People v. Rodriguez, Cr. 29419

• Decision Date: 07 October 1977
• Docket Number: Cr. 29419
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Victor Louie RODRIGUEZ, Defendant and Respondent.

Page 118

141 Cal.Rptr. 118

73 Cal.App.3d 1023

The PEOPLE, Plaintiff and Appellant, v. Victor Louie RODRIGUEZ, Defendant and Respondent.

Cr. 29419.

Court of Appeal, Second District, Division 4, California.

Oct. 7, 1977.

Rehearing Denied Oct. 27, 1977.

Hearing Denied Jan. 5, 1978.

John K. Van de Kamp, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Barry R. Levy, Deputy Dist. Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender of Los Angeles County, Harold E. Shabo and H. Reed Webb, Deputy Public Defenders, for defendant and respondent.

JEFFERSON, Associate Justice.

This is an appeal by the People (pursuant to Pen.Code, § 1238, subd. (a)(3)) from an order granting defendant's motion for a new trial. The order was made after a jury returned a verdict finding defendant guilty of four counts of first degree robbery with an additional finding of the use of a firearm within the meaning of Penal Code section 12022.5. After the verdict, defendant's retained counsel was relieved and the Public Defender was appointed in his place. Evidence was taken at a hearing on the motion for a new trial. The court granted the motion on the ground that the defendant had been denied effective representation by counsel within the meaning of the Sixth and Fourteenth Amendments of the United States Constitution because trial counsel had failed to adequately investigate the case prior to trial.

The information charged defendant with five counts of robbery growing out of a robbery committed on June 25, 1975, at a Market Basket store located on Glendale Boulevard in Los Angeles. A different employee of the store was set forth in each count as a victim of the robbery. A sixth count of the information charged defendant with having committed an assault with a deadly weapon upon one of the employees, a violation of Penal Code section 245, subdivision (a). Counts IV and VI were dismissed at the conclusion of the People's case in chief upon motion of the People.

At the trial, the evidence established that there was a robbery committed at the Market Basket store on June 25, 1975. Witnesses testified that, at about 10:30 p. m., when the market was closing, a gunman entered the store behind a box boy who had been sent out to collect the shopping carts. The man pointed a handgun at the manager and told him not to move; the man proceeded with the box boy to the store's office area and instructed the manager and two other employees to lie down on the floor. The first robber was joined by two other gunmen who subsequently entered the market through the same door. They collected the other employees, a total of eight, and ordered them to the back of the store. Cash drawers were rifled and money was removed from an open safe. The employees were tied up with twine and a dog leash taken from a rack in the store. Jewelry and wallets were removed from the persons of the employees. The robbers left the employees tied up in the back of the store.

Four store employees testified at the trial and identified the defendant, with varying degrees of certainty, as the first robber to enter the store. These witnesses testified that the robbers were speaking Spanish to each other, and several witnesses who knew the Spanish language testified that the Spanish was spoken with an accent that was either Puerto Rican or Cuban; that it was not Spanish with a Mexican accent.

Defendant took the stand in his defense and denied committing the robbery. He said that he had spent the evening of June 25, 1975, in the company of his common law wife, Dorothy Silvas, and that they watched a number of television shows. Defendant also testified that he did not speak Spanish at all. Defendant's father was called to the stand and also testified that his son did not speak the Spanish language at all. Dorothy Silvas testified about her recollection of the television programs that they were watching at the time of the robbery.

It is the contention of the People on this appeal that the trial court abused its discretion and committed reversible error by granting defendant's motion for a new trial on the erroneous ground that defendant's constitutional right to adequate representation by counsel had been violated by counsel's failure to properly investigate the case and locate and interview potential witnesses.

At the hearing of the motion for a new trial, it was established that defendant's trial counsel had received copies of police reports involving the Market Basket robbery and, in addition, a robbery of a Thriftimart store two days later; that both of the police reports listed potential witnesses that were not called by the prosecution and that counsel made no effort to interview or have these persons interviewed by an investigator. The extent of trial counsel's investigation consisted of interviewing defendant, his girlfriend and defendant's father. No attempt was made by trial counsel to locate any witnesses other than defendant's immediate family to corroborate defendant's statement that defendant spoke no Spanish.

The People rely principally upon the case of People v. Kirchner (1965) 233 Cal.App.2d 83, 43 Cal.Rptr. 218, for its contention that any failure by defendant's trial counsel to investigate potential witnesses in the case at bench did not rise to the level of constituting constitutional inadequacy of counsel representation.

In Kirchner, the inadequacy of trial counsel was alleged on an appeal from a judgment convicting the defendant of the sale of heroin to an undercover police officer. Contrary to the officer's testimony, the defendant testified at his trial that he did not make such a sale. The inadequacy of counsel was asserted to be the failure of counsel to call a witness who would testify that he was present and corroborate defendant's version that no sale took place. The Kirchner court rejected the inadequacy-of-counsel contention by stating that the testimony of the uncalled witness "was merely cumulative of the testimony given by appellant from the stand and does raise a conflict in the evidence, but it does not establish any conclusive defense that was overlooked by a lack of knowledge." (Kirchner, supra, 233 Cal.App.2d 83, 87, 43 Cal.Rptr. 218, 222.) (Emphasis added.)

The Kirchner court's view is predicated on its interpretation of a statement from People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490: "It must appear that counsel's lack of diligence or competence reduced the trial to a 'farce or a sham.' (Citations.) It is counsel's duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled." (Emphasis added.)

It is to be noted that the Ibarra court speaks of defense counsel's failure as constituting a withdrawal of a crucial defense, while the Kirchner court speaks in terms of a conclusive defense being overlooked by a lack of knowledge on the part of defendant's counsel. There is a great deal of difference between the terms "crucial" and "conclusive." The Kirchner court's holding, therefore, constitutes a misreading of Ibarra.

In Ibarra, the "crucial" defense that was withdrawn was defense counsel's failure to assert a defense of an illegal search and seizure because of the mistaken notion that a defendant may not challenge the legality of a search and object to the admission of contraband seized, unless he claims a proprietary interest in the premises searched. In holding that the defendant had been denied his constitutional right to "effective aid in the preparation and trial of the case" (see Powell v. Alabama (1932) 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158), the Ibarra court concluded that defense counsel's failure "deprived defendant of an adjudication of what was clearly the stronger of the two defenses available to him." (Ibarra, supra, 60 Cal.2d 460, 465-466, 34 Cal.Rptr. 863, 867, 386 P.2d 487, 491.) (Emphasis added.)

Ibarra does not hold that the "adjudication" of which defendant has been deprived by the failure of counsel would result inexorably in a defendant's acquittal. It is the failure to have an appropriate adjudication of a defense that reduces the trial to a "farce or a sham," and which thus renders a defendant's trial fundamentally unfair in violation of the constitutional due process rights guaranteed to a defendant.

The Kirchner doctrine that the incompetence of counsel must remove a conclusive defense envisions a projected result of adjudication of a defense that is beyond the capacity of a reviewing court to divine. Even though the rule of law is clear that "(t)o justify relief on this ground (lack of effective aid in the preparation and trial of the case), 'an extreme case must be disclosed' " (Ibarra, supra, 60 Cal.2d 460, 461, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490), we do not construe the rule to require a showing that defense counsel failed to present any evidence at all on a particular crucial defense.

The People argue that the Kirchner rule was approved by the California Supreme Court in People v. Hill (1969) 70 Cal.2d 678, 76 Cal.Rptr. 225, 452 P.2d 329. This view is predicated upon the Hill court's citation of Kirchner for the statement: "It is not enough that defendant alleges omissions of counsel indicating lack of preparation and general incompetence. He must show that such acts or omissions resulted in withdrawal of a crucial defense from the case." (Hill, supra, 70 Cal.2d 678, 689, 76 Cal.Rptr. 225, 230, 452 P.2d 329, 334.) (Emphasis added.) The Hill court did not use the term, "conclusive defense," found in Kirchner, but rather, the term, "crucial defense," found in Ibarra.

Although the Hill court points out that "(w)hen a defendant asserts that his constitutional right to adequate representation by competent counsel has been violated, the...