Opinion
B159221.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN VALENCIA, Defendant and Appellant.
Elizabeth A. Bumer, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Kyle S. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Benjamin Valencia of two counts of second degree robbery and found he had personally used a firearm. The trial court sentenced Valencia to an aggregate term of 17 years four months in state prison. On appeal, Valencia contends he was deprived of his constitutional right to effective counsel because the deputy public defender representing him at trial provided stipulated testimony regarding a contested matter involving Valencias alibi defense without Valencias informed written consent. We affirm.
Valencia also contends the trial court committed reversible error by instructing the jury with CALJIC No. 17.41.1, the "anti-nullification" instruction. The contention that this instruction deprives a defendant of the right to a fair trial and to due process of law was rejected in People v. Engelman (2002) 28 Cal.4th 436, in which the Supreme Court held CALJIC No. 17.41.1 does not infringe upon a defendants federal or state constitutional right to trial by jury or state constitutional right to a unanimous verdict.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
At 3:00 p.m. on May 15, 2001 a man holding a semi-automatic handgun entered a supermarket with two companions. The gunman told the assistant manager he was robbing the store and demanded that he and the store cashiers empty the cash registers into a burlap bag. The assistant manager later identified Valencia from a photographic lineup as the man who had robbed him at gunpoint.
A witness saw the three men enter a white Jeep Cherokee and drive away from the market. The witness provided police with a description and a partial license plate number for the Jeep Cherokee. The police located the abandoned Jeep Cherokee a short while later.
On May 16, 2001 a man telephoned the police and inquired about the Jeep Cherokee. He was told the vehicle had been impounded and that the police wanted to speak to him. The caller hung up. Several weeks later Valencia and three companions went to the police station and asked about the Jeep Cherokee. Valencia said he was the last person to drive the vehicle before it was impounded. Valencia also told the police he had borrowed the Jeep Cherokee and later noticed the vehicle was no longer parked where he had left it.
Defense Evidence
Valencia presented an alibi defense. On direct examination Juan Cota testified he had visited Valencia at his residence "around 11:30, 12:30 [p.m.]" on the day of the robbery. The two men left the residence in Cotas automobile, dropped a friend off at his home and drove to a restaurant in Glendale. They returned to Valencias residence at "about 12:30, 1:00 [p.m.]" Cotas brother arrived "around 2:00 [p.m.]" in his Jeep Cherokee. The brother parked his vehicle, gave his keys to Valencia and Cota and left.
Cota repeatedly testified he and Valencia were together all afternoon and that at 3:00 p.m. they were watching television. Valencia took the Jeep Cherokee to buy some fruit "around 3:35, 3:40 [p.m.]" He returned eight to 10 minutes later, parked the Jeep Cherokee outside his residence and resumed watching television with Cota. Around 4:00 p.m. Cota saw police impound the Jeep Cherokee and telephoned his brother. Weeks later, Valencia and Cota went to the police station to recover the Jeep Cherokee.
Valencia testified on his own behalf and described his activities on May 15, 2001 in the same fashion as had Cota. Specifically Valencia insisted he had been with Cota watching television at 3:00 p.m. when the supermarket had been robbed.
Stipulation Concerning Cotas Statements to Defense Counsel
Prior to trial the deputy public defender representing Valencia had a brief conversation with Cota regarding Valencias alibi defense. In notes prepared after the interview and provided to the prosecution the following day, defense counsel reported Cota said he had arrived at Valencias home between 9:00 a.m. and 10:00 a.m. In response to a question from the court, outside the presence of the jury, counsel explained, "when I talked to him, he gave me various times. I wrote down 9:00 to 10:00. Thats the first thing he told me. I paraphrased what he said." During cross-examination, however, Cota denied having told Valencias counsel at any point that he had arrived between 9:00 a.m. and 10:00 a.m. "No. I said I had arrived at 10:00, 11:00, or 12:00, that I wasnt sure what time it was that I had arrived."
The prosecutor advised the court he wanted to impeach Cota based on the apparent conflict between Cotas testimony and his statement to defense counsel. Following a discussion as to whether Valencias defense lawyer could be called as a witness in the trial, "to move the trial along and to avoid having me called as a witness and having to declare a conflict in the matter," defense counsel agreed to stipulate that Cota had said he arrived at Valencias residence "somewhere around 9:00 to 10:00 a.m."
At this point the prosecutor indicated he also wished to impeach Cota with other parts of the statement provided to defense counsel that were inconsistent with Cotas trial testimony. Defense counsel refused to stipulate to the use of any other portion of his interview notes. The trial court then cautioned the prosecutor: "If Mr. Rosales is called as a witness to impeach Mr. Cota, he cannot, I dont believe, represent Mr. Valencia any longer. He has no legal blockage to being called as a witness, but this trial could not go forward . . . . Mr. Rosales position of stipulating to nine oclock I think is a reasonable one and a way to keep the trial moving, but if the people want to impeach Mr. Cota with a relatively significant point, that is your choice, but thats a choice youre [going to] have to make and if you decide you want to call Mr. Rosales, I anticipate a mistrial motion, and you can anticipate its going to be granted." The prosecutor responded by stating he did not want a mistrial and did not want to call defense counsel as a witness, and therefore would accept the limited stipulation that had been offered.
Defense counsels notes indicated Cota had said he and Valencia went to lunch in Glendale at 11:00 a.m., a statement that conflicted with Cotas testimony on direct examination that he arrived at Valencias home somewhere between 11:30 a.m. and 12:30 p.m.
DISCUSSION
Valencia argues his counsels dual role as advocate and witness created an inherent conflict of interest that was not resolved by the limited stipulation that avoided having defense counsel actually testify and that, as a result of this conflict, he was deprived of his constitutional right to the effective assistance of counsel. Specifically, Valencia asserts defense counsel rendered ineffective assistance because: (1) he "failed to withdraw as counsel when it became apparent he would be called as a witness"; (2) he "failed to request independent counsel to advise [Valencia] of the potential conflict of interest"; (3) the stipulation "hurt the defense"; and (4) cross-examination of defense counsel was "likely to cast doubt on the accuracy of [his] interview" with Cota.
Valencia is correct that "lawyering may be deficient when conflict of interest deprives the client of undivided loyalty and effort." (Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612, 180 Cal. Rptr. 177, 639 P.2d 248.) Nonetheless, if, as here, there is no basis for concluding the alleged conflict was prejudicial, the judgment of conviction must be affirmed. (Id. at pp. 612-613; accord,People v. Cunningham (2001) 25 Cal.4th 926, 1003 ["To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. [Citations.]"].)
Viewed against the backdrop of the other testimony presented to the jury (which, of course, included the assistant managers positive identification of Valencia as the man who had robbed him at gunpoint), the limited stipulation to which Valencias counsel agreed was harmless — that is, it is not reasonably probable the jury would have believed Valencias alibi defense had his counsel not stipulated that Cota said in a pretrial interview he had arrived at Valencias home sometime between 9:00 a.m. and 10:00 a.m. Cota had already explained he did not wear a watch and was uncertain when he arrived at Valencias residence. Accordingly, any possible impact of this inconsistency on the jurys assessment of Cotas credibility was minimal. Moreover, whether he first came over to Valencias home before 10:00 a.m. or as late as 12:30 p.m. was essentially irrelevant because the robbery occurred at 3:00 p.m. The critical aspect of the alibi testimony, unaffected by the limited stipulation, was that Valencia and Cota had been together "all afternoon" and were watching television at Valencias home at 3:00 p.m. Indeed, to the extent Cotas pretrial statement was inconsistent with his testimony, any defense effort to rehabilitate Cota by examination of counsel regarding the pretrial interview would have elicited the much more harmful evidence that Cota had said he and Valencia had lunch in Glendale at 11:00 a.m., not later as he had suggested in court.
Absent any likelihood of prejudice, Valencias claim of ineffective assistance of counsel is without merit. (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 613 [absent at least "informed speculation" that defense counsels conflict was prejudicial, judgment of conviction must be affirmed].)
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J., WOODS, J.