In Re Darr

In this original proceeding for habeas corpus relief, we set aside petitioner Darrel Wade Darr’s 1978 conviction of first degree murder with use of a deadly weapon. We find that defense counsel’s simultaneous representation of a key prosecution witness constituted an actual conflict of interest which denied petitioner his right to effective assistance of counsel. We also agree with petitioner’s contention that under the circumstances of this case the trial court had a duty to inquire sua sponte into the possibility of conflict.

This matter previously was before us on direct appeal. (5 Crim. 4192.) In that proceeding we rejected Darr’s contention that he had been denied his Sixth Amendment right to conflict-free counsel and concluded that the record on appeal did not show as a demonstrable reality a conflict which denied Darr effective representation.

Thereafter, Darr filed a petition for writ of habeas corpus in Stanislaus County Superior Court, raising the conflict issue and seeking an order setting aside the judgment. After an evidentiary hearing on an order to show cause before the trial judge, the requested relief was denied. The trial court concluded that “. . .…