Order Filed Date 10/2/13
Orange County Super. Ct. No. 96NF 1961 Richard L. Weatherspoon Judge.
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and C. Delaine Renard, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
The opinion herein, filed August 26, 2013, and appearing at 57 Cal.4th 986, is modified as follows:
1. On page 1040 of 57 Cal.4th, delete the paragraph beginning “Other evidence also supports them..., ” the paragrpah immediately following, and footnote 22.
2. Subsequent footnotes are to be renumbered accordingly.
This modification does not affect the judgment.
The petition for rehearing is denied.
Defendant Hung Thanh Mai was convicted by the court, as charged, of the first degree murder of Don Joseph Burt (Pen. Code, §§ 187, 189). The court further found true, as a special circumstance, the allegation that the killing was intentional, and that defendant knew or should have known the victim was a peace officer engaged in the performance of duty. (§ 190.2, subd. (a)(7) (section 190.2(a)(7).) A penalty jury returned a death verdict. The automatic motion for modification of the verdict (§ 190.4, subd. (e)) was denied, and defendant was sentenced to death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We will affirm the judgment in its entirety.
A. Guilt and special circumstance evidence.
As to the criminal charge of first degree murder and the peace officer special circumstance allegation, defendant waived his jury trial, self-incrimination, and confrontation rights, and stipulated that the court would determine those issues from the preliminary hearing transcript. That transcript included the following evidence.
About 8:30 p.m. on July 13, 1996, Bernice Sarthou pulled into the Pepe’s Mexican Restaurant on North Placentia Avenue just south of its intersection with Nutwood Avenue in Fullerton. The sun was still up, so she was wearing her prescription sunglasses. She left her car and entered the restaurant, but saw it was full, so she returned to her car and got into the drive-through line. As she did so, she saw a patrol car, with its lights flashing, stopped behind a white BMW. A young Vietnamese male was sitting in the driver’s seat of the BMW, and a uniformed officer was sitting in the patrol car. When Sarthou looked at the BMW’s driver, he leaned forward, gripped his steering wheel, and gave her a “hard stare.”
As the drive-through line moved forward, Sarthou lost sight of the two cars she had seen. She ordered her dinner, received it, and pulled into a parking area to eat. By this time, she had removed her sunglasses and put on her regular glasses, though there was still some sun. From her parking place, the front of the BMW was again in view, at a distance of 35 to 40 feet. She saw the officer lean into the driver’s window of the BMW. When she looked up again, the officer and the BMW driver were standing outside that car. They seemed to be struggling for possession of something. Almost immediately, she heard five shots, and the officer fell. The BMW driver then walked up to the officer and shot him in the head. After doing so, defendant got into the officer’s car and drove away. At the preliminary hearing, Sarthou positively identified defendant as the man who shot the officer.
Around 9:30 p.m. that evening, Douglas Kennedy, a Fullerton Police Department homicide detective, was advised of the shooting of a California Highway Patrol (CHP) officer at 2950 Nutwood Avenue in Fullerton. He responded to the scene. There he found a white 1995 BMW 525i sedan. No CHP patrol vehicle was present. Adjacent to the BMW were shell casings, a considerable amount of blood, and various personal items. The latter included a police officer’s “Sam Brown” belt with holster attached, a handcuff case, a pager in a leather holder, an ammunition pouch, and a BMW car key. A wallet containing identification with defendant’s name and picture was found on the front floorboard of the BMW.
Officer Burt’s citation book was also nearby. This indicated he had begun to write a ticket for a suspended driver’s license in the name of Phu Duc Nguyen, but the ticket had not been signed by the person being cited. There was a bloody shoeprint on the citation book. Also on the ground, near the rear of the BMW, was a “CHP 180 form, ” which an officer fills out before impounding a vehicle. The information on the form was for the 1995 BMW. At the front of the vehicle, traveler’s checks in a paper bag were discovered.
Later that night, Officer Burt’s patrol car was found abandoned in the driveway of a Ford dealership located at the corner of South Loara Street and West Lincoln Avenue in Anaheim. Defendant lived close to the dealership, at 1780 West Lincoln Avenue. A witness saw an Asian male run from the dealership that evening, jump over the bumper of a parked Honda, and proceed in the direction of defendant’s residence. A shoeprint was recovered from the Honda’s bumper.
Officer Burt died from multiple gunshot wounds. There were entry wounds behind his left ear, in his upper right arm, in the back of his left thigh, behind his left ankle, just above his right buttocks, and in his left buttocks. The arm wound caused the humerus bone in his right arm to fracture. The fatal bullets were the one that entered behind his left ear and exited through his right eye, and those that entered his buttocks and traveled upward through his torso into his intestines, stomach, and lungs. Gunpowder residue on the entry wound behind the victim’s ear indicated this bullet had been fired at very close range.
Chang “Alex” Nguyen testified that at the time of Officer Burt’s murder, Nguyen and defendant were engaged in an ongoing criminal enterprise whereby Nguyen purchased from defendant, on a weekly basis, large quantities of forged traveler’s and payroll checks. On the evening of July 13, 1996, defendant telephoned Nguyen in Houston, Texas, where Nguyen lived. Defendant said he was in “ ‘deep shit’ ” because he had “ ‘just [taken] down a California Highway Patrolman, ’ ” and he needed a place to “ ‘lay low.’ ” The next night, defendant flew to Dallas, where Nguyen picked him up at the airport.
During the drive from Dallas to Houston, defendant recounted that on the evening of July 13, he was pulled over by a CHP officer because his lights were off, though defendant thought they were on. Defendant believed he had an outstanding warrant, so he did not present his own driver’s license to the officer, and instead “used somebody else’s name” when identifying himself. That name “[came] back as [a] suspended... license.” The officer removed defendant from his car and told defendant he would have to tow it. At this point, defendant had a “gut feeling something was going to go wrong.” He suggested the officer just give him a ticket, tow the car, and tell him where to pick it up. The officer responded “[f]ine, ” but said he had to check the trunk and do an inventory. Defendant then knew “something [was] going to happen” because he had “stuff” in the car.
Defendant told Nguyen that the officer then opened the trunk, pulled out a bag, opened it, looked inside, and immediately advised defendant he was under arrest. Defendant already had two “strikes” against him, was afraid a third conviction would lead to life imprisonment, and wanted to leave no witnesses. So he drew his gun and shot the officer three times. The officer fell, but was still “twitching.” Defendant did not want the officer to suffer, and wanted to make sure he left no witnesses, so he shot the officer four more times. Defendant then looked for his own car keys, but could not find them, so he took the officer’s gun, got into the patrol car, and drove away. Defendant abandoned that vehicle “somewhere” and paid a “Mexican guy” $100 for a ride to a friend’s house.
Shortly after arriving at Nguyen’s Houston apartment, defendant said he needed to shop for new clothes, particularly new shoes, because he had gotten blood on his shoes and had not been able to clean it all off. Nguyen noticed a dark spot on the sneakers defendant was wearing.
On the way to a shopping mall after his arrival in Houston, defendant made a cell phone call, apparently to a friend, and asked whether the person called had taken care of “ ‘that package I left for you.’ ” The other person said something, and defendant then declared, “ ‘Well, you better because it’s very important.’ ” After hanging up, defendant told Nguyen he had “ ‘something... important I need to have my friend get rid of, ’ ” and wanted to “ ‘make sure it’s been done right.’ ”
Two or three days after defendant’s arrival in Houston, Nguyen and his lawyer contacted the Federal Bureau of Investigation (FBI), met with an agent, and told the agent of defendant’s confession and location. Defendant was arrested in Nguyen’s Houston apartment by FBI agents and local law enforcement officers.
When arrested, defendant was not wearing shoes, but a pair of Kmart tennis shoes were found beneath the sofa on which he had been sleeping. A substance resembling dried blood was observed on these shoes. At the preliminary hearing, Nguyen identified these shoes from photographs as the ones defendant was wearing, and wanted to replace, when he arrived from California. The sole pattern on these shoes was consistent with the bloody shoe print on Officer Burt’s citation book. A comparison between these shoes and the shoe print left on the bumper of the Honda yielded a “positive match.”
Victoria Pham, defendant’s girlfriend, testified she had assisted him in leasing a white BMW. She saw him in the car between 5:00 p.m. and 6:00 p.m. on July 13, 1996. The next day, he telephoned her and told her “something [had] happened” to the BMW, and it was hers.
No defense evidence was presented at the preliminary hearing.
B. Prosecution’s penalty phase evidence.
A jury was sworn to determine the issue of penalty. As a factor in aggravation, the prosecution presented extensive evidence about the factual circumstances of Officer Burt’s murder, and about its impact on surviving victims. (§ 190.3, factor (a).) Also presented in aggravation was evidence of other crimes by defendant involving violence or the threat of violence. (Id., factor (b).) Finally, the prosecution introduced evidence that defendant had sustained several prior felony convictions. (Id., factor (c).)
1. Facts of the capital crime.
The evidence on this subject was consistent with the prosecution’s showing at the preliminary hearing, but included several additional witnesses and certain additional details.
Fullerton Reserve Police Officer Michael Lyman testified that between 8:00 p.m. and 8:20 p.m. on July 13, 1996, he was driving through the intersection of Nutwood and Placentia Avenues when he noticed a CHP car, with its lights flashing, parked behind a white BMW. The CHP officer, who was writing the BMW driver a ticket, gave Lyman a “Code 4” signal, meaning everything was all right and no assistance was needed. Though Lyman first tentatively identified another man as the BMW’s driver, he later positively identified defendant from a photo lineup.
Around 8:30 p.m. on July 13, 1996, Benjamin Baldauf was preparing to enter and register at a hotel near the intersection of Placentia and Nutwood. He noticed a CHP vehicle making a traffic stop of a white BMW. Baldauf described the lighting at this time as “long on shadows, just before dark.” As Baldauf entered the hotel, the CHP officer appeared to be examining the trunk of the BMW.
After registering at the hotel, Baldauf and his daughter walked toward the Pepe’s Restaurant on Placentia. The officer was still sorting through the BMW’s trunk, but seemed relaxed. However, the BMW driver appeared nervous; his eyes were “darting... wildly.” This bothered Baldauf, so he looked back toward the stopped vehicles as he proceeded on toward the restaurant. Baldauf saw the officer approach the driver’s door of the BMW, at which point “[t]he [BMW] driver came out shooting.” Baldauf counted at least five shots in rapid succession. The BMW driver and the officer struggled and fell together; the shooter appeared to take something from the officer, then stood up and shot him in the neck or head at close range. Baldauf remembered seeing some traveler’s checks on the ground near the officer, which “didn’t make sense.” In court, Baldauf positively identified defendant as the shooter.
Bernice Sarthou testified, consistently with her preliminary hearing account, as follows: Around 8:30 p.m. on July 13, 1996, as she pulled into the Pepe’s Restaurant on Placentia, she noticed a CHP vehicle, with its lights flashing, parked behind a white BMW. As she waited in the restaurant’s drive-through line, she stared absently at the BMW’s driver. He leaned forward and gave her a “hard look, ” even though she was wearing sunglasses that would have prevented the driver from seeing if she was looking at him. After ordering and receiving her food, she parked where she could see the front half of the BMW. When she looked up, the BMW driver was out of his car and the CHP officer was close to the driver, near the driver’s door of the BMW. Sarthou heard four rapid shots, and the officer fell. The BMW driver started to walk away, but returned and shot the officer in the head. The shooter then ran out of Sarthou’s view, but moments later, she saw the CHP car leaving. Sarthou positively identified defendant as the driver of the BMW and the shooter of Officer Burt.
Around 8:15 p.m. on July 13, 1996, Robert Excell was traveling southbound on Placentia. While stopped for a red light at the intersection with Nutwood, he heard multiple gunshots. He turned right onto Nutwood, looked to his left, and saw a police car with its overhead lights on. Excell continued west on Nutwood, intending to pass under the State Route 57 freeway, then turn left to enter the southbound freeway on-ramp. As he proceeded, he saw a CHP car come up behind a vehicle in the adjacent lane. The CHP car’s overhead lights were flashing, and defendant was driving it. Defendant veered into the far right lane, honked as if to move a vehicle in that lane out of the way, then swerved left across two lanes in front of Excell to turn onto the freeway on-ramp. Excell followed the CHP vehicle onto the freeway and pursued it southward as it wove through traffic, at speeds of 80 to 85 miles per hour, until he lost sight of it near the Lincoln Avenue exit.
Around 8:30 p.m. on July 13, 1996, Paul Wilcox, a CHP dispatcher, received an inquiry from Officer Burt concerning the status of a driver’s license issued to Pao or Pho D. Nguyen, born May 12, 1972. The dispatcher advised that the license in that name was currently suspended, whereupon Officer Burt requested a tow truck to respond to the Chevron station at Nutwood and Placentia.
Evidence collected at the crime scene included seven 9-millimeter shell casings, a live 9-millimeter round in the front seat of the BMW, a citation book with a bloody shoe print on it; a “CHP 180” vehicle property form; a paper bag filled with counterfeit traveler’s checks; a printer, printer cartridges, and bulk quantities of high-quality bond paper found in the BMW’s trunk; a wallet containing defendant’s identification; and a BMW car key. Fingerprints on the bag and on a piece of paper were identified as defendant’s.
Evidence, similar to that at the preliminary hearing, was presented that Officer Burt’s vehicle was found abandoned near defendant’s Lincoln Avenue residence; that around 10:00 p.m. on July 13, 1996, a witness saw a young Asian male hop over the bumper of a Honda as he ran from the area where the car was abandoned; and that a partial shoe print was lifted from the Honda’s bumper.
When arrested in Texas, defendant was sitting on a couch. He identified white tennis shoes near the couch as his. These shoes were turned over to the Fullerton Police Department. The patterns of the soles were consistent with the bloody shoe print on Officer Burt’s citation book, and were a positive match with the shoe print on the Honda bumper. Testing of blood on the shoes revealed DNA markers identical to those in a tissue sample taken from Officer Burt. The chance that three particular markers common to both these samples would be found in each of two random individuals was one in six billion.
A United States Treasury Department agent testified that the 99 good-quality counterfeit traveler’s checks found in the paper bag at the crime scene were worth about $10, 000. These checks belonged to a larger series of already-passed counterfeit checks that had caused losses of over $240, 000. The quantity and quality of the checks in the bag, and the paraphernalia —such as the bond paper, printer, and printer cartridges — found in the BMW’s trunk, indicated that someone was mass producing the counterfeit instruments, or selling them in bulk.
Officer Burt suffered 11 gunshot wounds inflicted by seven bullets. There were no defensive wounds or signs of a struggle. He died of multiple gunshot injuries to his brain, lungs, and visceral organs.
2. Victim impact.
Officer Burt’s wife, mother, and father testified about the devastating effect of his death on his immediate and extended family. The victim, who was 25 years old when he died, had dreamed of being a CHP officer like his father. As a result of Officer Burt’s death, his father, a CHP sergeant, retired approximately one year later. Officer Burt’s wife, described as his “best friend, ” was seven months pregnant with their first child at the time of his death. Family members described the victim as spontaneous, intelligent, sentimental, and fun-loving. The loss was especially hard for his niece and two nephews, because their father had been killed in an auto accident about nine months earlier.
3. Other violent crimes.
The prosecution presented the following evidence of other crimes by defendant involving violence or the threat of violence:
Mark Baker lived in a second-story apartment next to the unit defendant shared with his girlfriend, Victoria Pham. In the early morning of September 11, 1995, Baker heard scuffling in defendant’s apartment. Baker went out onto the common balcony walkway, where defendant was struggling with Pham, apparently trying to push her over the railing. Defendant hit Pham on the back of the head or neck with his fist, and she fell to her knees. When Baker said, “ ‘Knock it off, you motherfucker, ’ ” defendant went back into his apartment and returned with a machine gun. Defendant loaded the gun in front of Baker, pulled back the bolt, and pointed the weapon at Baker’s head. Defendant said, “ ‘I think you called me a motherfucker’ ” and “ ‘[l]et me hear you say it again.’ ” Baker asked if the gun was real, and defendant responded, “ ‘You want to find out?’ ” The confrontation ended when the manager of the apartment complex yelled at everyone to go back inside their apartments. Defendant reentered his unit, and Baker went to make sure the manager called the police.
On the evening of June 17, 1996, Robert Bachand, a Honda automobile salesman, accompanied defendant and another Asian man on a vehicle test drive. During the drive, defendant said “ ‘[l]et’s do this’ ” to his companion. Defendant then pulled a nine-millimeter Ruger semi-automatic pistol on Bachand and demanded his wallet and PIN number. Bachand gave up his wallet, which contained his ATM card. He was handcuffed and forced to lie on the back seat. Defendant said he and his companion intended to take the car, and both men seemed upset when Bachand told them he didn’t know whether it had Lojack (a means of tracking a stolen vehicle). At some point, defendant handed a cell phone to Bachand, and a voice on the phone told Bachand “ ‘not to fuck with my guys or they will kill you.’ ” Bachand gave his PIN number to the person on the phone. Defendant warned Bachand that “ ‘[y]ou don’t know who you’re messing with’ ” and “ ‘[w]e’re Asian, Vietnamese Mafia.’ ”
The men took Bachand to a house in Garden Grove or Westminster, where defendant’s companion got out of the car, and another Asian man got in. Defendant handed this man the gun he had been wielding. During further travel, the cell phone rang again. A voice on the phone demanded verification of the PIN number Bachand had previously provided, complaining that “ ‘they’ ” were unable to get any money out of the account. Bachand explained this was because the account had no money. After debating whether to kill Bachand or release him, the men let him go. Later that evening, Bachand identified a crashed Honda as the one in which he had been abducted.
On the morning of July 13, 1996, the day Officer Burt was killed, Aryan Neghat was driving westbound in the fast lane of the State Route 91 freeway. A white BMW came up behind him and began following too closely, so Neghat moved to lane No. 2 to avoid contact with that vehicle. The BMW, traveling around 70 miles per hour, then pulled very close to another vehicle in the fast lane, slightly bumping it. The BMW driver reached down, transferred a gun from his right to his left hand, and waved the gun out the driver’s window. The car in front quickly changed lanes, whereupon the BMW driver pulled in the gun and sped onward. That night, while watching news of Officer Burt’s murder, Neghat recognized the white BMW at the crime scene as similar to the one he had encountered. In July 1996, Neghat positively identified defendant from a photo lineup as the weapon-brandishing driver he had observed, though he was unable to make a positive identification at the April 2000 penalty trial.
4. Prior felony convictions.
The prosecution presented evidence that defendant had suffered prior felony convictions (1) in 1992, for escape while misdemeanor charges were pending (§ 4532, subd. (a)); (2) in 1992, for possession of an assault weapon (former § 12280, subd. (b); see now § 30605, subd. (a)) and possession of a firearm in violation of an express probation condition (former § 12021, subd. (d)(1); see now § 29815, subd. (a)); and (3) in 1993, for assault with a deadly weapon (§ 245, subd. (a)(1)) and burglary of an inhabited dwelling (§§ 459, 460, subd. (a)).
C. Defense penalty case.
Defendant himself was the only defense witness. He testified in narrative form as follows: “Thank you. [¶] Before I start, I would like to say that I did request for my lawyers not to say anything on my behalf, and I appreciate that. [¶] Jurors, I am not here to ask or beg for your sympathy or pity. Nor am I here to ask or beg of you, the jurors, to spare my life. [¶] Personally I believe in an eye for an eye. I believe in two eyes for every eye. If you were to take down one of my fellows, I would do everything that is necessary to take down at least two of yours, just to be even. [¶] In this penalty phase trial, the prosecutor, Mr. Jacobs, is seeking the maximum penalty, which we all know is death. I personally feel that the maximum penalty is properly suited for this occasion. I also feel that it is the right thing for you, the jurors, to do. [¶] Being in my situation now I feel it is only fair, there’s a price to pay for everything in life, now that I am here it’s time I pay that price. Because, after all this entire ordeal, it is just part of the game. [¶] That’s all I have to say, your honor.” The prosecutor did not cross-examine defendant, and the defense presented no other evidence. No rebuttal case was offered.
A. Counsel-related claims: conflict of interest; ineffective assistance.
Defendant asserts that, at both the guilt and penalty stages, his counsel labored under a potential and actual conflict of interest, and that counsel’s performance was adversely affected by the conflict, in violation of his state and federal constitutional rights to conflict-free representation. Defendant further insists he did not validly enter a voluntary, knowing, and intelligent waiver of the conflict. In any event, defendant asserts, the record demonstrates that, in certain respects, counsel provided him with constitutionally ineffective assistance. No basis for reversal appears.
1. Factual background — conflict of interest claim.
The factual background of defendant’s conflict of interest claim, unfortunately complex, is as follows: Defendant was represented at the 1996 preliminary hearing by retained Attorney Dennis O’Connell. In subsequent proceedings, O’Connell and another lawyer, George Peters, were appointed to represent defendant. Daniel Watkins was an investigator originally hired by O’Connell, and later retained by both counsel, to work on defendant’s case.
On July 27, 1998, while defendant was the Orange County Jail awaiting trial in this case, he, Victoria Pham, Watkins, and another “gang member” were arrested by federal authorities. Soon thereafter, an indictment was filed in the United States District Court for the Central District of California against defendant, Pham, Huy Ngoc Ha, and Watkins. (United States v. Hung Thanh Mai, et al.(C.D.Cal., No. SA CR 98-82 LHM) indictment filed Aug. 6, 1998.) Count 1 accused the indicted persons of conspiring by mail and/or interstate travel to commit murder for hire, in violation of title 18 United States Code section 1958. The alleged murder target was Chang “Alex” Nguyen, a principal prosecution witness as to the state capital murder charges, whom defendant wanted killed because of his cooperation with law enforcement.
Among other things, the federal indictment asserted that, in furtherance of the conspiracy, Watkins “traveled to Houston, Texas to locate Nguyen and his family, and that Watkins “provided... [defendant] and PHAM with information about... Nguyen so that Nguyen could be located and killed.” The federal indictment also alleged that after the authorities provided defendant with fake evidence the murder had been carried out, defendant asked Watkins to see if a missing persons report had been filed in Houston for Nguyen, but Watkins warned that any such check might arouse law enforcement suspicions. According to the federal indictment, these events took place in March, April, and May of 1998.
On July 31, 1998, before the federal indictment was filed, and in anticipation of an upcoming federal bail and counsel hearing for Watkins, Attorney James Waltz, who would become Watkins’s appointed federal counsel, faxed a memorandum to the federal prosecutor’s office (the Waltz memo). The Waltz memo claimed the federal case against Watkins was “phony, ” and asserted that Waltz intended to call Peters and O’Connell, defendant’s counsel in this case, as “cornerstone” witnesses in Watkins’s defense. According to the Waltz memo, Watkins, while acting as Peters’s investigator, and on Peters’ behalf, “interacted with [defendant]. [Defendant] told [Watkins] about [defendant’s] plan to kill [Nguyen] in Texas, and [Watkins] reported all that to... Peters, [O’Connell, ] and Rob Harley, and took their directions.” The memo also suggested Peters and O’Connell “should be disqualified from further representing [defendant] in state court, as their testimony in Federal court will be adverse to [defendant]... as they all exculpate [Watkins] from any wrongdoing.” The memo claimed that “all [Watkins’s] activities were blessed by Peters, Harley and [O’Connell]. Just ask them. [Watkins] did nothing to aid [defendant’s] plan which was well known among his defense team.”
On August 7, 1998, the day after the federal indictment was filed, prosecution and defense counsel in this case addressed the trial court about the implications of the federal matter. Peters confirmed that besides defendant, “this involves a defense investigator who is also charged in the federal case, ” and it was therefore “possible that myself and Mr. O’Connell could be witnesses in that case, called by the other defendant.” Peters indicated that he and O’Connell did not “see any actual conflicts at this point.” However, in an abundance of caution, defense counsel requested the appointment of an outside attorney to advise defendant about possible conflicts. The prosecutor joined in the request. Ultimately, upon agreement by all counsel, the court appointed Attorney Gary Pohlson to review applicable materials and render an opinion on the conflict issue.
On August 21, 1998, Pohlson reported his activities and conclusions in open court, with defendant and all counsel present. Pohlson acknowledged that Peters and O’Connell would likely be called as witnesses in the federal case, and that a potential conflict arises whenever counsel are required to testify in a matter involving a client. However, Pohlson indicated that after reviewing materials related to the federal case, including the Waltz memo, and speaking with O’Connell, Peters, and the federal prosecutor, he foresaw no possibility that anything Peters or O’Connell would say in their federal testimony would be harmful to defendant in either the federal or the state case.
Pohlson further stated he had explained to defendant (1) the dangers of conflicted counsel, (2) that upon proper advisement defendant could waive any conflict that did exist, and (3) that if the conflict was validly waived, defendant could not rely on it later as a basis for attacking the state judgment. According to Pohlson, defendant indicated he did not believe a conflict existed and confirmed that he wished to retain Peters and O’Connell as his state counsel.
The prosecutor, Orange County Deputy District Attorney Evans, agreed he could foresee no actual conflict. In particular, the prosecutor represented that he was largely ignorant of information gathered in the federal investigation, and that, in the instant proceeding, “I don’t intend to, and I will not use anything that was gathered in terms of information or evidence, and we will not derive anything from what was gathered, we won’t use it even in a derivative sense.” Peters and O’Connell confirmed their views that there was no actual conflict, based on what they currently knew about the federal and state cases. Peters iterated that if he did testify in the federal case, “I believe I would have nothing to say that would harm [defendant].”
The court then engaged defendant in an extended colloquy on the conflict issue. The court preliminarily confirmed that defendant wished to waive any conflict of interest and retain Peters and O’Connell as his counsel. The court recited that, based on the information presented, “there [was] an appearance of a potential conflict, ” that it appeared there was no actual conflict, that the court could not finally determine whether an actual conflict existed, but that, if it did, such a conflict would likely “not render the representation of defense counsel ineffective in and of itself.”
The court advised defendant that “[b]ecause of that appearance of conflict, or potential conflict, or conflict, ” his lawyers might not be able to furnish effective representation, and he might not have a fair trial if represented by these counsel. Further, the court admonished defendant that, “should you have ineffective counsel, your chances of being convicted are greater, and when you waive your right to conflict free counsel, you are also waiving an appeal based on that conflict.” Defendant confirmed that he understood. Defendant also agreed he had spoken with Pohlson, who had given him the same advisements.
The court then asked defendant whether “[h]aving been advised of your right to be represented by attorneys free of conflict, and having understood the disadvantage and dangers of being represented by attorneys with conflicts, do you specifically give up the right to be represented by attorneys who have no conflict of interest?” Defendant responded, “Yes.” Defendant agreed that no threats or promises had been made to secure the waiver, and the court confirmed that all counsel concurred in defendant’s decision. Finally, the court adopted, and obtained defendant’s understanding of, the prosecutor’s further statement that defendant could withdraw his waiver at any future time if he discerned that a conflict of interest was adversely affecting the quality of his counsel’s representation.
At a progress hearing in state court in December 1998, Attorney Peters reported that he was involved in ongoing negotiations with the United States Attorney’s Office on defendant’s behalf with respect to the federal indictment. Peters reported that a term under discussion in those negotiations was that defendant would agree to plead guilty in the instant case. Peters explained that, immediately upon the filing of the federal indictment, he had visited defendant, who made an “impassioned plea” that he “felt extremely responsible” for drawing Pham into the plot to murder Nguyen, and “wanted to do anything he could to rectify the situation, particularly with her.” Peters reported that defendant “gave me specific directions. And since that time I have been working on those directions, because I believe it is the right thing to do.”
On March 9, 1999, defendant pled guilty in federal court to all counts of the federal indictment, pursuant to an agreement previously reached with the federal prosecutor. The agreement included defendant’s promise that he would also plead guilty in the instant proceeding to the murder of Officer Burt, and would admit the special circumstance allegation that he intentionally killed a peace officer engaged in the performance of duty, subject to a trial to determine the appropriate penalty. It also provided for the continued imposition of very severe confinement conditions for the duration of defendant’s federal incarceration, and included defendant’s waiver of the right to serve his entire federal term before any state death sentence was carried out.
As consideration for defendant’s plea, the federal prosecutor promised to recommend, with respect to defendant, certain sentencing guideline reductions, provided defendant met specified conditions. The federal prosecutor also promised to give “due consideration to the mitigating role” that Pham played in the Nguyen murder conspiracy, “and accordingly to recommend a sentence for Pham based on that lesser role, ” under the federal sentencing guidelines.
Attached to the federal agreement was a recitation of the factual basis of the plea. The parties stipulated that the facts set forth in the recitation could be proved beyond reasonable doubt in a trial. The redacted version of the recitation included in the instant record stated, among other things, that “codefendant #4” (clearly Watkins) gave defendant a photo of intended murder victim Nguyen, which photo “codefendant #4” had obtained from discovery materials provided by the state prosecutor in this case. The recitation further stated that “codefendant #4” warned defendant against attempting to confirm Nguyen’s death by checking for a missing persons report, and instead offered to make some “inquiries” by pay phone when he was in Houston. No portion of the factual recitation suggested that Peters or O’Connell had any role in “codefendant #4’s” activities, or in those of any other defendant in the federal case.
In June 1999, Watkins pled guilty, pursuant to agreement, to a reduced federal charge of accessory after the fact to the offense of using the mail with intent that a murder for hire be committed (18 U.S.C. § 3). The agreement recited that, knowing defendant had committed the underlying substantive offense, Watkins “assisted [defendant] with the intent to hinder or prevent [defendant’s] apprehension, trial, and punishment” for that crime. Nothing in this recitation implicated Peters or O’Connell.
On July 23, 1999, in the instant case, the court addressed the defendant’s request to waive his trial rights with respect to guilt and special circumstance findings, and to stipulate that the trial court could determine those issues on the basis of the preliminary hearing transcript. At the plea hearing, the court took particular note of the condition in defendant’s federal plea agreement that he plead guilty in the instant case. Accordingly, the court sought to assure itself that his waivers of trial rights were truly knowing, voluntary, and intelligent, and not the result of duress, coercion, threats, or promises.
Attorney Peters explained that defendant’s motive for entering the federal plea agreement, though it provided him virtually no personal benefit, was to obtain, at any sacrifice to himself, any advantage he could secure for Pham. On the other hand, Peters represented, and the state and federal prosecutors — both of whom were present — agreed, that defendant was under no practical obligation, by virtue of the federal plea agreement, to enter a “slow plea” in the state case. All federal sentencing jurisdiction over defendant and Pham had ended, and all terms of the agreement requiring the federal prosecutor to make recommendations concerning Pham’s prison placement had been satisfied. Neither the state nor the federal prosecutor sought to hold defendant to the federal agreement’s requirement that he plead guilty to Officer Burt’s murder.
Rather, Peters, citing his experience as a capital trial lawyer, indicated that “I made an analysis and... based on the quality of evidence against [defendant] and the nature of some of that evidence, ... I have always realized that if we had anything to say and wanted credibility, we have to do it at the penalty phase. That’s why I am willing to do this.” As Peters explained, the prosecutor “is going to put this evidence on anyways [at the penalty phase], some of it, and hopefully it will be lesser than he would have otherwise. And I need, if I am going to have any hope of looking jurors in the eye and making the pitches I want to make, that I have to have the highest degree of credibility with them, and I can have that credibility by pointing out that [defendant] has done the right thing [by not insisting on a guilt trial].” Indeed, Peters made clear, defendant “is not begging for anything, ” and “may not even want to... present[ ] evidence in the penalty phase, he hasn’t made that decision yet, and that’s up to him.”
In response to a request from the prosecutor that the record be made clear, Peters obtained defendant’s confirmation that he had explained to defendant the “tactical and strategic reasons” for submitting the guilt and special circumstance issues, that defendant did not disagree with this advice, that defendant could do nothing more to help or hurt Pham, and that he was not required to waive his trial rights. The court accepted the stipulation.
However, the court revisited the issue on July 30, 1999. Counsel reported defendant was disturbed by newspaper articles that apparently cited the tactical reasons counsel had given the previous week for agreeing to the “slow plea” procedure — i.e., doing the “right thing” in order to preserve credibility at a penalty trial — as defendant’s personal reasons for stipulating to submission on the preliminary hearing transcript. Allowed to make a statement on his own behalf, defendant said he was “not doing this so-called plea” in hopes of “sav[ing] face or retain[ing] credibility for future jurors, ” and was not “asking for mercy or pity or sympathy from future jurors, ” but was acting for “my own personal reasons.” Defendant indicated that “[w]hatever reasons my lawyers might have, strategic or other, they have discussed that with me, ” and he assumed counsel were “obligated to follow through with that, ” but as far as he was concerned, “[w]hatever results emerge from my penalty phase and my sentencing, so be it.”
Defendant declined to indicate what his “personal reasons” were, but he insisted they did not include the hope of gaining anything for himself or for Victoria Pham. He again confirmed he was acting freely and voluntarily. The court thereupon indicated it was satisfied that defendant’s waiver of a guilt and special circumstance trial was appropriate.
On the basis of this factual record, defendant now claims his trial counsel faced a potential conflict of interest arising from concerns about their personal involvement in the Nguyen murder conspiracy case, and in the conspiracy itself. This potential conflict, defendant insists, ripened into an actual one because, as a matter of fact, it adversely affected counsel’s performance in the instant case, influencing them to refrain from providing a competent and vigorous defense at all phases of the state capital trial. Moreover, defendant maintains, his purported waiver of any conflict was invalid, because the record indicates he was not sufficiently apprised of the pressures that might bear on counsel’s ability to give him zealous and undivided loyalty. He further asserts that aspects of his counsel’s performance were professionally deficient regardless of any conflict. As we will explain, we find no merit in these contentions.
2. Applicable law.
A criminal defendant’s federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) includes the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. (E.g., People v. Vines (2011) 51 Cal.4th 830, 875-876 (Vines); People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The federal and state constitutional right to counsel in a criminal case also includes the right to representation free of conflicts of interest that may compromise the attorney’s loyalty to the client and impair counsel’s efforts on the client’s behalf. (E.g., Glasser v. United States (1942) 315 U.S. 60, 69-70; People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) For both state and federal purposes, a claim of conflicted representation is one variety of claim that counsel provided ineffective assistance. Hence, to obtain reversal of a criminal verdict, the defendant must demonstrate that (1) counsel labored under an actual conflict of interest that adversely affected counsel’s performance, and (2) absent counsel’s deficiencies arising from the conflict, it is reasonably probable the result of the proceeding would have been different. (Mickens v. Taylor (2002) 535 U.S. 162, 166 (Mickens); Doolin, supra, at pp. 417-418, 421; see Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
When addressing an appellate claim that a conflict of interest adversely affected counsel’s performance, the reviewing court is “ ‘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.’ (People v. Cox (2003) 30 Cal.4th 916, 948-949.)” (Doolin, supra, 45 Cal.4th 390, 418.)
The defendant may voluntarily, knowingly, and intelligently waive a conflict of interest. But the court must take steps to ensure that any waiver of a possible conflict meets those standards. If, after inquiry, the court determines that a waiver is necessary, it must satisfy itself that the defendant (1) has discussed with his or her own counsel, or with an outside attorney if he or she wishes, the potential drawbacks of representation by counsel who may have a conflict of interest; (2) has been advised of the dangers of conflicted representation in his case; and (3) voluntarily wishes to waive that right. Where the court fails to fulfill these duties, reversal is required if the defendant can establish that counsel’s performance was deficient, that an actual conflict of interest was the reason for the deficiency, and that it is reasonably probable the deficiency adversely affected the outcome of the case. (People v. Sanchez (1995) 12 Cal.4th 1, 47 (Sanchez); People v. Bonin (1989) 47 Cal.3d 808, 837-838; People v. Mroczko (1983) 35 Cal.3d 86, 110; see Doolin, supra, 45 Cal.4th 390, 417-418, 421.)
3. Waiver of conflict of interest.
The People urge at the outset that defendant validly waived any conflict of interest arising from his counsel’s connection to the federal case. We agree.
Here, the court perceived a possible conflict of interest and, as the cases require, it addressed the issue with considerable care. The court appointed independent counsel to investigate and advise defendant on the subject, and confirmed that independent counsel had done so. 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.
Nonetheless, defendant complains that because the court’s inquiry into the conflict, and the advisements he received, were inadequate, his purported waiver was not knowing, voluntary, and intelligent. He asserts that, while he was warned about the chance his counsel might be witnesses in the federal matter, and was assured they would say nothing to inculpate him, he was never informed of the Waltz memo’s insinuations that counsel themselves had committed serious ethical and criminal violations by “direct[ing]” and “bless[ing]” Watkins’s involvement in the Nguyen murder plot. Defendant insists he should have been told that counsel’s exposure to personal criminal liability might motivate them to “pull their punches” when representing him, in order to curry favor with both federal and state prosecutors in hopes of avoiding the consequences of their own derelictions. Indeed, defendant posits, by accepting assurances that there appeared no chance his counsel would testify unfavorably to him in the federal matter, he may mistakenly have believed that there was no potential conflict, and that he could therefore safely enter his waiver.
However, as we have consistently said, waiver of a possible attorney conflict of interest is not invalid simply because all conceivable ramifications of the potential conflict were not explored or explained, and the waiver does not extend only to those matters discussed on the record. (E.g., People v. Roldan (2005) 35 Cal.4th 646, 728; People v. Carpenter (1997) 15 Cal.4th 312, 375; Sanchez, supra, 12 Cal.4th 1, 47-48.) Indeed, where no actual conflict has materialized at the time the waiver is taken, it may simply be impossible to foresee future developments that could have a genuine effect on counsel’s loyalty and zeal; on the other hand, sources of conflict that are merely speculative and conjectural need not be addressed.
That is the situation presented here. The sole basis in the record for the proposition that defendant should have been warned about his counsel’s possible direct criminal involvement in the Nguyen murder conspiracy is the Waltz memo, which Independent Counsel Pohlson reviewed. But that document is an exceedingly weak foundation upon which to build such a theory.
Defendant characterizes the Waltz memo as containing “allegations” by Watkins himself that his criminal assistance to defendant in the Nguyen murder plot was “directed” and “blessed” by defendant’s attorneys, Peters and O’Connell. On the contrary, Waltz’s off-the-cuff assertions, apparently made prior to his actual appointment as Watkins’s federal lawyer, did not amount to direct “allegations” by Watkins. At most, they appear to have been a lawyer’s clumsy, informal, and preliminary attempts to advocate on a potential client’s behalf, and perhaps to apply some kind of tactical leverage against Peters and O’Connell as potential witnesses in Watkins’s case. Pohlson could reasonably conclude they exhibited no indicia of credibility sufficient to invoke a genuine concern about counsel’s criminal involvement in the acts charged against Watkins by the federal indictment.
Moreover, by its terms, the ambiguously worded Waltz memo did not explicitly claim Peters and O’Connell knew of, directed, or blessed any criminal activity by Watkins. While the memo declared that Watkins “interacted” with defendant, that defendant told Watkins of his plan to kill Nguyen, and that Watkins “reported all that” to defendant’s counsel, the memo also insisted that the federal charges against Watkins were “phony” and “trumped up, ” that Watkins “did nothing to aid [defendant’s] plan, ” and that any testimony by Peters and O’Connell in Watkins’s federal case would “exculpate [Watkins] from any wrongdoing.” It is reasonable to assume Waltz believed Peters and O’Connell would say, truthfully, that Watkins did nothing illegal on their orders, and that any activities of Watkins they “direct[ed]” or “blessed” were legitimate.
Finally, it was entirely reasonable, upon review of the Waltz memo, to conclude at the time the waiver was entered that the principal source of potential conflict it revealed was the possibility counsel would be called as witnesses in Watkins’s defense. Indeed, the only reason the Waltz memo expressed for its claim that Peters and O’Connell should be disqualified from representing defendant in this case was that “their testimony in Federal court [would] be adverse to [defendant]” insofar as it exculpated Watkins.
Under these circumstances, neither Independent Counsel Pohlson nor the court was reasonably obliged to speculate further about what conflicts might arise as a result of the federal investigation into defendant’s murder plot and the resulting indictment. There was no requirement to advise defendant that, aside from the chance Peters and O’Connell might be called as witnesses on Watkins’s behalf, another source of conflict might be their own potential criminal liability for his activities. Accordingly, defendant’s waiver of a potential conflict of interest was valid when given.
4. Claims of ineffective and conflict-related adverse representation.
In any event, defendant’s complaints against his counsel fail on the merits. He is unable to show on the appellate record that any potential conflict of interest actually materialized. Further, the record fails to demonstrate that any conflict of interest resulted in adverse performance by his counsel, or that counsel otherwise rendered ineffective assistance.
At the outset, there is no evidence on the record that Defense Counsel Peters and O’Connell were called as witnesses in the federal case, or ever became the focus of any state or federal investigation into their own criminal involvement in the activities of their investigator, Watkins. Indeed, the record belies any such developments. As noted above, Watkins never went to trial in the federal case against him; in June 1999, he entered a negotiated plea to a reduced charge of accessory after the fact in the conspiracy to murder Chang Nguyen. The brief factual recitation included in the plea agreement made no reference to Peters or O’Connell. Similarly, in March 1999, defendant himself entered a negotiated plea to the federal charges against him. His plea agreement attached an extensive factual recitation of his central role in the murder plot, but again, it included no mention of any involvement by Peters and O’Connell.
These events occurred before July 23, 1999, when defendant entered his “slow plea” to the capital charges in this case. By this time, therefore, it appears counsel was not burdened by any actual, or even potential, conflict arising from the chance they would be called as witnesses in the federal proceedings against Watkins or defendant.
But even if we assume a potential conflict remained because of the possibility Peters and O’Connell might still be criminally charged in the Nguyen murder plot, the record discloses no adverse or ineffective performance by his counsel. Defendant cites several actions or omissions by counsel that he deems ...