P. v. Rivas

Filed 4/25/07 P. v. Rivas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge.

Michelle E. Guardado, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On October 5, 2005, a second amended information was filed against appellant Christopher Rivas and codefendant Daniel Vera. Appellant was charged with count I, assault by means of force likely to produce great bodily injury on Abel Martinez (Pen. Code,^[1] 245, subd. (a)(1)), and count II, criminal threats on Jane Doe^[2]( 422). Codefendant Vera was separately charged with count III, resisting an officer by force or violence ( 69). Appellant and codefendant Vera were both charged with count IV, active participation in a criminal street gang ( 186.22, subd. (a)).

As to count I, it was alleged appellant personally inflicted great bodily injury ( 12022.7, subd. (a)), and personally used a deadly weapon, a knife ( 12022, subd. (b)(1)). As to counts I and II, it was further alleged appellant committed the offenses for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); he suffered one prior serious felony conviction ( 667, subd. (a)); and he suffered one prior strike conviction ( 667, subds. (b)-(i)). Appellant pleaded not guilty and denied the special allegations.

At the preliminary hearing, the court dismissed the aggravated assault charge as to codefendant Vera. Vera subsequently pleaded guilty to misdemeanor resisting an officer ( 148, subd. (a)(1)) as a lesser offense of count III, and was placed on probation for two years.

On October 5, 2005, appellants jury trial began on counts I, II and IV; the court had bifurcated the prior conviction allegations. The court granted appellants motion for acquittal as to the great bodily injury enhancement.

On October 6, 2005, appellant was convicted of counts I, II, and IV, and the jury found he personally used a knife in the commission of count I, and counts I and II were committed for the benefit of a criminal street gang. Appellant admitted the truth of the prior conviction allegations.

On February 10, 2006, the court sentenced appellant to an aggregate term of 14 years in state prison: as to count I, the upper term of four years, doubled to eight years as the second strike term, with consecutive terms of one year for the personal use enhancement, and five years for the gang enhancements. The court imposed concurrent second strike terms of six years for counts II and IV, with a concurrent term of five years for the gang enhancement as to count II.

On February 21, 2006, appellant filed a timely notice of appeal.

FACTS

The victim owned a mini market on South C Street in Madera, and Rosendo Ramirez worked for her. Around 7:45 p.m. on July 15, 2005, the victim was standing outside the doorway talking to a customer, Abel Martinez, while Ramirez swept the sidewalk area. The victim testified that two Chicano men walked passed them and went toward a nearby liquor store. They did not say anything. The victim testified the two men walked by again, one of them said, Well be back, and the victim replied, Okay. The victim had never seen these men before.

The victim testified the two men turned around and walked back to her store. One man was tall and thin, with a closely-shaved bald head, and she thought he had a star tattoo on his lip. He was not wearing a shirt. The victim thought he had tattoos on his back. The victim subsequently identified appellant Christopher Rivas as the tall and skinny man. The other man was short and heavy-set, with dark skin. He wore a hat, a dark shirt, blue Dickie pants, and had a piercing on his right eyebrow.

The victim testified she was still standing in the stores doorway with Martinez and Ramirez. Appellant and the other man approached them, and appellant stood very close to her face. Appellant spoke to the victim in English. The victim understands English, but Ramirez did not speak English and did not understand what appellant said to the victim. The victim testified appellant used a rough tone of voice, and said she was not allowed to have my store there; that he was going to break the windows on my store. Appellant said, This is my town and you have to ask me permission to have this store here. Appellant said he was going to break my windows and he was going to beat me up and throw me to the street so the ambulance will pick me up. The victim testified that when appellant made the statements to her, she intentionally acted strong and didnt show him fear so they would not think she was weak, but she was actually afraid appellant was going to beat her up. She did not see a knife.

The victim testified the short man walked up to Martinez and started talking to him, but the victim could not hear the conversation. The short man punched Martinez on the left side, and there was an altercation between them. Appellant walked toward Ramirez, and the victim ran into the store and called 911. Ramirez saw appellant slash at Martinez, and appellant also tried to scratch Ramirez with something in his hand.

The victim testified she stayed in the store until the police arrived, because she was shaking and thought appellant was going to beat her up. The victim testified the two men did not act normal. Martinez walked into the store, and he was bleeding from a small cut, about two to three inches long, just above the right side of his beltline.

The victim testified the entire encounter in front of the store lasted about three minutes, but it seemed like a long time to her. The victim testified she was still shaking from the encounter when the police arrived about 10 minutes later.

Madera Police Officer Josiah Arnold responded to the market and interviewed the victim, who stated the tall man told her, Im going to come back here and put you in the hospital. Deputy Arnold interviewed Ramirez, with the victim acting as the Spanish translator. Arnold testified that Ramirez said the tall, thin Hispanic male was carrying a pocketknife, a folding knife. Arnold clarified that Ramirez said it was a folding pocket knife.

Q. And was he able to describe it?

A. He just said that he thought it had a 5 to 6-inch blade, and that it was a folding knife.

The tall man chased Ramirez, and Ramirez ran away. Ramirez said he looked back and the heavy-set man was striking Martinez. Ramirez said the tall individual walked behind Mr. Martinez and stabbed him in the back.

Deputy Arnold also interviewed Martinez, and observed a six-inch cut on the left side of his back, with blood dripping through two inches of the cut. The wound was about eight to 10 inches above the beltline, on the left side of his back. Arnold believed the wound was consistent with a slashing-type motion. Arnold also believed it was a serious injury and was going to call emergency personnel, but Martinez said he did not want to be seen by anyone, and he just wanted to leave and go home.

Madera Police Officer Foss contacted Officer Jason Dilbeck, the gang liaison officer, advised him about the incident, and asked if he knew about any gang member with a tattoo on his lip. Based on his past contacts, Dilbeck reported that appellant had a tattoo on his lip.

Deputy Arnold prepared a photographic lineup and separately showed it to the victim and Ramirez. Both the victim and Ramirez identified appellant as the tall suspect. At trial, the victim testified she identified appellant because he was the man who confronted her, and not because he had a tattoo on his lip.

Also at trial, Ramirez testified through a Spanish interpreter, and identified appellant as the tall man. Ramirez testified appellant spoke to the victim in English, he did not understand what was said, but appellant used an aggressive voice. Ramirez testified appellants companion hit the client, referring to Martinez (the victims customer).

Q. [] After the person wasthe client was punched, what happened next?

A. The taller one got close to me and tried to scratch me, too, with the knife.

Q. Okay. [] So the tall person had a knife?

A. I dont know what it was.

Q. When you say he tried to scratch you, what do you mean by that?

A. I dont know what he had in his hand.

Q. Okay. [] But how did he try to scratch you? Using your term.

A. The same way that he scratched the client.

Q. And how was that, can you describe it?

A. He went like this.

The prosecutor clarified that Ramirez had his right hand from his left hip area across his body extending it out. Ramirez testified appellant scratched Martinez from behind, and Martinez was bleeding a little.

On cross-examination, Ramirez was again asked about how Martinez was wounded:

Q. [] And you didnt see anybody with a knife, did you?

A. No.

Deputy Arnold testified he arrested appellant at his house on South D Street. Arnold advised appellant that he was under arrest for stabbing somebody in the back, and appellant replied, So. Arnold did not find a folding knife.

The Gang Experts Testimony

Detective Jason Dilbeck testified as the prosecutions gang expert. Dilbeck had been the gang liaison officer for the Madera Police Department for four years, and received training and attended seminars about gang investigations through the California District Attorneys Association, the Department of Justice, the California Gang Investigators Association, the Central Coast Gang Investigators Association, and the Northern California Gang Investigators Associations. He was a member of the National Major Gang Task Force, the California Gang Task Force, the Northern California Gang Investigators Association, the Central California Gang Investigators Association, and the California Investigators Association.

Officer Dilbeck had investigated 400 to 450 gang-related cases, and was regularly contacted by other law enforcement agencies in the area as to their gang investigations. Dilbeck had talked to gang members about their participation in different types of crimes, and cultural issues like their mode of dress, tattoos, hand signs, how someone joins a gang, the importance of respect within gangs and among rivals, and the rivalries between gangs.

Officer Dilbeck testified there were 56 gangs in Madera, including the Nortenos, Surenos, Bulldogs, Crips, Bloods, and various subsets of these gangs. The primary gangs in Madera County were the Nortenos and Surenos Dilbeck explained the Surenos rivals are the Nortenos, North Star, Northern Structure, and the Bulldogs. Dilbeck had approximately 1,000 contacts with members of both the Nortenos and Surenos.

Officer Dilbeck testified the Surenos claimed the color blue, and the number 13 in different forms, such as X111, X-3, 1-3 or three dots, representing the 13th letter of the alphabetemmewhich is slang for the Mexican Mafia, the prison gang which Sureno members associate with when in prison. There are several subgroups of the Surenos in Madera, including Mi Vida Loca (MVL) and Vatos Locos Mexicanos (VLM). There were also small groups which identify themselves as part of the Surenos. While the subgroups may be affiliated with the Surenos, some of the Sureno subgroups had been known to have problems with each other.

Officer Dilbeck testified he had been in contact with three or more members of the Surenos. The primary activities of the Surenos can be anything from assaults with firearms or dangerous weapons, drive-by shootings, attempted murders, robberies, drug sales, and murder. There are different membership levels within the Surenos, including shot callers, who are like leaders, active members, and peripheral members who associate with the gang but do not claim active membership.

Officer Dilbeck testified about prior criminal acts performed by Sureno gang members, and the court admitted abstracts of judgment as to two offenses, both of which occurred in 2001 and resulted in convictions in Madera County in March 2002. In the first case, Mario Mr. Sleepy Solis pleaded guilty to assault with a firearm, with a personal use enhancement, and was sentenced to the upper term of four years, with 10 years for the enhancement. In the second case, Daniel Villarreal, Jr. pleaded to attempted voluntary manslaughter, with gang and personal use enhancements, and sentenced to the upper term of five years six months, plus 13 years for the enhancements. Dilbeck was familiar with both individuals and testified they were members of the Surenos.

Officer Dilbeck testified appellant was a member of the Surenos, based upon several factors. Appellant had several Sureno tattoosa 13 on the back of his head in large block numbers, three dots on his right wrist, signifying 1 and 3 or 13, and gang tattoos on the right and left side of his neck. Dilbeck clarified that appellant had a tattoo on his lip but it was the area code 805 from the Southern California area, it was not a star, and explained its really small and hard to see.

Officer Dilbeck also relied upon appellants admissions on different occasions that he was a Sureno, that he claimed Sureno membership in custodial situations, and rival Norteno gang members had identified him as a Sureno. Appellant had been found in possession of gang paraphernalia, such as a blue belt with 13 on it, and worn gang clothing. Dilbeck testified appellant claimed membership in the Santa Paula Party Boy Surenos, a Sureno gang located in Southern California. Appellant was originally from Santa Paula, and Dilbeck believed he moved to Madera County in December 2002. Dilbeck explained it was common for gang members to move to another location and align with other Sureno groups in the area. Such a person was not required to rejoin or be jumped again into another Sureno gang. The Surenos started in Southern California, and a Sureno from that area has more prestige when he moves further north, because of the reputation of their predecessors.

Officer Dilbeck testified his opinion about appellants gang status was also based on appellants prior contacts with law enforcement officers. Appellants first contact with law enforcement in Madera occurred in January 2003, when appellant was living in an area mostly frequented by Norteno gang members and wearing blue clothing as the identifying color of the Surenos. He was approached by five members of the Nortenos, who threatened him, and an altercation resulted. At some point after that altercation, Parole Agent Frank Lewis contacted Dilbeck, and advised him that appellant was a Sureno gang member, he was on parole, and he was living in an area of Madera which was predominantly Norteno. Lewis provided Dilbeck with information gathered by the California Department of Corrections (CDC), which identified appellant as a member of the Surenos, he had Sureno tattoos, and his parole conditions prohibited him from associating with other gang members, wearing gang attire, and participating in gang-related crimes.^[3]

Officer Dilbeck testified about another contact in September 2003, when appellant was booked into the Madera County Department of Corrections. Appellant was asked if he had any gang affiliations, and said, Yes, south, indicating his affiliation with the Surenos. His Sureno tattoos were also observed at that time. Dilbeck testified that in October 2003, appellant was again booked into the Madera County Department of Corrections, and identified as a member of the Surenos based on his tattoos.

Officer Dilbeck testified about another contact on October 31, 2004, when a gang-related homicide occurred at the Primavera Bar. Appellant and other Surenos in the VLM had been at the bar, and appellant jumped a fence and ran from the location when the police arrived. He was wearing blue gang attire and had been with other Sureno members.

Officer Dilbecks next contact with appellant was during an interview, when Dilbeck asked appellant how long he had been a gang member. Appellant said he had been a Sureno since he was 13 years old. Appellant displayed gang-related tattoos, and he was wearing a blue belt with 13 on it.

At the time of the instant case, appellant was living on D Street in Madera, which was Sureno territory. Officer Dilbeck testified to his opinion that appellant was an active participant in a gang, he was participating in a gang crime, he was associating with other known gang members, and documented having gang tattoos. Dilbert explained the basis for his opinion was that appellant was with other Sureno gang members at his house when he was arrested in this case, and he admitted to being a Sureno gang member when he was booked into custody. Appellants house was one block away from the market.

Officer Dilbeck conceded the victims in this case were not associated with any type of gang, but explained about the concept of respect among gang members. It was very important for a gang member to have respect within his gang, and among rival gang members. He can earn respect and prestige through committing violent crimes, and work his way up the gangs leadership ladder.

When gang members commit acts of violence, it not only intimidates rival gangs, but it also intimidates the community in which gang members reside. Through investigating hundreds of gang related crimes, you can see how hesitant witnesses are to testify against gang members; theyre scared. Most of the time they live in the communities in which the gang members live. Theyre scared of retaliation. Sometimes they work in areas that they know are contacted by gang members, and due to the fact that, you know, gangs have multiple people, they know that, you know, that even though that individual gang member being in custody, that other gang members can, you know, harm them.

Officer Dilbeck testified that appellants conduct in this case benefited the Surenos.

Q. How so?

A. ... [I]n this incident, you had an individual that had no shirt on that was displaying gang tattoos, that went up to a store owner that was approximately a block from his house and was telling him that they had to have his permission to have a store in the area. He was saying that thats his gangs turf and he was protecting that turf and territory.

Q. And if the gang member is threatening physical action to a store owner in an area that he claims, does that accrue a benefit to that gang?

A. Yes.

Q. ... [H]ow so?

A. It accrues a benefit because the more violent the gang is, the more respect they get from other Sureo gang members. The more feared they are by rivals, which may not decide to go into their turf and territory to commit crimes against them, because theyre scared of retaliation. And it also makes citizens more hesitant to testify against them and to contact us. We have some communities that are so afraid that when shots are fired, you know, in their neighborhoods, that they dont even call the police.

Officer Dilbeck testified that an average gang member in [a] similar situation would accrue a benefit to the criminal street gang and they would know that by threatening a store owner on their turf, and using a weapon to assault someone. The market was located in a relatively high crime area, mainly consisting of Sureno gang activity, and just one block away from appellants house.

A threat can only instill so much fear in someone, and what better way to emphasize that point than with an act of violence. If I threaten to do something, you may believe that I am willing to do that and capable of doing that; however, if you see or hear about someone that actually did a violent act after they said they were going to, it leads someone to put a little bit more stock in what that individual is threatening and helps the violent reputation of the Sureos.

Officer Dilbeck further explained that such an act was for the benefit of the Surenos rather than one of the subgroups, such as VLM or MVL.

[T]heres two things that can happen when someone thats from a different area moves, they can either move in enough numbers where they can start their own click that they used to claim, or they can melt into, you know, whats already there.

With the fact that [appellant] was associating with other Sureo gang members that are from Madera, such as VLM, which is one of the largest Sureo clicks in Madera, which has embraced quite a few gang members from California, that leads me to believe there wasnt enough Santa Paula Party Boys to make their own click, so theyre molding into what is commonly known as Sureo.

Appellant was convicted of count I, assault by means of force likely to produce great bodily injury on Martinez, count II, criminal threats on the victim, and count IV, active participation in a criminal street gang. The jury also found he personally used a deadly weapon, a knife, as to count I, and that he committed counts I and II for the benefit of a criminal street gang.

On appeal, appellant asserts his convictions must be reversed because his defense attorney admitted he was simultaneously representing the victim in an unrelated criminal proceeding. Appellant also contends the court had a sua sponte duty to instruct on simple assault as a lesser included offense of count I, aggravated assault, and the court abused its discretion when it permitted Officer Dilbeck to testify about his parole status.

Appellant contends there is insufficient evidence to support count IV, the substantive gang offense, and the gang enhancements found true as to counts I and II. Appellant also contends the personal use enhancement must be stricken as to count I, and the concurrent term imposed for count IV must be stayed pursuant to section 654.

Respondent asserts the court imposed an unauthorized sentence because it failed to impose a consecutive five-year term for the prior serious felony enhancement. We will also address whether the courts imposition of the upper term violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

DISCUSSION

I.

CONFLICT OF INTEREST

Appellant contends his convictions must be reversed because his appointed defense counsel also represented the victim in an unrelated criminal matter, at the same time as the trial in this case. Appellant asserts he timely objected to this conflict of interest, and the court should have dismissed his appointed counsel and granted a mistrial.

A. Background

At the time of arraignment, the court appointed the public defenders office to represent appellant, and the alternate defenders office to represent codefendant Vera. At a confirmation hearing, appellant was represented by Craig Collins of Barker & Associates. Appellant said he wanted another defense attorney, and the court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the Marsden hearing, appellant complained Mr. Collins did not give him paperwork about his case and wanted to delay the trial until his parole hearing. Mr. Collins clarified that he discussed the possibility of delaying the jury trial until he learned the recommendation for the parole violation, in case there was some type of deal that would positively affect appellants criminal charges, but nothing had been done yet. The court denied the Marsden motion and found Mr. Collins properly represented appellant.

All court documents in this case were redacted to identify the owner of the market as Jane Doe, including the complaint, the information, and the amended information. The preliminary hearing was held on August 1, 2005, and appellant was represented by Mr. Collins. The victim did not testify at the preliminary hearing, but Officer Arnold testified about his investigation and referred to the victim by her real name.

Mr. Collins also represented appellant at trial. The victim appeared and testified as set forth ante. During the trial, Mr. Collins extensively cross-examined the victim and Ramirez as to their recollections of the incident, their descriptions of the suspects, the nature of Martinezs wound, and whether anyone saw a knife. Mr. Collins also cross-examined Officer Arnold about his investigation, and Officer Dilbeck as to the basis for his opinions about appellants involvement with the Surenos, and whether the instant incident was for the benefit of the Surenos.

Appellants jury trial began on October 5, 2005, and the case went to the jury just before noon on October 6, 2005. Later in the afternoon of October 6, 2005, the court reconvened to consider a question from the jury, the parties discussed the matter, and the court responded to the question. After the jury left the courtroom, Mr. Collins advised the court:

MR. COLLINS: Judge, it had come to my attention as I was going over the files set for tomorrow that our office in this department represents the victim and witness [the victim] in a child abandonment. She pled for a misdemeanor. Shes set for sentencing. And I have disclosed that to my client and I apologize to the court.

THE COURT: Well, its hard when you got, you know, when the persons Jane Doe is the person in the Complaint. Thats one of the problems that they have when they do Jane Doe things that youre not aware of it. I mean, would that have affected I mean obviously did you

MR. COLLINS: I been in court with her two times and I had and briefly and shes come into our office and discussed the case with another attorney in our office.

THE COURT: What Im saying is that you know the facts that apparently you know that you represented her in the matter but the problem the other thing is that the fact that you represented her, I mean, then of course you had been put in the situation of revealing, you know, conflicting information. But apparently you didnt even remember, so theres no way that youd use conflict information, you know, obtained for her for the purpose of impeaching her.

MR. COLLINS: Her rap sheet indicates the [section] 12500 and has not been convicted of this crime.

THE COURT: Okay. Thats noted for the record. I dont see any reason. I assume youre not moving for mistrial or anything like that based on that, youre not asking to be relieved as attorney of record at this time?

MR. COLLINS: I was leaving it up to the court. I just wanted to make the court aware and I dont know.

THE COURT: Well

MR. COLLINS: I dont know if youd like some sort of waiver from my client or. (Italics added.)

At this point, the court turned to appellant and addressed him:

THE COURT: ... [Y]ou understand apparently Mr. Collins represented or still continues to represent the victim, Jane Doe, and was unaware of that either prior to the trial or during the trial until just recently when he was reviewing his file for tomorrow. Do you have any problem with him continuing to represent you in this matter?

[APPELLANT]: No.

THE COURT: Okay. So do you waive any conflict issues in relationship to the fact that he represented her, uh, she hasnt been convicted, she hasnt but through the pretrial proceedings of her case which apparently is set for tomorrow, pardon me.

MR. COLLINS: Do you waive any conflict of interest?

[APPELLANT]: Yeah.

THE COURT: Thats yes?

[APPELLANT]: Yes.

THE COURT: Okay, thank you. (Italics added.)

The court then called for a recess. Neither appellant nor Mr. Collins raised this issue again, and Mr. Collins continued to represent appellant through the verdicts and the sentencing hearing.

B. Analysis

Appellant contends that when Mr. Collins advised the court of his representation of the victim, that exchange was the equivalent of a timely objection to Mr. Collinss continued representation, and appellants subsequent waiver was invalid because it was not knowing and intelligent.

Under the federal and state Constitutions, a criminal defendant has the right to the assistance of counsel. [Citations.] These constitutional guarantees entitle a defendant not to some bare assistance but rather to effective assistance. [Citation.] That entitlement includes the right to representation that is free from conflicts of interest. [Citations.] (People v. Jones (1991) 53 Cal.3d 1115, 1133-1134, italics in original.)

People v. Bonin (1989) 47 Cal.3d 808 (Bonin) extensively addressed the nature of conflicts of interest, and summarized United States and California Supreme Court authorities on the matter. Conflicts of interest broadly embrace all situations in which an attorneys loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. [Citation.] (Bonin, supra, 47 Cal.3d at p. 835; People v. Sanchez (1995) 12 Cal.4th 1, 45 (Sanchez).)

Conflicts may also arise in situations in which an attorney represents a defendant in a criminal matter and currently has or formerly had an attorney-client relationship with a person who is a witness in that matter. [Citations.] [] Such a conflict springs from the attorneys duty to provide effective assistance to the defendant facing trial and his fiduciary obligations to the witness with whom he has or had a professional relationship. [Citation.] An attorney is forbidden to use against a [present or] former client any confidential information ... acquired during that client relationship. [Citations.] Moreover, the attorney has a duty to withdraw, or apply to a court for permission to withdraw, from representation that violates those obligations. [Citation.] So important is that duty that it has been enforced against a defendants attorney at the instance of his former client (who was also a codefendant) even at the expense of depriving the defendant of his choice of counsel. [Citation.] [Citation.] In a word, a conflict based on the attorneys obligations to a criminal defendant and to a present or former client, as well as conflicts arising out of simultaneous representation of codefendants, may impair a defendants constitutional right to assistance of counsel. [Citation.] (Bonin, supra, 47 Cal.3d at p. 835.)

Bonin also summarized the courts duty to act when it learns about a potential conflict of interest, based on the guidelines set forth in Holloway v. Arkansas (1978) 435 U.S. 475, Cuyler v. Sullivan (1980) 446 U.S. 335, and Wood v. Georgia (1981) 450 U.S. 261 (Wood). In order to safeguard a criminal defendants constitutional right to the assistance of conflict-free counsel and thereby keep criminal proceedings untainted by conflicted representation, the United States Supreme Court has laid down certain essentially prophylactic rules in this area. (Bonin, supra, 47 Cal.3d at p. 836.)

When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter. [Citations.] It is immaterial how the court learns, or is put on notice, of the possible conflict, or whether the issue is raised by the prosecution [citation] or by the defense [citation].

The trial court is obligated not merely to inquire but also to act in response to what its inquiry discovers. [Citation.] In fulfilling its obligation, it may, of course, make arrangements for representation by conflict-free counsel. [Citation.] Conversely, it may decline to take any action at all if it determines that the risk of a conflict is too remote. [Citation.] In discharging its duty, it must act ... with a caution increasing in degree as the offenses dealt with increase in gravity. [Citation.]

After the trial court has fulfilled its obligation to inquire into the possibility of a conflict of interest and to act in response to what its inquiry discovers, the defendant may choose the course he wishes to take. If the court has found that a conflict of interest is at least possible, the defendant may, of course, decline or discharge conflicted counsel. But he may also choose not to do so: a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests. [Citations.] (Bonin, supra, 47 Cal.3d at pp. 836-837.)

Bonin further addressed the type of waiver which must be obtained from the defendant:

To be valid, however, waivers of constitutional rights must, of course, be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences[,] ... [and] must be unambiguous and without strings. [Citations.]

Before it accepts a waiver offered by a defendant, the trial court need not undertake any particular form of inquiry ..., but, at a minimum, ... must assure itself that (1) the defendant has discussed the potential drawbacks of [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of [such] representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right. [Citations.] (Bonin, supra, 47 Cal.3d at p. 837; People v. McDermott (2002) 28 Cal.4th 946, 990.)

The trial court commits error under Wood when it fails to inquire into the possibility of a conflict of interest, or adequately act in response to what that inquiry reveals. (Bonin, supra, 47 Cal.3d at p. 837.)

Bonin explained, however, that error under Wood is not subject to automatic reversal. (Bonin, supra, 47 Cal.3d at p. 842; Mickens v. Taylor (2002) 535 U.S. 162, 172-174 (Mickens).)

To obtain reversal for Wood error, the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsels performance. [Citations.] (Bonin, supra, 47 Cal.3d at pp. 837-838; Sanchez, supra, 12 Cal.4th at p. 47.)

Thus, Wood error is subject to reversal only if the defendant shows an adverse effect on counsels performance resulting from the alleged conflict. (Bonin, supra, 47 Cal.3d at pp. 837-838, 842-843; Sanchez, supra, 12 Cal.4th at p. 47; see also Mickens, supra, 535 U.S. at pp. 172-174.)

In the instant case, Mr. Collins clearly advised the trial court about his inadvertent failure to realize his office simultaneously represented the victim in an unrelated criminal matter. It is unclear, however, whether Mr. Collins personally represented the victim in her criminal case. Mr. Collins initially stated his office represented the victim, she had not been tried or convicted yet, and that she had come into our office and discussed the case with another attorney in our office, which seems to infer that another attorney from Barker & Associates represented her in the other case. But Mr. Collins also said he had been in court with her two times. Mr. Collins might have meant that he had been in court with her on two occasions when she appeared as a prosecution witness in appellants case, rather than appearing in court as her defense attorney in her separate criminal matter. At the most, it appears that Mr. Collins might have appeared with her on two occasions. The court later explained that Mr. Collins had appeared with the victim in pretrial proceedings, so his appearances could have been limited to pretrial settings in her own criminal case. Mr. Collins also said she had talked to another attorney in his office about the case, thus inferring that he may not have engaged in any direct communications with the victim about her criminal case. Mr. Collins discovered the conflict, however, while reviewing the files for the next day, so he was apparently assigned her case at some point.

In any event, the court was on notice of the potential conflict which existed because Mr. Collins and/or Barker & Associates represented both appellant and the victim at the same time, albeit in unrelated criminal cases. As the court noted, Mr. Collinss failure to recognize this problem was understandable given the redaction of the victims true name from the complaint and information in this case. While Officer Arnold referred to her true name during the preliminary hearing, it is not clear whether Mr. Collins and/or his office represented the victim at that time. It is also not clear if the victims true name was contained in any discovery documents received by Mr. Collins.

Nevertheless, Mr. Collinss disclosure triggered the courts duties under Holloway, Cuyler, and Wood, as summarized ante in Bonin. The court made that inquiry and learned that Mr. Collins (or another attorney in Barker & Associates) also represented the victim in an unrelated child endangerment case, and that she had been charged but not yet convicted in that case. Mr. Collins was not sure about his responsibilities in such a situation, and stated that he advised the court about the potential conflict so it could handle the matter.

The court turned to appellant, explained that Mr. Collins represented or still continues to represent the victim, that he was unaware of it until that moment, and whether appellant had any problem if Mr. Collins continued to represent him. Appellant said no. The court asked if he waived any conflict issues because of Mr. Collinss representation of the victim, and that the victims case was set for the next day. Appellant again said yes. While appellant was clearly familiar with the Marsden process, based on his pretrial motion, he never raised any further objections to Mr. Collinss representation.

Respondent asserts appellants waiver was valid and his failure to object to the conflict requires this court to evaluate the situation pursuant to People v. Kirkpatrick (1994) 7 Cal.4th 988 (Kirkpatrick):

To establish a violation of the right to unconflicted counsel under the federal Constitution, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyers performance. (Cuyler v. Sullivan (1980) 446 U.S. 335, 348, fn. omitted.) To establish a violation of the same right under our state Constitution, a defendant need only show that the record supports an informed speculation that counsels representation of the defendant was adversely affected by the claimed conflict of interest. (People v. Cox (1991) 53 Cal.3d 618, 654; Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612-613.) (Kirkpatrick, supra, 7 Cal.4th at p. 1009; Sanchez, supra, 12 Cal.4th at p. 45.)

Respondent thus submits that appellant can only obtain reversal on this issue, based on his waiver and failure to object, if this court finds an actual conflict existed that adversely affected Mr. Collinss performance. Respondent argues such a finding cannot be made on this record. Appellant counters that when Mr. Collins advised the court about the conflict, such an act amounted to an objection, and appellants waiver is invalid because it was not knowing and voluntary.

Neither party addresses Bonin, and the trial courts minimal advisement duties to a defendant in such a situation. As explained ante, the trial court is not required to undertake any particular form of inquiry in accepting a defendants waiver of a potential conflict of interest. (Bonin, supra, 47 Cal.3d at p. 837.) However, the courts minimum duties are to determine that (1) the defendant has discussed the potential drawbacks of [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of [such] representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right. [Citations.] (Ibid.) It would seem that the courts limited exchange with appellant fails to satisfy its minimum duties of inquiry. Appellant was clearly aware of the nature of the conflictMr. Collins just realized that he represented the victim in an unrelated criminal case which was scheduled to begin the next day. However, there is no evidence that appellant had discussed the potential drawbacks of the potential conflict with Mr. Collins, if he was advised of the dangers and possible consequences of Mr. Collinss continued representation, or that he knew of his right to conflict-free representation. (Ibid.)

Even if the court failed to obtain the appropriate waiver, any error does not require reversal. Contrary to appellants arguments, a trial courts failure to adequately act in response to learning about a potential conflict is not subject to automatic reversal. To obtain reversal for Wood error, the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsels performance. [Citations.] (Bonin, supra, 47 Cal.3d at pp. 837-838; Sanchez, supra, 12 Cal.4th at p. 47.) Thus, Wood error is subject to reversal only if the defendant shows an adverse effect on counsels performance resulting from the alleged conflict. (Bonin, supra, 47 Cal.3d at pp. 837-838, 843; Sanchez, supra, 12 Cal.4th at p. 47; see also Mickens, supra, 535 U.S. at pp. 172-174.)

Bonin is instructive in this situation. In Bonin, the defendant moved to substitute his appointed counsel with the law firm of Charvet & Stewart. The prosecutor objected because of a potential conflict of interest since the firm previously represented a key prosecution witness, Munro. (Bonin, supra, 47 Cal.3d at pp. 825-828.) The trial court conducted a lengthy hearing on the potential conflict and denied the substitution. A series of motion and writ petitions followed, and the trial court ultimately allowed the substitution but failed to obtain an appropriate waiver from the defendant. (Id. at pp. 830-835.) Mr. Charvet represented the defendant at trial. On appeal, however, the defendant argued the trial court violated Wood and failed to adequately inquire or properly act as to the existence of the conflict of interest arising from the firms previous representation of the witness. (Id. at pp. 824-825, 837-839.)

As set forth ante, Bonin extensively addressed a trial courts duties in such a case, and concluded the court violated Wood when it inexplicably failed to obtain the necessary waiver from the defendant prior to allowing the substitution. (Bonin, supra, 47 Cal.3d at pp. 838-839.) But Bonin concluded the courts Wood error did not require reversal, even though the defense firm had represented the witness, Munro.

Having considered the matter closely, we believe that reversal is not required on this record. We shall assume for arguments sake that defendant has shown an actual conflict of interest burdening Charvet & Stewart. But we conclude that he has not shown, and cannot show, any adverse effect on counsels performance resulting from the alleged conflict. Our review of the record reveals that Charvets attack on Munros credibility was broad and deep. We cannot find or even conjecture any failing on Charvets part that could be attributed to any information he or his partner Stewart could conceivably have received from Munro when they discussed the possibility of representation. Accordingly, we hold that the Wood error in this case does not warrant reversal. (Bonin, supra, 47 Cal.3d at p. 843, fn. omitted.)

A similar analysis applies in the instant case. Even assuming an actual conflict of interest, there is no evidence that Mr. Collinss representation of the victim had an adverse effect on his representation of appellant. As set forth ante, Mr. Collins vigorously represented his client, and subjected the prosecution witnesses, including the victim, to extensive cross-examination as to their descriptions of the suspects and the incident at the mini market. He also subjected the officers to intensive cross-examination, particularly Officer Dilbecks testimony as to gang culture and habits, and whether appellant was actually a member of a gang in Madera County. Mr. Collins also ably represented appellant at the sentencing hearing, and argued the gang evidence was tenuous and urged the court to impose the midterm. The entirety of the record thus demonstrates that the purported conflict did not adversely affect Mr. Collinss representation of appellant.

II.

INSTRUCTIONS ON LESSER OFFENSES

Appellant contends the court had a sua sponte duty to instruct on simple assault as a lesser included offense of count I, assault by means of force likely to produce great bodily injury.

A. Background

After the prosecution rested, the court discussed the instructions with the parties. Appellant was charged in count I with assault by means of force likely to produce great bodily injury, in violation of section 245, subdivision (a)(1). The court stated the prosecution had provided a verdict form for a violation of section 240, simple assault, as a lesser included offense of count I, but it was not sure whether there was evidence to support that offense. The prosecutor clarified he was not requesting that instruction, but provided the form in an abundance of caution. The court agreed:

Normally I put all those things in here, but in this case, it doesnt make any sense to put it in there, because it wasa simple assault would mean that there was no touching, and obviously there was a touching, so it would be a battery. Its either assault with a deadly weapon or battery, which is a lesser related offense.

Defense counsel asked for an instruction on battery ( 242), but the court replied it did not have to instruct on a lesser related offense. The court decided not to instruct on simple assault as a lesser included offense of count I because it was not supported by the evidence.

Thereafter, appellant moved for acquittal on the great bodily injury and personal use enhancements, and argued Ramirez said he did not see a knife and Martinezs small wound did not constitute great bodily injury. The prosecutor argued that Ramirez gave conflicting evidence on whether he saw a knife, and Martinezs wound was consistent with a slashing knife attack. The prosecutor also argued that Officer Arnold believed Martinezs injury was serious.

The court denied the motion as to the personal use enhancement, and found there was conflicting evidence on whether a knife was used and it was an issue for the jurys determination. However, the court granted the motion to dismiss the great bodily injury enhancement, and found the witnesses testified Martinezs wound was trivial.

B. Analysis

Appellant now contends the court committed reversible error when it refused to instruct on simple assault as a lesser included offense of count I, assault by means of force likely to produce great bodily injury.

A trial court has a sua sponte duty to instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) An offense is necessarily included if either the elements of the greater offense, or the allegations in the accusatory pleading, are such that the lesser offense is necessarily committed if the greater offense is committed (elements test and pleadings test, respectively). (People v. Birks (1998) 19 Cal.4th 108, 117-118.)

Section 245, subdivision (a)(1) speaks in the alternative, specifying two forms of prohibited conduct. The statute can be violated by assaulting a person with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. [Citation.] Hence, section 245, subdivision (a)(1) can be violated without necessarily using a deadly weapon. [Citations.] (People v. McGee (1993) 15 Cal.App.4th 107, 114 (McGee), italics in original.) Thus, a conviction of assault by means of force likely to produce great bodily injury does not require that the prosecution establish the actual infliction of great bodily injury. (People v. Covino (1980) 100 Cal.App.3d 660, 667.)

A simple assault under section 240 is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery .... (People v. Elam (2001) 91 Cal.App.4th 298, 308.) An assault may be committed without making actual physical contact with the victim. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) An assault is an attempted battery that is a general intent offense. (People v. Williams (2001) 26 Cal.4th 779, 784-785; People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2, overruled on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228.)

Simple assault is a lesser included offense of assault with a deadly weapon (People v. Jones (1981) 119 Cal.App.3d 749, 754), and assault by means of force likely to produce great bodily injury (People v. Buice (1964) 230 Cal.App.2d 324, 345-346; People v. Yeats (1977) 66 Cal.App.3d 874, 879 (Yeats)). However, battery is not a lesser included offense of assault by means of force likely to produce great bodily injury since an assault may be committed without any willful and unlawful use of force or violence upon the person of another [citation] and thus without a battery. [Citations.] (In re Robert G. (1982) 31 Cal.3d 437, 441; Yeats, supra, 66 Cal.App.3d at p. 879.)^[4]

A trial court may properly refuse to instruct upon simple assault where the evidence is such as to make it clear that if the defendant is guilty at all, he is guilty of the higher offense. (Yeats, supra, 66 Cal.App.3d at p. 879.) [I]t is possible for an accused to be found guilty of violating section 245, subdivision (a)(1) by assaulting the victim with means of force likely to produce great bodily injury and also be found to have used a deadly weapon within the meaning of section 12022, subdivision (b). Where the accused has simply displayed a deadly weapon to cause the victim not to resist an assault by some other force likely to produce great bodily injury, the menacing display of the weapon would be sufficient to prove use of a deadly weapon under section 12022, subdivision (b) but not necessarily sufficient to prove assault with a deadly weapon under section 245, subdivision (a)(1). [Citation.] (McGee, supra, 15 Cal.App.4th at p. 115.) However, if the defendant commits an assault by means of force likely to produce great bodily injury by stabbing the victim with a deadly weapon, the defendants use of the knife was not an additional factor, above and beyond the elements of section 245, subdivision (a)(1) to permit imposition of a personal use enhancement. (McGee, supra, at p. 116.)

The instant case presents an arguable question as to whether the court should have instructed on simple assault as a lesser included offense. One witness described Martinezs wound as small, just above the beltline, with a small amount of blood seeping through it. On the other hand, another witness described the wound as a 6-inch cut on his back, two inches of the cut was seeping blood. As appellant notes, there was conflicting evidence as to whether the witnesses saw appellant with a knife, and the nature of Martinezs wound could have been consistent with being made by scratching at him with a set of keys, instead of slashing at his midsection with a knife.

In any event, the courts failure to instruct on simple assault was necessarily harmless based on the nature of the jurys verdicts. [I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jurys consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury. [Citations.] (People v. Edelbacher (1989) 47 Cal.3d 983, 1028; People v. Elliot (2005) 37 Cal.4th 453, 475.)

The parties herein vigorously disputed whether appellant used a knife to inflict the wound on Martinez. Ramirez was extensively questioned on whether he saw a knife, and testified that he did not see a knife that day. Deputy Arnold, however, testified that when he interviewed Ramirez at the scene, Ramirez said appellant used a knife to slash Martinez, and described it as a folding pocket knife with a five- to six-inch blade. The jury resolved this disputed factual question because it not only convicted appellant of count I, assault on Martinez by means of force likely to produce great bodily injury, but separately found the enhancement true beyond a reasonable doubt, that appellant personally used a knife in the commission of the offense. While we will conclude that the enhancement must be stricken for other reasons, we cannot ignore the jurys finding that appellant personally used a knife, which essentially rejected the defense theory that appellant might have swiped at Martinez with something other than a knife. Indeed, appellant concedes that [a] stabbing blow with a knife can cut through flesh and jeopardize internal blood vessels and organs and is clearly a force likely to inflict great bodily injury. Based on the jurys finding on the personal use enhancement, it is clear it would have found appellant guilty of assault by means of force likely to produce great bodily injury even if it had been instructed on the less