People v. Pastrano (52 Cal. App. 4th 610, 1997)

Opinion

HOLLENHORST, Acting P. J.

Defendant, Jose Luis Pastrano, was charged with murder pursuant to Penal Code section 187, subdivision (a). Three codefendants were charged with accessory after the fact (§ 32), and one codefendant was also charged with possession of a controlled substance pursuant to Health and Safety Code section 11377, subdivision (a). It was also alleged that defendant personally used a handgun in the commission of the murder. (§ 12022.5, subd. (a).)

On April 25, 1995, pursuant to a plea agreement, defendant pled guilty to second degree murder and admitted the firearm allegation. He later made a motion to withdraw his plea; however, on June 14, the trial court denied the motion. Subsequently, defendant was sentenced to a total term of 20 years to life in state prison.

On August 4, 1995, defendant appealed the judgment and requested a certificate of probable cause. The trial court denied defendant’s request on August 17. However, defendant renewed his request for a certificate of probable cause on November 29, and on January 25, 1996, the trial court granted defendant’s request.

On appeal, defendant challenges the validity of his plea on the ground that there was a conflict of interest between his attorney and codefendants’ attorneys.

Facts

In the afternoon of November 10, 1994, Joseph Roberts, his girlfriend and his cousin were driving in a Ford Thunderbird in Rialto, California. Nathaniel Hernandez, a codefendant, and defendant were driving in a Chevrolet Malibu Classic with Linda Mindiola, Melinda Limón, and Erica Dominguez in the backseat. At some point the Thunderbird was behind the Malibu. The girls in the Malibu were “flipping off’ and throwing hand gestures at the occupants in the Thunderbird. Ms. Limón thought “there were some hard looks thrown” by the girl in the Thunderbird, so she asked codefendant to pull over so she could “kick their ass.”

Defendant told codefendant to pull over. Once the Malibu had stopped, defendant got out of the car and pointed a gun at the Thunderbird. He fired and a bullet hit and killed Jennifer Balber, who had been going house to house in the neighborhood reading gas meters. The Malibu then took off and Ms. Limón told defendant that he had shot someone because she saw a lady lying on the ground.

Defendant and the other occupants of the Malibu drove to a friend’s house. After verifying that someone had been shot, codefendant hid the Malibu in the garage of a vacant residence near the friend’s house. Defendant gave his gun to Verlon Baker, another codefendant, to hide.

Defendant was subsequently interviewed by the police following a Miranda warning and waiver. He said the gun was malfunctioning and that he just tapped the trigger and it fired. Defendant said he was not attempting to shoot at the car, but only at the tire.

Is Defendant’s Plea Valid?

Defendant’s sole challenge on appeal concerns the validity of his plea. He claims that it is not valid due to potential and actual conflicts of interest. In support of his contention he argues that (1) his attorney was operating under a multiple-conflicts contract panel in which four codefendants were represented by four “associated” attorneys operating as “independent contractors,” but supervised by one lead attorney, and (2) his plea was part of a package deal with his codefendants. Respondent initially contends that defendant’s appeal should be rejected because he has waived his right to appeal as part of his plea agreement. Assuming there was no waiver, respondent argues that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea.

We begin our analysis with the waiver issue. In defendant’s change of plea form, he read and initialed the condition stating, “I waive and give up any right to appeal from the conviction and judgment in my case.” Additionally, he was advised of and waived his Boykin-Tahl rights. Generally speaking, a defendant may waive his right to appeal as a part of the plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68 [51 Cal.Rptr.2d 851, 913 P.2d 1061]; People v. Vargas (1993) 13 Cal.App.4th 1653, 1658-1660 [17 Cal.Rptr.2d 445].) However, can a defendant waive his Sixth Amendment right to conflict-free representation?

California Rules of Professional Conduct, rule 3-310 (C) provides, in relevant part, that “[a] member shall not, without the informed written consent of each client: [<]Q (1) [a]ccept representation of more than one client in a matter in which the interests of the clients potentially conflict . . . .” This rule requiring attorneys to avoid representation of adverse interests was established for public policy reasons, i.e., without such rule, public confidence in the integrity and impartiality of the criminal justice system would be adversely affected. (Cf. People v. Conner (1983) 34 Cal.3d 141, 146 [193 Cal.Rptr. 148, 666 P.2d 5].) Moreover, without conflict-free representation, it is unlikely that the defendant received a fair trial, or in this case, a fair plea agreement. (Cf. § 1424; People v. Conner, supra, 34 Cal.3d 141, 147.)

Nonetheless, “United States v. Garcia, 517 F.2d 272 (5th Cir.1975) instructs trial courts on the approach to take in assuring the protection of the sixth amendment: before permitting a defendant to waive the right to conflict-free counsel, the court must ‘address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections.’ [Citations.] [