People v. Dooley

• Decision Date: 14 November 1980
• Docket Number: Cr. 3804
• Citation: 169 Cal.Rptr. 76,112 Cal.App.3d 103
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Jerald DOOLEY, Defendant and Appellant.

Page 76

169 Cal.Rptr. 76

112 Cal.App.3d 103

The PEOPLE, Plaintiff and Respondent, v. David Jerald DOOLEY, Defendant and Appellant.

Cr. 3804.

Court of Appeal, Fifth District, California.

Nov. 14, 1980.

As Modified On Denial of Rehearing Dec. 10, 1980.

Hearing Granted Jan. 22, 1981.

Lawrence E. Kern, San Francisco, under appointment by the Court of Appeal, and Roderick P. Bushnell, San Francisco, for defendant and appellant.

George Deukmejian and Evelle J. Younger, Attys. Gen., Jack R. Winkler and Robert H. Philibosian, Chief Asst. Attys. Gen., Arnold O. Overoye, Asst. Atty. Gen., Nelson P. Kempsky, Emry J. Allen, David DeAlba and Vincent J. Scally, Jr., Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ZENOVICH, Associate Justice.

An information was filed charging that appellant David Jerald Dooley and codefendant Martha Christina Mora had committed a robbery (Pen.Code, § 211) and attempted robbery (Pen.Code, §§ 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...