People v. Gallardo

• Decision Date: 23 January 1969
• Docket Number: Cr. 14111
• Citation: 74 Cal.Rptr. 572,269 Cal.App.2d 86
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Ray GALLARDO and Louis Arviso Ruiz, Defendants and Appellants.

Page 572

74 Cal.Rptr. 572

269 Cal.App.2d 86

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Ray GALLARDO and Louis Arviso Ruiz, Defendants and Appellants.

Cr. 14111.

Court of Appeal, Second District, Division 5, California.

Jan. 23, 1969.

Hearing Denied March 19, 1969.

Joseph Amato, Santa Ana, under appointment by the Court of Appeal, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence R. Tapper, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

Defendants Gallardo and Ruiz were jointly tried before a jury. Gallardo had been charged with three counts of robbery, Ruiz with six. Two prior felonies were alleged against Gallardo, five against Ruiz. The jury found both defendants guilty on all counts and found all priors to be true. At the time of sentencing Counts I and II were dismissed as to Gallardo only.

The robberies in question took place on October 24, 28 and 29, 1966, and on November 2, 9 and 11, of the same year. A detailed recital of the evidence is unnecessary in view of the disposition of this appeal. There can be no question that the evidence supports all verdicts. This much, however, should be noted: as far as the robberies charged in Counts I and II and concerned, Gallardo's guilt can rest solely on a finding that he aided and abetted Ruiz as a lookout and driver. As far as Count III is concerned, it was again Ruiz who forcibly took money from the victim. This time, however, Gallardo too was observed with a gun. Ruiz alone was accused of the robberies charged in Counts IV, V and IV, although it appears that Gallardo may have aided and abetted two of them.

The prior felonies charged against Gallardo were aggravated assault (1954) and possession of narcotics (1962). The felonies charged against Ruiz were theft (1945), selling narcotics (1949), grand theft (1952), felony drunk driving (1957) and burglary (1962).

On appeal it is contended that the trial court abused its discretion in not ordering separate counsel for defendants and in failing to order separate trials. We reluctantly agree on the first point and therefore do not reach the second.

While it is perfectly clear that the People proved their case to the hilt against both defendants, the bare bond summary of the facts makes it obvious that this is not a case where both defendants were equally involved. Ruiz was charged with six felonies, Gallardo only with three. As far as two of those three are concerned, his activities were peripheral. Even on the occasion when Gallardo personally wielded a weapon, it was Ruiz who was the active robber. As for the priors, compared to Ruiz, Gallardo was a beginner in crime.

At the outset of our discussion we agree with the Attorney General that under standards which apparently prevailed at the time of the trial neither Gallardo nor Ruiz made a record in the trial court, adequate to preserve their contention on appeal. However, as we shall show, the law has changed. (People v. Chacon, 69 Cal.2d ---, ---, 73 Cal.Rptr. 10, 447 P.2d 106. ^a ) The record does show this much: the case was called for trial on February 6, 1967. At the outset, over objection, the People were permitted to amend the information so as to charge the prior felonies referred to. The deputy public defender who had been appointed to represent both defendants then asked for a continuance giving, among others, the reason that there was 'a little further investigation I need to do for Mr. Gallardo.' The case was continued to March 3. The selection of a jury started on March 13. As soon as the first prospective juror was seated, defense counsel asked for a conference out of the hearing of the penal. The following colloquy then took place: '(DEPUTY PUBLIC DEFENDER): * * * Ruiz wants to tell the Court that he thinks there is a conflict of interest. I have discussed this with both defendants, They both think there is a conflict of interest, that (sic) they never told me anything that indicates to me there is a conflict. I don't see any conflict of interest. But if the Court would like to have Ruiz state why he thinks there is a conflict, perhaps that should be done outside of the presence of the jury. THE COURT: Why didn't he say something to you about that before? (DEPUTY PUBLIC DEFENDER): Well, he has many times and I have always asked him what the conflict is and I don't get any kind of response indicating any conflict. I'm--I try to be sensitive in matters of conflict. I always look for it where you have more than one defendant. THE COURT: Well, I will listen to him then. * * *' (Italics added.)

Ruiz then told the court that he did not feel he was being properly represented and that he wanted 'an attorney's appointed for himself. Then there followed an argument between Ruiz and the deputy public defender in which the latter, in order to defend himself against Ruiz' charges of incompetency and lack of interest, in effect had to call his client a liar. Ruiz' request for separate counsel was denied. To the extent that there was also before the court a similar request by Gallardo, it was never expressly ruled on.

At the trial which followed immediately, defendants presented no evidence.

Two matters stand out: first, at no time were either Gallardo or Ruiz advised of the various situations which would entitle them to separate representation. Therefore any failure on their part to verbalize a request for separate counsel correctly and to give adequate reasons for it, cannot be held against them on this appeal. People v. Chacon, 69 Cal.2d ---, ---, 73 Cal.Rptr. 10, 447 P.2d 106, ^b so holds. ¹

Second, while the public defender's good faith is not doubted in the least, he was simply wrong when he informed the court that there was no conflict. ² It is now well settled that the concept of conflict of interest encompasses far more than inconsistent defenses. In People v. Donohoe, 200 Cal.App.2d 17, 19 Cal.Rptr. 454 it was pointed out that there is a right to separate representation simply because one defendant is more heavily involved than the other. This principle was one of the reasons for the reversal in People v. Douglas, 61 Cal.2d 430, 436--437, 38 Cal.Rptr. 884, 392 P.2d 964, and was definitively established in People v. Chacon, supra. While Chacon was a capital case and the court points out (69 Cal.2d ---, 73 Cal.Rptr. 16, 447 P.2d 112 ^c ) that '(c)onflicts of interest necessarily exist when the jury must fix the penalty for more than one defendant,' we cannot read the case as applying only to capital trials.

It seems clear to us that an application of the Chacon-Douglas-Donohoe standards would have demanded the appointment of separate counsel.

The next question is whether the trial court's error leads to reversal. Again Chacon is helpful. Footnote 3 reads in part as follows: 'Several United States Courts of Appeals have adopted much the same position that we take here. In Lollar v. United States, supra, 126 U.S.App.D.C. 200, 376 F.2d 243, 247, the court stated: '(O)nly where "we can find no basis in the record for an informed speculation' that appellant's rights were prejudicially affected,' can the conviction stand. * * * In effect, we adopt the standard of 'reasonable doubt,' a standard the Supreme Court recently said must govern whenever the prosecution contends the denial of a constitutional right is merely harmless error." (People v. Chacon, 69 Cal.2d ---, ---, 73 Cal.Rptr. 10, 17 447 P.2d 106, 113. ^d )

The facts of Lollar v. United States, to which our Supreme Court refers, indicate that a minimal showing of a right to separate representation leads to reversal unless the People successfully shoulder the burden imposed on them by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, and convince us that the error was harmless beyond a reasonable doubt. It seems more than fair to place this burden on the People in cases such as the present, because it is usually the very error of not appointing separate counsel which makes it so difficult for the defendants to point to tangible evidence of prejudice. ³

Lollar was an admitted homosexual who himself had testified that it was particularly annoying to him to be referred to as a man. Nevertheless his conviction was reversed because his co-defendant, while testifying, called him 'Miss Lollar,' 'Miss Lolly,' 'she' and 'Sister.' This, said the court, may have startled the jurors. Also, separate counsel might have decided not to permit Lollar to testify. Finally the joint attorney twice confused Lollar with his codefendant.

Obviously this is very, very little on which to base a reversal, but as the court recognized, 'informed speculation' is all that we have to work with in these cases. All we can see, it said, is 'the tip of the iceberg.' (376 F.2d 243, 246.) To require more than that 'tip' would be to ignore the teaching of Chapman.

We must also keep in mind that the law does not require the showing of an actual conflict. A potential one suffices. (People v. Odom, 236 Cal.App.2d 876, 878, 46 Cal.Rptr. 453.) We must consider the 'innumerable intangible factors' which may always lurk in the wings when there is a disparity of involvement between codefendants. (People v. Kerfoot, 184 Cal.App.2d 622, 637, 7 Cal.Rptr. 674.) As was pointed out in People v. Donohoe, 200 Cal.App.2d 17, 28, 19 Cal.Rptr. 454, 462: 'Separate counsel for each defendant, throughout the proceedings might have employed tactics for the best interest of his defendant, including a vigorous assault on the remaining defendant, without having to consider the interest of such other defendant.' Where, on the other hand, counsel represents both defendants, he must, as Chacon recognizes, 'make common cause' for both clients. If he does not he runs the risk of throwing one client to the wolves, to benefit the other which is what happened in People v. Keesee, 250 Cal.App.2d 794, 58 Cal.Rptr. 780. If he chooses the former...