Gonzales v. Virga

Filing 23

FINDINGS and RECOMMENDATIONS Regarding 1 Petition for Writ of Habeas Corpus signed by District Judge Anthony W. Ishii on 12/22/2014. Referred to Judge Ishii; Objections to F&R due by 1/26/2015.(Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:12-cv-01536 AWI MJS (HC)
JOSE CRUZ GONZALES,

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FINDINGS AND RECOMMENDATION
Petitioner, REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

v.

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TIM VIRGA,
Respondent.

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Petitioner filed the instant petition for writ of habeas corpus on December 17,
2014. It appears from the face of the Petition and the attachments thereto that Petitioner
is in custody of the County while awaiting criminal proceedings in Fresno County
Superior Court.
I.

PROCEDURAL BACKGROUND
Petitioner is currently in the custody of the California Department of Corrections

pursuant to a judgment of the Superior Court of California, County of Stanislaus,
following his conviction by jury trial on December 23, 2008, of first degree murder with a
use of a firearm. (Clerk's Tr. at 697-98.) On April 16, 2009, Petitioner was sentenced to

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an indeterminate term of fifty (50) years to life in state prison. (Id.)

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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

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District on October 26, 2010. (Lodged Docs. 2-4.) The appeal was denied on August 11,

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2011. (Lodged Doc. 1.) On September 23, 2011, Petitioner filed a petition for review with

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the California Supreme Court. (Lodged Doc. 5.) The petition was summarily denied on

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November 16, 2011. (Lodged Doc. 6.)

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On September 5, 2012, Petitioner filed a petition for writ of habeas corpus with the

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Stanislaus County Superior Court. (Lodged Doc. 7.) The petition was dismissed by way

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of a reasoned opinion on September 21, 2012. (Lodged Doc. 8.) Petitioner proceeded to

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file petitions for writ of habeas corpus with the California Court of Appeal and the

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California Supreme Court. Both petitions were summarily dismissed. (See Lodged Docs.

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9-12.)

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Petitioner filed his federal habeas petition on September 19, 2012. (Pet., ECF No.
1.) The petition raised five different claims for relief, listed as follows:

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1) Trial counsel was ineffective because of a conflict of interest with his employer;

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2) Petitioner was constructively denied counsel at critical stages of the case;

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3) Petitioner’s right to counsel was denied as counsel's office had represented

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nearly all the state's witnesses;

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4) The trial court violated Petitioner's right to counsel in denying his Marsden

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motion; and

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5) Petitioner's right to counsel was violated when the court denied Petitioner a

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continuance to seek new counsel.

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(Pet. at 4-6, ECF No. 1.)

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Respondent filed an answer to the petition on September 5, 2013, and Petitioner

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filed a traverse on December 9, 2013. (Answer & Traverse, ECF Nos. 18, 22.) The

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matter stands ready for adjudication.

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II.

STATEMENT OF THE FACTS1

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FACTUAL AND PROCEDURAL SUMMARY

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The Information

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Gonzales was charged with first degree murder (§§ 187, 189) in the
death of Cox. The information also alleged enhancements for personal
use of a firearm resulting in great bodily injury or death (§ 12022.53, subd.
(d)) and for committing the crime for the benefit of a criminal street gang
within the meaning of section 186.22, subdivision (b)(1). Finally, the
information alleged Gonzales was subject to a term of life in prison without
the possibility of parole because he was an active member of a criminal
street gang and he committed the crime to further the activities of the
criminal street gang. (§ 190.2, subd. (a)(22).)

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Prosecution's Case

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Beginning in the late afternoon of Sunday, August 28, 2005, Sandra
Montes Herrera and Bryan Scott Sanders hosted a party at their
residence. Cox and Gonzales both attended the party. Herrera did not
consume any alcohol or drugs at the party because she was pregnant.
Later that evening, Cox, Gonzales, and a third man, later identified as
Dale Daniels, left the party in a vehicle. Several hours later, only Daniels
and Gonzales returned in the vehicle. Herrera heard Gonzales say that he
"did it." Prior to that night, Herrera had heard Gonzales state that there
were rumors that Cox was a snitch.

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Sanders confirmed there had been a party at his house on August
28, 2005, and that Cox and Gonzales had attended. Sanders saw Cox
leave with Gonzales and Daniels, but only Gonzales and Daniels returned
later that night. Sanders had spoken with Gonzales a few days before the
party. At that time, Gonzales told Sanders that he thought Cox might be a
snitch and needed to be "taken care of." The night of the party Gonzales
asked Sanders for a "throw-away" gun, i.e., a gun that could be thrown
away after it was used.

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Daniels testified he attended the party at Sanders's house. Daniels
and his brother-in-law, Paul Lopez, drove to the party in Lopez's vehicle.
Cox and Gonzales also attended the party. A few hours after arriving at
the party, Daniels left the party with Cox and Gonzales to take Cox home.
Daniels drove on back roads utilizing directions given to him by both Cox
and Gonzales. Daniels pulled over to the side of the road near a canal so
that all three men could urinate. Cox and Gonzales walked a short
distance away from Daniels. While Daniels was urinating, he heard four or
five gunshots and he immediately ran back to the vehicle. He heard
Gonzales yell at him to get into the car. Daniels drove off as soon as
Gonzales got into the vehicle. Daniels drove back to the party, returned
the keys to Lopez, and then left the party. He did not tell anyone what had
occurred because he was afraid.

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The Fifth District Court of Appeal’s summary of the facts in its August 11, 2011 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).
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In the late night hours of August 28, 2005, Trisha Lynn Winters was
lying in bed when she heard five to six gunshots. Winters's mother also
heard the gunshots.
On August 30, 2005, at approximately 8:30 in the morning, an
employee of a local farm discovered Cox's body floating in a canal. The
canal is located near the Winters residence.
Detectives discovered six shell casings, a small folding knife, and
scuff marks, as if someone had been dragged along the canal,
approximately one-half mile from where the body was recovered. Another
shell casing was found on the roadway a short distance from the location.
All of the shell casings were .380-caliber, and three of the casings were
manufactured by Cascade Cartridge, Inc. In addition, three other shell
casings of a different caliber were discovered in this area.
Forensic examination of Cox revealed four gunshot wounds, two of
which would have caused death within minutes, and one of which would
have caused death within a matter of hours if untreated. The condition of
the body was consistent with extended exposure to water. The pathologist
testified that the condition of the body at the examination was consistent
with the body having been put into the canal on the night of August 28,
2005, with a time of death in the late night of that date. Four bullets were
recovered during the autopsy.
In the early morning hours of August 29, 2005, police officers from
the Modesto Police Department were dispatched to Sanders's residence
after receiving a report that shots had been fired at the residence. At least
six marked police vehicles responded to the scene. As officers
approached the residence, they observed Gonzales standing in front of
the house. The officers identified themselves and ordered Gonzales to
stop. Initially, Gonzales obeyed the officers' orders, but after a few
moments he ran into the residence. Officers then used the public address
system inside one of their vehicles to order the occupants to come out of
the residence. Gonzales came out of the residence in a relaxed manner
and complied with the officers' orders. When officers searched the
residence, they located a handgun in the tank of one of the toilets.
Sanders was inside the residence when the police approached. He
heard Gonzales enter the house, say he had a gun, and that the gun was
hot. Sanders then observed Gonzales exit the bathroom and go outside.
Testing determined that three of the .380-caliber casings found at
the crime scene were fired from the gun recovered at Sanders's residence
and the other .380-caliber casings found could have been fired from this
gun. The bullets recovered from the victim's body also were compared
with bullets test fired by a criminalist. The criminalist was unable to identify
the bullets as having been fired from the recovered weapon because the
barrel of the weapon appeared to have been altered mechanically.

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Jennifer Delores Rodriguez had had a romantic relationship with
the victim for approximately eight years. Rodriguez last spoke with Cox by
phone two or three days before his body was recovered from the canal.

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Cameron Robert Miller was a friend of the victim's. He last saw the
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victim three to four days before the body was recovered.
Several months after Cox's body was discovered, Gonzales called
Herrera and told her an investigator was going to interview her about Cox.
Gonzales told Herrera to tell the investigator that he (Gonzales) and Cox
were friends.
At trial, Ramona Casioce admitted that she dated Gonzales in 2005
and that she had spoken with detectives about Cox's murder. She denied,
however, that Gonzales ever made any incriminating statements to her or
that she told detectives that he had done so.
A recording of Casioce's statement to detectives was played to the
jury. In the statement, Casioce told detectives that Gonzales had stated he
had dumped Cox's body into the canal because Cox owed Sanders
$1,000. Gonzales also said that Cox's head had been removed from his
body. Gonzales said it was fun dumping Cox's body into the canal.
Gonzales also said that he needed to dispose of some bullets from the
same box as those that were used in the killing. When Casioce indicated
she did not believe Gonzales, he showed her a newspaper article
reporting that a body had been recovered from a canal. Gonzales also
stated he had killed Cox, but claimed he was joking. Generally, Gonzales
stated that another person had killed Cox.
At trial, Rosa Hernandez Perez could not recall anything about the
events surrounding Cox's death. She had been arrested in 2005, however,
and at that time told detectives that Gonzales admitted to her that he had
killed Cox because he believed Cox was a snitch. Her interview with
detectives was recorded and was played to the jury.
Defense Witnesses
Robert Don Lawerence, M.D., a pathologist, reviewed the autopsy
of Cox. He opined that Cox's body had been in the water at least eight to
10 days, perhaps longer.
Turhon Murad, Ph.D., is a physical anthropologist. He performed an
experiment in an attempt to determine how long the hands of a body
would need to be submerged before the skin would peel off, as was the
case with Cox's hands. Murad opined that this condition could not develop
within 36 hours, but likely would take between 146 and 161 hours.
The Verdict and Sentencing
The jury convicted Gonzales of first degree murder and found he
personally used a firearm during the commission of the crime, resulting in
great bodily injury within the meaning of section 12022.53, subdivision (d).
The jury, however, found the crime was not committed for the benefit of a
criminal street gang and that Gonzales was not an active participant in a
criminal street gang at the time the crime was committed.
The trial court imposed consecutive sentences of 25 years to life for
the murder and the firearm enhancement.
People v. Gonzales, 2011 Cal. App. Unpub. LEXIS 6079, 2-9 (Cal. App. 5th Dist. Aug.
11, 2011).
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II.

DISCUSSION

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A.

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Relief by way of a petition for writ of habeas corpus extends to a person in

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custody pursuant to the judgment of a state court if the custody is in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §

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2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he

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suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the

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conviction challenged arises out of the Stanislaus County Superior Court, which is

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located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly,

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Jurisdiction

the Court has jurisdiction over the action.

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B.

Legal Standard of Review

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus

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filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,

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114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of

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the AEDPA; thus, it is governed by its provisions.

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Under AEDPA, an application for a writ of habeas corpus by a person in custody

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under a judgment of a state court may be granted only for violations of the Constitution

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or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.

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7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in

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state court proceedings if the state court's adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
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Contrary to or an Unreasonable Application of Federal Law

A state court decision is "contrary to" federal law if it "applies a rule that
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contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts

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that are materially indistinguishable from" a Supreme Court case, yet reaches a different

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result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06.

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"AEDPA does not require state and federal courts to wait for some nearly identical

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factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that

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even a general standard may be applied in an unreasonable manner" Panetti v.

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Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The

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"clearly established Federal law" requirement "does not demand more than a ‘principle'

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or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state

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decision to be an unreasonable application of clearly established federal law under §

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2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle

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(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-

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71 (2003). A state court decision will involve an "unreasonable application of" federal

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law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at

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409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the

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Court further stresses that "an unreasonable application of federal law is different from

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an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529

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U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks

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merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

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correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541

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U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts

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have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.

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Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established

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Federal law for a state court to decline to apply a specific legal rule that has not been

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squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419

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(2009), quoted by Richter, 131 S. Ct. at 786.

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2.

Review of State Decisions

"Where there has been one reasoned state judgment rejecting a federal claim,
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later unexplained orders upholding that judgment or rejecting the claim rest on the same

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grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

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"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198

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(9th Cir. 2006).

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unreasonable legal or factual conclusion, "does not require that there be an opinion from

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the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.

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"Where a state court's decision is unaccompanied by an explanation, the habeas

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petitioner's burden still must be met by showing there was no reasonable basis for the

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state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does

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not require a state court to give reasons before its decision can be deemed to have been

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‘adjudicated on the merits.'").

Determining whether a state court's decision resulted from an

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Richter instructs that whether the state court decision is reasoned and explained,

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or merely a summary denial, the approach to evaluating unreasonableness under §

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2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments

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or theories supported or, as here, could have supported, the state court's decision; then

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it must ask whether it is possible fairminded jurists could disagree that those arguments

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or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

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Thus, "even a strong case for relief does not mean the state court's contrary conclusion

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was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves

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authority to issue the writ in cases where there is no possibility fairminded jurists could

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disagree that the state court's decision conflicts with this Court's precedents." Id. To put

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it yet another way:

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As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.

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Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts

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are the principal forum for asserting constitutional challenges to state convictions." Id. at

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787. It follows from this consideration that § 2254(d) "complements the exhaustion

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requirement and the doctrine of procedural bar to ensure that state proceedings are the

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central process, not just a preliminary step for later federal habeas proceedings." Id.

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(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

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3.

Prejudicial Impact of Constitutional Error

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The prejudicial impact of any constitutional error is assessed by asking whether

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the error had "a substantial and injurious effect or influence in determining the jury's

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verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

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U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the

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state court recognized the error and reviewed it for harmlessness). Some constitutional

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errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.

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Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659

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(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective

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assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the

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Strickland prejudice standard is applied and courts do not engage in a separate analysis

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applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin

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v. Lamarque, 555 F.3d at 834.

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III.

REVIEW OF PETITION

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A.

Claims 1-4: Ineffective Assistance of Counsel

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Petitioner, in his first four claims, presents various claims that his right to effective

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assistance of counsel was violated.

In his first claim, he contends that his right to

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effective assistance was violated because his attorney had represented the interests of

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his employer, the public defender's office, not Petitioner. Specifically, Petitioner alleges

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that counsel failed to move to withdraw, that the policies of counsel's employer impeded

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his right to investigate and make a defense, and that counsel failed to inform Petitioner

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of his conflicts with his office. In his second claim, Petitioner claims that counsel

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constructively abandoned him in during the investigation phase and Marsden hearings.

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In his third claim, Petitioner contends that counsel had a conflict of interest because

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counsel's office previously represented nearly all of the state's witnesses. And finally, in
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his fourth claim, Petitioner alleges that the trial court violated his right to effective counsel

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by denying his Marsden motion.

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1.

State Court Decision

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Petitioner presented these claims by way of direct appeal to the California Court

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of Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

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appellate court and summarily denied in subsequent petition for review by the California

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Supreme Court. (See Lodged Docs. 1, 6.) Because the California Supreme Court’s

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opinion is summary in nature, this Court “looks through” that decision and presumes it

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adopted the reasoning of the California Court of Appeal, the last state court to have

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issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991)

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(establishing, on habeas review, “look through” presumption that higher court agrees

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with lower court’s reasoning where former affirms latter without discussion); see also

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LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000) (holding federal courts look

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to last reasoned state court opinion in determining whether state court’s rejection of

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petitioner’s claims was contrary to or an unreasonable application of federal law under

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28 U.S.C. § 2254(d)(1)).

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In denying Petitioner’s claim, the California Court of Appeal explained:

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DISCUSSION

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I. Conflict of Interest

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Gonzales claims that trial counsel had a conflict of interest that
compromised trial counsel's loyalty to him, resulting in a violation of his
constitutional right to an attorney. (People v. Rundle (2008) 43 Cal.4th 76,
168, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22 (Doolin).)

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Gonzales's claims stem from several comments made on the
record. Gonzales originally was represented by an attorney who became
seriously ill, thus requiring appointment of a new attorney. The public
defender's office was appointed to represent Gonzales. Trial counsel was
an employee of the public defender's office. At what appears to be the
initial hearing attended by trial counsel, he stated that his office had not
yet completed its conflicts check, but Gonzales claimed that the public
defender's office had represented two of the "star witnesses" against him.
The identity of the star witnesses is not in the record.

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At a status hearing two weeks later, trial counsel explained that he

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had not completed a conflicts check because Gonzales's prior attorney
had not provided the discovery in the case. Once again, trial counsel
stated that Gonzales claimed the public defender's office had a conflict
that would prevent it from representing Gonzales. Trial counsel informed
the trial court he could neither confirm nor deny whether a conflict existed.
The next hearing at which a possible conflict was discussed
occurred six months later when Gonzales made a motion pursuant to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the hearing,
Gonzales stated that one of the reasons he needed new appointed
counsel was because the public defender's office had represented some
of the witnesses in the case. Gonzales identified Casioce and Perez as
two witnesses who had been represented by the public defender's office.
Trial counsel stated he was unsure whether any conflict existed and was
instructed by the trial court to resolve the issue. Also, Sanders mentioned
he was represented by the public defender's office at one point as the
result of charges that arose out of the search of his house (during which
the handgun used to murder Cox was discovered).
After the verdict had been reached, Gonzales again made a
Marsden motion. He asserted trial counsel was ineffective because,
among other reasons, the public defender's office had represented some
of the witnesses in the case. Trial counsel explained that his office had
represented "just about everybody who testified except Bryan Sanders."
The public defender's office concluded that there was no conflict because
the representation of the witnesses occurred in unrelated matters, and
none of the witnesses remained on probation. Trial counsel explained that
his office decided whether a conflict existed, not him personally. He then
mentioned that "at the time I was involved in a labor dispute issue of sorts
with regards to" the conflict issue.
Gonzales argues this record establishes that trial counsel acted
throughout trial under a conflict of interest, requiring reversal of the
judgment. Reversal is required, according to Gonzales, because he
should be afforded a presumption of prejudice because of "the number of
witnesses affected by the conflict of interest."
In Mickens v. Taylor (2002) 535 U.S. 162 (Mickens), the Supreme
Court of the United States explained that under the United States
Constitution a claim that trial counsel acted while under a conflict of
interest was a species of ineffective assistance of counsel and, generally,
the issue was governed by the rule of Strickland v. Washington (1984) 466
U.S. 668, 685-686: A defendant must establish a reasonable probability
that the result of the proceeding would have been different if counsel had
not been deficient. (Mickens, at p. 166.) The Supreme Court also noted an
exception to this general rule where assistance of counsel has been
denied entirely or during a critical stage of the proceedings. (Ibid.) Under
such circumstances, prejudice is presumed and reversal is required. (Ibid.)
The presumption of prejudice also has been applied by the
Supreme Court where a defendant's attorney "actively represented
conflicting interests." (Mickens, supra, 535 U.S. at p. 166.) The issue in
Mickens was whether the presumption of prejudice standard should be
applied where the trial court "fails to inquire into a potential conflict of
interest about which it knew or reasonably should have known."[fn2] (Id. at
p. 164.) Since trial counsel had not asserted to the trial court that he could
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not represent multiple defendants, the Supreme Court concluded that the
defendant was required to establish that the conflict of interest adversely
affected trial counsel's performance. (Id. at pp. 173-174.)
FN2: The alleged conflict of interest arose because at the time the
defendant murdered the victim, one of the attorneys appointed to
represent the defendant also represented the victim in an unrelated
criminal matter. Trial counsel did not view the situation as creating a
conflict of interest because the victim was dead and counsel no longer
represented him. (Mickens, supra, 535 U.S. at pp. 164-165.) The Supreme
Court limited its holding to the standard of review when the trial court had
a duty to inquire. Whether such a duty existed in the case was not
addressed. (Id. at p. 174.)
At the time Mickens was before the Supreme Court, California
recognized not only the federal right to conflict-free counsel, but also an
independent right under the California Constitution to conflict-free counsel.
(Cal. Const., art. I, § 15; Rundle, supra, 43 Cal.4th at p. 174.) California
also had established a more stringent test under the California
Constitution. "Although the federal Constitution—regardless of whether a
presumption of prejudice applies—requires proof of an actual conflict of
interest, that is, proof that counsel's conflict adversely affected his or her
performance during the proceedings [citation], under the state Constitution
we have required only that the record support an 'informed speculation'
that a 'potential conflict of interest' impaired the defendant's right to
effective assistance of counsel. [Citations.]" (Rundle, at pp. 174-175.)
These different standards were addressed by the California
Supreme Court in Doolin, supra, 45 Cal.4th 390.
The Supreme Court began by noting the general rule under both
constitutions that a defendant was entitled to representation by counsel
who was "free from any conflict of interest that undermines counsel's
loyalty to his or her client. [Citations.]" (Doolin, supra, 45 Cal.4th at p.
417.) "'As a general proposition, such conflicts "embrace all situations in
which an attorney's loyalty to, or efforts on behalf of, a client are
threatened by his responsibilities to another client or a third person or his
own interests. [Citation.]"' [Citations.]" (Ibid.)
The Supreme Court next noted that Mickens confirmed that a
conflict of interest under the federal Constitution was a category of
ineffective assistance of counsel claims that, as a general rule, required a
defendant to prove (1) counsel's performance was deficient, and (2) there
was a reasonable probability that the result of the proceeding would have
been different if counsel had performed adequately. (Doolin, supra, 45
Cal.4th at p. 417.) "In the context of a conflict of interest claim, deficient
performance is demonstrated by a showing that defense counsel labored
under an actual conflict of interest 'that affected counsel's performance—
as opposed to a mere theoretical division of loyalties.' [Citations.] '[I]nquiry
into actual conflict [does not require] something separate and apart from
adverse effect.' [Citation.] 'An "actual conflict," for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel's
performance.' [Citation.]" (Id. at pp. 417-418.)
The Supreme Court also observed that it previously had concluded
that one way to establish whether the conflict of interest adversely affected
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trial counsel's performance under the federal standard was to determine if
trial counsel "'"pulled his punches," i.e., whether counsel failed to
represent defendant as vigorously as he might have, had there been no
conflict. [Citation.] In undertaking such an inquiry, we are ... bound by the
record. But where a conflict of interest causes an attorney not to do
something, the record may not reflect such an omission. We must
therefore examine the record to determine (i) whether arguments or
actions omitted would likely have been made by counsel who did not have
a conflict of interest, and (ii) whether there may have been a tactical
reason (other than the asserted conflict of interest) that might have caused
any such omission.' [Citation.]" (Doolin, supra, 45 Cal.4th at p. 418.)
The Supreme Court then turned to the prejudice requirement. It
recognized that where trial counsel actively represented conflicting
interests, both the federal and state Constitutions applied a presumption of
prejudice. (Doolin, supra, 45 Cal.4th at p. 418.) In most instances,
however, the Sixth Amendment "requires a defendant to show ... a
reasonable probability that but for counsel's deficiencies, the result of the
proceeding would have been different. [Citations.]" (Doolin, at p. 421.)
After a thorough analysis of decisions under the state Constitution,
the Supreme Court rejected the separate state standard. "Upon close
examination of the federal standard and our own, we discern no ultimate
substantive difference between the two. Our elusive and somewhat varied
application of our state standard over the past four decades, moreover,
strongly suggests that our informed speculation formulation is too
amorphous to provide meaningful guidance to either the bench or bar. [¶]
We therefore conclude that employing both standards is unnecessary and
confusing. In the final analysis, both standards involve a consideration of
prejudice in the outcome. The federal constitutional approach zealously
protects a criminal defendant's constitutional right to conflict-free counsel.
The federal articulation of the constitutional requirements is clear and
provides a more meaningful framework for review. Today, we therefore
harmonize California conflict of interest jurisprudence with that of the
United States Supreme Court and adopt the standard set out in Mickens."
(Doolin, supra, 45 Cal.4th at p. 421.)
These two cases set forth the analysis we must employ in
analyzing Gonzales's claim. Gonzales must demonstrate (1) trial counsel's
performance was deficient because he labored under a conflict of interest
that adversely affected his performance, and (2) he (Gonzales) suffered
prejudice, either because prejudice is presumed or because there is a
reasonable probability that the result of the trial would have been different
if counsel had not had a conflict. We conclude that Gonzales cannot meet
either requirement.

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First, Gonzales cannot establish a conflict of interest existed. Nor
can he establish that the alleged conflict adversely affected trial counsel's
performance. We have summarized all of the evidence on the issue. While
trial counsel stated that his office had represented most of the witnesses
at some point, the most significant statement was his office's conclusion
that no conflict of interest existed because it did not represent any of the
witnesses at the time. Nor is there any evidence in the record that trial
counsel personally had represented any of the witnesses.

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This issue was addressed in three relevant cases. In People v. Cox

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(2003) 30 Cal.4th 916,[fn3] the defendant argued that his conviction must
be reversed because both of his attorneys previously had represented
witnesses in the proceeding. The record indicated that one of the
attorneys was employed by the public defender's office. The public
defender's office had represented one potential witness in an unrelated
matter, but that witness agreed to waive any possible privilege and subject
herself to cross-examination on any communications between the witness
and her attorney from the public defender's office. This trial counsel also
had declared a conflict and refused to represent another potential witness
in the case. (Id. at p. 947.)
FN3: Disapproved on other grounds in Doolin, supra, 45 Cal.4th at page
421, footnote 22.
Defendant's second attorney was appointed to represent one of the
witnesses in the case, but was replaced and represented to the trial court
that he had had no contact with the potential witness. Another potential
witness had been represented by the second attorney's firm, but the
second attorney represented to the court that he had not had any contact
with the potential witness. A third witness also had been represented by
another member of the second attorney's firm, but the firm no longer
represented her. (Cox, supra, 30 Cal.4th at pp. 947-948.)
The Supreme Court began its analysis by observing that "[a]
conflict may arise if a former client is a witness in a new case because the
attorney is forbidden to use against a former client any confidential
information acquired during that attorney-client relationship. [Citations.] [¶]
But if the attorney possesses no such confidential information, courts have
routinely held that no actual or potential conflict of interest exists." (Cox,
supra, 30 Cal.4th at p. 949.)
Applying these principles, the Supreme Court rejected defendant's
claim. "[D]efendant has made no showing that an actual or potential
conflict existed that adversely affected counsel's performance. Instead,
defendant makes only the conclusory assertion that defense counsel
could not effectively cross-examine witnesses ... as to the 'circumstances
of the charges upon which counsel formerly represented them.' Defendant
makes no claim that defense counsel could not effectively cross-examine
these witnesses as to their testimony in the current case, nor does he
assert that defense counsel even possessed confidential information
acquired during the former representation." (Cox, supra, 30 Cal.4th at p.
950.)
Similarly, Gonzales has not made any showing of an actual conflict,
or even a potential conflict, that adversely affected trial counsel's
performance. There is nothing in the record to show that the public
defender's prior representation of these witnesses prevented trial counsel
from effectively cross-examining these witnesses, or that trial counsel
possessed any confidences from any of the witnesses.
A similar claim was made in Rhaburn v. Superior Court (2006) 140
Cal.App.4th 1566 (Rhaburn). In this case, the district attorney moved to
disqualify the public defender's office because it had represented one of
the witnesses in an unrelated matter that could be used to attack the
witness's credibility. The prior representation occurred seven years before
the trial in this case. Trial counsel opposed the motion, noting (1) the
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record of the witness's case was not stored in the office; (2) he had been
instructed not to inquire about the case; (3) he did not work for the public
defender when the case was defended; and (4) his ability to crossexamine the witness was not compromised. A declaration also was
submitted by another attorney in the public defender's office stating that he
had reviewed the witness's file and it contained no relevant confidences.
(Id. at p. 1570.)
The appellate court concluded that a rule of automatic
disqualification because the public defender's office previously
represented a witness in a case was unjustified. (Rhaburn, supra, 140
Cal.App.4th at p. 1581.) Because trial counsel did not have a direct and
personal relationship with the witness, direct acquisition of confidential
information should not be presumed. (Ibid.) Instead, the trial court "should
evaluate the totality of the circumstances in determining whether there is a
reasonable possibility that the individual attorney representing defendant
either has obtained confidential information about the witness collected by
his or her office, or may inadvertently acquire such information through file
review, office conversation, or otherwise." (Ibid.)
It is significant that the issue in Rhaburn arose when the trial court
granted the prosecution's motion to recuse counsel. While the process
described in Rhaburn is appropriate when evaluating such a motion, we
do not suggest the procedure should be utilized in a case such as this,
where no one suggests a conflict existed. Rhaburn is relevant to
Gonzales's argument because it establishes that a conflict does not
automatically exist simply because the public defender's office
represented a witness in a prior action.
The third relevant case is People v. Lopez (2008) 168 Cal.App.4th
801 (Lopez). Trial counsel was employed by the public defender's office.
During trial, it was discovered that one of the witnesses recently had been
represented by the public defender's office. After discussing the matter
with his office, trial counsel informed the trial court that it had been
determined a conflict did not exist. The defendant objected and requested
new appointed counsel because of the asserted conflict of interest. The
trial court disagreed and the trial resulted in defendant's conviction of
murder.
This court rejected the defendant's claim that trial counsel had a
conflict of interest that rendered his representation ineffective. "First, no
showing is in the record that [trial counsel] obtained any confidential
information from [the witness]. Second, a justification 'for declining to apply
a rigid presumption [of possession of confidential information]' in the
context of representation by the public defender's office 'is that "[u]nlike
their private sector counterparts, public sector lawyers do not have a
financial interest in the matters on which they work"' so '"they may have
less, if any, incentive to breach client confidences."' [Citation.] Third, since
[trial counsel] never had 'a "direct and personal" relationship' with [the
witness], whom a former colleague no longer with the public defender's
office once represented, 'the courts should normally be prepared to accept
the representation of counsel, as an officer of the court, that he or she has
not in fact come into possession of any confidential information acquired
from the witness and will not seek to do so.' [Citation.] ... [¶] To obtain
relief on appeal, the defendant must show either an actual conflict that
adversely affected counsel's performance [citation] or informed
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speculation with a factual basis in the record about a potential conflict that
adversely affected counsel's performance [citation] and an abuse of
discretion by the trial court in denying his or her motion to disqualify
counsel [citation]. Since none appears here, [defendant] fails to discharge
his burden on appeal." (Lopez, supra, 168 Cal.App.4th at p. 809.)
Essentially, we are in the same position as Lopez, except that an
informed speculation of a conflict is no longer an acceptable method of
establishing a conflict of interest. Nothing in the record suggests that trial
counsel had a conflict with any of the witnesses. Instead, Gonzales asks
us to presume there must be some conflict because of the prior
representation. Normally, as explained in Lopez, we accept the
representation of trial counsel that no conflict existed. The absence of any
evidence to suggest this representation was false compels that we accept
it. Gonzales has failed to establish that a conflict existed, thus compelling
rejection of his argument.
Also, Gonzales has failed to present any evidence that the claimed
conflict adversely affected trial counsel's performance. Indeed, Gonzales
does not even address the issue, instead apparently assuming trial
counsel's performance was adversely affected. We cannot find in the
record any evidence to support Gonzales's assumption. Trial counsel
thoroughly cross-examined every witness. Nothing in the record suggests
he pulled his punches or failed to pursue a defense because of
confidential information he allegedly possessed.
Finally, had Gonzales successfully established that trial counsel
had a conflict of interest that adversely affected his performance, we
would reject this claim because Gonzales cannot establish any prejudice
as a result of the allegedly deficient performance. Gonzales urges us to
apply a presumption of prejudice, but we reject such an assertion.
As our review of the cases establishes, generally, the defendant
arguing his attorney was conflicted bears the burden of establishing that
there is a reasonable probability he would have obtained a better result if
his attorney had not had a conflict of interest. Gonzales does not argue
this standard, and our review of the record does not reveal any support for
such an argument had it been made.
Moreover, Gonzales cannot establish that a presumption of
prejudice should be utilized in this case. A presumption of prejudice is
appropriate where the defendant is denied counsel entirely or at a critical
stage of the proceedings, or in some cases where trial counsel undertakes
to represent more than one defendant in the same trial. (Mickens, supra,
535 U.S. at p. 166.) The Supreme Court emphasized that "only in
'circumstances of that magnitude'" will it dispense with the prejudice
requirement. (Ibid.) In Doolin, the California Supreme Court agreed with
this limitation on the use of the presumption of prejudice. (Doolin, supra,
45 Cal.4th at p. 418.)
Gonzales's argument does not suggest a circumstance of the
magnitude similar to a defendant deprived of counsel. Nor is this a dual
representation case where trial counsel was attempting to represent two
defendants with conflicting defenses. Gonzales never was deprived of
counsel, and nothing in the record suggests trial counsel operated under a
conflict of interest or did anything (or failed to do something) in order to
16

protect one of the witnesses his office apparently represented. All of the
matters were unrelated to the charges against Gonzales. Nor is there
anything in the record to suggest that trial counsel had any involvement in
representing these witnesses. Finally, there is nothing to suggest that trial
counsel obtained any confidences from any of the witnesses.

1
2
3

5

A presumption of prejudice will be utilized only in the most
egregious of cases. While we cannot identify every situation where a
defendant is entitled to a presumption of prejudice, it is clear this is not
such a situation.

6

People v. Gonzales, 2011 Cal. App. Unpub. LEXIS 6079 (Cal. App. 5th Dist. Aug. 11,

7

2011).

4

8

2.

Relevant Federal Law

9

The Sixth Amendment right to the effective assistance of counsel includes a

10

correlative right to representation free of conflicts of interest. See Wood v. Georgia, 450

11

U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220 (1981). To establish a violation

12

of the Sixth Amendment right to conflict-free counsel, a defendant must show that "an

13

actual conflict of interest adversely affected his lawyer's performance." Cuyler v.

14

Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333 (1980). For Sixth

15

Amendment purposes, an "actual conflict" is a conflict of interest that "adversely affects

16

counsel's performance." Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 1244

17

n.5, 152 L. Ed. 2d 291 (2002). "[A] mere theoretical division of loyalties" is not enough.

18

Id. at 171, 122 S. Ct. at 1244. The Ninth Circuit has stated that, to demonstrate an actual

19

conflict resulting in an adverse effect, the defendant must demonstrate "that some

20

plausible alternative defense strategy or tactic might have been pursued but was not and

21

that the alternative defense was inherently in conflict with or not undertaken due to the

22

attorney's other loyalties or interests." Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006)

23

(quoting United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005)). If a defendant shows

24

an actual conflict of interest under these standards, prejudice is presumed. Cuyler, 446

25

U.S. at 349-50, 100 S. Ct. at 1719.

26

To show an adverse effect, a petitioner must show "that some plausible

27

alternative defense strategy or tactic might have been pursued but was not and that the

28

alternative defense was . . . not undertaken due to the attorney's other loyalties." United
17

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States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005) (internal quotation omitted); see also

2

United States v. Shwayder, 312 F.3d 1109, 1118 (9th Cir. 2002) ("To show that an actual

3

conflict had an adverse effect, . . . the defendant must establish that counsel was

4

influenced in his basic strategic decisions by the [conflicting] interests.") (internal

5

quotation marks and citation omitted).

6
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3.

Analysis
a.

Economic Conflict With Counsel's Employer

8

First, Petitioner alleges a conflict of interest created by trial counsel's relationship

9

with the public defender's office which employed him. (Pet. at 4.) Petitioner alleges that

10

counsel's employer did not allow counsel to take certain actions that would have been

11

beneficial to Petitioner's defense, but instead allowed his supervisors at the public

12

defender's office make decisions regarding potential expenditures. (Id.) Further,

13

Petitioner asserts that counsel's supervisor or the policies of the public defender's office

14

"trumped" counsel's judgment with regard to decisions in the case. (Id. at 31-32.)

15

Petitioner describes several examples of decisions that were impacted by the

16

public defender's office. Notably, Petitioner explained that counsel had to obtain

17

permission to rent a car to interview a witness out of county because counsel was

18

normally assigned a natural gas car that he was not allowed to drive out of the county.

19

(See Pet. at 197-198.) Petitioner also asserts that his counsel was not able to hire

20

investigators to retrieve case files from Petitioner's prior counsel who withdrew from

21

representation and moved to Florida on being diagnosed with cancer. Finally, Petitioner

22

claims that the public defender's office would not pay the remaining fee for an expert

23

forensic anthropologist, Dr. Murrad, retained by Petitioner's first attorney. (Id. at 187-88.)

24

While there may have been disputes between Petitioner's counsel and counsel’s

25

office regarding expenditure or resources, Petitioner has not presented any evidence of

26

an actual or perceived conflict. The decision to allocate resources is always complex,

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and counsel is not necessarily ineffective in deciding to conserve financial resources.

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Attorneys constantly have to decide how much time and resources to devote to a case.
18

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The failure to take every option available to attempt to present a defense will rarely

2

subject the attorney to a finding of ineffectiveness so long as he used his professional

3

judgment in deciding which option to pursue. Here, there might have been

4

disagreements between counsel and his supervisors, but Petitioner indicates only that

5

there might have been difficulties in obtaining necessary funding, not that funding and

6

actions were denied.

7

For example, with regard to the expert witness, Dr. Murad, regardless of any

8

disputes over payment, he was called as a witness by, and testified favorably to, the

9

defense at trial. (See Rep. Tr. at 741-804.) Specifically, he testified that the victim's

10

body had been submerged in water for a much longer period than alleged by the

11

prosecution. Accordingly, any alleged conflict of interest in paying for an expert appears

12

harmless.

13

With regard to investigating out of county witnesses, counsel noted that he

14

routinely needed permission to have an investigator do so or to rent a car capable of

15

traveling out of county. (Pet. at 197-198.) However, at no time did counsel state that he

16

was denied permission, or otherwise was unable to contact relevant witnesses prior to

17

trial.

18

While financial restrictions of the public defender's office may have been

19

burdensome, Petitioner has not made a showing "that some plausible alternative

20

defense strategy or tactic might have been pursued but was not, and that the alternative

21

defense was inherently in conflict with or not undertaken due to the attorney's other

22

loyalties or interests." Hovey, 458 F.3d at 908. As Petitioner as not described any

23

defense strategy that counsel was unable to undertake, Petitioner has not met his

24

burden of showing that any conflict of interest regarding financial arrangements

25

impacted his representation.

26

Petitioner has presented several other related arguments in his first claim. He

27

asserts that counsel was ineffective for failing to make a record of other polices of the

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public defender's office that inhibited his representation. (Pet. at 54-55.) Petitioner cites
19

1

a conversation during his Marsden hearing where counsel informed the Court that there

2

was a dispute in his office regarding potential conflict and that Petitioner's prior counsel

3

felt strongly that there was a conflict. (Pet. at 199.) The statements made by counsel are

4

vague at best, and do not sufficiently describe the conflict at issue and how it or any

5

other conflict could have impaired his representation. Petitioner is not entitled to relief

6

based on the failure of his counsel to make a sufficient record of conflicts.

7

Petitioner next argues that a conflict of interest existed based on budget cuts at

8

the public defender's office that limited the number of investigators. While Petitioner

9

asserts that it was a lack of staffing that prevented defense counsel from conducting

10

interviews of witnesses, during the Marsden hearing, counsel noted that an investigator

11

or process servers attempted to find the witnesses but many were not able to be found.

12

(Pet. at. 197.) Petitioner asserts that the investigator failed to interview Petitioner's ex-

13

wife, who would present an alibi that Petitioner never left the party. (Pet. at 59-60.) While

14

Petitioner asserts that counsel failed to interview his ex-wife based on lack of

15

investigative support, counsel explained at the hearing that he did not interview her

16

because he believed that she was not present at the party on the night in question. (Pet.

17

at 200.) Accordingly, Petitioner has not shown that a reduction in the number of

18

investigators at the public defender's office caused defense counsel to limit his

19

investigation or otherwise had any detrimental effect on Petitioner's defense.

20

The state court decision was neither contrary to, nor an unreasonable application

21

of, clearly established Supreme Court law, nor was its decision based on an

22

unreasonable determination of the facts. Accordingly, Petitioner is not entitled to relief

23

with regard to his first claim.

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b.

Constructive Denial of Counsel

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In his second claim, Petitioner asserts that he was constructively denied counsel

26

at three critical stages of trial – (i) in determining whether defense counsel created a

27

conflict by remaining in the case, (ii) during the investigation, and (iii) during the Marsden

28

hearings when Petitioner requested new counsel. (Pet. at 64-68.)
20

1

Petitioner contends that counsel was ineffective for not providing effective

2

advocacy during certain portions of trial. Petitioner asserts that counsel was conflicted in

3

the matter because decisions of his supervisors may have impacted his decision

4

regarding the amount of resources to use. This argument is duplicative of the argument

5

presented in claim one. As previously described, every attorney must take into

6

consideration financial concerns with regard to presenting a defense. Moreover,

7

Petitioner has not identified any actions that counsel should have taken but did not

8

because of financial restrictions by his supervisors. Counsel presented rebuttal

9

witnesses, including a forensic expert, and otherwise attempted to present an adequate

10

defense. Petitioner has not shown that counsel failed to conduct a proper investigation

11

or that his conduct otherwise fell below professional norms.

12

Petitioner also asserts that counsel abandoned him during the Marsden hearings

13

in which he sought new counsel. Petitioner is unable to show counsel's conduct at the

14

hearings was deficient or otherwise caused Petitioner prejudice. Petitioner was able to

15

present his arguments regarding counsel's failings to the judge, and, at times, counsel

16

helped describe Petitioner's arguments to the court. (See e.g., Lodged Doc. 16 at 1098-

17

1099.) Petitioner has not shown that counsel had an actual conflict of interest, fell below

18

an objective level of conduct, or that Petitioner was prejudiced by counsel's actions.

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Petitioner is not entitled to relief with regard to his second claim for relief.

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c.

Conflict of Interest – Prior Representation of Witnesses

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Next, Petitioner contends that his trial attorney had a conflict of interest based on

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the fact that the public defender's office had previously represented nearly all of the

23

witnesses in the case. (Pet. at 69-71.) "In order to demonstrate a violation of his Sixth

24

Amendment rights, a defendant must establish that an actual conflict of interest

25

adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350, 100

26

S. Ct. 1708, 64 L. Ed. 2d 333 (1980). The mere possibility of a conflict, however, is

27

insufficient. Id.; Mickens v. Taylor, 535 U.S. 162, 173, 122 S. Ct. 1237, 152 L. Ed. 2d

28

291 (2002). The Ninth Circuit has found that the Sixth Amendment is not violated "when
21

1

a defendant is represented by a lawyer free of actual conflicts of interest, but with whom

2

the defendant refuses to cooperate because of dislike or distrust. Plumlee v. Masto, 512

3

F.3d 1204, 1211 (9th Cir. 2008). In the absence of any record evidence as to the

4

existence of an actual conflict of interest, a district court is correct to reject a claim of

5

conflict. Morris v. California, 966 F.2d 448, 456 (9th Cir. 1992).

6

Petitioner complains that his trial attorney had access to confidential information

7

from the public defender's office files of several witnesses, and that several of the

8

witnesses were currently in court facing separate criminal charges. (Pet. at 69-71.)

9

Petitioner asserts that the fact that counsel's office represented witnesses at prior

10

proceedings created a conflict that adversely affected counsel's performance. Petitioner

11

has not presented substantial evidence to support his claim. Petitioner cites to California

12

Rule of Professional Conduct, Rule 3-310 that counsel cannot accept representation

13

without written consent when adverse representation may lead to the attorney obtaining

14

confidential information material to the employment. However, here, Petitioner cannot

15

show that any confidential information was obtained or that the prior representation of

16

any of the witnesses by counsel's office adversely affected his representation of

17

Petitioner. Petitioner has not explained what information or actions counsel undertook

18

based upon information contained in witness files. Information obtained in prior cases

19

involving witnesses would not contain confidential information about Petitioner or his

20

case. While the public defender's office may have represented witnesses in other

21

proceedings, Petitioner has not shown that the prior representation created actual

22

conflicts of interest with counsel's representation of Petitioner. Furthermore, Petitioner

23

has failed to prove, through a factual showing on the record, that any alleged conflict

24

adversely affected counsel's performance.

25

Counsel performed significant investigation, and Petitioner has not shown that his

26

investigation was hindered or affected by a direct conflict of interest. The state court's

27

rejection of the claim was neither contrary to nor an unreasonable application of Federal

28

law. Petitioner's claim of ineffective assistance of counsel based on conflict of interest is
22

1

without merit.

2

d.

Denial of Request for Substitute Counsel

3

Where a defendant is proceeding with the assistance of counsel, he may move to

4

dismiss or substitute counsel, whether appointed or retained. The grant or denial of such

5

a motion may depend on its timeliness and the nature of the conflict between the

6

defendant and current counsel. United States v. Musa, 220 F.3d 1096, 1102 (9th Cir.

7

2000). In assessing on direct appeal a federal trial court's decision to deny a motion for

8

substitute counsel, three factors are to be considered: "(1) the timeliness of the motion

9

and the extent of resulting inconvenience or delay; (2) the adequacy of the court's inquiry

10

into the defendant's complaint; and (3) whether the conflict between the defendant and

11

his attorney was so great that it resulted in a total lack of communication preventing an

12

adequate defense." Id. The trial court's inquiry into a criminal defendant's complaints

13

about his trial counsel must be "adequate to create a sufficient basis for reaching an

14

informed decision." United States v. Mendez-Sanchez, 563 F.3d 935, 942-943 (9th Cir.

15

2009) (quoting Musa, 220 F.3d at 1102 (quotation omitted)).

16

However, the Ninth Circuit has also ruled that in assessing such a claim in the

17

context of a § 2254 proceeding such as this, the focus is different than that on direct

18

review. In Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc) the court stated:

19
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21
22
23
24
25
26
27
28

Our primary reason for accepting this case for en banc review was
to correct the standard of review we have been using to examine the
constitutionality of a state court's handling of a motion to substitute
appointed counsel based on allegations of an irreconcilable conflict. In
Bland, we said that the test is whether a state court's denial of such a
motion was for an "abuse of discretion." Bland, 20 F.3d at 1475.
***
[O]ur only concern when reviewing the constitutionality of a statecourt conviction is whether the petitioner is "in custody in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
See also Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 115
L. Ed. 2d 640 (1991) ("The [habeas] court does not review a judgment but
the lawfulness of the petitioner's custody simpliciter.") A particular abuse
of discretion by a state court may amount also to a violation of the
Constitution, but not every state court abuse of discretion has the same
effect. Accordingly, to the extent that they conflict with this opinion, we
overrule Bland and Crandell v. Bunnell, 144 F.3d 1213 (9th Cir. 1998).
23

1

218 F.3d at 1024-25 (footnotes omitted). The court in Schell determined that it was "well

2

established and clear that the Sixth Amendment requires on the record an appropriate

3

inquiry into the grounds of [a motion for substitute counsel], and that the matter be

4

resolved on the merits before the case goes forward." Id. at 1025. See also Hudson v.

5

Rushen, 686 F.2d 826, 829 (9th Cir. 1982) ("Thus, the state trial court's summary denial

6

of a defendant's motion for new counsel without further inquiry violated the Sixth

7

Amendment.").

8

Here, Petitioner made several requests for substitution of counsel during trial. The

9

trial court heard Petitioner's requests and complaints and denied the requests. (Lodged

10

Doc. 16.)

11

In reviewing Petitioner's claims, the trial court noted that many of the issues were

12

raised were inherent problems with the case, and not based on the actions of counsel.

13

With regard to the failure to investigate or call alibi witnesses, the court noted that the

14

real problem was that many of the witnesses suffered from credibility problems due to

15

drug use. (Lodged Doc. 16 at 1104.) The court explained that it would not have mattered

16

which side called any of the witnesses, and that counsel did "everything he could and

17

bent over backwards to do it." (Id.)

18

As the trial court provided Petitioner an opportunity to be heard and it deliberated

19

regarding his claims, the court's handling of the motions to substitute counsel in this

20

case passes constitutional muster. Schell, 218 F.3d at 1025. Petitioner does not contend

21

that he was not heard, only that the trial court was not persuaded by his arguments.

22

Petitioner fails to demonstrate that the state court rejection of his claim "resulted in a

23

decision that was contrary to, or involved an unreasonable application of, clearly

24

established Federal law, as determined by the Supreme Court of the United States." 28

25

U.S.C. § 2254(d). Accordingly, the claim should be denied.

26

B.

Claim 5: Due Process Violation for Failure to Grant Continuance

27

Petitioner, in his fifth claim, asserts that the trial court violated his due process

28

rights by denying a continuance prior to sentencing to allow Petitioner to retain new
24

1
2

counsel.
1.

State Court Decision

3

Petitioner presented this claim by way of direct appeal to the California Court of

4

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

5

appellate court and summarily denied in subsequent petition for review by the California

6

Supreme Court. (See Lodged Docs. 1, 6.) Because the California Supreme Court’s

7

opinion is summary in nature, this Court “looks through” that decision and presumes it

8

adopted the reasoning of the California Court of Appeal, the last state court to have

9

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

10

In denying Petitioner’s claim, the California Court of Appeal explained:

11

III. Denial of Request to Continue the Sentencing Hearing

12

Gonzales's sentencing hearing occurred two weeks after
Gonzales's final Marsden motion was denied. The trial court first heard
Gonzales's motion to obtain juror identification information because of
alleged juror misconduct. The trial court concluded there was no evidence
of misconduct and denied the motion.

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Once the sentencing hearing was commenced, Gonzales
requested, for the first time, a continuance to allow his family to hire an
attorney to file a motion for a new trial. The trial court denied the request.
Gonzales argues the trial court erred in doing so.
Continuances in a criminal case may be granted only upon a
showing of good cause. (§ 1050, subd. (e); People v. Frye (1998) 18
Cal.4th 894, 1012, disapproved on other grounds in Doolin, supra, 45
Cal.4th at p. 421, fn. 22.) A showing of good cause requires a
demonstration that both counsel and the defendant have used due
diligence in their preparations. (People v. Jenkins (2000) 22 Cal.4th 900,
1037.) "The determination of whether a continuance should be granted
rests within the sound discretion of the trial court." (People v. Sakarias
(2000) 22 Cal.4th 596, 646.) Absent a showing of abuse of discretion and
prejudice to the defendant, the denial of a motion for continuance does not
require reversal. (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
Gonzales cannot establish either abuse of discretion or prejudice.
The trial court did not abuse its discretion because Gonzales did
not establish good cause for a continuance. Gonzales asserted his family
was considering hiring a new attorney to file a motion for a new trial, but
this assertion came almost four months after he was found guilty.
Gonzales seeks to excuse this delay because his motion came only two
weeks after his final Marsden motion was denied. Yet there is no reason
why the Marsden motion was not filed immediately after the verdict was
rendered. Nor is there any reason why the issue was not addressed
immediately after the Marsden motion was denied. Instead, the facts of
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this case strongly suggest that Gonzales simply was attempting to delay
sentencing using every tactic at his disposal.
Also, Gonzales had not retained new counsel, but simply stated his
family might do so. This equivocation establishes the lack of good cause
for the motion. If Gonzales was convinced a new attorney should be
retained and a motion for new trial filed, he would have made sure the
new attorney was present to explain why he should be allowed to enter
the case.
Gonzales attempts to insert his Sixth Amendment right to counsel
of his choosing into this argument. We reject this attempt. The trial court
did not refuse to permit Gonzales the right to retain counsel of his choice.
As explained above, there is no indication that Gonzales had spoken with
another attorney about representing him. Instead, the request was to
delay sentencing to some indefinite date in the future to allow some
unidentified attorney to be retained if Gonzales's family could obtain
enough money to do so. There is no indication in the record that anyone
had been consulted or what steps, if any, Gonzales's family had taken to
obtain the necessary funds. This rather vague and untimely request was
not good cause for a continuance.
Nor can Gonzales establish that he suffered any prejudice as a
result of the denial of his motion. At the time of the motion, the trial was
complete and the only issue was sentencing. Gonzales does not suggest
that a new attorney could have altered the outcome of the sentencing
hearing. Instead, he argues that a new attorney would have filed a motion
for a new trial, based, once again, on the alleged conflict of interest trial
counsel had because of the public defender's representation of several
trial witnesses. This contention has been thoroughly addressed in this
opinion and rejected. To the extent Gonzales may be suggesting that
evidence not included in the appellate record could have been presented
at the new trial motion, he may pursue that avenue in a writ proceeding if
such evidence exists.
People v. Gonzales, 2011 Cal. App. Unpub. LEXIS 6079 at 28-32.
2.

Legal Standard

20

Trial courts are accorded broad discretion on matters regarding continuances.

21

Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983);

22

Hernandez v. Holland, 750 F.3d 843, 858 (9th Cir. 2014). While there are "no

23

mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate

24

due process," Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921

25

(1964), the Ninth Circuit has identified several factors relevant in determining whether

26

the trial court abused its discretion in denying a requested continuance. See Armant v.

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Marquez, 772 F.2d 552, 556-57 (9th Cir. 1985) (identifying the following factors: the

28

degree of diligence by the petitioner prior to seeking the continuance; whether the
26

1

continuance would have served a useful purpose; the inconvenience that the

2

continuance would have caused the court or the government; and the amount of

3

prejudice suffered by the petitioner). "At a minimum, however, in order to succeed the

4

[petitioner] must show some prejudice resulting from the court's denial." Id.

5

3.

Analysis

6

The trial court's denial of Petitioner's motion to continue was not so arbitrary as to

7

violate due process. Petitioner has not shown that he was prejudiced in any way by the

8

trial court's exercise of discretion. Petitioner was not prejudiced by the trial court's denial

9

of his motion to continue sentencing because he had over three months after his

10

conviction to seek new counsel, but had failed to do so. Because Petitioner has not

11

shown prejudice, he has not established that the trial court's denial of his continuance

12

motion was so arbitrary as to violate due process. Petitioner is not entitled to relief with

13

regard to this claim.

14

C.

15

Petitioner, in his final claim, asserts that the application of the sentence

16

enhancement for the use of a firearm during the commission of the murder constituted

17

double jeopardy.

18

Claim 6: Double Jeopardy

1.

State Court Decision

19

Petitioner presented this claim by way of direct appeal to the California Court of

20

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

21

appellate court and summarily denied in subsequent petition for review by the California

22

Supreme Court. (See Lodged Docs. 1, 6.) Because the California Supreme Court’s

23

opinion is summary in nature, this Court “looks through” that decision and presumes it

24

adopted the reasoning of the California Court of Appeal, the last state court to have

25

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

26

In denying Petitioner’s claim, the California Court of Appeal explained:

27

The trial court sentenced Gonzales to a term of 25 years to life for
the first degree murder conviction and a consecutive term of 25 years to
life for the gun use enhancement pursuant to section 12022.53,

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2
3
4
5
6

subdivision (d). This sentence is consistent with the terms of the
applicable statutes. Nonetheless, Gonzales argues that the trial court
erred in imposing both the sentence for the crime and the sentence for the
enhancement.
Gonzales concedes that his argument has been rejected by the
California Supreme Court (People v. Sloan (2007) 42 Cal.4th 110, 115123; People v. Izaguirre (2007) 42 Cal.4th 126, 130-134), and we are
bound by its decisions (Auto Equity Sales v. Superior Court (1962) 57
Cal.2d 450, 455). Accordingly, we reject his argument.
People v. Gonzales, 2011 Cal. App. Unpub. LEXIS 6079 at 32.

7

2.

Analysis

8

The Fifth Amendment guarantee against double jeopardy (which is enforceable

9

against the States through the Fourteenth Amendment) consists of three separate

10

constitutional protections: (1) a second prosecution for the same offense after acquittal;

11

(2) a second prosecution for the same offense after conviction; and (3) multiple

12

punishments for the same offense. See United States v. Halper, 490 U.S. 435, 440, 109

13

S. Ct. 1892, 104 L. Ed. 2d 487 (1989). A state, however, may punish separate offenses

14

arising out of the same transaction without violating the double jeopardy clause. See

15

Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981).

16

Under Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932),

17

in determining whether separate punishment might be imposed for a single transaction

18

or act, the critical issue is whether each statutory provision "requires proof of a fact that

19

the other does not," "notwithstanding a substantial overlap in the proof offered to

20

establish the crimes." Albernaz, 450 U.S. at 337-38 (internal quotation marks omitted);

21

see also Rutledge v. United States, 517 U.S. 292, 297, 116 S. Ct. 1241, 134 L. Ed. 2d

22

419 (1996).

23

Moreover, the Double Jeopardy Clause does not limit a legislature from

24

specifically authorizing cumulative punishment under two statutes. See Hunter, 459 U.S.

25

at 368 (concluding that "simply because two criminal statutes may be construed to

26

proscribe the same conduct under the Blockburger test does not mean that the Double

27

Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments

28

pursuant to those statutes"). Rather, the Supreme Court has held that, "[w]ith respect to
28

1

cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no

2

more than prevent the sentencing court from prescribing greater punishment than the

3

legislature intended." Id. at 366. Thus, "[w]here two statutory provisions proscribe the

4

'same offense,' they are construed not to authorize cumulative punishments in the

5

absence of a clear indication of contrary legislative intent." Id. at 367 (emphasis omitted)

6

(quoting Whalen v. United States, 445 U.S. 684, 692, 100 S. Ct. 1432, 63 L. Ed. 2d 715

7

(1980)).

8

The California state legislature intended that the punishment for the sentence

9

enhancement set forth in Penal Code § 12022.53 be imposed in addition to the

10

punishment for the underlying substantive offenses. See, e.g., People v. Palmer, 133

11

Cal. App. 4th 1141, 1152, 35 Cal. Rptr. 3d 373 (2005) ("The legislative purpose behind

12

the statute is unambiguous: to impose substantially longer prison sentences . . . on

13

felons who use firearms in the commission of their crimes, in order to protect our citizens

14

and to deter violent crime." (internal quotation marks omitted)). In People v. Hutchins, 90

15

Cal. App. 4th 1308, 109 Cal. Rptr. 2d 643 (Cal. Ct. App. 2001), a California Court of

16

Appeal stated:

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21

What the Legislature has done by enacting section 12022.53 is not to
punish the same single criminal act more than once or in more than one
way. Instead, in determining that a criminal offender may receive
additional punishment for any single crime committed with a firearm, the
Legislature has chosen to enhance or expand the punishment imposed on
a single underlying crime, where committed by use of a firearm, in order to
deter a particular form of violence judged especially threatening to the
social fabric.
Id. at 1313-14; see also Plascencia v. Alameida, 467 F.3d 1190, 1204 (9th Cir. 2006)

22
(rejecting, on habeas review, a double jeopardy claim for imposition of a gun
23
enhancement pursuant to § 12022.53 and finding that it is clear that the California
24
legislature intended that "a criminal offender may receive additional punishment for any
25
single crime committed with a firearm").
26
To the extent that Petitioner relies on Apprendi v. New Jersey, 530 U.S. 466, 120
27
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Sattazahn v. Pennsylvania, 537 U.S. 101,
28
29

1

123 S. Ct. 732, 154 L. Ed. 2d 588 (2003), for the proposition that the Supreme Court had

2

abandoned its holding in Hunter, his reliance is misplaced. The Ninth Circuit has recently

3

rejected such argument:

4

Apprendi, [Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L.
Ed. 2d 321 (2001)], and Sattazahn—whether considered individually or
together—did not create "clearly established Federal law" requiring a state
court to consider sentencing enhancements as an element of an offense
for purposes of the Double Jeopardy Clause. A state court cannot be
expected—much less required—to refer to federal law which is not clearly
established. Thus, we hold the state court's decision was not "contrary to,
or an unreasonable application of, clearly established Federal law." The
Supreme Court has not squarely addressed this issue and fairminded
jurists could disagree as to the constitutional principle.

5
6
7
8
9

Smith v. Hedgpeth, 706 F.3d 1099, 1106 (9th Cir. 2013).
10
Moreover, even if Supreme Court law established that a sentencing enhancement
11
constitutes an element of the underlying offense for the purpose of barring punishment
12
on a different count, as was advocated in Smith, it would not follow that punishment for
13
an enhancement should bar punishment for the underlying crime, when such cumulative
14
punishment was the clear intent of the legislature. Petitioner has cited no law, nor does
15
this Court know of any, that alters Hunter's holding that "[w]ith respect to cumulative
16
sentences imposed in a single trial, the Double Jeopardy Clause does no more than
17
prevent the sentencing court from prescribing greater punishment than the legislature
18
intended." 459 U.S. at 366. Finally, in Plascencia, which post-dates both Sattazahn and
19
Apprendi, the Ninth Circuit rejected a double jeopardy claim identical to Petitioner's. See
20
Plascencia, 467 F.3d at 1204.
21
Based on the determination by the California courts that the California legislature
22
intended to provide cumulative punishment for an underlying crime where a gun was
23
used, this Court has no basis for concluding that the California courts' rejection of
24
Petitioner's double jeopardy claim was either contrary to or based on an unreasonable
25
application of clearly established federal law. Petitioner's double jeopardy arguments do
26
not warrant habeas relief.
27
IV.

RECOMMENDATION

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1
2

Accordingly, it is hereby recommended that the petition for a writ of habeas
corpus be DENIED with prejudice.

3

This Findings and Recommendation is submitted to the assigned District Judge,

4

pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after

5

being served with the Findings and Recommendation, any party may file written

6

objections with the Court and serve a copy on all parties. Such a document should be

7

captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply

8

to the objections shall be served and filed within fourteen (14) days after service of the

9

objections. The parties are advised that failure to file objections within the specified time

10

may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No.

11

11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan,

12

923 F.2d 1391, 1394 (9th Cir. 1991)).

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15
16

IT IS SO ORDERED.
Dated:

December 22, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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