Filed 3/26/13 P. v. Lozano CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ANTONIO JESUS LOZANO, Defendant and Appellant. D059304

(Super. Ct. No. SCS216495)

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed as modified.

Antonio Lozano was convicted by jury of fi ve felonies arising out of shooting and kidnapping incidents involving his ex-girlfriend and her visits to her mother's home. The shooting incident on January 1, 2008 resulted in a guilty verdict of assault with a semiautomatic firearm (Pen. Code, 1 § 245, subd. (b)), and jury findings that he personally

1 All undesignated statutory references shall be to the Penal Code.2 used an assault weapon with in the meaning of section 12022.5, subdivision (a), and he personally inflicted great bodily injury (o n the mother, Fidelia Garcia) within the meaning of section 12022.7, subdivision (a). Lozano was also convicted of shooting into an inhabited structure (§ 246), with find ings that he caused great bodily injury (§ 12022.7, subd. (a)); he intentionally and personally di scharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); and he possessed an assault weapon (§ 12280, subd. (b)). Regarding an incident a few weeks earl ier involving his ex-girlfriend, Christina Garcia, Lozano was convicted of kidnapping and false imprisonment. (§ 207, subd. (a); §§ 236, 237, subd. (a).) 2 The jury could not reach a ve rdict on the charge of attempted murder of Fidelia, and a mistri al on that count was declared. (§§ 664, 187.) He was acquitted of making a criminal threat against Ch ristina. (§ 422.) After separate trial proceedings, his defense of insan ity was rejected by the jury. Lozano was sentenced to an indeterminate term of 25 years to life for the finding of personal and intentional discharge of a fi rearm resulting in great bodily injury, as well as a determinate term of six years eight mont hs (five years for shooting into an inhabited structure, and one year eight months for kidnapping; § 246, 23 6, 237, subd. (a) and related enhancements) and fines.

2 Because several individuals involved in this record are named Garcia, we will utilize their first names or titles to identify them.3 Lozano appeals, contending the procee dings violated his rights to effective assistance of counsel, and he was denied con frontation rights (U.S. Const., 6th Amend. & Cal. Const., art. I, § 15), when the trial cour t ruled that evidence would be admitted from a reported November 2009 conditional examina tion of a material witness against Lozano, his friend Hector Verduzco, who was present at the time of the Ja nuary 2008 shooting, but who had become unavailable by the time of trial (the cond itional exam). (Evid. Code, § 402.) Lozano challenged the admission of this evidence on th e grounds that his previously appointed a ttorney, Gaylord Stewart of the Alte rnate Public Defender's office (APD), who appeared for him at the conditional exam of th e witness Verduzco, was the same attorney who had earlier assisted Verdu zco as appointed counsel in June 2009, at the time Verduzco pleaded guilty to an unrelated theft offense and was granted probation. A few months later, at the conditional exam, Verduzco had his own appointed attorney from another agency. A few more months af ter the conditional exam, Attorney Stewart declared a conflict in this respect and was re placed by different trial counsel for Lozano, Attorney Ricardo Garcia of th e Multiple Conflicts Office. Lozano contends that his constitutional rights to the assistance of counsel at trial were violated as of the time of the conditi onal exam, when Attorney Stewart was laboring under a conflict of interest that arguably undermined his duty of loyalty to Lozano. ( People v. Doolin (2009) 45 Cal.4th 390, 417 ( Doolin ).) Lozano also contends that his witness confrontation rights were violated, becau se this conflict of interest indicated that Stewart could not have effectively cross-exam ined his previous client Verduzco during4 the conditional exam. On eith er ground, Lozano claims the admission of that evidence irretrievably tainted these convictions. ( Crawford v. Washington (2004) 541 U.S. 36.) "[C]laims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that, under Strickland [ v. Washington (1984) 466 U.S. 668, 694 ( Strickland )] generally require a defendant to show (1) counsel's deficient performance, and (2) a r easonable probability that, absent counsel's deficiencies, the result of the proceed ing would have been different." ( Doolin , supra , 45 Cal.4th at p. 417, citing Mickens v. Taylor (2002) 535 U.S. 162, 166 ( Mickens ); People v. Rundle (2008) 43 Cal.4th 76, 169 ( Rundle ).) A reviewing court may assess such conflict of interest claims by evaluating the relevant evidence independently and drawing legal conclusions based on the record. (See In re Darr (1983) 143 Cal.App.3d 500, 509.) Applying the relevant standards, we conc lude the court did not err as a matter of law or abuse its discretion in denying Lozano's motion to ex clude this evidence. The record supports the trial court's conclusions that although there was a potential conflict of interest at the time of the conditional exam, there was no prejudice to Lozano and the evidence was properly admitted. The convictions are well supported by the record. However, we accept Lozano's argum ent, and the Attorney Gene ral's concession, that the trial court erred in assessing a $200 "Court Facilities Funding" fee, based on the five felony convictions. At a rate of $30 per conv iction, only $150 is s upported by the record. (Gov. Code, § 70373 [authorizing a fee of $30 for conviction of "each misdemeanor or5 felony"].) We affirm , and order the abstract of judgm ent to be corrected and a new abstract of judgment issued to show this fee of $150.
I INTRODUCTION In considering the issues presented about any potential prejudice from Attorney Stewart's successive representation, we firs t take note that Lozano's appeal does not specifically challenge the sufficiency of th e evidence regarding his convictions of kidnapping and false imprisonment of Christina. (§§ 207, subd. (a); 236, 237, subd. (a).) Verduzco was not present as a witness during the commission of those offenses. Also, Lozano's arguments do not directly attack th e evidence or convicti ons from the shooting incident, when Verduzco was pr esent as a witness, except by claiming a right to reversal because of the potential effect that Verduzco's evidence had upon the validity of Lozano's legal representation that led to that set of convictions, in light of Verduzco's previous dealings with the same attorney, Stewart. Verduzco's testimony pertaining to the char ges arising out of the shooting incident included demeanor evidence about Lozano's mental state at the time, his apparent intent, and his ultimately unsuccessful in sanity defense. Ultimately , a mistrial was declared on the attempted murder charge, and Lozano was acquitted of th e criminal threat charge regarding Christina. Thus, as part of the prejudice inquiry about the admission of this conditional examination testimony, over unsu ccessful objections by Lozano raising the conflict of counsel, we necessarily consider the extent to which Verduzco's evidence had6 potentially probative effect, and on which char ges. We next describe the facts of the offenses and set out the time frame of Attorn ey Stewart's professional representation of these two clients. We then discuss and apply the authorities in this area. A. Kidnapping Facts Lozano and Christina were in volved and lived together fo r eight or nine years, and had two children together. In August 2007, Christina moved out, but Lozano, who has severe anxiety and personality disorders, remained dependent on her. He took a lot of anti-anxiety and anti-depressi on medications and frequently sought medical care, with her assistance. In December 2007, Lozano came to Chri stina's mother's ho use and forcibly abducted Christina. They picked up the children and Loza no forced them all to stay with him elsewhere for about two weeks, using ha ndcuffs, a knife, and fi sts on Christina a few times. By Christmas time, Christina persuade d him to take them to her mother's house, and they did not return to him. According to Christina's sister Miriam, Lozano told Christina he would kill her if she did not go back to him, so she was hiding from him. B. Shooting Incident On January 1, 2008, Lozano's 23rd birt hday, he went over to see his friend Verduzco and told him he wanted to see Ch ristina. Lozano had his M-11 semiautomatic pistol with him, and at his request, Verduzco called Christina and then drove the two men to Christina's mother's hous e in Lozano's car. When Verd uzco knocked on the door, Christina answered it, then saw that Lozano was also pres ent on the stairs. Since he7 looked angry and was heading up the stairs, hiding something in his jacket, she tried to lock the doors but could on ly lock the inner one. As Lozano and Christina yelle d at each other in Spanish, she, her mother and sister were inside the house and heard him yell diff erent things. Christina heard him say "Voy a tirar la puerta" (I will knock down the door or shoot at it). Her sister heard him say he would knock down the door. Christina's mother heard, "Te voy a disparar" (I'm going to shoot, or shoot you). Lozano shot out the doorknob, the bu llet hitting Christina's mother in the knee. Verduzco saw Lozano bend down, seeming to hide the gun under the house in an open space, and then they ran away. They drove to a near by hotel in San Ysidro, and Verduzco took a cab home. Christina's mother went to the hospital and Christina went to a friend's house. Lozano soon got in touch with Ch ristina and they stayed togeth er in a hotel for two days. Lozano said he did not know what he was doing that night, and made her stay with him. After a few days, Christina and Lozano went together to a child protective services office building. She was seeking to recove r the children, who had been taken into protective custody. Christina told the social worker Loza no was in the area and he was arrested. He had with him cash, a foldin g knife, and false identification cards. Lozano gave a statement to police that wa s later admitted at tr ial. He told the interviewing officer that he ha d been trying to open the door with the gun, but it did not open. He said he did not remember shooting th e gun, but he did not want to have·it with8 him, so he and Hector hid it under the house and ran away. After being charged, Lozano entered a plea of not guilty and reserved the right to enter a plea of not guilty by reason of insanity, and he did so later. C. November 2009 Cond itional Exam Proceedings Attorney Stewart of the APD was assigne d to represent Lozano around February 2009, and first appeared in court on his beha lf on April 2, 2009. Stewart did not discuss with his supervisors whether he should withdraw as Lozano' s counsel until May 2010. In the meantime, he read the discovery in Lo zano's case intensively in June 2009, and Lozano's preliminary exam to ok place on July 8, 2009. According to (later) testimony by Atto rney Stewart during Lozano's trial in November 2010, he had spent six to ei ght hours from April through June 2009 representing Verduzco on a burglary charge . He had a heavy caseload the day that Verduzco entered a plea, and Verduzco's was "a briefly handled case." Verduzco pled guilty and was granted probation. Stewart turned his attention to other matters, apparently including Lozano's case. The pr osecutor wanted to ensure that Verduzco would be available as a witn ess at Lozano's trial, and Verduzco was granted immunity from prosecution in connection with the shooti ng incident. The prosecutor requested that the court conduct a conditional examination of Verduzco, and appoint new counsel for him. This request was granted November 4, 2009. Attorney Gr ove of the Office of Assigned Counsel (OAC) appear ed for Verduzco at the co nditional exam November 16, 2009, while Stewart a ppeared for Lozano.9 Basically, Verduzco testified about hi s participation in bringing Lozano to Christina's mother's house, se eing the shooting, hiding the gun, and running away with him. He said Lozano was taking pills and ac ting weird when he ca me over, and he had a creepy look on his face and was waving the gun around while they were going over to Christina's house. Lozano said Christin a was going to be his and nobody else's. According to testimony by Attorney Stew art, he had read Lozano's discovery materials in June 2009 and d ecided on his strategy for cro ss-examining Verduzco. In November 2009, when Lozano's trial was con tinued for investigation of a plea of not guilty by reason of insanity or other negotiations, the cond itional exam of Verduzco was scheduled for November 16, 2009. It was not until November 2009, eith er before or after the conditional exam, that Stewart said he realized he had previously represented Verduzco, in Verduzco's own case. Howeve r, Stewart thought that his knowledge about Verduzco could help Lozano's cas e, so there should be no actu al conflict of interest or harm to Lozano if he proceeded w ith that legal representation. After the conditional exam, both witness Ver duzco and a District Attorney's office investigator recognized Attorney Stewart as having previously worked on Verduzco's defense. The prosecutor brought that inform ation to Stewart's atte ntion and provided him with documents from Verduzco's case. The prosecutor consulted her supervisors about the problem with Stewart's office's prior repr esentation of witness Verduzco, but was told it would not be appropriate to inform the court that was supervising the conditional examination. Stewart formally withdrew as Lozano's counsel in June 2010.10 The prosecutor continued throughout the summer of 2010 to attempt to produce Verduzco, then on probation, as a witness to appear at Lozano' s trial. The prosecutor set up a second conditional exam date in July 2010, to allow Lozano's new appointed counsel to participate, but the notice given was in adequate and it was taken off calendar, the minutes stating that Verduzco was no longer need ed as a witness. It was determined that he was in federal custody, but he could not be located as of November 18, 2010. As of November 29, 2010, the trial court was notif ied that Verduzco ha d been deported and would not be available to testify. 3 In November 2010, Loza no's trial attorney, Garcia , sought a hearing under Evidence Code section 402 to have the conditional exam evidence from Verduzco excluded on the grounds that Lozano's then-attorney , Stewart, had an actual conflict of interest, due to his previous representation of Verduzco on the other matter, from April through June 2009. Lozano thus claimed he was effectively with out counsel at the conditional exam, his rights of confrontation of witnesses were unprotected, and he was absolutely entitled to exclusion of that evidence. The prosecutor opposed the motion, ar guing that Stewart's performance for Lozano had been adequate and there had be en no prejudicial conflict of interest. At the hearing, the court directly exam ined Attorney Stewar t, and allowed crossexamination by both the prosec utor and defense counsel. As will be explained in more

3 On appeal, Lozano makes no argument that the prosec ution was not diligent in attempting to produce Ve rduzco as a witness.11 detail in the discussion portio n of this opinion, Stewart was asked whether he did anything differently at the co nditional exam than he might ha ve done, if his office had not previously represented Verduzco. Stewart re sponded that he did not, because he knew "that I could effectively represent Lozano [i n] Verduzco's examination without creating an actual conflict without doing anything differen t. [¶] Specifically I knew I did not have to go into Verduzco 's background because the salient points I wanted from Verduzco were actually effective to my defense of Mr. Lozano. . . . I cro ss-examined Verduzco [and] got beneficial points for Lozano's defense and to this day, as I sit here, I do not believe that any actual conf lict exists or existed." In argument on the motion, the trial c ourt and counsel discussed whether there were issues about inadequate training at th e office of defense counsel, and whether Attorney Stewart had failed to follow ethi cal guidelines (Cal. Rules of Professional Conduct; all further rule references are to the Cal. Rules of Professional Conduct unless otherwise noted) to advise Lozano earlier about the potential conflict, and whether the prosecutor or defense counsel should have so advised the judges that were supervising the conditional exam. Based on defense objec tions, the trial court did not allow Stewart to discuss his tactics at the co nditional exam. Ultimately, the court ruled that the fact of Attorney Stewart's previous representation of witness Verduzco amounted to an unethical and "per se" conflict of interest, but this ha d caused no actual pr ejudice during the crossexamination, and the evidence was ruled to be admissible at trial.12 D. Witnesses at Trial Christina, her mother and si ster, and numerous other witn esses testified at trial. Christina had changed her story a few times , explaining she was a ngry and had lied to police sometimes. Christina's mother was off work for two months due to her shooting injury, and she still lacked feeli ng in her injured knee as of trial time. A transcript of Verduzco's conditional exam wa s provided to the jury, and portions read and reread, on request, to it. In his defense, Lozano tes tified about his mental illnes s and medication, his lack of memory of the events, and his lack of inte nt to shoot either Chri stina or her mother. The jury listened to a recordin g of his interview with the po lice investigator and received the transcript. Following instruction and deliberations, the jury retu rned guilty verdicts on the offenses as outlined above, but acquitted Lozano on the crim inal threat charge, and a mistrial was declared on attempted murder. Separate proceedings were conducted on Lozano's sanity at the time of the offenses, and the jury fo und he was sane. The court imposed an indeterminate sentence of 25 years to life, and determinat e terms of six years and eight months, along with fines and other assessments, including the challenged $200 court facilities funding fee. (Gov. Code, § 70373.) Lozano appeals.13 II STANDARDS FOR EVALUATING CONSTITU TIONAL CONFLICT OF INTEREST "It has long been held that under both Constitutions, a de fendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorn ey at trial, that attorney labored under a conflict of interest that compromised hi s or her loyalty to the defendant." ( Rundle , supra , 43 Cal.4th 76, 168.) A disqualifying conflict of interest may ar ise "in situations in which an attorney represents a defendant in a criminal matter an d currently has or form erly had an attorneyclient relationship with a person who is a witness in that matter. [Citations.] [¶] Such a conflict springs from the attorney's duty to pr ovide effective assistance to the defendant facing trial and his fiduciary obligations to the witness with whom he has or had a professional relationship." ( People v. Bonin (1989) 47 Cal.3d 808, 835.) To inquire into the effect of an alleged constitutional le vel conflict of interest, the court considers whether the defendant has sh own both deficient performance by counsel, "and (2) a reasonable probability that, absent counsel's deficiencies, the result of the proceeding would have been different." ( Doolin , supra , 45 Cal.4th at p. 417; Mickens,

supra, 535 U.S. 162, 1 66, 172-176; Strickland, supra, 466 U.S. 668, 694.) In Doolin , the Supreme Court outlined the approp riate inquiries in this context: "[A] determination of whether co unsel's performance was 'adversely affected' under the federal standard 'requires an inquiry into whether counsel "pulled his punches," i. e., whether counsel failed to represent defendant as vigorously as he might have, had there been14 no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But wh ere a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore exam ine the record to determine (i) whether arguments or actions omitte d would likely ha ve been made by counsel who did not have a conflic t of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might ha ve caused any such omission.' " ( Doolin, supra , 45 Cal.4th at p. 418.)
In Mickens, supra, 535 U.S. 162, 176, the U.S. Supreme Court clarified these distinctions: " 'Breach of an ethical standard does not nece ssarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.' " The variously imposed ethical duties of an attorney are equally important, but when a defendant seeks the application of an exclusionary rule for pr otecting a Sixth Amendment right to counsel, the defendant must show not just an ethical violation, but also that counsel was actively representing conflicting inte rests, and this prejudiced the defendant. ( Ibid.; see Doolin,

supra, 45 Cal.4th at p. 418.) 4
Both at trial and in Loza no's opening brief on appeal, he argued for dismissal or per se reversal of his convictions, on the gr ounds that both federal and state standards

4 Under rule 3-310(B)(1), an attorney may not accept or continue representation of a client without disclosure where "(1) The member has a legal, business, financial, professional, or personal relati onship with a party or witness in the same matter." Under rule 3-310(E), an attorn ey shall not, without informed written consent of the client or former client, "accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." Under rule 3-700(B)(2), an attorney who represents a client in one matter shall wit hdraw from that employment, if the attorney "knows or should k now that continued employment w ill result in violation of these rules."15 justified a finding that he was absolutely depr ived of any effective assistance of ethical counsel, through the conflic t situation that had deve loped regarding Verduzco. In his reply brief, Lozano acknowledges that a prejudice analysis is also required, but claims that the admission of the te stimony from the conditional exam was still harmful error, as shown by Attorney Stewart' s admissions that he knew about a potential conflict of interest while he was cross-exam ining Verduzco, even if it is assumed that Stewart did not subjectively believe it to be an actual conflict at that time. On both appellate theories, deprivation of counsel a nd the right of confront ation, Lozano argues for application of the standard for a depr ivation of federal constitutional rights. ( Chapman v. California (1967) 386 U.S. 18, 24.) 5 The Attorney General responds that the record does not support a conclusion of any "complete" denial of assistance of counse l, nor a denial of any such assistance at a "critical stage of the proceedings," so that a harmless error standard properly applies. ( Mickens, supra, 535 U.S. 162, 166; People v. Watson (1956) 46 Cal.2d 818, 836 [whether it is reasonably probable that th e defendant would have obtained a more favorable result, absent the error].) Th us, the Attorney Gene ral claims that the conditional exam evidence main ly pertained to charges on wh ich the jury did not convict

5 Where use of former testimony violates a defendant's right to confrontation, the test for error is whether the error was harmless beyond a reasonable doubt. ( Chapman v. California , supra , 386 U.S. 18, 24; Lilly v. Virginia (1999) 527 U.S. 116, 139-140.) The " ' "indicia of reliability" prong of the confrontation clause an alysis is satisfied if there was an adequate opportunity for the defendant to cross-ex amine the witness and counsel took advantage of that opportunity." ' " ( People v. Sandoval (2001) 87 Cal.App.4th 1425, 1434-1435, 1444.)16 (attempted murder or crimin al threat toward Christin a), and therefore, no undue interference with Lozano's assistance of co unsel can be shown, or any prejudice. In light of the required prejudice determ ination and the nature of the arguments about what Attorney St ewart did or did not do, we appl y a harmless error standard and 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 inte rest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.' " ( Doolin, supra , 45 Cal.4th at p. 418.) We need not accept the subjective representations of St ewart about whether there was an actual conflict of interest. Nor do we find useful the trial court's terminology that Stewart's previous representation of witness Verduzco cr eated a "per se" conflict of interest. Any conflict of interest on the part of a defendant's attorney must furthe r be examined for its effect upon the validity of the proceedings that were conducte d, in terms of prejudice to the complaining party. We c onsider when the conflict issues arose, and their impact on the convictions that were ultim ately obtained. This requires resolution of questions of law on review of the record, on whether ther e was prejudice from the actions taken or not taken. (See In re Darr , supra , 143 Cal.App.3d 500, 509.)17 III APPLICATION OF STANDARDS A. Contentions and Threshold Issue of Waiver Lozano relies on U.S. ex rel. Williamson v. LaVallee (D.C.N.Y. 1968) 282 F.Supp. 968, 971-972 ( LaVallee ) as an example of "the pote ntial dangers that faced the [defendant] by being defended by an attorney who was also representing an important prosecution witness." ( Id. at p. 971.) In that case, the witness cooperated with the prosecution to receive favorable treatment, an d still had a separate felony charge pending against him, when being questioned by defens e counsel (his own counsel as well). That attorney had an evident conflict of interest that created severe doubt that he could have vigorously cross-examin ed his other client, while acting in the supposed defense of the defendant. ( Ibid. ) Also, "[a] second danger in being represented by an attorney who is also representing a prosecution witness is that the scope of examination of the witness by the attorney might be restrict ed by the fact that the atto rney has learned confidential information about his client-witness which cannot be revealed." ( Ibid .) The subject convictions were set aside fo r ineffective representation. In In re Darr, supra , 143 Cal.App.3d 500, 510-511, the record showed that the same trial attorney ha d simultaneously represented clients whose interests were adverse. The habeas petitioner, one of the clients, wa s granted relief from c onviction due to this irreconcilable conflict of interest. His trial attorney had previously assisted the witness against him in reaching a plea bargain, a nd the witness still had probation revocation18 proceedings pending, when being required to testify against the habeas petitioner. Since the same trial attorney still represented both c lients as of the time of trial of the habeas petitioner, his cross-examination of the witne ss on behalf of the petitioner was found to be impaired. The record showed that th e trial attorney was under such continuing professional obligations to one client, as to preclude him from being able to effectively and legitimately represent the adverse interest s of the petitioner at his own trial. The conflict issue was identified as causing "unexplained omissions" to exist in the petitioner's attorney's cross-ex amination of his ot her client, the witness, on the question of bias. ( Id. at pp. 512-514.) Accordingly, the petitioner's conviction was set aside. Relying on such authorities, Lozano argues a similarly gr ave conflict of interest is demonstrated on this record, with similar pr ejudicial effect. We next discuss Lozano's claims on the merits, and without any reliance on the theories of waiver or forfeiture that are raised by the Attorn ey General. Those theories arise from the prosecutor's attempts to make Verduzco available to testify at a second conditional examination during the summer of 2010, althou gh inadequate notice was given, counsel for the defense objected, the effort was abandoned, and Verduzco became unavailable. We think Lozano's attorney had no obligation to accept the inadequate notice gi ven in order to allow the prosecutor to make a better record of the c onditional exam, to have a "do over" without Attorney Stewart's participation. We take the record about the ad mission of the evidence from the November 2009 conditional exam as we find it, without applying such waiver principles.19 B. Record: Nature of Actual or Potential Conflict In the course of making its ruling on the challenge to the admission of the evidence, the trial court read the transcript of the conditiona l exam to evaluate the degree to which Lozano's interests were potentially affected. The co urt found there had been no showing that either party had us ed the conflict of interest pr oblem to strategic advantage, such as setting up a barrier so that the conditional exam evidence could not be used. Rather, the court's analysis properly gave pr iority to protecting the defendant's right to effective assistance of counsel. This focused on whether A ttorney Stewart was able to provide an adequate opport unity for Lozano to cross-examine Verduzco, under the confrontation clause. ( People v. Sandoval , supra , 87 Cal.App.4th 1425, 1434-1435, 1444.) As we will show, the court was correct in ruling that a potential conflict existed. Our task is to identify the na ture and extent of that conflict, as well as its potential prejudice. First, the record about the actions of Attorney Stewart does not demonstrate this was a case of simultaneous representation. Stewart considered that Verduzco's case was "closed" when probation wa s granted to him in June 2009, and Stewart acted on behalf of Lozano at the conditio nal exam later, in November 20 09. In preparation for the conditional exam, the court appo inted conflict counsel for Verduzco in November 2009. Stewart did not participate in the immunity discussions for Verduzco. However, Lozano's defense counsel argued to the trial court that the policy of Stewart's office, the APD, was to remain as appointed counsel for clients during the20 probationary period. The pr osecutor responded that she di d not realize until November 2009 that Verduzco had been represented by the same individual, Stewart, and she previously knew only that he had been represen ted by the APD office staff. To the extent Lozano is arguing there was simultaneous re presentation, this is a new argument on appeal that is not supported by the record. Lozano admits that the matter was not brought out at the conditional examination, nor du ring Stewart's testimony at this trial. In any case, the record is unclear abou t the scope of the APD representation of Verduzco, except to sh ow that Attorney Stewart indi vidually did not remember him during much of the relevant time period. No r was Verduzco's theft offense in any way related to the current charges. Unlike the cases of In re Darr, supra , 143 Cal.App.3d 500, 512-514 or LaVallee, supra , 282 F.Supp. 968, 971-972, this was not simultaneous representation, but rather successive in na ture and not on closel y related charges and proceedings, and must be evaluated as such. The record is similarly not dispositiv e on the issue of whether the respective attorneys followed their own o ffice policies for declaring a conflict of interest, or notifying the court thereof. Attorney Stew art's office policy was that in case of a potential conflict, a supervisor should be cons ulted on whether to declare a conflict to the court. There was a change of personnel of APD supervisors around that time, and Stewart did not declare a conflict until May 2010, and was not relieved as counsel until June 2010. Attorney Garcia of the MCO was appointed in his place. Although the prosecutor had asked her superior s what to do, she was told not to notify the court in21 connection with the conditional ex am proceedings. Certainly, this sequence of events is most regrettable. Both Stewart and the pros ecutor should have informed the court of the potential conflict at a much earlier stage of the proceedings. We find it difficult to understand how the partie s could have failed to inform the court of this potential conflict. Whatever series of unfortunate events to ok place in the resp ective agencies does not clearly establish whether the instant exampl e of conflict was actual or potential. The rules of professional conduct are what they are, and they override such ad hoc office policies on the governing ethical standards for conflicts of interest. (Rules 3-310(B)(1), (E); 3-700(B)(2); People v. Bonin, supra, 47 Cal.3d at p. 835.) Although Attorney Stewart gave conf licting testimony about when he became aware of the potential conflict of interest, the existence of a conflict was obvious to all by the time that separate counsel for Verdu zco was appointed on No vember 4, 2009. However, having such an apparent ethica l problem does not necessarily amount to a disqualifying constitutional conflict. ( Mickens, supra , 535 U.S. at p. 176.) The issue remains about whether Stewart's knowledge about the background of this witness affected the type or intensity of the cross-ex amination that he conducted. We take it as given that Stewart had poten tially conflicting interests and an ethical problem, and we next turn to whether those conflicts were of constitutional dimension, and whether Lozano was evidently prejudic ed from the attorney's performance on his behalf.22 C. Prejudice; Imposition of Fees Several factors in the record persuade us there was no constitutional level conflict of interest here. Attorney Stewart's beliefs that he had no actual conflict, even if a potential one, can be compared to ignorance of the law. "Defense counsel must be reasonably familiar with significant recent deci sions." (5 Witkin, Ca l. Criminal Law (4th ed. 2012) Criminal Trial, § 246, p. 412.) By the same token, trial counsel provides adequate representation when showing a corr ect understanding of ethi cal restrictions on successive representation. Even if his be liefs "presently can be characterized as mistaken, such an error, in itself, would not necessarily demonstrate that counsel's performance was constitutionally deficient." ( In re Jackson (1992) 3 Cal.4th 578, 614.) In Jackson, supra , 3 Cal.4th 578, 616, the problem was that defense counsel had failed to investigate the availability of certain mitigating evidence, based on his misunderstanding of still-devel oping case law. The court fo und no reversible error, concluding, "the confusion of defendant's trial counsel on th is legal question at the time of defendant's trial was not so unreasonable as to demonstrate that a tactical decision not to offer this evidence (or to request a hearing under Evid . Code, § 402), based on such a mistake, would have fallen below the level of constitutionally adequate representation." ( Jackson, supra , at p. 614.) The court's analys is "eliminate[d], as we must, the potentially distorting effects of hindsight (see Strickland v. Washington, supra, 466 U.S. 668, 689)," and thus counsel's failure to inves tigate was deemed not to be prejudicial, in light of potential tactical reasons to av oid introducing any such evidence. ( Jackson,23 supra , at p. 614.) "[T] here is no reasona ble probability that the judgment . . . was affected by counsel's failure to co nduct such an investigation." ( Id . at p. 616.) "Although another attorney reasonably might have made a different tactical decision, we cannot say that defense counsel's tactic s rendered his representation constitutionally deficient." ( Ibid .) Lozano contends Attorney Stewart stru ctured his cross-examination not to impeach Verduzco's credibility or to contest his version of th e facts, in order to avoid increasing the conflict from a potential one to an actual one. He suggests Stewart did not question Verduzco about his immunity agreem ent or his prior convictions, possibly due to Stewart's ongoing duty of loyalty to his prior client. However, the prosecutor brought out information about Verduzco 's prior convictions, and inst ructions were given to the jury about how to evaluate his testimony, incl uding the effect of the grant of immunity. Those circumstances greatly lessen the impact of these arguments. Attorney Stewart suggested during his tes timony that there were tactical reasons for conducting the cross-examinat ion of Verduzco in the way he did. Counsel for Lozano then objected to any efforts by Stewart to identify such tac tical considerations, and the trial court agreed, but also acknowledged that Stewart appeared to be testifying he had used his knowledge about Verduzco to decide what areas to go into on crossexamination. This leaves us in a position of assuming that he ma y have had tactical reasons for doing what he did. And by admitting the eviden ce of the conditional exam,24 the trial court made implied findings that there was no prejudice from the manner in which it was conducted. In assessing any undue prejudice, we look to the nature of the convictions that were reached, with relation to the specific evidence being co mplained of as harmful. Lozano's shooting incident resu lted in guilty verdicts on the assault count, shooting into an inhabited dwelling, possessing an assault weapon, and the associated findings of great bodily injury and personal intentional discha rge of a firearm. Even without the testimony of Verduzco about his observations at the scene, there was testimony from Christina, from her mother, her sister, the investigating police officer, and the firearms experts that it was Lozano who charged up the stairs and shot the automatic pistol into the door knob area, and the bullet that hit Fidelia from his gun had wood and paint on it. Those convictions did not depend at a ll upon Verduzco as a witness. The more controversial conditional exam testimony from Verduzco is that about his observations of Lozano's mental state, be fore and after they arrived at Christina's mother's house. He testified about Lozano' s evident agitation, gun use, and comments about how if he could not have Ch ristina, nobody could. It is not persuasive to us that the jury requested a readback of all of Ver duzco's testimony, among other requests. His information was still mainly probative about the attempted murder count, upon which a mistrial was declared, or the threat count, of which he was acquitted, or the sanity finding, which he does not dispute. Th e information had nothing to do with the kidnapping incident that took place a few weeks earlier. Although it was somewhat25 supportive of the convictions of shooting into an inhabite d dwelling and assault, it was not essential evidence for the ju ry to be able to render verdicts convicting him of the shooting incident counts. The admission of the conditional exam evidence did not prejudice him in any material way with regard to the critical shooting incident convictions. (See Doolin , supra , 45 Cal.4th at p. 417.) Stew art's previous representation of Verduzco, before he was questioning Verduzco at the co nditional exam, did not create any apparent defects in his approach that di sadvantaged Lozano, and on this record, we cannot take any guidance from any tactical considerations he may have had. Overall, with respect to how the cro ss-examination was conducted, "we cannot say that defense counsel's tactic s rendered his representation constitutionally deficient." ( Jackson, supra , 3 Cal.4th 578, 615.) Nor have his other acts or omissions been shown to have changed Lozano's position at trial in any material way. Under either standard of error, the more stringent Chapman standard of harmless beyond a reasonable doubt, or the less stringent Watson standard, Lozano's claim of prejudice is unsupported by the record. The level of conflict of interest that was demonstrated did not undermine the validity of the trial proceedings or the support for his convictions. We agree, however, that the trial cour t erred in imposing a $200 court facilities fee, when only $150 for the five felony convictions wa s appropriate. The judgment will be affirmed as modified and the trial court w ill be directed to prepare a new abstract of judgment accordingly.26 DISPOSITION We remand for the trial court to modi fy the sentencing order and amend the abstract of judgment to reflect that the correct fine under Government Code section 70373 is $150; the court is di rected to forward a certified co py of the amended abstract of judgment to the Department of Correcti ons and Rehabilitation. As modified, the judgment is affirmed.

HUFFMAN, J. WE CONCUR:

McCONNELL, P. J.

HALLER, J.