Filed 1/29/15

                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H039779
                                                  (Monterey County
        Plaintiff and Respondent,                  Super. Ct. No. SS120448)

        v.

ANTONIO ALMANZA,

        Defendant and Appellant.



        Defendant appeals from a judgment arising out of sex crimes against a girl. The
trial court made serious mistakes by failing to adequately inquire into and police the
prosecutor’s conduct after the prosecutor threatened to prosecute the defense investigator
and insinuated that defense counsel could also be prosecuted, in each case for reasons
both parties now agree would have been groundless. Defense counsel also failed to do all
he could to safeguard defendant’s right to the effective assistance of counsel when this
occurred. We would reverse the judgment and remand for retrial with a defense team not
under this sword of Damocles, but, as we explain in part I of our discussion, People v.
Doolin (2009) 45 Cal.4th 390 (Doolin), compels us to affirm it. In part II of our
discussion, we raise the question whether our Supreme Court intended for Doolin to
apply in these circumstances and suggest an alternative approach.
                                    PROCEDURAL BACKGROUND
          An information charged Antonio Almanza with four counts of a nonforcible lewd
or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a)),1 three counts of
forcible sodomy (§ 286, subd. (c)(2)), and one count of a forcible lewd or lascivious act
on a child under age 14 (§ 288, subd. (b)(1)).
          Defendant waived his right to a jury trial. Following a contested trial to the bench,
the court adjudged him to be guilty of the lewd-act counts but not guilty of the sodomy
counts.
          The trial court sentenced defendant to an aggregate term of 16 years in state
prison.
                                               FACTS
          I.       Prosecution Case
          Jane Doe, a teenager at the time of trial, had three brothers. The children all lived
under the same roof as their mother, A.A., and defendant. Jane was the second-oldest
child. When Jane was a baby, defendant moved into the house to be with A.A.
Defendant and A.A. never married, but Jane and her brothers regarded him as their
stepfather.
          Jane Doe testified at length. Defendant started to sexually molest her when she
was around seven or eight years old, and continued until about two weeks before his
arrest, which occurred when Jane was 12. Once when Jane was taking a shower in the
master bathroom, defendant opened the shower door and inserted his finger in Jane’s
vagina. Jane, too young to understand the import of this act, laughed because at the time
she thought it was “funny.”


          1 All   statutory references are to the Penal Code.




                                                  2
       Over the next several years, defendant repeatedly inserted his penis in Jane’s
vagina and between the cheeks of her buttocks. The molestations would occur while Jane
and defendant were alone, usually in the master bedroom while the television set was on,
and always on weekends. Once, in early 2012, while defendant and Jane were alone in
the living room, defendant placed Jane’s hand on his penis and moved her hand up and
down. On other occasions defendant manipulated Jane’s breasts. These acts were done
against her will.
       After the authorities discovered what was happening, Jane was interviewed at a
police station and a hospital. The trial court listened to recordings of the interviews. Jane
also made a so-called pretext telephone call to defendant from the police station and the
court listened to the recording of the call. The transcription of the call includes the
following exchange:
       “[Jane Doe]: . . . you touched me.
       “[¶] . . . [¶]
       “[Defendant]: And who did you tell?
       “[¶] . . . [¶]
       “[Defendant]: You know what’s going to happen, right?
       “[Jane Doe]: No.
       “[¶] . . . [¶]
       “[Defendant]: OK. The same thing is going to happen as the time with, with
[your brother A.M.]. If you’re talking to somebody, or if you told somebody.
       “[Jane Doe]: You put your penis down my vagina.
       “[Defendant]: So what?
       “[¶] . . . [¶]
       “[Jane Doe]: You, you did it to me.
       “[Defendant]: Ahhh . . . .
       “[Jane Doe]: You know what I’m talking about.

                                              3
       “[Defendant]: No.
       “[Jane Doe]: You don’t have to lie!
       “[Defendant]: When?
       “[Jane Doe]: . . . You touched me. Tell the truth.
       “[Defendant]: OK bye, bye. Don’t tell anyone, OK?”
       Defendant’s reference to Jane’s brother regarded physical child abuse Jane’s
mother A.A. had committed. A.A. beat Jane, her brother A.M., and another brother with
a belt in 2006. The children were removed from the home by child welfare authorities.
A.A. was convicted of child abuse and served a few days in county jail.
       As Jane made the pretext call, police were waiting outside the family’s house.
One officer knocked on the front door and asked if defendant was home. Defendant ran
out the back door and tried to jump over a boundary fence but was apprehended.
       Over the next several months, Jane was interviewed three times by defense
investigators—twice by Gregory Lepore and once by Mark Zorne. The first interview
was with Lepore, and Jane described the molestations in much the same way she had
described them to authorities. In the other two interviews, one with Lepore, one with
Zorne, Jane recanted her accusations.
       Jane’s mother A.A. was present during the interview with Zorne but not during
those with Lepore. The prosecutor asked Jane, “[W]hen you spoke to Mr. Zorne, was
your mom with you, was she sitting there with you while you and he was [sic] talking
about this?” Jane answered, “Yeah.” The prosecutor then asked Jane about “your
relationship with your mom” in these terms: “Prior to telling [your friend] and having
[child welfare authorities] become involved and the officers and this whole case starting,
you didn’t tell your mom?” Jane answered no, and that a child welfare worker had
informed her mother of her allegations. The prosecutor turned to another line of inquiry,
asking Jane if she “remember[ed] a case where your mom hurt you,” and Jane replied,
“She hit me with a belt” and struck two of her brothers too.

                                             4
          On cross-examination, defense counsel pursued the theory that Jane wanted
revenge against defendant for other reasons, and she admitted that he would spank her for
legitimate disciplinary reasons and that his doing so angered her.
          At the outset of cross-examination, the defense attorney played recordings of
Jane’s second and third interviews with the defense investigators. In both interviews—
those in which Jane recanted—she said defendant had not abused her. She had lied about
the molestations because she was angry at defendant for having disciplined her when she
failed to do her homework. She denied to Lepore that her mother was influencing her to
recant.
          Also on cross-examination, the defense brought out a number of discrepancies
between Jane’s extrajudicial and in-court statements. Jane testified she had lied when she
told Lepore she had described the molestations to two of her friends. In fact, she had
only told one of the friends about them. She had lied when she told Zorne she had gotten
the idea about accusing defendant from a television show. She had told a police officer
that defendant had raped her 17 times, whereas in fact he had raped her three or four
times. She told her interviewer at the hospital that defendant’s penis had penetrated her
rectum three times, causing pain, but testified at trial that this had not occurred. (As
noted, the trial court acquitted defendant of the three forcible sodomy charges.) In
addition, her trial testimony was inconsistent in a minor respect: on direct examination,
she had testified that defendant had lived with the family for four or five years, when in
fact he had lived with the family for about 12 years, ever since she was a baby.
          II.   Defense Case
          Defendant testified and denied committing any crimes against Jane. The two were
never alone in the master bedroom. None of the children was permitted to take showers
in the master bedroom. He sometimes had to discipline the children because A.A., who
had been convicted of beating some of them with a belt, could not do it.



                                               5
       Defendant knew that the telephone call was a pretext call, which he thought was
being engineered by social workers. It was on that basis that he told Jane not to talk to
people about family business. He denied running out of the house when a police officer
came to the door after the pretext call ended. Instead, he had been fixing a vacuum
cleaner in the back yard.
       Lepore, the defense investigator, testified about his two interviews of Jane. The
first was at Jane’s house. A.A. was at home but did not attend it. In that interview, Jane
said she had been sexually molested by defendant many times, but had trouble
remembering dates. Jane said she had told her friend “her stepfather had put his penis
inside her vagina and butt.” She then corrected herself to state “there was one occasion
when the penis was inserted in the butt” but he had not attempted to rape her. Defendant
sodomized Jane one more time, Lepore recollected her as telling him.
       The second interview occurred because A.A. had telephoned defense counsel and
said Jane wanted to recant, so Lepore returned to the house. During that interview, which
Lepore recorded, Jane denied being molested and said she had falsely inculpated
defendant, relying on ideas she obtained from watching a television show, because
defendant “was upset with her that she hadn’t performed well on a particular school
project” and “had spanked her.” As with the first Lepore interview, A.A. was at home but
elsewhere in the house during the interview.
       A.A. gave detailed testimony. She confirmed she had attended only Jane’s third
interview, the one with Zorne. She denied trying to influence her daughter during that
interview, in which Jane recanted her accusations against defendant. She remembered
only “bits and pieces” of what was said during her daughter’s interview with Zorne.
       A.A. also testified that she had spent four days in jail in 2006 after beating her
children with a belt. She had had difficulty disciplining the children, and Jane was
disobedient and rebellious and had a learning disability.



                                               6
       A.A. further testified that although she had never questioned defendant about her
daughter’s allegations, she did not believe he had harmed her, although Jane showed
signs of premature sexualization; before fifth grade she had “started wearing makeup and
having boyfriends behind my back.” A.A. was laid off from her job in February of 2011
and did not find new work until December of 2012, so she stayed home with the children
most of the time, while defendant worked outside the house. At other times, defendant
was not at home at all, either because A.A. had thrown him out (one such exile lasted
about six months, from April to October of 2010) or because he was away to work on
construction projects. A.A. was at home on weekends, which is when Jane stated most of
the molestations had occurred, although the children could be alone with defendant for
two-hour periods, notably on one Saturday a month. Defendant had spanked Jane for
legitimate disciplinary reasons the night before Jane told her friend that he had been
sexually abusing her.
       Jane, A.A. also testified, had been caught cheating on her homework and
defendant had spanked her for doing so. Jane later told her mother she had falsely
accused defendant because she was mad at him. A.A. had never seen Jane watching a
movie with defendant, and the children were prohibited from entering the master
bedroom. There was an exception: the children occasionally used the master-bedroom
shower, but not until recently.
       A.A. testified that she and Jane were summoned to the prosecutor’s office for two
interviews there. At the outset of the first one, Jane told the prosecutor she had lied.
(A.A. did not know what the lie referred to.) This was in A.A.’s presence. The
prosecutor then asked A.A. to leave. He also asked her to step out of the room for the
second interview.
       A.A. feared what she perceived to be her daughter’s power over her. “This
conviction . . . has haunted me since 2006. Has made me look like I am the worst mother
in the world.” “I’m scared that if I keep telling her not to wear makeup she’s going to go

                                              7
to the teacher or . . . the police and say that I’m being mean to her.” On cross-
examination, she testified that her children “control me. I can’t help it. They control
me.” A.A. testified on redirect examination that both she and defendant were potential
victims of Jane’s ability to falsely accuse them of misdeeds if they tried to discipline her
for wearing makeup or cheating in school.
       On cross-examination, the prosecutor established that A.A. remained close to
defendant, catching her in a trap as he established this. After getting her at the outset to
describe defendant as her “ex,” someone she had visited in jail four or five times, the
prosecutor offered to show her jail records listing 12 visits, including one within the last
two weeks. A.A. conceded the point, but tried to explain away the visits by saying they
were for the benefit of a son she took with her. “It’s not me visiting him. I took my son,”
she testified.
       Jane’s brother G.M. testified that he and his siblings were always placed with a
babysitter or at a Boys’ and Girls’ Club when their mother was working, and the children
were never alone with defendant on weekends. (A.A. had also testified that the club was
a destination for the children when they were not in school.)
       Another brother, the aforementioned A.M., testified similarly to his brother. His
mother ordinarily would place the children with a babysitter or at the Boys’ and Girls’
Club when she worked. Although A.M. could be alone with defendant, that was only
when defendant was taking A.M. to defendant’s workplace at construction sites on
weekends and during the summer school vacation. Jane did not go on these trips; she
always went to the Boys’ and Girls’ Club. A.M. never saw defendant and Jane alone in
the master bedroom. Jane had once told him, however, that defendant had “raped” her.
                                        DISCUSSION
       Defendant claims defense counsel labored under conflicts of interest between
defendant’s interests and those of counsel and counsel’s investigator, counsel rendered
ineffective assistance of counsel in failing to recognize and deal adequately with the

                                              8
conflicts, and the trial court failed to protect his rights in the face of the conflicts, all in
violation of the Sixth and Fourteenth Amendments to the United States Constitution and
article I, section 15, of the California Constitution. He also discerns violations of his
constitutional rights to compulsory process under the Fourteenth Amendment and to a fair
trial, evidently under the Fifth and Fourteenth Amendments and article I, section 15, of
the California Constitution.
       We agree that the prosecutor precipitated a serious conflict of interest between
defendant and defense counsel, a conflict the trial court did little to try to remedy and that
defense counsel could have done more to address, and would reverse the judgment,
except that Doolin, supra, 45 Cal.4th 390, compels us to affirm it. On direct appeal,
defendant’s other claims are without merit, because the record cannot supply an adequate
factual predicate for them.
       “It has long been held that under both Constitutions, a defendant is deprived of his
or her constitutional right to the assistance of counsel in certain circumstances when,
despite the physical presence of a defense attorney at trial, that attorney labored under a
conflict of interest that compromised his or her loyalty to the defendant.” (People v.
Rundle (2008) 43 Cal.4th 76, 168 (Rundle), overruled on another point in Doolin, supra,
45 Cal.4th at p. 421, fn. 22.)
       The relevant events unfolded just before the bench trial began. Defense counsel
informed the trial court that the prosecutor was threatening to prosecute a defense
investigator. The prosecutor did not dispute this and made statements insinuating that
defense counsel could be prosecuted too.
       The imbroglio arose because the prosecutor surmised that (1) it was unlawful for
defense counsel to retain an investigator, Mark Zorne, who had not been duly licensed by
the state and for Zorne to serve as an investigator without the proper credentials, and
(2) it was unlawful for defense counsel to have provided Jane Doe’s true name to Zorne



                                                 9
and for Zorne to have uttered that name to Jane Doe herself during his interview with her,
which he recorded and in which she recanted her accusations.
       In a closed proceeding, the trial court summarized what was evidently an
unreported earlier conversation: “Something came up this morning and there was an
objection to Mr. Klopfenstein [defense counsel] designating . . . [¶] . . . [¶] Mr. Zorne as
his investigating officer. The objection is based upon the fact that he is not a licensed
investigator. [¶] . . . [T]he issue also came up that the prosecutor was concerned that
Mr. Zorne’s interview of the victim on behalf of Mr. Klopfenstein perhaps violated some
law involving licensing for investigators.”
       Defense counsel said the prosecutor “said . . . he was going to be prosecuting
Mr. Zorne, not just concerns. I think the record was pretty clear in that area. [¶] I
understand the Court being very careful in its wording, but just so the record is clear, I
believe that Mr. Hornik [the prosecutor] indicated that he was going to prosecute him.
Told me before the court even came out and took the bench. I went out and had a
conversation with Mr. Zorne and told him that, in fact, there was a possibility he was
going to be prosecuted.”
       The prosecutor did not deny this, and proceeded to imply that defense counsel also
could be prosecuted. “[T]he idea . . . that the child was formally identified and
documented to what may be someone”—evidently Zorne—“who is not entitled [to] that
information is of significant concern to the People. [¶] So that’s what I discussed with
Mr. Klopfenstein about potential for prosecution for his disclosure of—for the
investigator’s disclosure of confidential information.”
       Just before, the prosecutor had stated: “The specific concern I had [about] an
unlicensed, unregistered, presumably unbackgrounded investigator was Penal Code
Section 293. The victim has been throughout designated as ‘Jane Doe.’ She is
confidential. If that information was disclosed to a party who was not entitled to it, that’s
a crime. [¶] [Zorne] identifies her by name and date of birth in the interview.”

                                              10
       Neither defense counsel nor the trial court asked the prosecutor to clarify if
defense counsel was under threat of prosecution. The court did not ask the prosecutor if
he intended to prosecute Zorne. The court did not stop the proceedings and ask the
parties to brief whether defense counsel, Zorne, or both had committed a crime.
       Instead, defense counsel responded to the prosecutor’s courthouse and in-court
menacing by agreeing not to call Zorne as a witness. On a witness list dated just the day
before, the defense had listed Zorne. But now counsel discounted Zorne’s value as a
prospective witness, telling the trial court and prosecutor, “His participation in the case
was only that he conducted an interview I believe on January 6th of 2013 in my office
where he interviewed Jane Doe, the victim. [¶] And I believe the interview is probably
about maybe 10 minutes or so where she denies that anything happened.” Defense
counsel thus implied Zorne would be called only to authenticate the recording, and the
prosecutor opined during the same hearing that Jane Doe could authenticate it, obviating
the need for Zorne to testify.
       The trial court expressed concern that defendant not be deprived of a material
witness and his right to present a defense but summarized, “based on the representation
that Mr. Zorne’s sole participation and the subject of any potential testimony would be
simply to authenticate the recorded interview of the victim, the Court feels as if it does
not need to go any further into this matter, feels confident that that recording will be
introduced into evidence, authenticated appropriately, a transcript will be provided. So
there will be deprivation [sic: no deprivation] of testimony on behalf of the defendant.”
       At no point did the trial court solicit defendant’s views on this issue, although he
was present during the closed hearing. It did not ask him if he waived any conflict of
interest. Nor did it appoint independent counsel to help elicit defendant’s views or advise
him on a waiver. The proceedings contrast with those in People v. Mai (2013) 57 Cal.4th
986 (Mai). There, “the court perceived a possible conflict of interest and, as the cases
require, it addressed the issue with considerable care.” (Id. at p. 1010.) This included a

                                             11
laborious obtaining of the defendant’s waiver of any rights under the law of conflict of
interest—a waiver available under state law (ibid.) and one that the high court found
valid in Mai (id. at p. 1012). The trial court in Mai also “appointed independent counsel
to investigate and advise defendant on the subject, and confirmed that independent
counsel had done so.” (Id. at pp. 1010-1011.) As Mai elaborated, “Before taking
defendant’s waiver, the court warned him of the essential danger of conflicted
representation, i.e., that the conflict might induce counsel to ‘pull their punches’ when
representing him in the instant case. It was further agreed on the record that defendant
could withdraw the waiver at any time if a conflict actually materialized and he perceived
it was affecting his counsel’s performance. Hence, it appears defendant was generally
apprised of the considerations that should influence his waiver decision.” (Id. at p. 1011.)
The trial court in People v. Ramirez (2006) 39 Cal.4th 398, 428, employed similar
safeguards, including an offer of independent counsel to the defendant.
       On appeal, the parties inform us that the prosecutor’s suspicions were legally
baseless, and during the closed hearing the prosecutor himself admitted that “this is terra
incognita,” “I’ve never been confronted with this particular situation,” and “I had less
than an hour or so of working time to deal with that.”
                                              I.
       Federal constitutional principles apply to California law when an appellant claims
counsel provided ineffective assistance because of the burden of an active conflict of
interest. (Doolin, supra, 45 Cal.4th at p. 421.) As is well known, an ineffective
assistance of counsel claim requires a reviewing court to address a deficient-performance
prong and a prejudicial-outcome prong. (Strickland v. Washington (1984) 466 U.S. 668
(Strickland).)
                 A.   Deficient Performance
       “In the context of a claim of conflict of interest . . . the deficient-performance
prong of the Strickland test is satisfied by a showing that defense counsel labored under

                                              12
an actual conflict of interest, that is, ‘a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties.’ ” (Rundle, supra, 43 Cal.4th at
p. 169, italics deleted.) In other words, defendant must show that the conflict (a) existed
and (b) had some palpable, real effect on the trial, i.e., the “ ‘actual conflict of interest
adversely affected his lawyer’s performance.’ ” (Strickland, supra, 466 U.S. at p. 692.)
       “ ‘In determining whether a defendant has demonstrated the existence of an actual
conflict of interest satisfying the first prong of the analysis [i.e., deficient performance],
we consider whether ‘the record shows that counsel “pulled his punches,” i.e., failed to
represent defendant as vigorously as he might have had there been no conflict.’
[Citation.] And yet we must bear in mind, as we observed in People v. Roldan (2005) 35
Cal.4th 646, 674 . . . , that when ‘ “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.” ’ ” (Rundle, supra, 43 Cal.4th at pp. 169-170.)
       Here, we have no trouble concluding there was a conflict of interest that was real,
not theoretical. Any trial counsel in a criminal case who is worried that the prosecutor is
scrutinizing his or her actions for possible criminal investigation and/or prosecution has a
conflict with the interest of representing the client zealously—he or she does not want to
antagonize the prosecutor. The conflicting interests here are certainly as obvious as those
our Supreme Court identified in People v. Friend (2007) 47 Cal.4th 1. In that case,
defense counsel’s office had represented a prosecution witness and so the trial court
constrained the defense’s ability to cross-examine that witness. (Id. at pp. 45-46.)
       We also conclude without difficulty that defendant has met his burden to show that
unconflicted counsel would have done more for him and that defense counsel did “pull
his punches,” so to speak. As defendant observes in his opening brief, “If the

                                               13
authentication of a recording had been the only relevance of Zorne’s testimony”—
testimony defense counsel agreed to forgo once the prosecutor had ruminated about
prosecutions within the defense team—“then there would not have been a problem. But
that was not the case. The prosecutor sought to call into question the circumstances
surrounding Zorne’s recorded interview of Jane Doe by asking the court”—recall that the
trial court here was also the trier of fact—“to infer that her recantation had been coerced.”
       Defendant is correct. The prosecutor, and the trial court itself, showing interest in
this topic, adduced testimony from Jane Doe and from Jane Doe’s mother A.A. that A.A.
was present during the interview with Zorne. The prosecutor also adduced testimony that
A.A. had used violence against the children to try to coerce them into obeying her. In
addition, Jane Doe testified on cross-examination that her mother’s presence during the
Zorne interview was unnerving, although she backed away from that assertion when
defense counsel asked her to confirm it. A.A.’s own testimony, adduced in part by the
prosecutor (who, as noted, proved that A.A. visited defendant in jail more often than she
had been willing to admit), showed her to have continued interest in defendant’s
companionship, and so her presence during the Zorne interview lent itself to casting
suspicion on the genuineness of Jane Doe’s recantation to Zorne of her accusations
against defendant. If the sole purpose of Zorne’s testimony was to perform a
housekeeping chore that Jane Doe could do, one might wonder why he was on the
witness list to begin with, a list that bore a date of just the previous day. As noted, when
defense counsel implied Zorne would be called only to authenticate the recording, the
prosecutor opined during the same hearing that Jane Doe could authenticate it. If Zorne
could offer only inculpatory testimony in addition to his authentication testimony—e.g.,
that A.A. was glaring at Jane Doe with basilisk eyes as Jane was recanting—then calling
him as a witness for the minor purpose of an authentication would have been risky.
       In sum, it seems likely to us that Zorne would have provided some useful
testimony for defendant. Perhaps he noticed, for example, that while Jane Doe was

                                             14
recanting, A.A. was looking out the window, wandering about the room, absorbed in
looking at a smart phone, or in some other manner showing indifference to the
recantation, rather than willing or encouraging it as other evidence suggested. There
could be no tactical reason to avoid having Zorne testify to any such indicia of
indifference.
       B.       Prejudicial Outcome
       In most attorney conflict of interest cases a defendant must show prejudice under
the familiar standard of Strickland, supra, 466 U.S. 668, i.e., a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different. (See
Rundle, supra, 43 Cal.4th at p. 169.)
       The other standard is one in which prejudice is presumed. That standard is found
in Cuyler v. Sullivan (1980) 446 U.S. 335 (Cuyler). Strickland summarized the Cuyler
standard and explained when it should apply, as follows:
       “One type of actual ineffectiveness claim warrants a similar, though more limited,

presumption of prejudice [compared to cases in which the defendant effectively had no
counsel, either literally or in a practical sense]. In Cuyler v. Sullivan, 446 U.S., at 345-
350, the Court held that prejudice is presumed when counsel is burdened by an actual
conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps
the most basic of counsel’s duties[,] [i.e., counsel’s performance is deficient in a
significant way]. Moreover, it is difficult to measure the precise effect on the defense of
representation corrupted by conflicting interests[,] [i.e., the effect of the deficient
performance]. Given the obligation of counsel to avoid conflicts of interest and the
ability of trial courts to make early inquiry in certain situations likely to give rise to
conflicts [citation], it is reasonable for the criminal justice system to maintain a fairly
rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the
per se rule of prejudice that exists for the Sixth Amendment claims mentioned above [i.e.,
complete denial of counsel’s assistance or various types of state interference with it].

                                               15
Prejudice is presumed only if the defendant demonstrates that counsel ‘actively
represented conflicting interests’ and that ‘an actual conflict of interest adversely affected
his lawyer’s performance.’ Cuyler v. Sullivan, supra, 446 U.S., at 350, 348 (footnote
omitted).” (Strickland, supra, 466 U.S. at p. 692.) We may call this the Cuyler
presumed-prejudice standard.
       In the key post-Strickland case of Mickens v. Taylor (2002) 535 U.S. 162
(Mickens), the court reiterated, explicated, and summarized the law as follows: “There is
an exception to this general rule [requiring a showing of reasonable-probability prejudice
under Strickland]. We have spared the defendant the need of showing probable effect
upon the outcome, and have simply presumed such effect, where assistance of counsel
has been denied entirely or during a critical stage of the proceeding. When that has
occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry
is unnecessary. [Citations.] But only in ‘circumstances of that magnitude’ do we forgo
individual inquiry into whether counsel’s inadequate performance undermined the
reliability of the verdict.” (Id. at p. 166.)
       Counsel’s assistance here was not denied entirely or during a critical stage of the
proceeding, so the prior paragraph is quoted only for context. It leads to the next point in
Mickens, which is relevant to this appeal:
       “We have held in several cases that ‘circumstances of that magnitude’ may also
arise when the defendant’s attorney actively represented conflicting interests.” (Mickens,
supra, 535 U.S. at p. 166.) In other words, prejudice is presumed in certain cases in
which counsel actively represented conflicting interests, i.e., an actual conflict of interest.
But, as stated in Strickland—here we repeat ourselves briefly—the appellant must also
show the conflict had a palpable effect. Under Cuyler, Mickens continued, “ ‘an actual
conflict of interest’ meant precisely a conflict that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties. It was shorthand for the statement in
Sullivan [,] [i.e., Cuyler] that ‘a defendant who shows that a conflict of interest actually

                                                16
affected the adequacy of his representation need not demonstrate prejudice in order to
obtain relief.’ ” (Mickens, supra, 535 U.S. at p. 171, italics deleted.)
       The next question is whether there are any further limits on the types of active-
conflict situations in which prejudice should be presumed, given that reversal of a
judgment and remand for retrial is a strong and costly remedy. Mickens explains this:
“The purpose of our [citation] and Sullivan[,] [i.e., Cuyler] exceptions from the ordinary
requirements of Strickland . . . is . . . to apply needed prophylaxis in situations where
Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth
Amendment right to counsel.” (Mickens, supra, 535 U.S. at p. 176.) Rundle also
answered this question: “As the high court pointed out in Mickens, the presumption of
prejudice is a prophylactic measure established to address ‘situations where Strickland
itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendment
right to counsel.’ ” (Rundle, supra, 43 Cal.4th at p. 173.) Doolin reaffirmed Rundle on
this point. (Doolin, supra, 45 Cal.4th at p. 418.)
       Whether the presumption of prejudice should be applied to afford defendant a
remedy in this case also rests on the following additional consideration: “Only when the
court concludes that the possibility of prejudice and the corresponding difficulty in
demonstrating such prejudice are sufficiently great compared to other more customary
assessments of the detrimental effects of deficient performance by defense counsel, must
the presumption be applied in order to safeguard the defendant’s fundamental right to the
effective assistance of counsel under the Sixth Amendment.” (Rundle, supra, 43 Cal.4th
at p. 173.) If “the Strickland standard is not ‘inadequate’ in this case . . . no presumption
of prejudice is called for.” (Ibid.)
       Were it not for certain language in Doolin, supra, 45 Cal.4th 390, we would
conclude that the presumption of prejudice applies here. It cannot be known what other
exculpatory evidence might have been available to be presented by counsel who was not
laboring under this stark conflict of interest. “[T]he possibility of prejudice and the

                                              17
corresponding difficulty in demonstrating such prejudice are sufficiently great” (Rundle,
supra, 43 Cal.4th at p. 173) to require that “the presumption be applied in order to
safeguard the defendant’s fundamental right to the effective assistance of counsel under
the Sixth Amendment.” (Ibid.)
       But Doolin laid down a further limitation in a bright-line rule that we must follow.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Having relied on
Rundle some 10 pages before (Doolin, supra, 45 Cal.4th at p. 418, quoting Rundle, supra,
43 Cal.4th at p. 173), Doolin proceeded to make a separate, and, it appears to us,
inconsistent statement—inconsistent with Rundle and the earlier statement in Doolin—
about conflict-of-interest law. Doolin said that prejudice will be presumed only when
counsel is representing multiple defendants concurrently and a conflict of interest arises
from that circumstance. (Doolin, supra, 45 Cal.4th at pp. 428, 429.)
       To reach this conclusion, Doolin relied on a federal decision, Beets v. Scott (5th
Cir. 1995) 65 F.3d 1258 (Beets). Beets said: “The position adopted by this court en banc
may be easily summarized. Strickland [in its traditional guise] offers a superior
framework for addressing attorney conflicts outside the multiple or serial client context.”
(Id. at p. 1265, fn. omitted.) Doolin adopted the view of Beets and added to it. It
announced the following rule: “a presumption of prejudice should be limited to the
context of multiple concurrent representation because only in that context ‘is the duty of
loyalty so plain.’ ” (Doolin, supra, 45 Cal.4th at p. 428, quoting Beets.) “[W]e share the
view of the Fifth Circuit Court of Appeals that Strickland provides the appropriate
analytic framework for assessing prejudice arising from attorney conflicts of interest
outside the context of multiple concurrent representation.” (Ibid.) “We adopt the
reasoning from Beets and therefore conclude that, because the asserted conflict does not
arise from multiple concurrent representation, a presumption of prejudice is not
appropriate in this case.” (Id. at p. 429.)



                                              18
       We are bound by those direct statements. The United States Supreme Court has
said of its decisions: “If a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.” (Rodriguez de Quijas v. Shearson/Am. Express, Inc.
(1989) 490 U.S. 477, 484.) Deference to our Supreme Court’s authority counsels that we
must apply this rule to ourselves, even if the “other line of decisions” (ibid.) arguably
includes Doolin itself (compare Doolin, supra, 45 Cal.4th at pp. 428, 429, with id. at
p. 418).
       Because defense counsel was not representing two or more defendants
concurrently, under Doolin’s bright-line rule we apply the traditional Strickland prejudice
standard to his claim. He cannot prevail. There was evidence from Jane that defendant
sexually assaulted her and evidence from defendant implying acknowledgment of the
truth of her account (at least in part) when he said “So what?” (ante, p. 3) in response to
her accusation during the pretext call. He ran from the house when the police arrived
after the pretext phone call ended. Conversely, there was evidence that Jane had a motive
to fabricate her claims and that she been dishonest at times, including on such key matters
as how often defendant purportedly had raped her and whether he had ever sodomized
her. Accordingly, it is possible that the outcome might have differed absent the conflict
of interest. But Strickland speaks not of possibilities, but reasonable probabilities. Jane’s
inculpatory statements are buttressed by defendant’s own inculpating statement and
behavior. There is no reasonable probability of a different outcome. We will affirm the
judgment.2


       2We also find unavailing defendant’s compulsory-process and fair-trial
arguments. Doolin is directly on point, and we discern no way to conclude that the

                                                                (footnote continued on next page)


                                              19
                                             II.
       “Between the private life of the citizen and the public glare of criminal accusation
stands the prosecutor. That state official has the power to employ the full machinery of
the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted,
forced immersion in criminal investigation and adjudication is a wrenching disruption of
everyday life.” (Young v. U.S. ex rel. Vuitton et Fils S.A. (1987) 481 U.S. 787, 814.)3
       In this case, the prosecutor put the defense under fear of prosecution, defense
counsel withdrew his investigator as a witness, it is possible the investigator might have
provided exculpatory testimony, and we do not know what other steps defense counsel


proceedings satisfied Doolin and yet violated other constitutional provisions. For
example, due process review often involves addressing a materiality component. (See
Banks v. Dretke (2004) 540 U.S. 668, 691.) To succeed, a “a claim of prosecutorial
violation of the right to compulsory process” (People v. Jacinto (2010) 49 Cal.4th 263,
269) also must meet a materiality requirement (id. at p. 270). On direct appeal, when the
question is what counsel might have done that counsel failed to do, an appellant would be
hard put to show materiality—that is why, in the conflict of interest area, prejudice is
sometimes presumed in these challenging circumstances.
       Defendant also claims that the issues he has raised call for reversal on the ground
of cumulative error even if none of them would require reversal on its own, but in light of
our analysis, we find no merit to this claim either.
       3   In the same vein, United States Supreme Court Justice Robert H. Jackson
observed, “The prosecutor has more control over life, liberty, and reputation than any
other person in America. His discretion is tremendous. He can have citizens investigated
. . . . The prosecutor can order arrests, present cases to the grand jury in secret session,
and . . . cause the citizen to be indicted and held for trial. He may dismiss the case before
trial, in which case the defense never has a chance to be heard. Or he may go on with a
public trial. If he obtains a conviction, the prosecutor can still make recommendations as
to sentence, as to whether the prisoner should get probation or a suspended sentence, and
after he is put away, as to whether he is a fit subject for parole.” (Jackson, The Federal
Prosecutor (Apr. 1, 1940), The Robert H. Jackson Center
<http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-
h-jackson/the-federal-prosecutor/> [as of Jan.. 13, 2015].)




                                             20
might have forgone on behalf of defendant following the prosecutor’s actions. We think
that neither Doolin, supra, 45 Cal.4th 390, nor Beets, supra, 65 F.3d 1258,4 contemplated
this situation.5
       In Rugiero v. U.S. (E.D. Mich. 2004) 330 F.Supp.2d 900, defense counsel “was the
subject of a federal investigation during the pretrial and trial proceedings in Petitioner’s
case” (id. at p. 902) and “later pled guilty to conspiracy and tax charges.” (Ibid.) The
court reasoned that “the nature of the personal interest conflict in this case clearly
demonstrates that the Cuyler analysis is appropriate and should be applied here.


       4  In addition, Beets is not immune from criticism. The Texas Court of Criminal
Appeals disapproved of Beets. “The majority in Beets states plainly that ‘The Supreme
Court has not expanded Cuyler’s presumed prejudice standard beyond cases involving
multiple representation.’ The most obvious response to that observation, however, is that
the Supreme Court has never expressly limited Cuyler to such cases either. Indeed, we
found that, the only time the Supreme Court even considered the question of whether
Cuyler is limited to a particular type of conflict, it concluded that the issue was ‘an open
question.’ ” (Acosta v. State (Tex.Ct.Crim.App. 2007) 233 S.W.3d 349, 354, fns.
omitted.) Acosta went on to say: “While Cuyler was in fact a case of multiple
representation, that fact is always secondary to the primary issue in all conflict of interest
cases: whether the conflict asserted actually resulted in ineffective assistance of counsel
to the defendant. Beets, in evaluating a conflict between a lawyer’s self-interest and that
of his client, concludes that Cuyler should apply only in the context of multiple
representation because only in that context are the effects of breaching the duty of loyalty
clear. We respectfully submit that the instant case, in which the appellant’s trial counsel
actively represented the interests of a third party during the appellant’s trial, is a clear
example of how the danger of ineffective assistance via a conflict of interest is not strictly
limited to the codefendant context.” (Ibid., fns. omitted.)
       5    Given that “cases are not authority for propositions not considered” (People v.
Mills (2012) 55 Cal.4th 663, 680, fn. 12), it may be wondered why we do not simply
declare that Doolin did not contemplate this situation and decline to follow it. The
answer is the one we gave above: “If a precedent of this Court has direct application in a
case . . . the Court of Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.” (Rodriguez de Quijas v.
Shearson/Am. Express, Inc., supra, 490 U.S. at p. 484.)




                                              21
[Citation.] The rationale behind Cuyler’s presumption-of-prejudice rule is (1) the high
probability of prejudice arising from the conflict and (2) the difficulty of proving that
prejudice. [Citation.] These two elements are present here. First, when an attorney is the
subject of a criminal investigation by the same prosecutor who is prosecuting the
attorney’s client, there is a high probability of prejudice to the client as the result of the
attorney’s obvious self-serving bias in protecting his own liberty interests and financial
interests. The liberty concern at issue is avoiding or minimizing imprisonment. The
financial interests include avoiding disbarment and avoiding termination of the attorney’s
current representation of the client in question. The high probability of prejudice in this
situation distinguishes this personal interest conflict from the weaker personal interest
conflicts listed in the dicta in Mickens, e.g., book deals.[6] [Citation.] Second, such
prejudice is difficult to prove because the client could be harmed by the attorney’s actions
or inactions that are known only to the attorney. In short, the personal interest conflict at
issue presents comparable difficulties to situations involving concurrent representation
conflicts.” (Id. at p. 906, fn. omitted.)7


       6  The reference to book deals refers to a dictum in Mickens in which the court
worried (Mickens, supra, 535 U.S. at pp. 174-175) about the federal Courts of Appeals
applying Cuyler “ ‘unblinkingly’ ” (id. at p. 174) to what may be termed everyday
conflicts involving relatively anodyne financial or personal interests. (Ibid.).
       7  At this juncture it is useful to take note of certain California Supreme Court
decisions that involved circumstances different from those present here:
        In People v. Gonzales and Soliz (2011) 52 Cal.4th 254, the circumstances were
trivial compared to these: one defendant’s family had given dress-out clothing to defense
counsel that, unknown to counsel, contained heroin. (Id. at p. 308.) The defendant
argued, to an unconvinced California Supreme Court, that defense counsel could have
feared prosecution for this unwitting conduct as a “ ‘remote’ ” (id. at p. 309) possibility,
despite “the prosecution’s assurances to the judge that [counsel] bore no responsibility in
the drug-smuggling incident.” (Id. at p. 310.) Unsurprisingly, the court found this
argument “strained.” (Ibid.)

                                                                  (footnote continued on next page)


                                               22
       Other cases applying Cuyler in these or similar circumstances are Mannhalt v.
Reed (9th Cir. 1988) 847 F.2d 576, 578, 581, 583; U.S. v. Knight (6th Cir. 1982) 680 F.2d
470 (per curiam); U.S. v. Cancilla (2d Cir. 1984) 725 F.2d 867, 870; U.S. v. Levy (2d Cir.
1994) 25 F.3d 146, 157; U.S. v. McLain (11th Cir. 1987) 823 F.2d 1457, 1463-1464;
Thompkins v. Cohen (7th Cir. 1992) 965 F.2d 330, 331; and Foy v. U.S. (E.D.N.Y. 1993)




       In People v. Friend, supra, 47 Cal.4th 1, the Supreme Court found a conflict of
interest but concluded, “there was no possibility of great prejudice arising from the
conflict nor was there any difficulty in assessing its detrimental effect.” (Id. at p. 46.)
That was so because the conflict precluded defense counsel from cross-examining a
prosecution witness with only one of 17 “criminal cases” (id. at p. 45)—she could and
did impeach him with some or all of the other 16 (id. at p. 47)—and the boundaries of the
conflict were well-understood during a hearing on it (see id. at p. 45).
       In Rundle, supra, 43 Cal.4th 76, “Defendant does not contend that the conflict
affected his counsel’s performance related to their conduct of the trial itself, apart from
counsel’s reaction to [a] juror-misconduct issue . . . . As a result, the complained-of
shortcomings of counsel in this case are fundamentally different from those found in
typical conflict-of-interest situations. In most conflict cases, in which a conflict of
interest affected the presentation of the defense case to the jury, the problem in assessing
prejudice to the outcome of the proceeding has arisen from the reviewing court’s
difficulty in evaluating how extensively the conflict affected counsel’s choices and,
ultimately, in predicting how the presence or absence of certain evidence or arguments at
trial would have affected the jury’s deliberations and verdict.” (Id. at p. 173.)
       Finally, in Roldan, supra, 35 Cal.4th 646, overruled on another point in Doolin,
supra, 45 Cal.4th at page 421, footnote 22, defense counsel declared a conflict because
the defendant, on trial for his life, was threatening counsel’s life. (Roldan, supra, at
pp. 671-673.) The court held that because the appellant manufactured the conflict, and
appeared to be doing so as part of disruptive “elements of his effort to delay the
inevitable” (id. at p. 676), he could not complain on appeal. “There is something
perverse in this argument,” the Roldan court stated of the appellant’s claim, “for although
defendant unquestionably was entitled to the effective assistance of a conflict-free
attorney, defendant’s own behavior created the alleged conflict and threatened to
undermine his lawyer’s effectiveness.” (Id. at p. 674; see Cerro v. U.S. (7th Cir. 1989)
872 F.2d 780, 785 [expressing similar views].)




                                            23
838 F.Supp. 38, 45. (This does not mean that the cases always resulted in relief to an
appellant; some concluded the appellant failed to show an actual conflict.)8
       We agree with this statement: “What could be more of a conflict than a concern
over getting oneself into trouble with criminal law enforcement authorities?” (U.S. v.
Cancilla, supra, 725 F.2d at p. 870.) The trial court should have helped defendant to
understand the problem, probably by appointing independent counsel; asked defendant,
once he could make an informed decision, if he wished to waive the conflict of interest;
and, if he refused, relieved his counsel. (See U.S. v. Edelmann (8th Cir. 2006) 458 F.3d
791.) Edelmann explained: “After [defense counsel] informed the government that both
he and [co-counsel] would represent [defendant] during trial, the government notified the
district court that the FBI was investigating [counsel] for fraud and that a criminal case
against [him] was opened at the United States Attorney’s Office for the Eastern District of
Arkansas. The district court removed [him] as [defendant’s] counsel after she refused to


       8  Some cases present distinguishing circumstances and arrive at a different result.
(U.S. v. Montana (7th Cir. 1999) 199 F.3d 947, 949 [it “is pure speculation” that counsel
“pulled his punches”]; Taylor v. U.S. (per curiam) (6th Cir. 1993) 985 F.2d 844, 846 [“the
investigation involving defense counsel was not conducted by the same office that was
prosecuting [the defendant]”].) We have also found cases that failed to afford relief under
circumstances we would find questionable. (U.S. v. Jones (2d Cir. 1990) 900 F.2d 512,
519 [“the prosecutor’s hysterics were without foundation in fact or law” and “Allegations
of wrongdoing alone cannot rise to the level of an actual conflict unless the charges have
some foundation.”]; see also U.S. v. Balzano (7th Cir. 1990) 916 F.2d 1273, 1293
[counsel’s criminal problems unrelated to the defendant’s]; Cerro v. U.S., supra, 872 F.2d
at p. 786 [defendant failed to show an actual conflict, in part because “There was no
danger that authorities would learn something novel about [counsel’s] possible
involvement in criminal activities . . . .”].) There could be others we have not located that
also would not agree with part II of our discussion. The law is, however, not a popularity
contest; the question is which standard of prejudice is better applied in these
circumstances, not which is more popularly applied, although the great weight of
authority that we have found favors Cuyler.




                                             24
waive a potential conflict of interest caused by the criminal case against [her counsel].”
(Id. at p. 801, fn. omitted.)
                                       DISPOSITION
       The judgment is affirmed.




                                             25
                                 ______________________________________
                                            RUSHING, P.J.




I CONCUR:




____________________________________
           MÁRQUEZ, J.




I CONCUR IN THE JUDGMENT ONLY




____________________________________
           ELIA, J.




People v. Almanza
H039779


                                   26
Trial Court:                                  Monterey County
                                              Superior Court No.: SS120448


Trial Judge:                                  The Honorable Pamela L. Butler



Attorney for Defendant and Appellant          J. Wilder Lee
Antonio Almanza:                              under appointment by the Court
                                              of Appeal for Appellant



Attorneys for Plaintiff and Respondent        Kamala D. Harris
The People:                                   Attorney General

                                              Dane R. Gillette,
                                              Chief Assistant Attorney General

                                              Gerald A. Engler,
                                              Senior Assistant Attorney General

                                              Seth K. Schalit,
                                              Supervising Deputy Attorney General

                                              John H. Deist,
                                              Deputy Attorney General




People v. Almanza
H039779




                                         27
