People v. Reese
People v. Reese
Opinion
*663
The federal Constitution's equal protection clause compels the government to provide indigent criminal defendants, free of charge, with basic tools for an adequate
*708
defense that are available for a price to other defendants. (
Britt v. North Carolina
(1971)
We hold that we meant what we said in Hosner : An indigent defendant facing retrial is presumptively entitled to a "full" and "complete" trial transcript-and this entitlement extends to counsel's statements. The trial court and Court of Appeal therefore erred when they required defendant to demonstrate why a transcript of the statements ***366 was necessary for his defense. But we nevertheless affirm the judgment of conviction, because we also find the error here was harmless beyond a reasonable doubt.
I.
Defendant Keith Ryan Reese is an indigent pro se defendant. He was charged with making criminal threats (Penal Code § 422, subd. (a) ) 1 , possession of a firearm by a felon (§ 29800, subd. (a)(1)), use of a firearm in the commission of making criminal threats (§ 12022.5, subd. (a)) and assault with *664 a firearm (§ 245, subd. (a)(2)). On April 11, 2013, a jury deadlocked on the charges after a five-day trial, and the court declared a mistrial. The court set the retrial for June 6, 2013.
At a pretrial hearing on April 26, the court granted defendant's motion for a "complete record of trial transcripts." The court continued the retrial date to June 10. On June 6, the defendant received a transcript that included all witness testimony from the first trial, but omitted the opening statements and closing arguments. Before trial commenced on June 10, defendant argued that he did not receive the "full set of transcripts which I am entitled to." The trial court responded that it had ordered "all the testimony" and that defendant was "entitled only to the testimony given." Defendant argued that he was "required" to have transcripts of the opening statements and closing arguments so that he "won't make the same mistakes," given that he had a "small amount of time to study a lot." Without hearing from the prosecution, the trial court denied the request and the defendant's motion for a continuance. After a three-day trial, the jury found defendant guilty on all counts. The trial court then sentenced the defendant to an aggregate sentence of 17 years in state prison.
A divided panel of the Court of Appeal rejected defendant's challenge to the denial of his request for a transcript of the opening statements and closing arguments. The majority recognized that a defendant facing retrial is presumptively entitled to a transcript of the first trial, but held that the presumption applies only to witness testimony. The majority reasoned that a defendant is required to demonstrate a need for other portions of the trial transcript, including opening statements and closing arguments. Concluding that defendant failed to demonstrate any such need, *709 the majority affirmed the convictions. 2 By contrast, the dissent argued that Hosner 's presumption applied to counsel's statements as well as witness testimony. Because the prosecution did nothing to rebut Hosner 's presumption, the dissent found federal constitutional error.
We granted defendant's petition for review to determine whether the trial court violated his constitutional rights when it denied his request for a transcript of the opening statements and closing arguments from his first trial.
II.
A.
The federal Constitution guarantees indigent criminal defendants a free transcript of trial proceedings for their defense. The high court first
*665
announced this principle in
Griffin v. Illinois
(1956)
So important is an indigent defendant's right to transcripts of prior proceedings that it applies in misdemeanor cases-even where the defendant is sentenced only to a monetary fine. (
Mayer v. City of Chicago
(1971)
While
Britt
established the basic framework for considering an indigent defendant's claim to the transcripts of a previous trial, the
Britt
defendant's concession prevented the court from fully considering what showing would be required to overcome the defendant's presumption of need for a transcript. We first addressed that issue in
*666
Shuford v. Superior Court
(1974)
Our holding in
Hosner
proves important in two respects. First,
Hosner
established that a defendant need not demonstrate any particular need for the transcript, as such a need is presumed. (
Hosner
,
supra
, 15 Cal.3d at p. 65, fn. 4,
Given the scope of the equal protection principles we articulated in
Shuford
and
Hosner
, we need look no further than those cases to decide whether the trial court violated defendant's equal protection rights in this case. Before the start of the retrial, defendant requested the entire transcript of his first trial-including the opening and closing statements. Because defendant had the benefit of
Hosner
's presumption, he was entitled to a full and complete transcript of his first trial unless the prosecution " 'clearly establish[ed] the contrary.' " (
Hosner
,
supra
, 15 Cal.3d at p. 69,
In contrast, the Court of Appeal read
Hosner
's presumption as applying only to transcripts of witness testimony. This led it to conclude that a defendant facing retrial must demonstrate a need for other portions of the trial transcript. But we decline to read
Hosner
so narrowly, because the constitutional interests at stake foreclose any conclusion that
Hosner
's presumption applies only to witness testimony. In the context of criminal adjudication, the equal protection clause guarantees an indigent defendant's opportunity to mount a similar defense against criminal charges as can a wealthy defendant. (See
Griffin
, 351 U.S. at p. 17,
In support of the Court of Appeal's holding, the People cite the high court's statement in
Britt
that the transcript of a previous trial is "assumed" to be valuable to a defendant "in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses." (
Britt
,
supra
, 404 U.S. at p. 228,
The considerable importance of counsel's statements does not imply, however, an equivalence for all purposes between such statements and evidence. The prosecution remains free, of course, to reference these distinctions when attempting to carry its burden of establishing that anything other than a full and complete transcript (including opening statements and closing arguments) suffices to guarantee the defendant an adequate defense. We simply hold here that any differences between a transcript of witness testimony and that of counsels' statements do not justify exempting opening statements and closing arguments from Hosner 's presumption of entitlement. The Court of Appeal erred when it held otherwise.
B.
Having found federal constitutional error, we must decide if it requires reversal of defendant's conviction. Most federal constitutional errors are subject to harmless error review under
Chapman v. California
(1967)
By their very nature, structural errors render a trial fundamentally unfair or an unreliable determinant of a defendant's guilt or innocence. (
Neder v. United States
(1999)
Although the question whether a constitutional violation is structural or trial error is generally thought to be categorical, the harmless error status of certain constitutional violations is neither binary nor fixed. Certain errors can shift between being structural or subject to harmless error review depending on the nature and extent of the violation. An especially apt example is the right to counsel, as
Hosner
explicitly connected the right to previous trial transcripts and the right to counsel in its discussion of whether harmless error review was possible. (
Hosner
,
supra
, 15 Cal.3d at p. 70,
There is no reason for us to depart from
Hosner
's reasoning with respect to the total-or all-but-total-denial of the right to a previous trial transcript. For those errors, a reviewing court is in no position to assess the effect of the violation: the court cannot know how a second trial might have unfolded had the defendant the benefit of the prior trial transcript. (See
*714
Fulminante
,
supra
, 499 U.S. at pp. 307-308,
What does not follow from this conclusion is that the erroneous withholding of
any
portion of a previous trial transcript is automatically structural error. On this issue, the Ninth Circuit held that the partial denial
***371
of the right to a previous trial transcript is subject to harmless error review, and suggested that the total denial of the same right would be structural error. (See
Kennedy v. Lockyer
(9th Cir. 2004)
We must now determine whether the defendant's inability to access a part of the transcript was harmless in this case. Federal constitutional errors subject to harmless error review are reviewed under
Chapman
, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. (
People v. Aranda
(2012)
In this case, our review of the record convinces us that the error was harmless beyond a reasonable doubt. The People charged defendant with making criminal threats, possession of a firearm by a felon, and assault with a firearm. The charges arose out of an incident at the home of defendant's mother. The prosecution alleged that defendant's mother called 911 and, once officers arrived, defendant's mother, uncle, and girlfriend all stated that defendant had threatened his mother and girlfriend with a firearm. Both of defendant's trials revolved around two key disputes. First, the three witnesses from the scene all recanted substantial portions of their earlier statements during their trial testimony. Second, the officers recovered a *715 holster in the mother's apartment but did not find any firearm despite searching with a gun-sniffing dog.
Several factors underscore why the error did not contribute to the verdict. The prosecution's case was straightforward and quite similar at the two trials. During his opening statement and closing argument at the first trial, the prosecutor argued that the witnesses recanted to protect defendant and that defendant had hidden the firearm. Defendant, by contrast, argued that the officers had lied about the witnesses' allegations at the scene and that there had never been a gun at all. The People's case during the retrial was not meaningfully different. The prosecutor's opening statement at the second trial previewed an identical theory of the case and explanation for the discrepancy between the witnesses' statements at the scene and on the stand. Each witness *672 again disputed that defendant had threatened his mother and girlfriend at the scene. During closing argument, the prosecutor argued once more that the witnesses had recanted their statements to protect defendant and that defendant had hidden the gun while officers spoke with the witnesses outside the home.
Moreover, the retrial took place just two months after the initial trial, and defendant represented himself both times. There is no indication that defendant failed to anticipate the prosecutor's arguments, or that the constitutional violation otherwise prejudiced his defense. Throughout the retrial, defendant drew out testimony regarding the two central issues in the case: the missing firearm, and the discrepancies between the witnesses' statements. Simply put, nothing in the record ***372 suggests that defendant's lack of access to the statement transcripts left him unaware of the prosecutor's theory or the central disputes in the case.
Defendant argues that a full transcript would have left him better able to respond to the government's contention that he hid the gun, and he points to two moments from the second trial as examples of his claimed disadvantage. Our review of the record persuades us, however, that the withholding of the full transcript from the first trial did not prejudice the defense at either moment. First, defendant points to his attempts to compel the presence at trial of Officer Ramirez, who had handled the gun-sniffing dog at the scene. Prior to trial, defendant attempted to compel the presence of Officer Ramirez at trial to help establish that there was never any gun at the scene. The officer was on vacation, however, and the trial court declined to continue the case until his return. Defendant argues that he would have been able to persuade the trial court to continue the case if he had possessed a transcript of the statements from the previous trial. But it is difficult to see what extra force the missing transcript portions would have added to defendant's argument. It is clear that defendant did not need the statement transcripts to understand the significance of Officer Ramirez's potential testimony, as he argued to the trial court that the testimony would establish that there was "nowhere to hide" a gun in the mother's "very small apartment." Nor is there a reasonable probability that the trial court would have been more likely to grant the continuance had defendant pointed to those moments during the prosecution's arguments when it referenced the hidden gun.
Second, defendant points to his cross-examination of Officer Azarte, who supervised the witnesses outside the apartment. Defendant argues that he would have more effectively cross-examined Officer Azarte regarding the missing gun had he possessed a full transcript, but once again it is *716 difficult to see how the defense was prejudiced. As defendant's argument for a continuance proves, he was aware before trial commenced that the existence of the *673 gun would be an important issue. Officer Azarte's direct testimony only further underscored this point, as he testified that the responding officers searched for the gun for "between twenty [or] thirty minutes" without finding it. In fact, defendant cross-examined Officer Azarte at length regarding the abilities of gun-sniffing dogs, which proves that defendant did not need the transcripts of the statements from the previous trial to understand the salience of this issue. There is simply no indication that the missing transcript portions left him unable to develop through Officer Azarte his theory about the existence of a gun.
So we are convinced-beyond a reasonable doubt-that defendant's lack of access to a transcript of opening statements and closing arguments from his first trial did not contribute to the verdict. (
Aranda
,
supra
, 55 Cal.4th at p. 367,
III.
A defendant facing retrial is presumptively entitled to a full transcript of the previous trial-including opening and closing statements. The Court of Appeal's conclusion to the contrary ignores that transcripts of counsel's statements can be critical to an indigent defendant's ability to mount a defense similar to that available to a wealthy defendant. What a defendant is not entitled to receive, however, is automatic reversal for the partial denial of the right to a previous trial transcript. Instead, when-as happened here-defendant is denied only a portion of the transcript, the harmless error rule applies. Because we find the error harmless in this case, we affirm the judgment of the Court of Appeal.
We Concur:
Cantil-Sakauye, C.J.
Werdegar, J.
Chin, J.
Corrigan, J.
Liu, J.
Kruger, J.
All subsequent statutory references are to the Penal Code, unless otherwise noted.
The Court of Appeal did stay defendant's sentence for some of the counts to avoid violating section 654's prohibition on double punishment.
The prosecution cited the short time period between the first and second trials, the fact that defendant had the same attorney for both trials, and the availability of an oral transcription of the reporters notes of the first trial. (
Hosner
,
supra
, 15 Cal.3d at pp. 68-69,
We express no opinion on the specific outcomes in those cases but cite them only for the proposition that the absence of counsel can, in some circumstances, be subject to harmless error review.
The defendant in
Hosner
received the transcript of a portion of his own testimony from the previous trial. (
Hosner
,
supra
, 15 Cal.3d at p. 68,
Reference
- Full Case Name
- The PEOPLE, Plaintiff and Respondent, v. Keith Ryan REESE, Defendant and Appellant.
- Cited By
- 42 cases
- Status
- Published