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`Filed 12/11/17
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`IN THE SUPREME COURT OF CALIFORNIA
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`THE PEOPLE,
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`Plaintiff and Respondent,
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`v.
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`JEAN PIERRE RICES,
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`Defendant and Appellant.
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` ____________________________________)
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`S175851
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`San Diego County
`Super. Ct. No. SCE266581
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`Defendant, Jean Pierre Rices, and codefendant, Anthony Miller, were
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`charged with crimes arising out of a liquor store robbery during which defendant
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`shot and killed two people. The prosecutor sought the death penalty against
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`defendant but not Miller. Defendant pleaded guilty to the first degree murders of
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`Heather Mattia and Firas Eiso under the special circumstances of multiple murder
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`and murder in the course of a robbery. He admitted enhancement allegations that
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`he personally used a firearm during the commission of the murders and previously
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`suffered certain felony convictions. Miller’s guilt trial and defendant’s penalty
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`trial were held simultaneously before separate juries. Defendant’s jury returned a
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`verdict of death. The court denied the automatic motion to modify the verdict and
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`imposed a judgment of death. This appeal is automatic. We affirm the judgment.
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`1
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`I. THE FACTS
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`A. Overview
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`In March 2006, defendant and Miller robbed a liquor store, ordering the
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`two victims to lie on the floor. As Miller was leaving the store, defendant fatally
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`shot both victims in the back of the head. Much of what occurred during the
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`robbery, although not the actual shooting, was captured on videotape that was
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`played to the jury. The prosecution also presented evidence of defendant’s other
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`criminal conduct involving force or violence.
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`Defendant presented substantial evidence in mitigation, largely focusing on
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`his unfortunate childhood and how it contributed to his criminal behavior.
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`B. The Liquor Store Robbery
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`On March 1, 2006, shortly after 11:00 p.m., Heather Mattia, the co-owner
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`of the Granada Liquor store in El Cajon, and her employee, Firas Eiso, walked out
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`of the store after closing it for the night. Defendant and Miller confronted them
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`outside and forced them back into the store. Miller wore gloves and a mask;
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`defendant wore gloves but no mask.
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`Inside the store, Mattia and Eiso were ordered to lie on the floor and forced
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`to crawl in front of the counter. Miller, holding a bag, went behind the counter. A
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`short time later, Miller left the store. As Miller was leaving, defendant shot both
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`victims in the back of the head while they were lying on the floor. Defendant then
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`left the store, gun in hand, joined Miller, and they drove away. Just under four
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`minutes elapsed from the time the victims were forced back into the store until
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`defendant left the store.
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`The bodies, lying facedown side by side in pools of blood, were soon
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`discovered. Police found two nine-millimeter bullet casings nearby. A bullet was
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`found under Eiso’s body. A second bullet was found in a stack of beverage cans,
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`where it had come to rest after ricocheting around. The drawers to some cash
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`registers had been pulled out.
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`Both Mattia and Eiso died of a single gunshot wound through the head.
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`Mattia also suffered grazing wounds to her forearm, finger, and hand, probably
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`caused by the same bullet after it passed through her head. The condition of
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`Mattia’s lungs indicated she was still breathing for about 15-20 minutes after she
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`was shot. Her head wound was such that the body might have twitched
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`involuntarily until she died. The autopsy revealed no indications of a struggle.
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`The parties stipulated that if called as witnesses, Rodney Hodges and
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`Dwayne Hooks — defendant’s cohorts in later crimes — as well as Debbie Mays,
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`would testify that, on separate occasions, defendant told each of them that he had
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`shot two people in the head during the liquor store robbery, and the legs of the
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`female victim twitched after he shot her.
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`Miller testified on his own behalf. Most, although not all, of his testimony
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`was in front of defendant’s penalty jury as well as Miller’s guilt jury. On the night
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`of the robbery, he rode to the liquor store with defendant and Nichele Hopson,
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`who drove. Miller was just going along for the ride and thought they were going
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`to buy something to drink. When he and defendant got out of the car, defendant
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`pulled out a gun, tossed Miller a bag, and told him they were going to do a
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`robbery. Miller was “scared out of [his] wits.” Because defendant had a firearm,
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`Miller felt he had no choice but to do as he was directed. Inside the bag were
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`gloves and a mask, which defendant told him to put on. Defendant then told
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`Miller to follow him into the store.
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`When Miller stepped into the store, he saw Mattia and Eiso lying on the
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`floor. Defendant was still holding the gun. Following defendant’s orders, Miller
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`took money from the cash register, which he put into the bag. The victims were
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`cooperating and saying things like, “Just take the money, leave me alone.” Mattia
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`told them where the money was. After Miller took the money, defendant told him
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`to leave the store, which he did. Miller did not hear any shots, but Hopson told
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`him she heard some. Then defendant got into the car and told Hopson to drive
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`away.
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`The prosecution cross-examined Miller about his prior statements — in
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`which he confessed to his involvement in the crime and did not implicate
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`defendant in the manner he did at trial — and impeached him with a friendly letter
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`he wrote to defendant in jail after his arrest. Miller also acknowledged that he had
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`previously told the police he heard Mattia say, “Please don’t kill me. I just want to
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`be with my family”; and he heard Eiso begging for his life. Miller testified he lied
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`to the police and did not actually hear these statements. He also testified that
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`defendant never made threats to force him to participate in the robbery.
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`C. Defendant’s Other Crimes
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`The prosecution presented evidence of defendant’s felony convictions and
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`other criminal conduct.
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`On February 10, 1999, defendant and another man robbed a Taco Bell
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`restaurant in San Diego, netting about $150. The manager testified she saw the
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`butt of a gun in defendant’s pocket. Defendant admitted his involvement in the
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`robbery.
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`On March 7, 1999, defendant and two others approached Paul Hillard while
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`he was sitting in his car. Wielding a gun, defendant ordered Hillard to get out of
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`the car and lie on the ground. One of the three took $304 from Hillard, and then
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`they drove away in Hillard’s car. Police found defendant a short time later sitting
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`in the front passenger seat of the car. A gun was recovered from that seat, and
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`defendant admitted he was the one holding the gun during the robbery.
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`On July 28, 2006, defendant and Rodney Hodges unsuccessfully attempted
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`to rob a Bank of America branch in El Cajon. During the attempt, defendant fired
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`two shots with a handgun.
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`On July 31, 2006, defendant, armed with a handgun, and Dwayne Hooks
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`robbed a Washington Mutual Bank branch in Lakeside. Defendant pointed the
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`handgun close to a teller’s head, ordered her to unlock a cash drawer, and then
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`ordered her to lie on the floor. During the robbery, defendant dropped some keys
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`that were later identified as those given to him before the robbery. Defendant and
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`Hooks left the bank with about $25,000 in cash. Unbeknownst to them, however,
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`the cash contained a “dye pack,” which activates when it is taken through the
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`sensors on the bank doors. While defendant and Hooks were driving away, the
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`pack exploded, sending red dye and tear gas into the car’s interior. Defendant’s
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`saliva was later found mixed with the dye on the surface of the getaway car.
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`On January 12, 2008, while in jail, defendant and other inmates assaulted
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`another inmate. On May 29, 2008, defendant and another inmate assaulted a
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`different inmate, who suffered “minor injuries” as a result.
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`On August 8, 2008, defendant assaulted Deputy Sheriff James Clements,
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`slicing him with a razor blade. Clements needed ten stitches and four staples to
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`close head wounds, and suffered other lacerations. When asked later whether he
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`was injured, defendant said he was not and added, “But I blasted your cop.”
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`On August 11, 2008, correctional officers found a piece of metal that “was
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`started to be sharpened” in the waistband of defendant’s pants. The next day,
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`while being transported for medical treatment, defendant threatened jail deputies,
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`including threats of “gassing” — or “throwing urine or feces on” — correctional
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`personnel.
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`The parties stipulated that defendant suffered the following felony
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`convictions: a 1999 conviction for robbing Hillard while armed with a firearm; a
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`2000 conviction for possession of cocaine base for sale; a 2001 conviction for
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`possession of a deadly weapon while incarcerated in prison; a conviction for the
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`July 28, 2006, attempted robbery of the Bank of America while armed with a
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`firearm; a conviction for the July 31, 2006, robbery of the Washington Mutual
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`Bank while armed with a firearm; and a conviction for the attempted murder of
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`Deputy Clements, a peace officer, and the infliction of great bodily injury. He was
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`in custody on these matters from March 8, 1999, to December 3, 1999, from
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`November 16, 2000, to October 1, 2005, and after August 23, 2006.
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`D. Defense Evidence
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`Defendant presented several witnesses in mitigation who said his mother
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`was a prostitute addicted to PCP, and his father was her pimp. His father was
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`absent from his life and played no role in raising him. His mother was neglectful
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`and unaffectionate, and she abandoned him at a Jack in the Box restaurant when
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`he was five years old. After that, he was raised by relatives or was shuttled
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`through several placements, including a group home.
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`Dr. Rahn Minagawa, a forensic psychologist, described defendant’s
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`childhood as “pretty horrendous.” In his opinion, defendant should have received
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`therapy or other professional intervention at various times during his early
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`childhood. In addition, defendant’s “gang membership,” beginning at an early
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`age, was a negative influence that contributed to his criminal behavior.
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`Barbara Duey, an attorney with the Children’s Law Center of Los Angeles,
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`testified that, although defendant received therapy when he was 13 and 14 years
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`old, he should have received it earlier when he most needed it.
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`Daniel Vasquez, a former warden at San Quentin State Prison, reviewed
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`defendant’s prison records. Defendant was imprisoned between 2000 and 2005,
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`but his only assaultive conduct during that time was one act of mutual combat.
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`There were no assaults against prison staff.
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`II. DISCUSSION
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`A. Pretrial Issues Regarding Defendant’s Representation
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`Two attorneys represented defendant at trial: Mark Chambers and William
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`Wolfe. Defendant raises several issues regarding Chambers’s representation.
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`1. Factual Background
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`The court originally appointed the public defender’s office to represent
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`defendant. On March 21, 2007, that office declared a conflict. Acting through
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`San Diego County’s “Private Conflicts Counsel,” the court appointed Chambers to
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`represent defendant. When the court asked whether Chambers was “on the list of
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`class six attorneys by and through Private Conflicts Counsel,” Chambers said he
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`was. According to a document filed with the trial court on January 23, 2008,
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`Chambers was to receive a total fee of $137,000 through the end of trial. He had
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`already received $17,000, was to receive $40,000 “forthwith” (that is, as of
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`January 23, 2008), and was to receive $40,000 at the commencement of hearings
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`on pretrial motions and the final $40,000 after the jury was impaneled. When
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`Chambers was first appointed, the district attorney had not yet decided whether to
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`seek the death penalty against defendant. On November 7, 2007, the district
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`attorney announced the intent to seek the death penalty, and the court appointed
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`Wolfe to assist Chambers in the defense.
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`On December 13, 2007, attorneys Patricia Robinson and Sandra Resnick,
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`representing San Diego County’s Private Conflicts Counsel, appeared in court to
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`argue that Chambers was not qualified to defend a death penalty case. At their
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`request, the court held a hearing outside the prosecutor’s presence.
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`Robinson told the court that Chambers was a class five, not class six,
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`attorney. The Private Conflicts Counsel’s “capital case committee” believed that a
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`class five attorney could act as “second chair,” but not “first chair,” in defending a
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`capital case. Resnick suggested the court appoint an independent attorney to
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`advise defendant “about what his options are and what all of this means.”
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`Chambers responded that he had been representing defendant for several months,
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`including during the preliminary hearing. He said he met the qualifications to
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`defend a capital case provided in the California Rules of Court, rule 4.117, and the
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`guidelines established by the American Bar Association (ABA). He had
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`established a working relationship with Wolfe, who was acting as second chair.
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`He did not want to act as second chair in the case.
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`In responding to Chambers’s representations, Resnick did not mention the
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`California rules, but she implicitly agreed that Chambers’s qualifications satisfied
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`the ABA guidelines. She said that Chambers had only acted as advisory counsel
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`in one capital case and standby counsel in another. The Private Conflicts
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`Counsel’s own guidelines required that an attorney act at least as a second chair in
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`a capital case before acting as first chair.
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`Chambers said he had been involved in two capital cases, one the
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`“Michaels” case. (See People v. Michaels (2002) 28 Cal.4th 486.) In the
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`Michaels case, he explained, the defendant technically represented himself but he,
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`Chambers, actually tried the entire case: “I selected the jury, I did the opening, I
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`examined all of the witnesses, I did the closing, and I argued the motions they
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`previously drafted. Mr. Michaels really didn’t participate in the trial other than be
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`there.” He added that he had defended “at least 30 first degree homicide cases in
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`this county.” Later, he added that the Private Conflicts Counsel had originally
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`considered him to be a “class six” attorney. Robinson agreed with this statement
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`but said that more recently the organization had reevaluated matters and now
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`Chambers was “approved for class five.”
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`Defendant asked to speak. He said, “I don’t need no advisory,” he did not
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`“need to talk to anybody,” and “I don’t want to speak with another attorney. I
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`already heard everything that’s going on. I don’t need to talk with him.” He said
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`he wanted to keep Chambers as his attorney because he had “built a relationship”
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`with him. He believed that getting another new attorney at that stage “was going
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`to be real bad to my case. If I have to start all over with another lawyer, then
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`that’s going to be a time period that I’m losing ground.” He went into detail. He
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`pointed out that a new attorney would not have done the preliminary hearing, and
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`if the court “threw him in the case,” he would not “know what’s going on,” and
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`would have “no relationship. Nothing.”
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`The court ultimately continued the matter and appointed Attorney Donald
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`Levine to speak with defendant about the situation. The next hearing was held on
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`January 11, 2008, with Levine present. At first, the hearing was held in the
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`prosecutor’s presence. The court asked the deputy district attorney to leave the
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`courtroom, as the hearing would be a “sealed proceeding.” Before she left, she
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`said she did not know what role Levine had in defendant’s case. But she informed
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`the court and defendant that Levine had represented a person who had information
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`in the case and was willing to cooperate. She said Levine “was involved in
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`conversations with this person wanting to come forward to provide testimony
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`against Mr. Rices. Given that information, I don’t know what the court’s position
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`is on having Mr. Levine being involved in possibly defending Mr. Rices.” At that
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`point, the prosecutor left the courtroom and the hearing proceeded in her absence.
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`Levine said he had reviewed the materials and then spoke in private with
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`defendant. He “did not inquire as to any specifics as to this case,” but he
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`discussed with defendant capital case procedures, including the fact that Chambers
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`was “technically not . . . qualified, according to the Private Conflicts Counsel
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`guidelines.” He inquired whether defendant “was satisfied with his current
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`representation.” He said that “basically, Mr. Rices indicated that although there
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`may have been some difficulties early on between himself and Mr. Chambers that
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`they have ironed those out. That he believes that Mr. Chambers is working in his
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`best interest. In fact, that he believes that Mr. Chambers has developed a rapport
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`with the witnesses in this case, which Mr. Rices stressed was hard to do . . . . And
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`it would not be in Mr. Rices’s best interest if Mr. Chambers was removed from
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`this case. When I discussed with him the question of whether Mr. Chambers
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`qualified, technically, according to the [Private Conflicts Counsel] guidelines, Mr.
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`Rices felt that Mr. Chambers was sufficiently qualified to handle his case, both
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`through the guilt and penalty phase and he is satisfied with his representation.”
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`Levine believed that defendant understood the situation and found him to be
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`“articulate [and] intelligent.” Defendant “would object to Mr. Chambers being
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`relieved as counsel” and, “in fact, he would request to go pro per if that were to
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`occur.”
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`Defendant then asked why the court “sen[t] somebody to me that
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`represented a confidential informant or a cooperating witness?” The court
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`responded that it did not know about any involvement Levine may have had in the
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`case. It offered to appoint another lawyer to speak with defendant. Defendant
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`said, “No. I don’t believe I would like that.” When he asked again why Levine
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`had been appointed, the court explained that it had not known of any conflict, and
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`that it knew very little about the case. It again offered to appoint another attorney
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`to speak with him if he would prefer. Defendant said, “No, I don’t prefer it.”
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`When the court inquired, defendant said he wanted to keep both Chambers and
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`Wolfe as his attorneys.
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`The court then reaffirmed the appointment of Chambers and Wolfe as
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`defendant’s attorneys: “The court has examined the transcript, considered the
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`guidelines, considered the comments of Mr. Levine, who was appointed to counsel
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`independently with Mr. Rices, regarding what a capital case is, what a capital
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`attorney does for a client, how the case is managed or handled, and Mr. Rices has
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`desired to retain this particular defense team, which desire has been stated to me
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`on two separate occasions, a month apart. It appears to me, upon also reviewing
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`this transcript, that the qualifications of both Mr. Chambers and Mr. Wolfe are
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`more than adequate to handle this case, based upon their rendition of their personal
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`and professional experience in this area and giving heavy consideration as well to
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`Mr. Rices’s desire.”
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`On April 29, 2008, defendant told the court he wanted a “Marsden”
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`hearing. (People v. Marsden (1970) 2 Cal.3d 118.) The court conducted the
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`hearing outside the presence of the prosecutors. (The hearing was thus conducted
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`after defendant’s January 12, 2008, assault on a jail inmate, and before his May
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`29, 2008, assault on another inmate and his August 8, 2008, assault on Deputy
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`Clements.)
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`Defendant told the court he wanted to “fire him . . . because I can’t work
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`with him.” At that point, defendant did not specifically state whether he meant
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`Chambers or Wolfe, but as the hearing progressed it became clear he was referring
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`to Chambers. He said he had given Chambers information about his mental state,
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`but Chambers was not taking him seriously. He had originally “brought it to the
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`Sheriff’s attention, Deputy Rodriguez. I told him that I was . . . hearing voices . . .
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`in my head. I told him I needed some . . . psych detention [sic; perhaps meaning
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`“attention”] . . . .” When Rodriguez asked him what was going on, defendant told
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`him, “I couldn’t tell him what the voices was in my head because it was
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`inappropriate for me to tell him.”
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`Defendant said the voices were “telling me to kill people,” “to slice
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`people’s throats open.” “I would actually see me doing it . . . out of nowhere for
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`no reason. And it was certain things that was going on in the county jail where I
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`was doing things and I didn’t remember I was doing them. Like being violent
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`towards people. And it was a couple of incidents that happened where some
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`inmates that came to me and like man, you know, you did this and you did that,
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`and I didn’t remember what I was doing. So I knew something was wrong.” He
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`felt he could not tell a deputy because “that could be used against me . . . .
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`Probably for my case, they tell the D.A. that I’m going around killing people.”
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`Defendant told the court that he spoke with Chambers about the situation,
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`and then “he goes and tells the deputies that I want to kill somebody or was
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`attempting to kill myself.” Defendant felt that Chambers’s doing so violated the
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`attorney-client privilege. He explained, “I agreed for him to tell the watch
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`commander that I needed to see the psych, but I didn’t agree for him to disclose
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`information of why I needed to see the psych. And Deputy Rodriguez came and
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`told me specifically that they were going to put me in the rubber room because my
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`attorney had told the watch commander that I feel like being violent towards other
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`people. And that’s not what I told him. I told him I had been feeling like that the
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`past couple of weeks. I didn’t tell him I was feeling like that at that present time.
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`It spurts in and out.”
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`Defendant said he explained to Chambers that he had not been “in my right
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`mind lately. I haven’t been able to do nothing. I really can’t help you right now in
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`the case. I was really trying to explain that to him and really let him know, but he
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`seemed to feel like I’d been joking with him or playing . . . some kind of game.”
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`He reiterated that he had “a problem with voices in my head. Things going on.
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`Just because I look all right doesn’t mean I’m all right. And I’m trying to stress to
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`him that point.”
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`The court then asked Chambers whether defendant had been examined
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`earlier in the case. Chambers said that once, before he entered the case, defendant
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`“had a 1368 episode.”1 At that point, “Dr. Solvang” evaluated him. Chambers
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`had received that evaluation when he spoke with defendant. Chambers confirmed
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`to the court that defendant had told him essentially what defendant had just
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`represented. “Between Mr. Rices and myself, it was decided since he had already
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`requested to see the mental health provider doctor at the detention facility, that I
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`would contact the staff there and attempt to move that meeting up. So when I left
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`there, I called the watch commander and lieutenant and told the lieutenant, as Mr.
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`Rices had agreed, that he had the potential of acting out, was the descriptive
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`phrase that I used to the watch commander.”
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`Defendant interjected that he “never agreed to that.” The court said it
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`would let defendant have the final word, then Chambers continued. Chambers
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`said that “based upon that, they apparently saw him that afternoon.” He added,
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`“One of the other things that Mr. Rices and I discussed was the acquiring funding
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`and getting a defense psychologist . . . because we didn’t really have one to fit in
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`that slot at this point.” He said that a funding motion had been filed the previous
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`day.
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`Defendant responded that “just because I ain’t going around doing stupid
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`stuff don’t mean that I don’t got problems. I’m trying to explain to him. I told
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`him I can’t even read, I can’t even write right now. . . . I can barely function
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`inside the unit I’m in because of the voices inside my head right now.”
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`The court denied defendant’s Marsden motion: “I’ve listened to your
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`request and I appreciate how you’ve presented it. It appears to me that at the
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`1
`In this context, Chambers was likely referring to Penal Code section 1368,
`which addresses the procedure to follow when a judge doubts a defendant’s
`mental competence.
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`present time, you’re tracking real well. You’re a very articulate individual. I’ve
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`reviewed the work that Mr. Chambers has performed on your behalf. I do not
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`believe there is grounds for granting your request to relieve your attorney. And
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`I’m going to indicate that Mr. Chambers has stated that there is a funding request
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`that has been recently made. This issue can obviously be placed before the court
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`at a future time.”
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`At that point defendant said he wanted to represent himself because he did
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`not trust his lawyer. The court scheduled a hearing on that motion for a later date.
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`At the next hearing, after the speaking with his attorneys, defendant told the court
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`he no longer wished to represent himself.
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`Chambers and Wolfe continued to represent defendant from that point on.
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`2. Alleged Conflict of Advisory Counsel
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`Defendant argues that when the prosecutor informed the court Levine had
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`represented someone else involved in the case, the court should have held a further
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`hearing regarding the possible conflict and, if a conflict existed, appointed a
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`second independent counsel. However, defendant declined a second independent
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`counsel and did not even want the first. In any event, contrary to the Private
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`Conflicts Counsel’s assertions, Chambers was fully qualified to represent
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`defendant.
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`At the hearing, Chambers stated that he was qualified to defend a capital
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`case under both California’s standards for appointment of capital counsel (Cal.
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`Rules of Court, rule 4.117) and the ABA guidelines. The attorneys from the
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`Private Conflicts Counsel agreed, at least implicitly, that he was qualified under
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`those standards, but they claimed Chambers was unqualified under their own,
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`separate, guidelines, which required attorneys to have acted as second chair before
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`they could act as first chair in a capital case. We have said that the ABA
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`guidelines do not establish the standards for effective representation. (People v.
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`Williams (2013) 56 Cal.4th 630, 692.) But it appears Chambers met those
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`standards. Any failure to satisfy the Private Conflicts Counsel’s own standards
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`did not render Chambers unqualified to represent defendant.
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`Moreover, it appears that Chambers satisfied even the Private Conflicts
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`Counsel’s standards. He had previously been involved in two capital cases,
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`including the “Michaels” case, in which he had effectively acted as first chair at
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`trial even though the defendant technically represented himself. As stated in our
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`opinion in that case, “Although defendant represented himself, with [Attorney
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`Richard] Grossberg and Chambers as his advisory counsel, at trial Chambers, who
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`initially had been second counsel, took on the role of lead counsel. Grossberg did
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`not participate and defendant’s participation was minimal. Whenever the judge
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`asked defendant if he intended to participate, he replied that Chambers was his
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`attorney and would represent him. Chambers conducted the voir dire, examined
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`witnesses, and presented all arguments, both at the guilt phase and at the penalty
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`phase.” (People v. Michaels, supra, 28 Cal.4th at p. 521.) Thus, he acted as
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`second chair until trial and as first chair at trial.
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`Even if we assume the court should have investigated a possible conflict of
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`interest for Levine, defendant has not shown prejudice. “When a defendant claims
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`that a trial court’s inquiry into a potential conflict was inadequate, the defendant
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`still must demonstrate the impact of the conflict on counsel’s performance.”
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`(People v. Cornwell (2005) 37 Cal.4th 50, 78 [rejecting the argument that Wood v.
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`Georgia (1981) 450 U.S. 261 required a different rule]; accord, People v. Nguyen
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`(2015) 61 Cal.4th 1015, 1071.) “Absent a demonstration of prejudice, we will not
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`remand to the trial court for further inquiry.” (Nguyen, at p. 1072.) The court
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`asked Levine only to inquire into whether defendant still wanted Chambers to
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`represent him. Levine did not inquire into the case itself. The possible conflict
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`15
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`cannot have compromised this simple task. Moreover, defendant said repeatedly
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`he wanted Chambers to represent him despite the Private Conflicts Counsel’s
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`assertions, and he confirmed this desire after Levine told the court the results of
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`his consultation with defendant. We see no prejudice.
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`3. Trial Counsel’s Alleged Conflict of Interest
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`Based on what occurred at the April 29, 2008, Marsden hearing, defendant
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`contends that Chambers acted under a conflict of interest, as he had to “choose
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`between becoming a witness at trial or keeping the case as counsel.” He argues
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`that once defendant told him about the voices he claimed to be hearing, Chambers
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`was a potential witness because he could testify about what defendant had told
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`him, either to support a mental defense or as mitigating evidence. We disagree.
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`“A criminal defendant is guaranteed the right to the assistance of counsel
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`by the Sixth Amendment to the United States Constitution and article I, section 15
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`of the California Constitution. This constitutional right includes the correlative
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`right to representation free from any conflict of interest that undermines counsel’s
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`loyalty to his or her client.” (People v. Doolin (2009) 45 Cal.4th 390, 417
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`(Doolin).) “For both state and federal purposes, a claim of conflicted
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`representation is one variety of claim that counsel provided ineffective assistance.
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`Hence, to obtain reversal of a criminal verdict, the defendant must demonstrate
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`that (1) counsel labored under an actual conflict of interest that adversely affected
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`counsel’s performance, and (2) absent counsel’s deficiencies arising from the
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`conflict, it is reasonably probable the result of the proceeding would have been
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`different. (Mickens v. Taylor (2002) 535 U.S. 162, 166 (Mickens); Doolin, supra,
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`at pp. 417-418, 421; see Strickland v. Washington (1984) 466 U.S. 668, 687,
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`694.)” (People v. Mai (2013) 57 Cal.4th 986, 1009-1010.)
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`16
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`Determining “whether counsel’s performance was ‘adversely affected’ . . .
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`‘requires an inquiry into whether counsel “pulled his punches,” i.e., whether
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`counsel failed to represent defendant as vigorously as he might have, had there
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`been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by
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`the record. But where a conflict of interest causes an attorney not to do
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`something, the record may not reflect such an omission. We must therefore
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`examine the record to determine (i) whether arguments or actions omitted would
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`likely have been made by counsel who did not have a conflict of interest, and (ii)
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`whether there may have been a tactical reason (other than the asserted conflict of
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`interest) that might have caused any such omission.’ (People v. Cox (2003) 30
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`Cal.4th 916, 948-949, italics omitted.” (Doolin, supra, 45 Cal.4th at p. 418.)
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`Prejudice is generally presumed “when defense counsel ‘actively represented
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`conflicting interests.’ (Mickens, supra, 535 U.S. at p. 166.)” (Doolin, at p. 418,
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`fn. omitted; but see People v. Rundle (2008) 43 Cal.4th 76, 172-173 [prejudice is
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`not always presumed in cases of a claimed conflict of interest].)
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`Defendant contends the compensation agreement between Chambers and
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`the court itself created a conflict. He notes that if Chambers had withdrawn from
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`further representation due to the asserted conflict, he would not have received the
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`bulk of the fixed fee. Thus, he argues, Chambers’s own interests conflicted with
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`his client’s. We have rejected a similar argument regarding a fixed fee agreement
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`despite the “theoretical possi