Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD058308, Valeriano Saucedo, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Miguel V. contends he was denied effective representation of counsel because counsel had a conflict, warranting reversal of the judgment. He also contends the juvenile court failed to determine whether his offense, violation of Penal Code section 245, subdivision (a)(1), was a felony or misdemeanor. We disagree and will affirm in all respects.
FACTUAL AND PROCEDURAL SUMMARY
On May 2, 2006, Mateo Delgado and his girlfriend, Maria Rocha, stopped at a liquor store in Strathmore. Delgado went inside to make a purchase while Rocha waited in the car. Rocha saw several males congregating outside the store. She called Delgado to warn him about the suspicious individuals and to tell him to remain inside the store. Delgado waited for 10 or 12 minutes before leaving the store.
At the jurisdictional hearing, Mateo Delgado identified himself as Mateo Delgado Herrera. Throughout the record, however, he is referred to as Mateo Delgado. To avoid any confusion, we refer to Mateo Delgado Herrera as “Delgado.”
When Delgado walked out of the store, the males jumped him and began hitting him with their fists. Delgado attempted to defend himself and ran back toward the store. Rocha got out of the car and told the men to stop; Delgado told Rocha to call the police. At that point all but one of Delgado’s attackers stopped and ran away. Rocha returned to her car and called the police.
Police Officer Leonard Phillips responded to the call. Upon arrival Phillips noted that Delgado was bleeding and was having difficulty breathing. Delgado had been stabbed during the attack, but he did not know which of his attackers had stabbed him.
Rocha identified Miguel as one of the attackers. Delgado identified Miguel and Miguel’s cousin, Mark A., as two of his attackers. R.F. told Phillips she witnessed the incident and identified two of the attackers as Miguel and Mark. At trial, R.F. testified she did not witness the attack and was afraid to testify. She acknowledged, however, identifying Miguel and Mark as two of the individuals she saw running from the store after the attack.
Miguel testified that he and Mark were at the store when the fight occurred, but they were inside the store when the fight started. Miguel testified that when he and Mark left the store, Delgado was brandishing a knife at several individuals. Mark suggested they leave the area and then Miguel and Mark took off and ran toward the alley.
Mark’s testimony was consistent with Miguel’s. Mark testified he and Miguel were inside the store when the fight started and they did not participate in the fight. Mark told Miguel they should leave and they took off down the alley.
Miguel and Mark were tried jointly and represented by the same attorney. On February 9, 2007, the juvenile court declared Miguel a ward of the court. He was removed from the custody of his parents and committed for a period of four years four months to the Department of Corrections and Rehabilitation, Juvenile Justice (hereafter juvenile justice center) (formerly the California Youth Authority). Execution of sentence was stayed and Miguel was committed to the boot camp program with specified conditions of probation.
DISCUSSION
Miguel contends the judgment must be reversed because counsel’s joint representation denied him the effective assistance of counsel, and he did not waive any potential conflict validly. Additionally, Miguel contends the juvenile court had the discretion to determine whether his offense was a misdemeanor or felony.
I. No Conflict of Interest
Factual summary
Miguel and Mark are cousins who reside in the same home. Separate petitions under Welfare and Institutions Code section 602 were filed against them arising out of the incident with Delgado. Each petition alleged that Miguel and Mark, respectively, had committed assault with a deadly weapon with force likely to produce great bodily injury. A great bodily injury enhancement also was alleged as to Mark, but not Miguel.
Attorney David F. Candelaria appeared as counsel for both minors at the detention hearing. Candelaria advised the juvenile court that based upon his initial investigation, he did not believe joint representation presented any conflict “at this time.” Candelaria stated that both Miguel and Mark were present at the scene, but neither was a participant in the attack against Delgado. Their interests, therefore, were not conflicting.
The juvenile court then addressed Miguel and explained the potential for conflict due to joint representation. The juvenile court then asked Miguel and Mark if they wished to waive the potential conflict. Mark initially said no and then indicated he did not understand. After further explanation and clarification, Mark, and then Miguel, agreed to waive any conflict for purposes of the detention hearing.
The issue again was raised at the jurisdictional hearing. During the hearing, Candelaria stated that he “discussed what a conflict was, how representing one person may detract from representing the other person.” The juvenile court stated:
“Now we are at the time of trial, and it is very important that you understand that in the course of a trial, you each may have different interests, and you are each entitled to have an attorney that will represent your interests and your interests only, even if that means representing your interests to the detriment of the other parties.
“Because that attorney must be faithful to you and must represent your interests at all times, even if it means that it works against the interests of some other party. Because that’s the duty of loyalty that the attorney has to each of you.
“We’re now at the time of the jurisdiction hearing. I don’t know what the evidence will be, so I want to make sure that each of you understand[s] that there may be a conflict.”
The juvenile court then asked Mark if he waived the conflict and Mark stated, “No.” The juvenile court then stated, “Counsel, if he does not waive that conflict, then you may not represent him.” Mark then spoke up and indicated he misunderstood the question. After further discussion and explanation, Mark indicated he understood the conflict and waived the conflict.
The juvenile court then addressed the issue of the conflict with Miguel. After again briefly explaining that Miguel was entitled to an attorney “that will represent your interest and your interests only,” Miguel was asked if he understood the potential for conflict. Miguel responded, “Yes.” Miguel was then asked if he waived “any potential conflict that may exist” and he responded affirmatively.
At the start of the evidentiary portion of the jurisdictional hearing, the juvenile court again addressed the conflict issue. The juvenile court stated:
“I must review with you once again the issue of a conflict. I discussed this with you earlier, and the Court at that time was concerned. Because in the course of developing a case, investigating a case, not only factually, but legally, there may at times be a conflict, that is, that an attorney must choose a certain defense or a certain factual strategy that may conflict with the rights or defenses of another person who is also charged in the same event.
“Each of you [is] charged in the same event. You have a single attorney. And it is important to the Court that we review this issue of a conflict once again. Because if there is any conflict, I wish to address it now. And if there is a conflict, then I must appoint different attorneys to represent you to ensure that your interests are fully protected without any conflict.
“I say this because my view is that everything is reviewed on appeal. And I do not wish for, on appeal, someone to raise the issue that this Court should have granted you a different lawyer, either of you. So I want to make sure that you fully understand the issue of a conflict.”
The juvenile court then reiterated to Miguel that in the course of the jurisdictional hearing, “at times there may be a conflict between your interests and those of Mark.” The juvenile court further stated that a factual or legal conflict may arise in the course of the joint representation. Miguel was asked if he understood that “there may be a conflict” between his interests and Mark’s interests. Miguel responded affirmatively and stated that he wished to waive any conflict that may arise.
Candelaria then proceeded to question both Miguel and Mark regarding his discussions with them pertaining to a potential conflict. Miguel and Mark affirmatively stated that Candelaria had discussed the conflicts with them more than once and had discussed the conflict issue with their parents. Both minors also indicated that Candelaria had told them that “the [two] defendants could possibly have a conflict of interest, in order to help one, he might not be able to help the other, and vice versa.” Both minors acknowledged that they understood this conflict and waived the conflict.
Analysis
The right to effective representation of counsel includes the right to representation by conflict-free counsel. (People v. Rundle (2008) 43 Cal.4th 76, 168 (Rundle).) While the potential for conflict arises when counsel represents more than one codefendant, the conflict may be waived by a defendant. Any waiver must be unambiguous and it must be knowingly and intelligently made by the defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 375-376.)
Here, Miguel did not object to the joint representation and he affirmatively waived any conflict on three separate occasions. Miguel, however, claims that the waivers taken by the juvenile court were inadequate to establish that he knowingly and voluntarily waived his right to conflict-free counsel. Miguel bases this claim on (1) no independent counsel ever met with him to discuss the conflict, and (2) his answers to the juvenile court’s questions reflected a desire to keep Candelaria as his attorney rather than any true understanding of the rights he was relinquishing.
The inquiries by the juvenile court set forth, ante, were more than adequate to establish that Miguel understood the right he was relinquishing and was knowingly and voluntarily relinquishing that right. The juvenile court indicated that it would appoint separate counsel for the minors to explain the potential conflict, if they did not understand the issue of the conflict, before accepting any waiver. Further, the juvenile court established that counsel had discussed the potential conflict with the minors and their parents on more than one occasion. The juvenile court also explained the potential conflict to Miguel on three occasions prior to accepting a waiver. This record constitutes ample evidence that Miguel knowingly and voluntarily waived any potential conflict.
Furthermore, in order to obtain a reversal, Miguel must show that counsel labored under an actual conflict of interest, not simply a theoretical division of loyalties, which adversely affected counsel’s performance. (Rundle, supra, 43 Cal.4th at p. 169.) Miguel has not demonstrated that an actual conflict of interest adversely affected counsel’s performance.
Both Miguel and Mark consistently maintained they did not participate in the attack on Delgado; they merely watched the fight. They both blamed a third person, Ernesto C., for the stabbing of Delgado, a claim that Delgado could not dispute as he could not identify the person who stabbed him. Both Miguel and Mark identified two other people, Moises R. and Reyes T., in addition to Ernesto, as the persons who were present and participated in the attack on Delgado.
The statements of Miguel and Mark before and during the trial were consistent and supported each other’s claims of innocence.
The difference in charges is not a basis for concluding that the level of culpability was different in any significant respect and that a conflict existed. Upon realizing the charges were slightly different, the prosecutor responded that the charges should have been the same for Miguel and Mark. Likewise, the probation report’s statement that Mark was the one who stabbed Delgado was not supported by the evidence, and this statement was corrected at the time of the dispositional hearing.
Miguel posits there was “enormous psychological and emotional pressure” not to implicate Mark; he would have been better served to have testified that Mark was an active participant in the attack; and he did not have final say over whether to have counsel separate from Mark. The claim that Miguel did not have final say over whether he had separate counsel is belied by the record. As discussed, ante, Miguel had several opportunities to inform the juvenile court that he wanted separate counsel and consistently declined the court’s invitation to appoint separate counsel.
As for the claim of psychological and emotional pressure, there is no evidence in the record of this and the claim amounts to nothing more than unsupported speculation. We will not address unsupported speculation. If Miguel now is claiming that Mark was an active participant and culpable in Delgado’s attack, and that he should have testified to this, then he is admitting he perjured himself in his testimony at the jurisdictional hearing. Such claims are better addressed in a petition for a writ of habeas corpus.
Miguel validly waived any potential conflict and there is no indication in the record that an actual conflict existed that adversely affected counsel’s performance.
II. Felony Offense
Miguel claims the juvenile court failed to determine if his Penal Code section 245, subdivision (a)(1) offense was a misdemeanor or felony. We disagree.
The record must reflect the juvenile court knew of its discretion to treat a wobbler offense as a felony or misdemeanor. (In re Manzy (1997) 14 Cal.4th 1199, 1208 (Manzy).) Any failure to make an explicit finding is harmless where the record establishes the juvenile court knew of its discretion with a wobbler and rejected misdemeanor status. (Id. at p. 1209.)
The juvenile court stated on numerous occasions that it considered Miguel’s conduct to be a felony. These comments indicate that the juvenile court rejected a misdemeanor disposition. The juvenile court noted that Delgado suffered serious injuries. The probation report stated that the offense should be treated as a felony and the juvenile court specifically adopted all of the requested findings set forth in the probation report. These comments by the juvenile court would be unnecessary unless the juvenile court knew of its discretion to treat the offense as a misdemeanor.
The juvenile court also noted its concerns about the lack of remorse shown by Miguel and his history of violent conduct. The juvenile court specifically stated that it was retaining the ability to send Miguel to the juvenile justice center if he failed to meet boot camp requirements. Maintaining possible incarceration at the juvenile justice center indicates the juvenile court assigned felony status to the offense.
Any failure to articulate more clearly the felony status of the offense is harmless. (Manzy, supra, 14 Cal.4th at p. 1209.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., KANE, J.