit through a back door, but he stopped when Lopez told him an alarm would ring. Jackson then returned to the front of the restaurant, jumped over the counter, and told Christian to "[h]urry up." Christian joined him and they left out the front of the restaurant.

Richmond police officers responded to reports of the robbery. Officer Mark Granko noticed two men fitting the robbers' descriptions walking through a parking lot. He approached the two men and ordered them to stop, at which point Jackson pulled a handgun from his waistband and dropped it on the ground. Jackson then ran in the direction of a Home Depot store, where he was apprehended. Christian attempted to hide under some shrubbery, but was arrested by Granko.

An information dated April 14, 1994 charged Christian with two counts of robbery pursuant to Penal Code sections 211 and 212.5, subdivision (b), ² and alleged an enhancement for personal use of a firearm pursuant to section 12022.5, subdivision (a). The personal use enhancement also, it was alleged, precluded Christian's eligibility for probation under section 1203.06, subdivision (a). The information also charged Jackson with two counts of robbery and alleged he was armed with a firearm during the commission of the robberies pursuant to section 12022, subdivision (a)(1). The information further charged Jackson with possession of a firearm by a felon pursuant to section 12021, subdivision (a)(1). Jackson also was alleged to be ineligible for probation under section 1203, subdivision (e)(4) because of two prior felony convictions.

After his arrest, Christian gave a statement to the police in which he implicated Jackson in the robbery. He told police he had handed Jackson some money and the gun after they had left Taco Bell. Based on this statement, Jackson moved to sever his trial from Christian's. However, the prosecutor stated that he would not use Christian's statement at trial unless Christian testified. Neither appellant testified during trial, and the statement was not introduced into evidence.

Christian was represented in the trial court by Deputy Public Defender Jonathan Cooper and Jackson was represented by William Veale of the ADO. Before trial, Jackson moved for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, saying that he wanted a court-appointed attorney. The motion was denied. On the second day of trial Jackson made another Marsden motion, generally asserting that "there is a conflict of interest here that is involving my case." This motion also was denied.

Following a five-day trial, the jury found Christian guilty of both robbery charges and also found true the personal use enhancements. The jury found Jackson guilty of the first of the two robbery counts (the robbery of Gomez at the front counter) and of being a felon in possession of a firearm.

On August 26, 1994, the court found Christian ineligible for probation and sentenced The court also found Jackson ineligible for probation and sentenced him to the midterm of three years in state prison on the first robbery count, with a one year enhancement for being armed with a firearm, and to a concurrent midterm of two years on the third count of being a felon in possession of a firearm, for a total of three years.

him to the midterm of three years in state prison on the first robbery count and to a consecutive midterm of four years in state prison on the personal use enhancement for a total of seven years. The court also sentenced him to a concurrent midterm of three years on the second robbery count. Finally, the court ordered a lateral transfer of Christian to the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, subdivision (c).

Both appellants filed timely notices of appeal.

DISCUSSION

I.

Christian's attorney has filed an opening brief in which he raises no issues and has asked that we independently review the record. (People v. Wende, supra, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.) We find no meritorious issues to be argued.

With respect to appellant Christian, we shall affirm the judgment.

II.

Jackson contends that Charles James, Contra Costa County Public Defender, unconstitutionally failed to provide him with conflict-free, separate and independent counsel because--in light of the fact that Christian was represented by an attorney from the PD and Jackson was represented by an attorney from the ADO--the Public Defender in effect represented both codefendants. Jackson's basic argument is that Charles James's position as administrative overseer of both the PD and the ADO creates a per se conflict of interest between attorneys in the two offices.

" 'The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.' [Citation.]" (People v. Mroczko (1983) 35 Cal.3d 86, 104, 197 Cal.Rptr. 52, 672 P.2d 835; see also Cal.Rules Prof.Conduct, rule 3-310, subd. (C).) "There is a possibility of conflict, then, if the interest 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 (1980) 446 U.S. 335, 356, fn. 3, 100 S.Ct. 1708, 1714, fn. 3, 64 L.Ed.2d 333 (conc. and dis. opn. of Marshall, J.).)

Jackson argues that in this case there existed both a potential conflict of interest (had either defendant testified, he would have incriminated his codefendant) and an actual conflict of interest (both defendants attempted to show that the other defendant dropped the gun in front of Officer Granko). Since, according to Jackson, the Public Defender in effect represented both him and his codefendant without first obtaining their informed consent, the conflicting loyalties that ensued undermined his right to effective assistance of counsel, requiring reversal of the judgment.

III.

In November 1991, in response to the escalating cost of obtaining legal representation for indigent criminal defendants in conflict of interest cases, the Contra Costa County Board of Supervisors authorized establishment of the ADO. ³ The ADO serves indigent At the ADO's inception, the Public Defender promulgated a policy statement that articulated the nature of the ADO and its relationship to the PD. The policy was disseminated to all staff at both the PD and the ADO. The structure and functioning of the ADO, as explained in the 1991 policy statement, are as follows. Although the ADO is formally a branch of the PD, it operates autonomously, with a separate supervising attorney who is responsible for directing, coordinating, and evaluating the work of attorneys employed by the ADO. This supervising attorney is solely responsible for providing guidance to and determining litigation strategy of ADO attorneys. The Public Defender exercises no control or influence over the handling of cases by the ADO. Nor does he have access to the client files or other client confidences of the ADO. Only upon the specific recommendation of the ADO supervising attorney may the Public Defender make...