Metropolitan News-Enterprise


Tuesday, February 10, 2015


Page 1


Prejudice Not Presumed Where Convicted Man’s Defense Lawyer Was Facing Prosecution—C.A.


By a MetNews Staff Writer


The Court of Appeal for this district has reversed an order granting a new trial to a man convicted of multiple felonies, including mayhem and torture, because the judge presumed prejudice from the fact, unknown during the trial, that the defendant’s lawyer was facing prosecution by the same office that was prosecuting his client.

A new trial is called for, Presiding Justice Paul A. Turner said in his opinion for Div. Five, only if, on remand, the judge determines that there was actual prejudice to the defendant in the form of deficient performance.

The opinion, filed Friday, is the second one within the past month (both unpublished) dealing with the effect of a defendant having been represented by attorney Chad A. Calabria who, like his client, was being prosecuted by the Office of Los Angeles County District Attorney. A Jan. 14 opinion, by Presiding Justice Tricia Bigelow of Div. Eight, also rejected the contention that prejudice should be presumed.

Friday’s opinion reverses a decision by Los Angeles Superior Court Judge Robert J. Higa, who relied on Harris v. Superior Court (2014) 225 Cal.App.4th 1129. There, Justice Victoria Chaney, of this district’s Div. One, said that “an attorney acts under a conflict of interest when both he and his client are simultaneously under indictment and being prosecuted by the same prosecuting entity,” and prejudice is presumed.

The problem, arose, she explained, because defense lawyer Gustavo Diaz, as a criminal defendant, “had an interest in maintaining a cordial and cooperative (if not even subservient) relationship with the district attorney’s office—a relationship that might be beneficial to Diaz in achieving a favorable disposition of the charges facing him.”

(Diaz was disbarred in 2013 for failure to cooperate in a State Bar investigation.)

Different Procedural Settings

Differentiating that case, Turner wrote:

“Here, Harris does not control the outcome of our case. First, in Harris, the conflict of interest came to light following a preliminary hearing, not after a full trial. Second, in Harris, the defendant brought a pre-trial motion to dismiss the information, not a motion for a new trial. And third, the motion to dismiss in Harris was governed by the rule, applicable in that pre-trial context, that no affirmative showing of prejudice was required. Here, however, the conflict of interest came to light only after a full trial.”

Turner went on to say:

“Except in a concurrent representation case, there is no presumption of prejudice in the post-trial conflict of interest context….There was no concurrent representation in this case. Here, the trial court was required to consider whether Mr. Calabria’s conflict of interest affected his performance and whether it resulted in actual prejudice to defendant.”

Concurring Opinion

Justice Richard Mosk wrote a brief concurring opinion. He said:

“Defendant has to show the prejudice required under People v. Doolin (2009) 45 Cal.4th 390, 421. In addition, I presume the trial court will consider the effect of the alleged conflict in connection with the representation of the victims.”

Doolin adopts the federal standard of requiring that defendant complaining of an attorney’s conflict of interest “show counsel’s deficient performance and a reasonable probability that but for counsel’s deficiencies, the result of the proceeding would have been different.” The case was cited four times in Turner’s opinion.

Calabria was been convicted of forgery in 2013 and pled guilty in 2012 to unlawful possession of a controlled substance. On March 26 of last year, he was placed on interim suspension by the State Bar Court Review Department.

Making the motion for a new trial, and representing the defendant in the appeals court, was Tarzana criminal defense attorney H. Russell Halpern, of Halpern & Halpern—who has, himself, incurred State Bar discipine, having received a private reproval in 1992 and a public reproval in 1994 and 2005.

The case is People v. Conrad, B256866.

Deputy District Attorneys Phyllis C. Asayama and John Harlan II sought the reversal.


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