P. v. Harris

Filed 6/20/07 P. v. Harris CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielson, Judge. Affirmed.

I.

INTRODUCTION

Arthur Harris pled guilty to one count of possessing cocaine base with intent to sell (Health & Saf. Code,  11351.5),^[1]and admitted having suffered various prior convictions. Harris later filed a motion to withdraw his guilty plea, on the ground that his counsel had a conflict of interest in representing him, and that as a result, his counsel was ineffective, rendering Harris's guilty plea involuntary.

The trial court denied Harris's motion to withdraw his guilty plea and sentenced Harris to a stipulated term of 12 years in prison. On appeal, Harris claims the trial court erred in denying his motion to withdraw his guilty plea. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

At the hearing at which the trial court accepted Harris's guilty plea, Harris admitted that he knowingly possessed a usable quantity of cocaine base and that he had the specific intent to either sell or distribute the cocaine base.^[2]

B. Procedural history

In September 2005, the People filed an information charging Harris with possessing cocaine base for sale ( 11351.5) (count 1), selling a controlled substance (methamphetamine) ( 11379, subd. (a)) (count 2), possessing a controlled substance for sale (methamphetamine) ( 11378) (count 3), and unauthorized possession of prescription blanks ( 11161, subd. (a)) (count 4). With respect to count 3, the People alleged that Harris was presumptively ineligible for probation based on the quantity of methamphetamine he possessed for sale (Pen. Code,  1203.073, subd. (b)(2)).

With respect to counts 1 through 3, the People alleged that Harris had suffered two prior convictions within the meaning of section 11370.2, and that he had suffered two prior convictions within the meaning of Penal Code section 1203.07, subdivision (a)(11). Further, with respect to counts 1 through 3, the People alleged that Harris committed each offense while released from custody on bail pending final judgments on two other felony offenses (SCD182549, SCD183454). The People also alleged that Harris had suffered a prior strike conviction (Pen. Code, 667, subd. (b)-(i), 668, 1170.12).

In November 2005, Harris pled guilty to one count of possessing cocaine base with intent to sell ( 11351.5). Harris also admitted that he had suffered two prior convictions within the meaning of section 11370.2, subdivision (a), and a prior strike conviction. Harris also pled guilty to one count of vandalism (Pen. Code,  594, subds. (a), (b)(1)), in SCD183454.

In exchange for Harris's guilty plea, the prosecutor agreed to dismiss the remaining counts and enhancements alleged in this action, SCD192713, to dismiss

SCD182549 in its entirety, and to dismiss the remainder of the information in SCD183454.^[3]

After Harris's November 2005 plea, the trial court appointed Attorney Stacey Gulley to represent Harris for the purpose of exploring filing a motion to withdraw Harris's plea. In April 2006, Attorney Gulley, on Harris's behalf, filed a motion to withdraw Harris's guilty plea in this case.^[4] In his motion, Harris argued that there was good cause to allow him to withdraw his plea because his former counsel, Attorney Vikas Bajaj, had a conflict of interest when he represented Harris. Harris argued that Attorney Bajaj's conflicted representation rendered Harris's plea involuntary.

On April 27, 2006, after a hearing on Harris's motion to withdraw his guilty plea, the trial court denied the motion and sentenced Harris to a stipulated term of 12 years in prison. The court also sentenced Harris in SCD183454 to a term of 16 months in prison, to be served concurrently with the 12-year sentence imposed in this case.

III.

DISCUSSION

Harris is not entitled to withdraw his guilty plea on the ground that he was denied

his constitutional right to representation free from any conflict of interest

Harris claims that the trial court erred in denying his motion to withdraw his guilty plea, which was based on the alleged denial of Harris's constitutional right to representation by an attorney free from conflicts of interest.

A. Standard of review

The parties disagree as to the appropriate standard of review this court should apply in considering Harris's claim. Harris contends that de novo review is appropriate, since claims of ineffective assistance of counsel are reviewed de novo. Harris contends that he was denied the effective assistance of counsel due to the conflicted nature of Attorney Bajaj's representation. The People note that a trial court's denial of a defendant's motion to withdraw a guilty plea is ordinarily reviewed under the abuse of discretion standard of review. The People suggest, but do not expressly state, that the abuse of discretion standard applies to Harris's claim. Since the essence of Harris's claim is that he was denied his constitutional right to the effective assistance of counsel, we review his claim de novo.

B. Factual and procedural background

In April 2006, Harris, represented by Attorney Gulley, filed a motion to withdraw his guilty plea. In support of his motion, Harris filed a declaration in which he stated the following: On April 22, 2004, he and his former girlfriend, Cheryl Wind, became involved in a domestic dispute. Wind threatened Harris with a firearm. Harris was able to wrest the gun from Wind. After Wind left Harris's residence, Harris telephoned Attorney Bajaj and told him about the incident. Harris also told Attorney Bajaj that he was an ex-felon, and that he was thus prohibited from possessing firearms. Harris requested advice from Attorney Bajaj as to what he should do with the gun. Attorney Bajaj told Harris that if Harris were to call the police, Harris would be arrested. Attorney Bajaj suggested that Bajaj's investigator, Peter Griffin, retrieve the gun from Harris. Shortly thereafter, Griffin arrived at Harris's house and took the firearm.

Three days later, Harris received a copy of a petition for a restraining order that Wind had filed. In the petition, Wind stated that Harris was being investigated for possession of a stolen firearm. Harris claimed in his declaration in support of his motion to withdraw his guilty plea that he had told the deputies who served him with the petition that the gun was in Attorney Bajaj's possession. Harris telephoned Attorney Bajaj and requested an appointment to discuss the petition for a restraining order and the status of the firearm. Harris met with Attorney Bajaj, who told Harris that everything was being "'taking care of.'" When Harris telephoned Attorney Bajaj two days later, Bajaj told Harris that "the situation was under control."

On May 6, 2004, police detained Harris outside his home. The officers told Harris that they had a warrant to search his house for Wind's firearm. Harris stated in his declaration that he told the officers prior to the search that Attorney Bajaj had the firearm. Nevertheless, the officers searched his home.

Harris stated further that the May 6, 2004 search led to charges being filed against him in SCD182549. He was subsequently released on bail in that case, subject to a search waiver condition. On July 28, 2005, police searched Harris's home pursuant to this waiver. During that search, police found additional contraband, which led to charges being filed against Harris in SCD192713.

With respect to Attorney Bajaj's allegedly conflicted representation, Harris declared the following:

"I was informed and told by Mr. Bajaj that he worked out a plea agreement with the Court and the District Attorney. I was advised that this deal was 'the best that I was going to get' and was based on the full presentation of the facts to the Court at the time of the negotiations. I subsequently learned that this was not true since the Court was unawares [sic] of Mr. Bajaj's actions in this case."

Harris filed a brief in support of his motion in which he argued the following:

"In this case, [Attorney Bajaj's] actions preceding defendant's arrest and the filing of charges were so deficient that it became impossible for the attorney to act with the defendant's best interest. By taking the gun from the defendant's property and not informing the proper authorities of its location, despite repeated inquiries from the defendant, the attorney placed the defendant in his current position. Because of this serious error in counsel's performance, all representation of the defendant by this attorney was tainted and a conflict of interest should have been declared by said attorney. Because of counsel's failure to properly handle the evidence taken by him, the defendant and some of his potential defenses were prejudiced to the point of depriving him of his substantive and procedural rights entitled to him by the law."

Harris argued that Attorney Bajaj's conflict of interest caused him to provide ineffective assistance to Harris, and rendered Harris decision to plead guilty involuntary.

The People filed an opposition to Harris's motion to withdraw his guilty plea. In their opposition, the People noted that on May 27, 2005, Attorney Bajaj filed a motion to suppress in SCD182549 in which Bajaj referred to the fact that his investigator had the Wind firearm in his possession prior to the May 6, 2004 search. The People argued that this demonstrated that Attorney Bajaj did not prevent Harris from raising a crucial defense due to a conflict of interest. The People further argued:

"[T]he facts of the gun incident were no secret to the court, nor hidden by defense counsel at any time. [Attorney Bajaj's] motion filed on May 27, 2005 clearly set out those facts and at no time prior to the plea did the defendant complain of any conflict."

The trial court held a hearing on the motion, at which both Attorney Gulley and the prosecutor reiterated the arguments they made in their briefs. No additional evidence was presented at the hearing.

At the conclusion of the hearing, the trial court issued its ruling. The court noted that while there was a "hypothetical conflict of interest," Harris had not demonstrated that "what Mr. Bajaj did or failed to do was below the standard of care for a lawyer." The court observed that there was no showing that Attorney Bajaj had been aware of Harris's narcotics trafficking at the time Bajaj was in possession of the gun. Further, the court noted that there was no showing that the manner in which Bajaj handled the gun issue was below the standard of care, given Harris's "questionable past history" and the way Harris had come to possess the gun. In addition, the trial court noted that the file indicated that the searches of Harris's home were "ultimately precipitated" by a "separate independent stream of information," and that Harris had not demonstrated that "if Mr. Bajaj had done something differently, there would have been a different result."

The trial court concluded its remarks by posing a series of rhetorical questions that suggested that the court had concluded that Bajaj's actions had not affected Harris's decision to plead guilty. The court denied Harris motion to withdraw his guilty plea.

C. The People's request for judicial notice

The People request that this court take judicial notice of the entire trial court file in SCD182549. The People specifically request that we take judicial notice of Harris's May 27, 2005 motion to suppress filed in SCD182549.

Harris requests that this court take judicial notice of "the fact [that] Bajaj filed a motion on May 27, 2005, and the fact that its contents are its contents." Harris also requests that this court take judicial notice of a March 28, 2005 minute order from SCD182549, in which the court imposed a search waiver condition as a condition of Harris's release from custody. Harris opposes the People's request for judicial notice in so far as the request seeks to have this court take judicial notice of the truth of the matters asserted in the court records. Harris further objects to this court taking judicial notice of "immaterial details of allegations regarding [his] character," contained in the record of SCD182549.

Pursuant to Evidence Code section 459, a "reviewing court may take judicial notice of any matter specified in [Evidence Code] Section 452." Evidence Code section 452 provides that a court may take judicial notice of the "[r]ecords of . . . any court of this state. . . . " (Evid. Code, 452, subd. (d).) "'Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed. . . . Further, when a court takes judicial notice of official acts or public records, it does not also judicially notice ' "the truth of all matters stated therein.'" (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.)

We take judicial notice of the following documents from the trial court file in SCD182549: The trial court's March 28, 2005 minute order imposing the search waiver condition, Harris's May 27, 2005 motion to suppress, the People's June 16, 2005 opposition to Harris's motion to suppress, and the August 3, 2005 amended information. Each of these documents is relevant to this appeal, for reasons discussed in part III.F-G, post. We decline to take judicial notice of the remainder of the file in SCD182549, since those documents are not relevant to this appeal, and the People have made no argument to the contrary. We also decline to take judicial notice of the truth of the facts asserted in the judicially noticed records.^[5]

D. Governing law

"The pleading ─ and plea bargaining ─ stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of

counsel guaranteed by the federal and California Constitutions. [Citations]." (In re Alvernaz (1992) 2 Cal.4th 924, 933.) "'The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.' [Citations.] ' "Conflicts of interest may arise in various factual settings. Broadly, they '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 by his own interests.' " ' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 673 (Roldan).)

The Roldan court explained the differences in reviewing claims of conflicted representation under the federal and state constitutions:

"Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. [Citation.] This presumption arises, however, 'only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance." ' [Citations.] An actual conflict of interest means 'a conflict that affected counsel's performance ─ as opposed to a mere theoretical division of loyalties.' [Citation.]

"' "To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an 'informed speculation' that the asserted conflict adversely affected counsel's performance. [Citations.]" [Citation.] "But '[p]ermissible speculation giving rise to a conflict of interest may be deemed an informed speculation . . .  only when such is grounded on a factual basis that can be found in the record.' " [Citations.]'" (Roldan, supra, 35 Cal.4th at pp. 673-674.)

The Roldan court also outlined the manner by which a reviewing court must determine whether a conflict of interest affected defense counsel's representation:

"'To determine whether counsel's performance was "adversely affected," we have suggested that [Cuyler v. Sullivan (1980) 446 U.S. 335] requires an inquiry into whether 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.]" (Roldan, supra, 35 Cal.4th at p. 674.)

E. Harris has not waived his claim

The People claim that Harris has waived his claim of conflicted representation because Harris was aware of the factual grounds of the alleged conflict at the time he retained Attorney Bajaj.

"Where a defendant seeks to waive his counsel's conflict of interest, the waiver must be a knowing and intelligent act ' "done with sufficient awareness of the relevant circumstances and likely consequences." '" (People v. Baylis (2006) 139 Cal.App.4th 1054, 1067-1068.) There is no authority for the proposition that a defendant waives his right to conflict-free representation merely by being aware of the facts that give rise to the alleged conflict.

Harris never stated that he waived the alleged conflict in this case, knowingly or otherwise. Accordingly, we conclude that Harris has not waived his right to raise the issue on appeal.

F. Harris has failed to demonstrate thatBajaj's representation was tainted by an

actual conflict of interest

Harris claims that police searched his residence on May 6, 2004 as a result of Attorney Bajaj's failure to turn over Wind's firearm to the police, and that after this search, Bajaj became conflicted between his desire to protect his own self interest and his duty to advocate in Harris's best interest. Specifically, Harris argues that Attorney Bajaj would have realized that his failure to turn over the firearm to police was harmful to Harris's interests, and that it may have constituted a violation of both professional rules of ethics and criminal law. Harris argues that Attorney Bajaj suffered from an "actual conflict of interest . . . between protecting [Harris's] best interest and trial counsel's own self interest, . . . [in] advising [Harris] to plead guilty instead of go to trial." Harris contends that by encouraging him to plead guilty, Attorney Bajaj prevented "a public spectacle of his questionable actions and ethical choices. . . ."^[6]

Harris implicitly acknowledges that he has not shown that an actual conflict of interest existed, in arguing, "If protecting [Harris's] best interests required going forward with the motion to suppress and/or trial, doing so would have required going against trial

counsel's self interest." (Italics added.) Further, even assuming it was in Bajaj's self interest for Harris to plead guilty, Harris has made no showing that it was not in his best interest to do so. In this regard, the trial court informed Harris that he could be sentenced to approximately 30 years in prison if he were found guilty of the charged crimes.^[7] Since Harris has not shown that it was not in his best interest to plead guilty, and there is no other evidence that Bajaj's performance was affected by the alleged conflict of interest, we conclude that Harris has failed to demonstrate the existence of an actual conflict between Harris's interests and Attorney Bajaj's interests.

G. The record does not contain evidence supporting "informed speculation" that

Attorney Bajaj suffered from a potential conflict of interest that adversely

affected his representation of Harris

We assume for purposes of this decision that Attorney Bajaj's constructive possession of the firearm prior to the May 6, 2004 search created a potential conflict of interest between Bajaj's self-interest and Harris's interests as a criminal defendant. However, the record does not support an "informed speculation" (Roldan, supra, 35 Cal.4th at p. 674), that this potential conflict of interest adversely affected Bajaj's representation of Harris.

The fundamental premise of Harris's conflict of interest theory on appeal is that Attorney Bajaj's representation of Harris was adversely affected by Bajaj's desire to

minimize the likelihood that there would be an inquiry into Bajaj's failure to turn over Wind's firearm to the police. However, this premise is undermined by the fact that Attorney Bajaj stated in his May 27, 2005 motion to suppress in SCD182549:

"On April 22, 2004, at approximately 4:45 p.m., Private Investigator Peter Griffin on behalf of this counsel, photographed the area so as to preserve the damage caused by Ms. Wind to Mr. Harris'[s] residence. Mr. Griffin took possession of the firearm that Ms. Wind left at the residence: the firearm was held in Mr. Griffin's custody until May 7, 2004 when it was turned over to Detective Asbell."

Thus, Attorney Bajaj revealed to the court and the prosecutor the essential facts that form the basis of the alleged conflict in May 2005, well before Harris pled guilty on November 8, 2005. Further, in their June 16, 2005 opposition to Bajaj's motion to suppress, the People suggested that Attorney Bajaj's action in failing to promptly turn over the firearm to police harmed Harris's interests and may have constituted a violation of both the law and Attorney Bajaj's ethical duties:

"In the approximately 14 days from the incident until the execution of the warrant, the defendant never called police to tell them where the gun was. Neither the lawyer nor his investigator called police to surrender the gun; this despite the clear rule that evidence of a crime cannot be given by a client to a lawyer (or his agent) and hidden or held. It must be turned over to police or the prosecution within a reasonable time. (See People v. Lee (1970) 3 Cal.App.3d 514; and State Bar of California Standing Committee on Professional Responsibility Formal Opinion No. 1984-76.) If defendant, his lawyer, or investigator had turned the weapon over to police, then there never would have been the need for the warrant in the first place."

Thus, the facts regarding Bajaj's handling of the firearm, and the potential legal consequences of his actions, were revealed in court documents well before Harris pled guilty on November 8, 2005.

We reject Harris's suggestion that there is evidence of a prejudicial conflict of interest because Attorney Bajaj failed to reveal to the court that Harris had instructed him to turn over the Wind firearm to police prior to the May 6, 2004 search. To begin with, Harris does not state in his declaration that he instructed Bajaj to turn the firearm over to police. Rather, Harris states that in the wake of the April 22, 2004 incident, Attorney Bajaj told him that everything was being "'taken care of.'" Harris also states in his declaration that Attorney Bajaj told him two days later that "the situation was under control."^[8]

Even assuming Harris's declaration implies that he instructed Attorney Bajaj to give the firearm to police prior to the May 6, 2004 search, there is no corroboration for this self-serving statement, and Harris did not make this assertion until after he pled guilty in November 2005, even though he was aware of all of the facts giving rise to Bajaj's potential conflict by May 7, 2004. While not amounting to a waiver, the timing is relevant in evaluating Harris's credibility regarding his instructions to Attorney Bajaj to turn over the firearm to police prior to the May 6 search.

In summary, there is no evidence supporting "informed speculation" (Roldan, supra, 35 Cal.4th at p. 674 ), that Attorney Bajaj advised Harris to plead guilty, or that Attorney Bajaj took, or refrained from taking, any other action in this case, in an attempt to keep secret his actions with regard to the firearm. Accordingly, we conclude that the

record does not contain evidence supporting "informed speculation" that any potential conflict of interest Attorney Bajaj may have had in representing Harris adversely affected Bajaj's performance.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Health and Safety Code.

^[2] In light of Harris's guilty plea, there was no trial in this case.

^[3] We take judicial notice of the August 3, 2005 amended information in SCD182549. (See part III.C, post.) In that amended information, the People charged Harris with possession for sale of a controlled substance (heroin) ( 11351) (count 1), possession for sale of a controlled substance (methamphetamine) ( 11351) (count 2), possession for sale of a controlled substance (methamphetamine) ( 11378) (count 3), possession for sale of a controlled substance (methamphetamine) ( 11378) (count 4), possession of marijuana for sale ( 11359) (count 5), corporal injury to a spouse or roommate (Pen. Code,  273.5, subd. (a)) (count 6), and possession of a firearm by a felon (Pen. Code,  12021, subd. (a)(1)) (count 7). With respect to counts 1 through 4, the people alleged numerous enhancements for prior drug related convictions. In addition, the People alleged that Harris had suffered a prison prior (Pen. Code  667.5, subd. (b), 668) and a strike prior (Pen. Code, 667, subd. (b)-(i), 668, 1170.12). The information of the third case (SCD183454) is not material to the disposition of this appeal.

^[4] Harris's motion did not address his plea of guilty to the vandalism charge in SCD183454.

^[5] The People improperly rely on the truth of the matters asserted in the records as to which they are requesting judicial notice throughout their brief. The People also improperly rely on the probation report from this case (SCD192713) in describing the facts of the dismissed case (SCD182549).

Finally, the People's request for judicial notice failed to comply with California Rules of Court, rule 8.252 (a)(2), which provides: "If the matter to be noticed is not in the record, the party must serve and file a copy with the motion or explain why it is not practicable to do so."

^[6] We assume for purposes of our decision that Attorney Bajaj's failure to turn over the gun to police led to a police search for that firearm on May 6, 2004 and to a subsequent search on July 28, 2005, during which police found items that incriminated Harris.

^[7] Although it is not clear from the trial court's remarks, it appears the court was referring to Harris's potential exposure in this case, SCD192713 and that Harris faced an additional significant prison term if he were to be convicted of the charges in SCD182549.

^[8] In a letter Harris sent to the trial judge after he pled guilty, he states that he told Attorney Bajaj to turn over the firearm to police prior to the May 6, 2004 search.