Opinion
Certified for Partial Publication
The opinion is certified for publication, other than issues III and IV.
Rehearing Granted Dec. 24, 1985.
Opinions on pages 168-177 omitted.
[220 Cal.Rptr. 711]Frank O. Bell, Jr., State Public Defender, Nancy B. Sperber and Therene Powell, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Robert R. Anderson, Supervising Deputy Atty. Gen., and Robert C. Schneider, Deputy Atty. Gen., for plaintiff and respondent.
KINGSLEY, Acting Presiding Justice.
Defendant was charged with, and after a jury trial, was convicted of rape and robbery. He was sentenced accordingly and has appealed. We affirm.
I
After the case had been on trial for a day or a half the defense attorney, a member of the Public Defender's Office, announced that she had discovered a conflict of interest, requested that she be allowed to withdraw and that private counsel be appointed. After the judge asked the nature of the conflict, she refused to state it on the grounds that it would violate the confidence of another client of the Public Defender's Office. The judge denied the request of the defense. She then brought a writ proceeding, but the writ was denied by Division One of this court without the issuance of an order to show cause or alternative writ but with a formal opinion distinguishing the case on which she relied, Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, 112 Cal.Rptr. 478. A hearing in the Supreme Court was denied.
The briefs have argued the applicability of Uhl and of Leversen v. Superior Court (1983) 34 Cal.3d 530, 194 Cal.Rptr. 448, 668 P.2d 755. We decline the invitation to determine whether either or both of those cases support counsel's right to declare a conflict of interest in mid-trial without stating wherein the conflict exists. The refusal of this court and of the Supreme Court in the writ proceeding to permit counsel's withdrawal is the law of this case. It is immaterial whether that denial was good law or not. If the request to withdraw had been raised for the first time in a proceeding before us, we would have been forced either to follow Uhl or to distinguish it, but we are now bound by the earlier decision in this case denying withdrawal.
II
The investigating police officers turned certain pieces of physical evidence over to the police criminalist for examination. One item turned over was a swab which had been used to determine defendant's blood type. After it had been determined by blood on his clothing and on the victim's clothing, the swab was discarded.
Relying on cases which find per se reversible error where the prosecution has destroyed evidence, the defendant claiming that the destruction of this swab might have shown that his blood type was not "O," defendant contends he is entitled to a per se reversal. We disagree. Even if the swab had shown defendant's blood type (which is pure speculation) it would not have helped defendant. The evidence of a rape and his identification after the rape-robbery was overwhelming.
See footnote *, ante.
For the reasons above stated, the judgment is affirmed.
McCLOSKY and ARGUELLES, JJ., concur.