Opinion
Rehearing Denied April 20, 1965. Hearing Granted May 26, 1965.
For Opinion on Remand, see 46 Cal.Rptr. 453. Luke McKissack, Los Angeles, for appellants by appointment of the District Court of Appeal.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.
FLEMING, Justice.
Defendants Odom and Lindsey were charged with robbery of a Los Angeles service station on May 12, 1963. Each was identified by a witness as a participant, and both were arrested on May 14 in what had been reported as the getaway car.
The principal issue is whether the defendants were entitled to separate counsel at their trial.
On May 16 the public defender was appointed to represent both defendants. On May 20 at the preliminary hearing the defendants were held to answer the charges against them. Both defendants continued to be represented by the public defender up to the date of trial. On July 12, one week before trial, defendant Lindsey petitioned the trial court to discharge the public defender and appoint private counsel to represent him on the ground that a conflict of interest existed.
On July 17, the day of trial, both defendants were present in court with the public defender, and at that time defendant Lindsey renewed his request for the appointment of private counsel on the ground of conflict of interest, the nature of which, however, remained unspecified. Defendant Odom also requested the appointment of private counsel. After a recess the public defender advised the court he could not Next, the defendants requested a severance of their cases, and this was denied.
Lindsey then waived his right to a jury trial and agreed to submit the matter on the transcript of the preliminary hearing. His case was referred to another department of the superior court for submission. Odom went forward in the original department with trial by jury in which he was represented by the public defender. Each defendant was found guilty of first-degree robbery.
On appeal Lindsey contends that the trial court improperly refused his request for the appointment of separate private counsel. He contends that only the pressure of this improper refusal induced him to waive his right to a trial and submit the matter on the transcript of the preliminary hearing and that accordingly he was deprived of his right to trial by jury. Odom's sole contention is that the comments of the trial court and prosecutor upon his failure to take the stand constituted reversible error.
1) Right to Separate Counsel
The mere fact that § single attorney is appointed to represent multiple defendants does not mean that an individual defendant has been deprived of his right to counsel. (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Byrd, 228 A.C.A. 722, 724, 39 Cal.Rptr. 644; United States v. Bentvena, 319 F.2d 916, 937, cert. den. 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271.) Only if an actual or potential conflict of interest exists among codefendants and a motion for appointment of separate counsel is made in timely fashion, is it incumbent upon the trial court to appoint separate counsel. (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Douglas, 61 Cal.2d 430, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Byrd, 228 A.C.A. 722, 39 Cal.Rptr. 644.) Conflicts of interest among codefendants may arise when it would profit one defendant to attack the credibility of another (People v. Kerfoot, 184 Cal.App.2d 622, 7 Cal.Rptr. 674); when counsel would be restricted in final summation because he might injure one defendant by arguments in favor of another (People v. Donohoe, 200 Cal.App.2d 17, 19 Cal.Rptr. 454); when one defendant has a record of prior felony convictions and the others do not (People v. Douglas, 61 Cal.2d 430, 38 Cal.Rptr. 884, 392 P.2d 964); when the defenses of codefendants are factually inconsistent (People v. Welch, 212 Cal.App.2d 397, 28 Cal.Rptr. 112); and when appointed counsel believes a conflict of interest may exist (People v. Douglas, supra; People v. Donohoe, supra).
In this case while Kindsey claimed that a conflict of interest existed, despite several opportunities to suggest the nature of the conflict, he offered no indication of what the alleged conflict was about. The public defender, after consulting with both defendants, reported he could find no conflict between defendants. No factual inconsistency in the defenses of the two has been suggested, nor does it appear that any advantage would have been obtained by one in attacking the other, nor was it shown that differences ixisted between defendants in background, prior history, or in felony convictions.
In point of fact while both defendants were represented by the public defender, he appeared on their behalf in two separate departments in two separate proceedings before two different judges. Nothing in the record suggests any reason why he was not free to represent Odom to the full extent of his capabilities in the jury trial nor why he was not equally free to plead Lindsey's cause to best advantage in the court trial before another judge based on the submitted transcript.
Even on appeal Lindsey has not suggested wherein any conflict of interest existed. Essentially defendant rests his argument on the broad proposition that in any case where there are multiple defendants, each is entitled to separate counsel if he demands it. He cites such cases as Glasser v. United States,
People v. Douglas, People v. Robinson, People v. Lanigan, People v. Shipman, In re Nunez,However, at the commencement of any given trial it may be extremely difficult for the trial judge or the defense attorney to adequately determine what conflicts then exist or to foresee what new conflicts may develop during the course of the proceedings. For these reasons it would appear sound practice to appoint separate counsel in all cases where a defendant has made a timely demand. The refusal to make the appointment may appear fully justified at the time the trial court acts. However, when the matter is viewed later by an appellate court with the benefit of hindsight and with a record which shows that conflict existed in fact, the latter court, wise after the event, may then conclude that the refusal to appoint separate counsel was an abuse of discretion or, even without such abuse, was unavoidably prejudicial to the defendant and that a new trial must be granted. A refusal of a timely demand for separate counsel thus becomes a time bomb ticking away in every case which may explode long after the verdict has become history.
In the present case, however, a review of the entire record reveals no conflict of interest between codefendants and no disadvantage to either defendant from their joint representation by the public defender. The appointment of separate counsel was not required.
2) Comment on Defendant's Refusal to Testify
Odom's sole point on appeal is that he was deprived of his right not to be a witness against himself in violation of the 5th and 14th amendments to the United States Constitution, because court and counsel directed the jury's attention to his failure to take the stand on his own behalf. Such comment is authorized by Article I, section 13, of the California Constitution, which permits comment by court and counsel on the failure of a defendant to testify, and its use does not conflict with the privilege against self-incrimination of the federal Constitution. (People v. Modesto, 62 A.C. 452, 42 Cal.Rptr. 417, 398 P.2d 753; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903.)
The purported appeal by Odom from the order denying his motion for a new trial is dismissed. The judgment as to each defendant is affirmed.
ROTH, P. J., and HERNDON, J., concur.