Carranco
Filed 7/29/13 P. v. Carranco
CA6
Opinion on remand from
Supreme Court
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Appellant,
v.
JESSE CARRANCO,
Defendant and
Appellant.
H032412
(Santa Cruz
County
Super. Ct.
No. F12954)
After
trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley
Hernandez ("Townley") of attempted
deliberate and premeditated murder (Pen. Code, §§ 664, 187) for
Townley's shooting of Javier Lazaro in Santa Cruz
on February 17, 2006. This court reversed the judgments against
both defendants, finding error in the superior court's refusal to permit trial
counsel to show their clients a sealed declaration by a prosecution witness
attesting to his own participation in an attempted murder, along with a sealed
transcript of the witness's plea agreement proceeding. We held that the trial court had deprived
defendants of their Sixth Amendment right
to effective assistance of counsel by denying them access to these
materials. The Supreme Court granted
review. In Townley's case the holding
that error had occurred was unchallenged by the People, and the high court
expressed no opinion on this point. It
did, however, reject this court's conclusion that the error was a structural
defect subject to automatic reversal under Perry
v. Leeke (1989) 488 U.S. 272. On the
contrary, our Supreme Court held that an analysis of prejudice was required
under the standard articulated in Strickland
v. Washington (1984) 466 U.S. 668, and it accordingly remanded the case for
that purpose. (People v. Hernandez (2012) 53 Cal.4th 1095.)
After
reversing the judgment in Townley's case, the Supreme Court remanded Carranco's
case to be considered in light of Hernandez. Having received post-remand written [and oral]
argument from the parties, we now conclude that no prejudice appears on the
record before us. We also consider
Carranco's assertions that (1) he was deprived of his Sixth Amendment right of
confrontation during his cross-examination of the prosecution witness, (2) the
court improperly excluded relevant portions of his statements in a police
interview, (3) the prosecutor engaged in misconduct at trial, and (4) the trial
judge improperly commented on Flores's credibility. We find no prejudicial error on these
grounds, however, and therefore must affirm the judgment.
Background
Sixteen-year-old
Jesse Carranco was accused by information with attempted murder, committed with
three accomplices: 17-year-old Townley,
18-year-old Jose Ruben Rocha, and 18-year-old Noe Flores. The charges arose from the gang-related
shooting of Javier Lazaro around 9:00 p.m. on February 17, 2006. In a telephone call at about 7:00 p.m. that
night, Townley asked Flores to "do a ride." Flores drove his 1992 white Honda Accord to pick
up Townley and his girlfriend, Amanda Johnston, in Santa Cruz. Once in the car, Townley showed Flores a
small black handgun, which Flores handled and returned to Townley.
Townley
directed Flores to drive to Watsonville, where they picked up Carranco (known
as "Little Huero") and Rocha (known as "Listo"), whom
Flores had not met before. Townley was
wearing People's Exhibit 23, a red and black plaid Pendleton shirt-jacket,
which Johnston had given him as a gift.
Carranco wore a red hooded sweatshirt; he had four dots tattooed on his
knuckles, signifying his association with Northside, a Norteno gang.
in it. Flores wore black sweatpants, a
white T-shirt, gloves, and a black zip-up hooded sweatshirt. In his car he carried a T-ball bat (smaller
than a regular baseball bat), as he had been "tagged" by some
Surenos, whom he called "scraps," in downtown Santa Cruz on December
31, 2005.
The group
then drove back to Santa Cruz, dropping Johnston off before heading
downtown. Carranco said, "How's
that Norte life?" to a pedestrian.
Carranco
told Flores where to drive. The group
went to an apartment on Harper Street where Anthony Gonzalez lived. About 20 minutes later, Townley, Carranco,
Flores, and Rocha left the apartment, Carranco again directing Flores. The passengers in the car were talking about
finding a Sureno and saying there would be violence. Flores later told Detective Sulay that
Carranco was doing most of the talking.
According to Flores, there was no talk about shooting anyone as they
drove around.
As they
were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk across the
street, walking back to his apartment at the Ocean Terrace complex, which was
located in an area known as Sureno gang territory. Lazaro, aged 29, was not associated with any
gang, but the sweatshirt he wore was blue, the color associated with the Sureno
gang. Carranco told Flores in a
"[k]ind of urgent" voice to turn around and pull over, and Flores did
so. Grabbing the T-ball bat that Flores
kept in the front passenger area, Carranco jumped out of the car, along with
Townley and Rocha. The three crossed the
street and ran after Lazaro as Flores waited in the driver's seat with the
engine running. He heard what sounded
like firecrackers; then the three others ran back to the car and Carranco told
him "urgently" to go. Flores
drove away rapidly with his passengers and followed Carranco's directions back
to Gonzalez's apartment.
Lazaro
testified that as he was walking back to his apartment he heard three or four
voices from inside Flores's car, and then someone yelled, "Come
here." He thought it was directed
at someone else, so he continued walking without turning around. Just as he reached the parking lot of the
apartment complex, he saw the group get out of the white Honda and run across
the street toward him. They asked him
whether he was Norteno or Sureno. At
that point Lazaro was frightened and ran, until he felt something push him to
the ground. Lazaro received five gunshot
wounds, including one that fractured a rib and bruised a lung. Two bullets remained in his body.
Lazaro did
not see who shot him, but Ginger Weisel, Lazaro's neighbor, was in the parking
lot when Lazaro walked away from the group.
She heard them call out "fucking scrap" and ask where Lazaro
was from before seeing one of them shoot Lazaro six to eight times. Lazaro fell after about four shots. Weisel recalled that the shooter was about
five feet, nine inches tall
name="_ftnref2" title="">[2]
and wore a red and black plaid Pendleton shirt.
Weisel called 911 from her apartment and returned to help Lazaro.
David Bacon
was driving on 17th Avenue when he saw Flores's car parked in a no-parking
zone. He saw what appeared to be two
Latino males of high school age, about five feet 10 inches tall. Seconds later he heard snapping sounds and
saw one of the group standing in a "classic shooting position,"
holding a gun. He heard a total of five
or six shots from what appeared to be a small-caliber gun. Bacon had the impression that the shooter
wore a plaid jacket, which could have been People's Exhibit 22. The second man appeared to be a lookout. Bacon then saw two people run back to the
car, which sped away. He parked his car,
called 911, and returned to help Lazaro, who was lying on the ground with two
women tending to him. Emergency
personnel arrived within a minute after the last shot.
Susan
Randolph stepped outside her home on 17th Avenue when she heard the
gunshots. She described the three as
young Latinos between 16 and 20 years old, ranging from five feet, six inches
to five feet, nine inches.
Julie
Dufresne was driving on 17th Avenue with Jeanne Taylor when she heard popping
noises that sounded like fireworks, followed immediately by three people running
across the street in front of her car.
They were all about her height, five feet nine or 10 inches, or probably
shorter, and they appeared to be between 15 and 20 years old. One wore a thin, red and black plaid flannel
jacket.
Taylor
thought there were five popping sounds, followed by the "three young
men" running across the street in front of the car. One of them was less than five feet, five
inches and wore what looked like a plaid Pendleton shirt in black and red. He appeared to be staggering as if he were
drunk or "having difficulty with his coordination." The other two were taller; one wore a white
and black plaid shirt, People's Exhibit 22, and the other a hooded sweatshirt. When they reached the white car, one went to
the backseat on the driver's side, and the other two went around to the
passenger side. Taylor thought that
People's Exhibit 23 looked like the red and black shirt the "shorter
person" had been wearing; Dufresne "couldn't say for sure."
Randi
Fritts-Nash was one of the teenagers drinking at the Harper Street
apartment. Sitting in Gonzalez's bedroom
with five others, she heard a car pull into the parking lot, followed by a
couple of knocks at the window. Gonzalez
went to the window and then left the room.
Before he left, Fritts-Nash heard the anxious voices of two people
outside, one of whom said the words "hit" and "scrap."
When
Gonzalez reappeared, Townley and the other three were with him. Townley was wearing a red and black plaid
jacket, People's Exhibit 23. Fritts-Nash
heard Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley pull a small handgun out
of his pocket and wipe off the prints with a blanket. Townley moved the gun several times from one
pocket to another, saying, "I need to hide this gun." He also told her he was "looking at 25
to life." Rejecting Fritts-Nash's
suggested hiding place, Townley put the gun in his shoe and a small black
velvet bag of bullets into his other shoe.
Townley told her to cross her fingers for good luck. Fritts-Nash asked him if he had shot someone;
his head movement indicated an affirmative answer.
Townley and
Carranco, 17 and 16 respectively at the time of the shooting, were tried
together as adults under Welfare and Institutions Code section 707, subdivision
(d)(2). Flores and Rocha originally were
also charged as codefendants with attempted murder, but their cases were
severed on Townley's motion. Before
trial in this case, both Flores and Rocha entered into plea agreements in which
the prosecution would reduce the charges in exchange for their declarations
under penalty of perjury. Flores
thereafter pleaded guilty to assault with a firearm subject to a three-year
prison term, and the prosecutor dismissed the attempted murder charge against
him. Rocha pleaded guilty to assault
with force likely to produce great bodily injury, with an expected sentence of
two years. On the same date that Flores
and Rocha entered their pleas, April 17, 2007, the prosecution filed a motion
to reconsolidate the cases against Carranco and Townley, which the court
granted on April 26, 2007.
The jury
found Carranco and Townley guilty of attempted premeditated murder. It further found that both were minors who
were at least 14 years old at the time of the offense within the meaning of
Welfare and Institutions Code section 707, subdivision (d)(2), and were at
least 16 years old at the time of the offense within the meaning of Welfare and
Institutions Code section 707, subdivision (d)(1). Townley was also found to have been armed
with a handgun and to have personally used it to inflict great bodily injury on
Lazaro. (Pen. Code, §§ 12022.53,
subds (b), (c), (d); 12022.5, subd. (a); 12022.7, subd. (a).)
Townley was
sentenced to life in prison with the possibility of parole for the attempted
murder, with a consecutive term of 25 years to life for the section 12022.53
firearm enhancement. Carranco was
sentenced to the aggravated term of nine years for the attempted murder, plus
one year for a principal's being armed during the crime.
Discussion
1. Issues Related to Flores's
Declaration
a. Restriction on Attorney-Client
Discussion of the Flores Declaration
The guilty
pleas in Flores's and Rocha's cases were taken in closed proceedings and the
reporter's transcripts were sealed by trial court order. At Flores's plea hearing the prosecutor
stated that Flores would be permitted to serve his sentence out of state
"because he was previously stabbed in the jail. There are very serious concerns about his
physical well-being."
Rocha's
declaration stated that he understood that he had "to tell the judge in
open court and under oath what I myself did on February 17, 2006." In Flores's declaration, on the other hand,
he stated: "I understand that I have to tell the judge in open court
and under oath that the contents of this declaration are true." He
also stated, "I do understand that I may be called as a witness in any
hearing related to the events that transpired on February 17, 2006."
At each
change-of-plea hearing, the court ordered the declaration to be filed under
seal, to be opened only if the prosecution called him to testify about any of
the matters covered in the declaration.
Defense counsel were permitted to look at the document, but they were
"prohibited from discussing the contents or the existence of the document
with their client or any other person."
Defense counsel also were not permitted to have a copy of the
declarations. As the Attorney General
notes, Flores's counsel emphasized that, even if the declaration was opened
under those circumstances, it "will not ultimately be part of the
paperwork that follows Mr. Flores to his prison commitment." The prosecutor thereafter provided a written
copy to the defense attorneys.
Counsel for
Townley and Carranco were unsuccessful in moving to withdraw the order not to
discuss with their clients the contents or existence of Flores's and Rocha's
declarations. At a hearing from which
defendants were excluded, the court reasoned that it would be improper to
rescind the order without Flores's and Rocha's counsel being present. The court did advise defense counsel that if
the witnesses testified inconsistently with their statements, then the sealing
order "would be undone" and counsel would be free to cross-examine
them with the declarations. When the
prosecutor asserted that defense counsel had a right to use the documents to
cross-examine and impeach them, the court stated, "That's going a little
beyond what we put on the record, those plea agreements. The agreement was for their
protection." The court agreed with
the prosecutor's statement, "So once they take the stand, the order would
necessarily disappear because it doesn't make sense anymore."
Rocha did
not testify at trial, but Flores was called as a witness on the second day of
testimony. His testimony, the Supreme
Court noted, was "essentially consistent with, but more detailed than, the
information he had provided to police investigators." (Hernandez,
supra, 53 Cal.4th at p. 1101.) At
the end of that day, in the jury's absence, the court ordered the prosecution
to give defense counsel copies of Flores's sealed declaration "in order to
provide for adequate cross-examination of Mr. Flores." But the document was to be used only for
cross-examination, and counsel were still not permitted to share the statement
or its contents with their clients, or with investigators or other
attorneys.
During
cross-examination of Flores, "[b]oth defense attorneys used [his]
declaration to impeach him, establishing discrepancies between it and his trial
testimony. For example, witnesses to the
shooting reported that the man who shot Lazaro wore a red-and-black plaid shirt
or jacket. Flores testified he had worn
a blue or black shirt and Townley had worn a red-and-black flannel shirt. Defense counsel brought out that in his
declaration Flores had asserted he had worn a red-and-black Pendleton
shirt." (Hernandez, supra, 53 Cal.4th at p. 1101.)
For
purposes of discussion the Supreme Court accepted the premise that the trial
court had unjustifiably interfered with Townley's access to his attorney by
sealing Flores's declaration and the transcript of his plea proceedings. The focus of the high court's review was the
question of whether Townley was denied his right to effective assistance of counsel by the trial court's order
forbidding counsel from discussing the declaration with his client. That question could be answered in the
affirmative, thereby requiring reversal, only if Townley demonstrated prejudice
from the asserted error, because this case did not present "circumstances
that are so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified." (Id. at p. 1104, quoting U.S.
v. Cronic (1984) 466 U.S. 648, 658.)
Thus, prejudice would not be presumed in this case, because the
challenged order had not rendered "the adversarial process presumptively
unreliable, such as where an accused is denied counsel at a critical stage of
trial, or counsel entirely fails or is unable to subject the prosecution's case
to meaningful adversarial testing."
(Id. at p.1106.) In contrast to the situation presented in
80, where petitioner was not allowed to consult with his attorney "about anything"
during a 17-hour overnight recess between his direct- and cross-examination,
"Townley was at all times free to consult with his attorney generally
about trial tactics and defense strategy, and although he was not fully
informed about Flores's probable testimony before Flores took the stand, he was
not prevented from discussing how to respond to Flores's testimony after
hearing it." (Hernandez, supra,
at p. 1106.) In addition, Townley's
attorney opposed the prosecution throughout the proceedings, thereby vitiating
any conclusion that counsel "entirely failed to subject the prosecution's
case to adversarial testing." (
to subject the prosecution's case to meaningful adversarial testing, then there
has been a denial of Sixth Amendment rights that makes the adversary process
itself presumptively unreliable"]; compare Bell v. Cone (2002) 535 U.S. 685, 697 [counsel's failure to oppose
prosecution "at specific points" during sentencing required showing
of prejudice under Strickland].) The court also rejected any inference that
the ban in this case violated Townley's right to " 'unrestricted
access to his lawyer for advice on a variety of trial-related matters.' " (Hernandez,
supra, 53 Cal.4th at p. 1109, quoting Perry
v. Leeke (1989) 488 U.S. 272 [in a short recess during which defendant's
testimony will likely be discussed, court may deny access to attorney,
contrasting Geders, supra, 425 U.S. at p. 91].)
In
remanding Carranco's case, the Supreme Court directed this court to reconsider
our prior opinion in light of Hernandez. We therefore address first the question of
whether Carranco can show that the interference with his right to consult with
his attorney "deprived him of the effective assistance of counsel and
there is a reasonable probability that, but for the error, the result of the
trial would have been different." (
To
establish prejudice in accordance with the Supreme Court's decision, Carranco
must adhere to the standard enunciated in Strickland—
that is, he must show that the interference "actually had an adverse
effect on the defense." (
693.) More precisely, there must be a
"reasonable probability" that without the error, "the result of
the proceeding would have been different."
(Id. at p. 694.) "The purpose of the Sixth Amendment
guarantee of counsel is to ensure that a defendant has the assistance necessary
to justify reliance on the outcome of the proceeding." (Id.
at pp. 691-692.) "[T]he ultimate
focus of inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged. In every case the court should be concerned with
whether, despite the strong presumption of reliability, the result of the
particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results." (Id.
at p. 696.) Thus, "[t]he benchmark
for judging any claim of ineffectiveness must be whether [the error] so
undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result." (Id.
at p. 686.)
"Surmounting
Strickland's high bar is never an easy
task." (Padilla v. Kentucky (2010) 559 U.S. 356, __ [130 S.Ct 1473,
1485].) "It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding[, as] not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding." (Strickland,
supra, 466 U.S. at p. 693.) Nor
must a defendant show that the deficiency "more likely than not"
altered the outcome in the case. (Ibid.) The asserted error must be "so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable." (Id. at p. 687; Harrington v.
Richter (2011) ___ U.S. ___ [131 S.Ct. 770, 787-788].) Accordingly, a defendant must show "a
reasonable probability" that the result of the proceeding would have been
different. "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, supra, 466 U.S. at p. 694.)
In
compared the situation presented here to a Confrontation Clause issue such as
that considered in Delaware v. Van
Arsdall (1986) 475 U.S. 673, a case in which the trial court improperly
prevented the defense from eliciting bias during cross-examination of a
prosecution witness by questioning him about the dismissal of his public
drunkenness charge.
title="">[3] The Supreme Court in Hernandez cited the factors employed in Van Arsdall,
name="_ftnref4" title="">[4]
yet not to assess the prejudicial effect of the lower court's restriction on
the use of the declaration, but to support the conclusion that "the
circumstances presented here . . . do not justify a presumption
of prejudice." (Hernandez, supra,
53 Cal.4th at p. 1108.) The court
notably added, "There is no reason in logic to require a showing of
prejudice to establish reversible error when impeaching evidence is withheld
from a defendant and the defendant's
attorney, but to presume
prejudice when impeaching evidence is withheld only from the defendant, even it was the trial court and not the
prosecution that prevented the defendant from learning about the
evidence." (Ibid., italics added.)
Carranco
suggests that the unchallenged portion of our previous holding alone
"cannot be reconciled with a conclusion that the order was a harmless
restriction on the right to counsel."
He does not elaborate except to invoke the doctrines of law of the case,
res judicata, and collateral estoppel, which he states bar relitigation of this
court's prior "findings." To
accept Carranco's position, however, would be to disregard completely the
direction of the Supreme Court in Hernandez
and its instruction in its remand of this case to reconsider our opinion in
light of Hernandez. That disposition means that Carranco must
make a showing of prejudice consistent with the Strickland standard in order to obtain reversal in his own
case.
Carranco
first reminds us that the gag order prohibited defense counsel from discussing
the assertion in Flores's declaration that it was Carranco who told him where
to go and when to stop, "which suggested that he had a leadership
role." As a result, "[t]he
prosecution's case against appellant was considerably strengthened by this new
and surprising allegation because it allowed the prosecutor to argue that
appellant had a leadership role in the 'mission' and therefore must have been a
knowing participant in the shooting."
But this argument goes to the effect of the declaration statements; it
does not show prejudice. There is no
claim that defense counsel was unable to cross-examine Flores effectively about
Carranco's leadership role in the attack on Lazaro; indeed, counsel did
challenge Flores on this point, highlighting the fact that in his police
interview Flores had not specified Carranco as the person who had told him
where to turn and when to stop. There is
no argument that had defense counsel
been allowed to discuss the declaration with his client, Carranco would have
shed some light that would have assisted in his defense.
The length
of the jury's deliberations (three days) is also not a persuasive factor here;
this was a complex case involving a serious crime involving multiple
perpetrators, with multiple witnesses offering inconsistent testimony at
trial. (Cf. In re Sassounian (1995) 9 Cal.4th 535, 549, fn. 10 [closeness of
case not determined by jury's time spent deliberating, given complexity of
evidence and law, youth of petitioner, and other circumstances];
837 [seven-day deliberations indicates conscientious jury but not necessarily
close case considering three-month duration of trial and complexity of issues];
see also People v. Houston (2005) 130
Cal.App.4th 279, 301 [four-day deliberation speaks to jury's diligence, not
closeness of case, where trial was extensive, with lengthy arguments, more than
three dozen witnesses, and a "mass of information" to digest].) Carranco has thus failed to overcome the
"high bar" of the prejudice analysis here.
b. Restrictions on Cross-Examination
of Flores
Carranco
next contends that the court unfairly sustained objections by the prosecutor
during his cross-examination of Flores.
Carranco's attorney attempted to point out, for example, that (1) the
declaration Flores signed was not the first draft (prosecutor's objection not
ruled upon); (2) the declaration had omitted any account of Flores's first
visit to the Harper Street apartment; and (3) the declaration had omitted the
detail that Carranco directed Flores, who was driving, back to the apartment. To these efforts the prosecutor successfully
objected. The prosecutor also
successfully objected to defense counsel's reading the title of the document,
which indicated that Flores was charged with a crime. Carranco's counsel tried to ask Flores about
the requirement that he sign the declaration in order to obtain the three-year
sentence; again the prosecutor's objection was sustained, as was a question
about Flores's methamphetamine use on the night of the shooting.
In the
jury's absence, the court explained that it had sustained some of the
prosecutor's objections because they were "questions about things that
weren't in the document . . . suggesting to the jury that we'd
intentionally omitted facts. And that's
misleading." Eventually the trial
court took judicial notice of the fact that the declaration was part of a plea
bargain and accordingly instructed the jury.
Carranco
argues that the trial court's rulings "cut off all inquiry into the
origins of Flores's claim that [Carranco] acted as leader and thereby crippled
his defense." The subjects on which
the prosecutor's objections were sustained, however, were either nonprejudicial
or irrelevant to refute the leadership role of Carranco in the events preceding
the shooting. Reading the title of the
declaration, for example—"People of the State of California versus Noe
Antonio Flores"—was of no consequence, as counsel had already established
(and the jury was reminded later) that Flores had pleaded guilty to assault
with a firearm in exchange for dismissal of the original attempted murder
charge. Counsel's subsequent attempt to
delve into prior drafts of the document, as well as questions about who wrote
the declaration he signed, were properly curtailed, as they were not relevant
to the credibility of the witness and any inconsistencies between the
declaration and his trial testimony; indeed, as the trial court explained,
unsigned versions of the declaration were "not evidence of
anything." Nor are we convinced by
Carranco's suggestion that it was important to impeach Flores with those facts
he had related in his testimony but not included in his declaration, so he
could show that Flores was "magnifying [Carranco's] role to please the
prosecution and obtain the favorable plea deal." Flores had already secured the plea
deal. In any event, Carranco's attorney
did elicit Flores's admission that he had not mentioned that Carranco was
directing him until talking to the district attorney in preparation for trial. In his police interview he had just said that
"they" told him where to turn.
Counsel was also able to obtain Flores's admission that he had not
mentioned the first visit to the Harper Street apartment when interviewed by
the police. Flores's overall credibility
was challenged not only through admissions that he had omitted details in
talking to the police, but through inconsistencies between his testimony and
his declaration, including whether he touched the clip of Townley's gun and
whether he was wearing the red and black Pendleton. The court made it clear that such
inconsistencies were a permissible subject of cross-examination.
More
significantly, we do not agree with Carranco that the rulings, even if
erroneous, were prejudicial. The correct
inquiry is whether, "assuming that the damaging potential of the
cross-examination [had been] fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable
doubt." (Delaware v. Van Arsdall, supra, 475 U.S.at p. 684.) "Whether such an error is harmless in a
particular case depends upon a host of factors, all readily accessible to
reviewing courts. These factors include
the importance of the witness' testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of
the prosecution's case." (
Defense counsel conceded that Carranco was an active participant in the
crime, that he took a bat and jumped out of the car with the intention of doing
violence toward Lazaro. Here, even if
the trial court abused its wide discretion in limiting cross-examination when
it regarded the questions as misleading or of marginal relevance, Carranco has
not shown that the additional questions would have given the jury "a
significantly different impression" of Flores's credibility." (Cf. Delaware
v. Van Arsdall, supra, 475 U.S.at p. 680 [whether Confrontation
Clause violation occurred depends on whether jury could have derived a
"significantly different impression" of witness's credibility].) For the reasons we have explained above, any
Confrontation Clause violation was harmless beyond a reasonable doubt.
2. Exclusion of Statements to Police
Carranco
further contends that the trial court erroneously excluded portions of his
statement to the police, which "left the jury with the false impression
that he [had] confessed to participating in the shooting." We briefly review the events of the
interview.
On February
23, 2006, Carranco was interviewed by Santa Cruz Sheriff's Detectives Henry
Montes and Mario Sulay. Montes
interviewed Carranco for about 90 to 120 minutes before Sulay got involved.
A broad
overview of Carranco's lengthy interview (319 pages) reveals that it progressed
through four distinct stages of what he was willing to admit. In the first stage, Detective Montes read him
his Miranda rights (
436). Carranco acknowledged that he had
been read his rights several times before and that he had a probation
officer. Confronted by Montes with
statements by others that he had gotten into a car with three other people,
ridden to Santa Cruz, and gone to an apartment on Harper Street, Carranco
repeatedly and adamantly denied that he had ever left Watsonville that
night. He said he was hanging out with a
friend named Ruben (nicknamed "Listo"), smoking marijuana and
drinking beer. He originally claimed to
have spent time with his cousin Alfonso ("Frank"), but later admitted
that he had just called him on someone else's cell phone. He admitted that his friend "Jake"
(Townley) came by to give him a ride, but he denied accepting it.
In the
second stage of the interview, Carranco admitted to Montes that he had accepted
a ride to Santa Cruz and gone to the apartment on Harper Street, but he
repeatedly denied being at the scene of the shooting. He said he heard people at the apartment, in
particular a guy named Michael, talking about the shooting.
In the
third stage of the interview, after Montes left the room for a half-hour and
returned, Carranco reasserted that he had not left Watsonville that night. Montes left the room again to buy food,
taking a food order from Carranco.
In the
fourth and final stage of the interview, Carranco finally admitted his presence
at the scene of the shooting and described his conduct that night.
On May 1,
2007, Carranco filed a motion in limine to exclude from evidence his statements
to the police as involuntary and taken in violation of Miranda. At a pretrial
hearing on May 3, 2007, the trial court concluded that all of his statements
were voluntary, and that there was no Miranda
violation after he was taken to the police station and given
On May 3,
2007, Carranco moved to admit some of his statements from his police interview
in addition to those which the prosecution sought to introduce into
evidence. At a pretrial hearing on the
same day, counsel argued that the statements were admissible, even if they were
self-serving. The court disagreed,
stating, "You basically, don't get to have him tell you all the rest of
the self-serving part of the statement without him being present for
cross-examination." The court
identified what parts of Carranco's police interview would be admitted into
evidence by making notations on the written proffers by both sides.
The court
excluded the following statements as either violating Townley's right of
confrontation, irrelevant, or irrelevant and self-serving: Carranco did not know the driver of the car,
who was wearing a black beanie. Jake was
in the car. He, Jake, Ruben, and the
driver were looking for a party. The guy
on the sidewalk looked like one of the guys who had beat him up. He did not know that Jake had a gun. He thought it was weak to use a gun in a
fight. When he heard shots, he thought
he was being shot at, so he ducked and ran back to the car and saw Jake and
others running back to the car. He did
not know who was shooting. Carranco told
the driver to leave because he believed someone was shooting at them. The trial court instructed the jury that they
had heard only part of Carranco's statement and they should not "speculate
about the content of the excluded portion of that statement."
Carranco
complained about the exclusion of these statements in an unsuccessful motion
for a new trial. In rejecting his
challenge the court stated that the parts of his interview that Carranco sought
to admit were not related to the parts of the interview that the prosecutor
wanted to admit. The prosecutor
"requested use of certain admissions by Mr. Carranco [that] were very
clear and very precise." "But
the statements that you want . . . are just purely self-serving statements that
don't relate to any of the admissions that Ms. Rowland sought to
use."
On appeal,
Carranco contends that the court's ruling was improper under Evidence Code
section 356. That provision states: "Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party; when a letter is read,
the answer may be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be given in
evidence."
"The
purpose of this section is to prevent the use of selected aspects of a
conversation, act, declaration, or writing, so as to create a misleading
impression on the subjects addressed.
[Citation.] Thus, if a party's
oral admissions have been introduced in evidence, he may show other portions of
the same interview or conversation, even if they are self-serving, which 'have
some bearing upon, or connection with, the admission . . . in evidence.'
" (People v. Arias (1996) 13 Cal.4th 92, 156; cf. People v. Douglas (1991) 234 Cal.App.3d 273, 285.) "In applying Evidence Code section 356
the courts do not draw narrow lines around the exact subject of
inquiry." (People v. Hamilton (1989) 48 Cal.3d 1142, 1174; People v. Vines
(2011) 51 Cal.4th 830, 861.) It
is no objection to the other statements that they would otherwise be excludable
hearsay. (People v. Williams (1975) 13 Cal.3d 559, 565.) However, the proponent must show some
connection to evidence admitted. (People
v. Hamilton, supra, 48 Cal.3d at p. 1174.) Statements that are irrelevant to those being
admitted may be excluded (People v.
Gambos (1970) 5 Cal.App.3d 187, 192-193; People v. Von Villas (1992) 10 Cal.App.4th 201, 272; see
p. 565), as may statements that are subject to exclusion under section
352. (Cf. People v. Samuels (2005) 36 Cal.4th 96, 130; see also People v. Vines, supra, 51 Cal.4th at p.
863; People v. Von Villas, supra, 10 Cal.App.4th at p. 272.)
The
situation becomes more complicated when, as in this case, the proffered
exculpatory statements may also incriminate a codefendant. To avoid problems under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123, a defendant's
confession must be redacted so as to avoid incriminating a codefendant. But "[w]hen deletions cannot be made
without prejudice to the declarant the court should either grant severance or
exclude the statement." (
at p. 285; People v. Stallworth
(2008) 164 Cal.App.4th 1079, 1098.)
On appeal, we review a trial court's
determination under Evidence Code section 356 for abuse of
discretion. (People v. Parrish (2007) 152 Cal.App.4th 263, 274.) We find no such abuse here. "Application
of Evidence Code section 356 hinges on the requirement that the two portions of
a statement be 'on the same subject.' " (People v. Vines, supra, 51 Cal.4th at
p. 861.) The subjects of Carranco's
statement that the defense acknowledged were admitted concerned (1) what the
victim and Carranco were each wearing; (2) Carranco's intention to fight the
victim; (3) Carranco's having run after the victim with the bat; (4) Carranco's
identification with Northside Santa Cruz; and (5) Carranco's dislike of
Surenos. That Carranco didn't see who
shot the gun was, as the trial court ruled, outside the scope of "the very
limited admissions" that the prosecutor wanted to introduce. Likewise, that Carranco did not know the
driver was outside the scope of the prosecutor's intended evidence, and it was
irrelevant in any event. Not knowing
that Townley had a gun was properly excluded as evidence implicating
Townley. (Cf. People v. Gamache (2010) 48 Cal.4th 347, 381 [defendant's
implication of codefendants inadmissible under Aranda and Bruton].) The jury heard the portion of Carranco's
statement indicating that he got out of the car intending to fight Lazaro
because he looked like a guy he had gotten into a fight with at a party the
previous weekend. The court did not
abuse its discretion in excluding the proffered statements from the evidence
presented to the jury.
3. Prosecutorial Misconduct
Carranco
joins in Townley's argument that the prosecutor engaged in
"egregious" misconduct at trial.
Like his opening brief in his original appeal, Carranco's supplemental
post-remand brief contains no separate, specific contention that the prosecutor's
questioning of witnesses and argument to the jury resulted in prejudice as to
him. Because there is no individualized
claim of misconduct as to him, we will restate our discussion of the misconduct
claimed in Townley's case.
a. Comments on Witness
Credibility
"It is
misconduct for a prosecutor to express a personal belief in the merits of a
case, rather than a belief based upon the evidence at trial. [Citations.]" (People
v. Johnson (1981) 121 Cal.App.3d 94, 102.)
Similarly, "[t]he prosecutor is generally precluded from vouching
for the credibility of her witnesses, or referring to evidence outside the
record to bolster their credibility or attack that of the defendant. [Citations.]" (People
v. Anderson (1990) 52 Cal.3d 453, 479.)
However, when the prosecutor relies on the evidence presented at trial
and the inferences to be drawn from this evidence, and does not imply any
personal knowledge or belief based on facts outside the record, the prosecutor
has not engaged in improper " 'vouching.' " (People
v Medina (1995) 11 Cal.4th 694, 757; see also People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on other
grounds in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22 [prosecutor’s comments not improper vouching if
assurances regarding the apparent honesty or reliability of prosecution witnesses
are based on the facts and reasonable inferences, not purported personal
knowledge or belief].)
During
opening statement the prosecutor told the jury that the police sergeant who
interviewed Townley at Harper Street "felt that he was holding back and
not being entirely truthful. The
sergeant thought that maybe that was because they were in a Norteno[-]
affiliated house and he was investigating a shooting by three or four guys
wearing red who shot at another guy in a blue sweatshirt. [¶] So
the decision was made to take them to the Sheriff's Office for an interview to
see if in a different kind of environment he might be more
forthcoming." When the jury had
been dismissed for the day, Townley's attorney objected and moved for a
mistrial, reminding the court that during in limine motions he had opposed the
prosecutor's request to call a gang expert.
In that opposition counsel had expressed the concern that the expert
might suggest that a witness was lying to help the defendant or that a former codefendant
testifying for the prosecution was credible.
The court had allowed the gang expert to testify, but only as to matters
the jury had heard from other witnesses.
The expert was not to "address issues like snitch and rat and
veracity and credibility . . . unless it's become apparent from
the testimony of . . . witnesses that there's a basis for that
needing to be explained to the jury in some way. [¶]
But he cannot be put in a position where he is either vouching for the
credibility of your witnesses or . . . essentially negatively
vouching for them in any way . . . ."
The trial
court denied the mistrial motion, noting that the "no vouching" order
pertained to a different situation:
"What was referred to here was actually the policeman's impression
of behavior that he saw from a person that he was interviewing at that
time," in contrast to the pre-trial discussion of an opinion of a
witness's credibility because he or she was a "snitch."
In
examining Sarah Oreb, the prosecutor attempted to bring out the inconsistencies
between her trial testimony and her prior statements to the police. After an initial hearsay objection (without a
ruling) Oreb was permitted to describe the officers' tactics in trying to
persuade her to admit that she had heard Townley say he had "hit a
scrap." The defense did not object
as Oreb continued with this testimony and denied that Sergeant Fish had
accurately reported her voluntary statement to him. However, at one point the prosecutor, having
repeatedly attempted to elicit Oreb's admission that she had heard the
"hit a scrap" statement, said, "I suppose you wouldn't be
surprised to hear I don't believe [you].
Which is why I am continuing to ask the question." Townley's counsel immediately objected. The objection was sustained, and the court
admonished the jury to disregard the remark.
The prosecutor then asked Oreb, "If there's a recording of your
interview with both Deputy Pintabona, and a subsequent interview with Detective
Henry Montes, they edited those recordings?" The objection by Townley's counsel to this
argumentative question was also sustained.
Further
into her testimony, Oreb was insisting that she had lied every time she said
she had heard the "hit a scrap" statement. She maintained that it was not acceptable to
lie, which was why she was then telling the truth. The prosecutor asked,
"Okay. So recently, within the last
two weeks, you decided that you shouldn't lie?
[¶] [Oreb]: No, not within the last two weeks. [¶]
[The prosecutor]: When did you
decide you weren't going to lie? . . . [¶]
[Oreb]: I don't know. [¶]
[The prosecutor]: When did it
become important to you not to lie?
[¶] [Oreb]: It's always been important to me not to
lie. [¶]
[The prosecutor]: Apparently it
wasn't so important each time you talked to somebody in law
enforcement?" Again both defense
attorneys objected to the question as argumentative, but this time the court
overruled the objection. However, just
before playing the recording of the first interview, the prosecutor asked why
Oreb had lied about hearing a knock at Gonzalez's apartment window. Oreb recounted how she had merely told the
interviewer what he wanted to hear. The
prosecutor asked, "Did it occur to you that he didn't believe
you?" Defense objections were
sustained as argumentative and calling for speculation.
Oreb also
testified that she used Townley's name and the words about hitting a scrap
because that was what she had heard from others. Defense objections were raised on hearsay
grounds. The trial court overruled one
objection on the ground that it went to credibility. When defense counsel affirmed that the
questioning was relevant to credibility only and not for the truth, the court
explained to the jurors that as to these questions about the source of Oreb's
information, they could use Oreb's testimony not for the truth of what other
people said but only to determine whether Oreb was telling the truth about her
recollection.
Anthony
Gonzalez also recanted the statement he had made about the shooting in police
interviews. Like Oreb, he said he did
not remember what had happened that night and had simply told the police what
they wanted to hear because they had arrested him. Gonzalez said he kept telling the detectives
what he knew and they kept telling him it wasn't true. Later, the prosecutor asked Detective Ramsey
about a subsequent interview with Gonzalez.
Ramsey testified that the purpose of the second interview was to
"see if he'd be a little bit more up front and cooperative" with the
officers. The prosecutor then asked,
"And did you find that he was a little bit more forthcoming?" Townley's attorney objected to the question
as irrelevant, and the objection was sustained.
"The
standards governing review of misconduct claims are settled. A prosecutor commits misconduct under the
federal Constitution when his or her conduct infects the trial with such
' "unfairness as to make the resulting conviction a denial of due
process." ' [Citations.] Under state law, a prosecutor who uses
deceptive or reprehensible methods to persuade the jury commits misconduct even
when those actions do not result in a fundamentally unfair trial." (People
v. Hawthorne (2009) 46 Cal.4th 67, 90, citing People v. Frye, supra, 18 Cal.4th at p. 969.)
" '[A]
prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence
outside the record. . . . However, so long as a prosecutor’s assurances
regarding the apparent honesty or reliability of prosecution witnesses are
based on the "facts of [the] record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief," [her]
comments cannot be characterized as improper vouching. [Citations.]'
[Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 215.)
"In
order to preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition; only if an admonition would not have cured
the harm is the claim of misconduct preserved for review. (People
v. Alfaro (2007) 41 Cal.4th 1277, 1328 . . . .)" (People
v. Hawthorne, supra, 46 Cal.4th at p. 90; People v. Lopez (2008) 42 Cal.4th 960, 965-966.)
Townley
contends that "clear misconduct" occurred when the prosecutor commented
on Oreb's lack of credibility. The court
sustained the objection to that remark, however, and admonished the jury
accordingly, thus averting any prejudice.
The reference to the police impressions during opening statement and the
questioning about Oreb's lies likewise created no reversible misconduct. The court properly ruled that the opening
statement did not violate the in limine order; and the court sustained defense
counsel's objections to argumentative questioning of Oreb with only one exception. That exception could not have had a
significant impact on the jurors' perceptions of the case, as it only
emphasized what they already knew, that Oreb had lied during questioning by the
police. The subsequent jury instruction
to ignore any question to which an objection was sustained reinforced the
court's admonition and thus prevented any prejudice. It is also noteworthy that no requests to
admonish the jury followed the objections to the prosecutor's questions.
Otherwise,
the examination of Oreb proceeded without objection on the ground now
asserted. Townley has forfeited the
issue as to these questions, and neither he nor Carranco presents analysis to
support the bare assertion of ineffective assistance of counsel. In any event, it is clear that Oreb's
insistence that she had lied to the police supported Townley's defense. Thus, allowing the prosecutor to elicit this
testimony was justified as a tactical choice by the defense. Failing to object to asserted prosecutorial
misconduct does not warrant reversal on appeal for ineffective assistance of
counsel "except in those rare instances where there is no conceivable
tactical purpose for counsel's actions."
(People v. Lopez, supra, 42
Cal.4th at p. 972.)
As to the
prosecutor's examination of Gonzalez, the only objections made by the defense
were for hearsay, leading, and irrelevance.
The recordings of both Oreb and Gonzalez were allowed over the objection
that they did not contain prior inconsistent statements. The court properly ruled in both cases that
the witnesses had fabricated their testimony—in Oreb's case, that she had heard
nothing at the window, and in Gonzalez's case, that he did not remember
anything that had happened that night.
b. References
to Townley's Bad Character
(1)
Involvement in previous criminal activity
Without
objection from the prosecution the court granted a defense motion in limine to
preclude evidence that Townley had a juvenile record and was on juvenile
probation at the time of the offense.
Also precluded without objection was evidence or allegations that
Townley might have been involved in other shooting incidents. Nevertheless, early in direct testimony by
Detective Phillips, the prosecutor asked him what he had been asked to do on
February 18, 2006. He answered that he
had been asked to assist another detective in conducting a probation search,
and he started to recite the address when both defense attorneys and the
prosecutor interrupted with objections.
After conferring privately with the witness, the prosecutor resumed her
examination with the question, "You did a probation search first thing in
the morning on a different case; is that right?" The witness replied in the affirmative, and
when asked whose house he searched, he named the people who lived there,
including defendant Townley.
Later,
during testimony by Scot Armstrong, a ballistics expert, he mentioned two
sheriff's numbers corresponding to two cases.
Subsequently he was referring to "fired cases" identified as
"REG-1, number 1 through 4. REG-110. And 131MH-001." The prosecutor directed the witness's
attention to the five "REG" casings submitted when Townley's attorney
obtained a sidebar conference. After
completion of Armstrong's examination, both defense attorneys moved for a
mistrial. The prosecutor acknowledged
the in-limine ruling but noted that she had directed the witness not to mention
any other investigations. "Clearly,
he forgot." The slip, the
prosecutor stated, "certainly was not anything intentional." Moreover, she argued, the jury was not likely
to have understood what the witness was referring to by "SCD" numbers
and different casings. The court agreed
that "there was not enough there that the jury could possibly infer that
there were other investigations going on or there were other bullets or casing
being investigated beyond what's in this case."
On appeal,
Townley contends that the prosecutor engaged in "highly prejudicial
misconduct" by eliciting information about his probation status and other
shootings. He maintains that not only
was the mention of a probation search improper, but the prosecutor
"compounded the problem" by informing the jury "
a different case."
While
"[i]t is misconduct for a prosecutor to violate a court ruling by
eliciting or attempting to elicit inadmissible evidence in violation of a court
order" (People v. Crew (2003) 31
Cal.4th 822, 839), it is evident from the record that the incipient reference
to a probation search occurred because Phillips forgot to avoid mentioning any
case but this one. It is true that a
prosecutor " 'has the duty to guard against statements by his witnesses
containing inadmissible evidence,' and if a prosecutor 'believes a witness may
give an inadmissible answer during his examination, he must warn the witness to
refrain from making such a statement.' "
(People v. Earp (1999) 20
Cal.4th 826, 865.) Here, however, the
prosecutor did warn the witness not to refer to other investigations; and when
he slipped, she interrupted her examination apparently to remind him. As in Earp,
"nothing in the record suggests that the prosecutor had a basis for
anticipating the response in question by Detective [Phillips]. Therefore, there was no prosecutorial
misconduct." (Ibid.)
As to the
disclosure of the additional forensic investigation, Townley disputes the
People's characterization of the disclosures as inadvertent; in his view, it
was part of a "demonstrated pattern of ignoring or attempting to evade the
trial court's rulings." We find no
error in the trial court's ruling, however.
As did the trial court, we find the prosecutor's brief references to
obscure case numbers unlikely to encourage the jurors to speculate that Townley
was being investigated for other shooting incidents. She mitigated potential harm by refocusing
the witness's account on the shooting of the night before, relegating the
mention of a probation search to an apparently unrelated case. The court's determination that the disclosure
was obscure, unintentional, and unlikely to cause prejudice is supported by
substantial evidence.
(2) Evidence that Townley was Dangerous
Detective
Ramsey testified that while Detective Makdessian was transporting Townley to
the sheriff's station, Ramsey, who was in the car ahead, received information
from Sergeant Sulay that caused him to alert Makdessian to stop the patrol
car. The officers asked Townley to step
out of the car; then they handcuffed him and examined his shoes. Inside the right shoe was an unloaded pistol;
in the left shoe was a bag containing cartridges. During the direct examination of Ramsey, the
prosecutor asked him to describe his "degree of alertness" in this
encounter. The witness replied,
"Extremely heightened." The
prosecutor then asked, "Did you feel that your safety was in
danger?" The witness answered,
"Yes." At that point, however,
Townley's attorney objected and moved to strike. The court granted the motion
and admonished the jury to disregard the answer. The prosecutor's next question, whether
Ramsey had his gun out, was answered in the negative; but when she asked why
not, his answer-- "I didn't want to --" was interrupted by another
objection on irrelevance grounds, which was also sustained.
While
Detective Makdessian was describing the same events, he stated that while
transporting Townley he received an urgent call from then-Deputy Fish over the
car radio, which the detective returned by cell phone. The prosecutor asked, "Did you have a
physiological response after you had that phone conversation with Sergeant
Fish?" Defense counsel objected to
the question as irrelevant, and the court sustained the objection. After describing Detective Ramsey's removal
of the gun from Townley's shoe, Makdessian was asked, "Had you ever
transported somebody unhandcuffed with a gun before?" He answered, "Never." The prosecutor continued, "Do you
anticipate ever doing that again?"
Another defense objection to the irrelevant question followed and was
sustained.
Sergeant
Fish was also questioned about the discovery of the gun. Hearsay and irrelevance objections were
sustained to two questions: about what a
witness had told him and about whether Sergeant Sulay's telephone call was
related to officer safety. Because the
question about officer safety was answered ("Very much") before the
objection was sustained, the court instructed the jury to disregard the answer.
Townley
contends that this line of questioning improperly suggested that Townley was a
danger to the officers' safety. The
questions, however, did not imply that the officers were actually threatened by
Townley, nor that their safety concerns were caused by anything other than the
knowledge that there was a passenger in the backseat with access to a weapon. In any event, the questions were at worst
irrelevant and they provoked objections sustained on that ground. No prejudice
resulted from the prosecutor's line of questioning about officer safety. Carranco himself offers nothing to suggest
that any perception of Townley as dangerous might have carried over to his own
case.
Townley
further argues that the prosecutor tried to give the jurors the impression that
Flores was in protective custody because the defendants were a threat to
him. The prosecutor was permitted to bring
out Flores's statement that he was in "PC," or protective
custody. When the prosecutor asked
whether he was in protective custody because he had given a statement to the
sheriff's deputies, the objection as speculation was sustained. Then the prosecutor asked, "Who is
housed in protective custody?"
Objections on multiple grounds followed, and the court suggested that
the prosecutor move on to other questions until they could discuss the issue
later. After the jury had left for the
day, the prosecutor protested that it was important to present the evidence
that he had to be housed in protective custody and transported separately
because he was a s
| Description | After trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley Hernandez ("Townley") of attempted deliberate and premeditated murder (Pen. Code, §§ 664, 187) for Townley's shooting of Javier Lazaro in Santa Cruz on February 17, 2006. This court reversed the judgments against both defendants, finding error in the superior court's refusal to permit trial counsel to show their clients a sealed declaration by a prosecution witness attesting to his own participation in an attempted murder, along with a sealed transcript of the witness's plea agreement proceeding. We held that the trial court had deprived defendants of their Sixth Amendment right to effective assistance of counsel by denying them access to these materials. The Supreme Court granted review. In Townley's case the holding that error had occurred was unchallenged by the People, and the high court expressed no opinion on this point. It did, however, reject this court's conclusion that the error was a structural defect subject to automatic reversal under Perry v. Leeke (1989) 488 U.S. 272. On the contrary, our Supreme Court held that an analysis of prejudice was required under the standard articulated in Strickland v. Washington (1984) 466 U.S. 668, and it accordingly remanded the case for that purpose. (People v. Hernandez (2012) 53 Cal.4th 1095.) |
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