Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF2425 Richard W. Stanford, Jr., Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Enrique Estrada appeals from a final judgment of conviction following a jury trial. Defendant claims his trial counsel had a conflict of interest in concurrently representing defendant in this trial and his sister in a different action. Defendant contends he was denied his right to counsel under the United States and California Constitutions because trial counsel actively precluded one of defendant’s sisters from testifying regarding exculpatory evidence. We affirm.
I
FACTS
Defendant was convicted of possession of methamphetamine for sale (Health and Saf. Code § 11378) and sentenced to a total term of four years and four months in state prison, which included an enhancement based on defendant’s prior conviction of possession for sale. (Health & Saf. Code § 11370.2, subd. (c).)
On July 24, 2008, approximately 10 police officers, including an officer from the Cypress Police Department and assigned to the United States Department of Justice Drug Enforcement Adminstration, executed a search warrant at a single family residence with an unattached garage on North Sabina Street in Anaheim, after surveillance suggested drugs were sold at the residence. Defendant, his mother, father, and one other person were present when the police searched. Defendant’s sister Leticia, having been arrested in June for a separate offense, was incarcerated at the time of the search.
Officers searched the unattached garage to the rear of the house. The garage had been converted into a living space, which was divided into a bedroom and a storage area. Officers found defendant lying on a bed in the bedroom of the converted garage. The bedroom contained two plasma television sets, a notebook, two cell phones, and currency totaling $3,940. One cell phone, which defendant admitted was his, had a text message received just hours before the search asking, “got milk?” The word “milk” is commonly used by drug dealers and buyers to refer specifically to methamphetamine. In the storage area, officers found two baggies containing a total of two grams of methamphetamine and a digital scale, both of which were on a table several feet from the bedroom door. Officers also discovered in the bedroom a bill from T-Mobile addressed to defendant at that address.
A narcotics expert, a detective with the Cypress Police Department, testified the methamphetamine was possessed for sale. This opinion was based on the drug’s separate packaging, the large amount of currency in the bedroom, the “got milk” text, the pay/owe sheets in the notebook found in the bedroom, and the fact there was nothing at the premises to smoke or inject the methamphetamine. In other words, the expert said there was no indication the drugs were for personal use.
In a prior incident in 2003, both defendant and his sister Leticia were arrested for possessing methamphetamine for sale. Attorney James Cesena represented defendant in that action, and defendant ultimately pled guilty. There is no indication in this record Leticia was ever charged as a result of the 2003 incident.
When Leticia was arrested again in June of 2008, Leticia’s family hired Cesena to represent her. Leticia pled guilty on November 3, 2008, and received five years probation with one year in county jail as a condition of probation.
Cesena also represented defendant in the present case. Cesena did not put Leticia’s name on the witness list he filed with the court before trial, and Leticia never testified at defendant’s trial. On November 20, 2008, 17 days after Leticia pled guilty in her case, a jury found defendant guilty of possession for sale of methamphetamine.
Cesena put on a reasonable doubt defense. Frank Hicks, a forensic document examiner, testified “[defendant] probably did not” make the writings on the pay/owe sheets in the notebook found in defendant’s bedroom. Defendant’s younger sister Diana, who “sometimes” lives at the residence on North Sabina and was staying there on the date of the search, testified family members, friends, and neighbors all visited the house even if family members were not home. She said the boxes on the table where the methamphetamine was found belonged to her. Defendant’s mother testified many people came to the house and paid cash to have their cars painted. Defendant’s father testified defendant handled the cash paid by clients for car repairs and also had access to the business’s bank account. A friend of defendant, testified he dropped off $1,200 in installments at the house for work done on his car. Defendant did not testify. Cesena refused an instruction of the lesser included simple possession so he would not have to argue in the alternative.
After trial, Attorney Stephan DeSales replaced Cesena as counsel of record. DeSales filed a motion for new trial, asserting inter alia Cesena labored under a conflict of interest because his “loyalty to defendant... was compromised by his representation of the defendant’s sister [Leticia], ” which overlapped in time. In support of this allegation, defendant stated in a declaration and in his testimony he had insisted his sister testify but Cesena said Leticia could not testify because doing so would “screw her.” Defendant also testified he had never waived any conflict of interest due to Cesena’s representation of Leticia.
In support of defendant’s motion for new trial, Leticia declared, “Prior to my arrest in [June of 2008], I had stayed in the garage bedroom at my [parents’] home. All my stuff was stored in that room and a storage area adjacent to it. I had hidden [a] small amount of methamphetamine in the room when I was living there. I believe the drugs that my brother was charged with... are mine. I also believe Prosecution’s Exhibit 4, the ‘pay-owe sheet’ in the spiral note book was mine, as my signature is in it.” Leticia further declared Cesena said “everything [was] going well for [defendant, ]” and she could not testify on his behalf. Lastly, Leticia declared, “Mr. Cesena never advised me what a ‘conflict of interest’ was, or that I might need a different lawyer than my brother or that [defendant] might need a different lawyer than me” and “Mr. Cesena never told me it would be a ‘conflict of interest’ if I was called as a witness for [defendant] and he was the Attorney for both of us.”
In support of the motion for new trial, DeSales filed a declaration regarding a telephone discussion he and Cesena had regarding Cesena’s involvement in the present action. Per DeSales, “Cesena said he was concerned about a potential conflict of interest in his representing both Leticia... and [defendant]. He claimed he brought up his concerns regarding the conflict to [defendant] early on in his representation. He further claimed he told [defendant] he didn’t want to represent him due to the conflict, but that [defendant] insisted and told attorney Cesena to ‘keep Leticia... out of it, ’ and that she ha[d] nothing to do with it.... Attorney Cesena suggested, or implied that’s why he didn’t put Leticia... on the stand.” The declaration stated, “Attorney Cesena admitted that defendant claimed he was innocent, but he asserted that [defendant] never specifically denied that the drugs were his.”
Attorney DeSales’ declaration further related, “[Cesena] never took a written waiver or brought his concern to the attention of the court, apparently because he felt that [defendant’s] statement was sufficient to waive the conflict. [¶]... [¶] When told about Leticia[’s]... statement (declaration) to... DeSales, Attorney Cesena claimed that was the first he’d ever heard any of it. Attorney Cesena didn’t comment on whether he specifically spoke to [Leticia] about cooperating and testifying for her brother, or waiving a potential conflict of interest once [defendant] got arrested, regardless of his feeling that there was a potential conflict of interest.” The trial court denied defendant’s new trial motion.
II
DISCUSSION
A. Defendant’s Ineffective Assistance of Counsel Claim
Defendant contends the trial court erred in denying his motion for new trial because Cesena’s conflict of interest denied him his right to effective assistance of counsel. He argues Cesena concurrently represented both him and his sister Leticia, and Cesena actively precluded Leticia from testifying the methamphetamine found belonged to her. As a result, his argument goes, the jury was not made aware of exculpatory evidence. The Attorney General responds “concurrent representation is inapplicable here, ” there was no actual conflict of interest, and there was no reasonable probability the result of the proceeding would have been different but for Cesena’s actions.
“‘“The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.”’ [Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 46.) “An ‘actual conflict, ’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.” (Mickens v. Taylor (2002) 535 U.S. 162, 172, fn. 5.) “[A] mere theoretical division of loyalties” does not amount to an actual conflict of interest.
(Id. at p. 171.) “‘It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 417.)
Before Doolin, a defendant was required “to (1) show counsel labored under a potential conflict of interest, and (2) raise an informed speculation that the potential conflict adversely affected counsel’s performance. [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p. 419, italics added.) However, in Doolin the Supreme Court held “our informed speculation formulation is too amorphous to provide meaningful guidance to either the bench or bar.” (Id. at p. 421.) In Doolin, the Supreme Court “harmonize[d] California conflict of interest jurisprudence with that of the United States Supreme Court and adopt[ed] the standard set out in [Mickens v. Taylor (2002) 535 U.S. 162, ]” disapproving “earlier cases to the extent that they can be read to hold that attorney conflict claims under the California Constitution are to be analyzed under a standard different from that articulated by the United States Supreme Court.” (Ibid., fn. omitted.)
Claims of Sixth Amendment violations based on conflicts of interest are to be analyzed as claims of ineffective assistance of counsel. (Mickens v. Taylor, supra, 535 U.S. at p. 166.) In Strickland v. Washington (1984) 466 U.S. 668, the United States Supreme Court established this rule to analyze ineffective assistance of counsel claims: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) The defendant must demonstrate “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at 695.)
Assuming an actual conflict of interest affected counsel’s representation, prejudice is not presumed but generally must be proven. “Only when the court concludes that the possibility of prejudice and the corresponding difficulty in demonstrating such prejudice are sufficiently great compared to other more customary assessments of the detrimental effects of deficient performance by defense counsel, must the presumption [of prejudice] be applied in order to safeguard the defendant’s fundamental right to the effective assistance of counsel under the Sixth Amendment. [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76, 173, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
However, a defendant need not show the conflict of interest had a probable effect on the outcome in situations of joint representation. Prejudice is presumed where counsel engages in “joint representation of conflicting interests... because counsel’s conflicting obligations to multiple defendants ‘effectively sea[l] his lips on crucial matters’ and make it difficult to measure the precise harm arising from counsel’s errors. [Citation.]” (Mickens v. Taylor, supra, 535 U.S. at p. 168.) For example, the Federal Rules of Criminal Procedure define joint representation as occurring when “two or more defendants have been charged jointly... or have been joined for trial...” and “the defendants are represented by the same counsel, or counsel who are associated in law practice.” (Fed. Rules Crim. Proc., rule 44(c)(1)(A), (B).) Conflicting interests in turn exist where conflicting duties may lead counsel not “‘to enforce to their full extent the rights of the interest which he should alone represent.’ [Citations.]” (1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 103, p. 140.)
Here, defendant and Leticia were arrested for separate possession of methamphetamine for sale offenses. They were not charged as codefendants, although Cesena’s representation of the two overlapped in time. Joint representation arises in cases where the defendants may be more properly called codefendants. (See Holloway v. Arkansas (1978) 435 U.S. 475, 478-480.) Defendant and his sister were not charged as co-defendants. But even assuming the presumption of prejudice attached to “joint representation of conflicting interests” (Mickens v. Taylor, supra, 535 U.S. at p. 168) applies in this matter where Cesena represented defendant and his sister, the prior occupant of the room where the methamphetamine was found, that presumption was rebutted here. As we discuss below, the trial court impliedly found Cesena’s declaration that he was never informed Leticia was a witness in defendant’s case credible. Leticia’s declaration was the first Cesena knew of her alleged exculpatory statements.
Defendant contends Cesena’s actual conflict of interest led him to preclude Leticia from testifying the methamphetamine found was hers, and this preclusion affected the outcome of his trial. “A lawyer who fails... to introduce into evidence, records that demonstrate his client’s factual innocence, or that raise sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.” (Hart v. Gomez (9th Cir. 1999) 174 F.3d 1067, 1070.) “Such conduct is ‘outside the wide range of professionally competent assistance.’ [Citation.]” (Ibid.)
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]” (In re Marriage of Arceneaux (1990) 51Cal.3d 1130, 1133.) “The deferential abuse of discretion standard governs our review. [Citations.]” (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) “We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation]....” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) “[W]e accept the trial court’s resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported....” (People v. Smith (2007) 40 Cal.4th 483, 502.)
Leticia’s declaration and defendant’s testimony at the motion for new trial, if believed, weigh in favor of the conclusion Leticia intended to testify the methamphetamine belonged to her and Cesena was aware of that fact before trial. Cesena’s assertions, relayed by DeSales’ declaration, weigh in favor of the opposite conclusion: Leticia neither intended to testify the methamphetamine was hers nor informed Cesena of her intention. The conclusions are mutually exclusive and make necessary a determination of which account the court found more credible.
The trial court correctly found there was no actual conflict and concluded there was no reasonable probability the result of the proceedings would have been different but for Cesena’s actions. The court made no express finding as to whether Leticia’s declaration and defendant’s testimony were more credible than Cesena’s statements relayed by DeSales in his declaration. We resolve the conflict in the light most favorable to the judgment and accept the implied finding Cesena’s statement he was unaware of Leticia’s intent to testify was more credible than Leticia’s declaration and defendant’s testimony to the contrary. (See People v. Olguin, supra, 31 Cal.App.4th
at p. 1382.) The trial court found defendant did not carry his burden to show Leticia would have waived her Fifth Amendment right and testified if she had been represented or advised by other counsel. There was no abuse of discretion as this finding is supported by substantial evidence.
Cesena committed no error, as the trial court found he was unaware of the existence of possibly exculpatory third party testimony. (See Hart v. Gomez, supra, 174 F.3d at p. 1070 [error where counsel fails to investigate when presented with exculpatory evidence].) Having not been presented with such evidence, Cesena would not have been forced to decide whether his loyalty lie with Leticia or defendant: there was no actual conflict of interest on Cesena’s part. In the absence of an actual conflict, defendant cannot demonstrate a probable effect on the result of the proceeding. We find defendant failed to demonstrate Cesena rendered deficient performance amounting to ineffective assistance of counsel.
B. Defendant’s Penal Code § 4019 Claim
Defendant was sentenced April 17, 2009, to serve four years, four months in state prison. The trial court determined defendant had spent 268 days in presentence custody and was entitled to 134 days of conduct credit under the then current version of Penal Code section 4019, which provided for two days of credit for every four days spent in custody unless the inmate failed to conduct himself in accordance with the facilities rules or to perform assigned work. (Former § 4019, subds. (a)(4), (b), (c), (f), as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, section 4019 provides for two days credit for every two days in custody, excepting some circumstances not applicable here. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The amendment does not state whether it is to apply prospectively or retroactively. If sentenced under the current version of section 4019, defendant would be entitled to an additional 134 days of conduct credit, for a total of 268 days of presentence conduct credit.
All further statutory references are to the Penal Code, unless otherwise indicated.
The trial court concluded section 4019 did not apply retroactively and denied defendant’s motion to correct the award of local presentence conduct credits. Defendant contends the amendment should be applied retroactively to his case. We agree.
A legislative amendment is generally presumed to operate prospectively unless there is an express declaration to the contrary. In In re Estrada (1965) 63 Cal.2d 740, our Supreme Court created an exception to this rule when the statute mitigates punishment. (Id. at p. 740.) The court held in such situations, “It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
For purposes of the Estrada rule, the courts have traditionally deemed legislative enactments increasing the credits a defendant may accrue as statutes mitigating punishment. (See e.g., People v. Doganiere (1978) 86 Cal.App.3d 237 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389 [statute involving custody credits].) Following this tradition, the majority of courts to consider the present issue have concluded the recent amendment to section 4019 falls within the Estrada rule because the amendment effectively reduces the amount of time eligible defendants will spend in prison. (People v. Bacon (2010) 186 Cal.App.4th 333.)
Although the Supreme Court has granted review of the issue (see People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Brown (2010) 182 Cal.App.4th 1354) and will eventually put the issue to rest, we agree with the reasoning expressed by the majority of courts to have considered this issue and conclude the amendment to section 4019 should be retroactively applied to cases pending on appeal.
III
DISPOSITION
The judgment is modified to award defendant 268 days of presentence conduct credit pursuant to section 4019, for a total presentence award of 536 days. The clerk of the superior court is directed to prepare an amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.