People v. Reese , 214 Cal. Rptr. 3d 706 ( 2017 )

Filed 3/9/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S230259
v. )
) Ct.App. 2/8 B253610
KEITH RYAN REESE, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. TA125272
____________________________________)
The federal Constitution‘s equal protection clause compels the government
to provide indigent criminal defendants, free of charge, with basic tools for an
adequate defense that are available for a price to other defendants. (Britt v. North
Carolina (1971) 404 U.S. 226, 227 (Britt).) Both this court and the United States
Supreme Court have long held that one such tool is access to a transcript of prior
proceedings. (Ibid; People v. Hosner (1975) 15 Cal. 3d 60 (Hosner).) In Hosner,
we held that an indigent criminal defendant facing retrial is presumptively entitled
to a ―full‖ and ―complete‖ transcript of the prior proceedings. (Hosner, at pp. 65,
italics omitted.) We granted review in this case to consider the Court of Appeal‘s
holding below that Hosner‘s presumption applies only to transcripts of witness
testimony and not to transcripts of opening statements and closing arguments.
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
1
Appeal therefore erred when they required defendant to demonstrate why a
transcript of the statements 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 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
1 All subsequent statutory references are to the Penal Code, unless otherwise
noted.
2
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, 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 announced
this principle in Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), where it concluded
that refusing to provide indigent defendants with trial transcripts on appeal
violated equal protection. (Id. at p. 19.) The decision was grounded on a
straightforward principle: that equal protection bars any distinction between
2 The Court of Appeal did stay defendant‘s sentence for some of the counts
to avoid violating section 654‘s prohibition on double punishment.
3
criminal defendants on the basis of their economic means. (Id. at p. 17.) Because
a defendant‘s financial status bears no rational relation to a defendant‘s guilt or the
need for appellate review, the state could not deny to indigent defendants the
opportunity for full appellate review that remained available to defendants who
could afford to purchase a transcript. (Id. at pp. 18-19.) The court nonetheless
found that this principle did not guarantee a complete transcript in all
circumstances. Where alternatives to a full transcript suffice to safeguard an
indigent defendant‘s right to effective appellate review, the state is not required to
provide a full trial transcript. (Id. at p. 20.)
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) 404 U.S.
189, 196-197.) And it applies not only on appeal but where an indigent defendant
faces retrial. (Britt, supra, 404 U.S. at p. 227.) In Britt, the court held that an
indigent defendant facing retrial has a right to a free transcript of the first trial. In
so holding, the court emphasized the importance of two factors that determine
whether an indigent defendant‘s interest in obtaining a transcript of prior
proceedings is strong enough to entitle him or her to the transcript: (1) the value
of the transcript to the defendant; and (2) the availability of alternative means that
would fulfill the same functions as a transcript. (Ibid.) In elucidating the first
factor, the court rejected any notion that a defendant is required to demonstrate a
need for the transcript. Instead, Britt concluded that courts could ordinarily
assume that a defendant would benefit from the transcript of an earlier trial. (Id. at
p. 228.) What cannot be assumed –– because of the second factor –– is that an
indigent defendant is automatically entitled to a transcript of the prior proceeding.
With the second factor, the court struck a balance that appears calibrated to protect
defendants‘ interests without imposing unnecessary costs on the government:
4
defendants are not required to prove the inadequacy of transcript alternatives, but
neither are they entitled to a transcript of the first trial if the substantial equivalent
of a transcript exists. (Id. at p. 230.) Indeed, because the defendant in Britt
conceded that such an equivalent existed, the high court affirmed the conviction.
(Ibid.)
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 Shuford v. Superior Court (1974) 11 Cal. 3d 903. In
Shuford, we relied on Mayer to hold that, if the defendant is entitled to a transcript,
the state bears the burden of showing that a mere portion of the trial transcript (or
a transcript alternative) will suffice. (Shuford, at p. 907.) Because the defendant
in Shuford demonstrated a particularized need for the transcript, however, we had
no occasion in that case to address the issue raised by Britt‘s statement that a court
can ordinarily assume that indigent defendants benefit from access to a previous
trial transcript. We considered this issue and its relationship to Britt a year later,
in Hosner. The question there was whether the ―mere facts‖ of a defendant‘s
indigence and timely request for a transcript presumptively entitled him to one.
(Hosner, supra, 15 Cal.3d at p. 64.) We answered in the affirmative, holding that
the federal Constitution‘s equal protection clause presumptively entitles an
indigent defendant facing retrial to a complete transcript of his first trial. (Id. at p.
66.)
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.)
Second, Hosner reiterated that a defendant ―is presumed, if he needs a transcript at
5
all, to need nothing less than a complete transcript.‖ (Id. at p. 66.) For these
reasons, the burden is ―on the prosecution to show that the defendant would have
an effective defense or appeal with anything less than a complete transcript.‖ (Id.
at p. 65.) Because the prosecution failed to establish that the available alternatives
to a full transcript provided for an effective defense,3 we held that the trial court‘s
denial of the defendant‘s request for the full trial transcript had ―abridged the
defendant‘s right to the equal protection of the laws.‖ (Hosner, 15 Cal.3d at p.
62.)
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, quoting People v. Jones (1944) 24 Cal. 2d 601, 609.)
Here — as the People concede — the prosecution made no showing whatsoever
that defendant could muster an adequate defense without access to a transcript of
the opening and closing statements from his first trial. In fact, the trial court
denied the request despite the prosecution never addressing defendant‘s request.
The trial court erred in doing so because the prosecution had done nothing to rebut
3 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.)
6
the presumption that defendant had a right to nothing less than a full and complete
transcript of his first trial.
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
[Equal protection safeguards ―the central aim of our entire judicial system — all
people charged with crime must, so far as the law is concerned, ‗stand on an
equality before the bar of justice in every American court,‘ ‖ quoting Chambers v.
Florida (1940) 309 U.S. 227, 241].) As noted above, Hosner‘s holding is
grounded in this important equal protection principle. (See Hosner, supra, 15
Cal.3d at p. 62.) It is simply inconsistent with the purpose of this guarantee to
distinguish between transcripts of witness testimony and transcripts of counsel‘s
statements — both of which a wealthy defendant is certain to purchase — when
determining whether Hosner‘s presumption applies. For this very reason, we said
nothing in Hosner to suggest that its framework applied only to transcripts of
witness testimony. To the contrary — we described the transcript to which the
defendant was presumptively entitled as a ―full transcript of prior proceedings‖
and a ―complete transcript of his first trial,‖ not merely a transcript of witness
testimony. (Id. at pp. 65-66, original italics omitted, italics added.)
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,
7
and as a tool at the trial itself for the impeachment of prosecution witnesses.‖
(Britt, supra, 404 U.S. at p. 228.) According to the People, it follows from this
conclusion that opening statements and closing arguments are of lesser importance
to an indigent defendant because they are not evidence and therefore not
particularly relevant or even useful for discovery or impeachment purposes. Yet
Britt clearly never purported to offer an exhaustive list of the uses of a trial
transcript, nor did it limit an indigent defendant‘s equal protection interests in the
transcript of the previous trial. (Ibid. [―in at least two ways,‖ italics added].) And
for good reason. A transcript is important not solely for its impeachment and
discovery value, but also for what it conveys about the prosecution‘s theory and
key arguments. An attorney equipped with such knowledge will be better able to
anticipate the prosecution‘s case and devise ways in which to counter it. Indeed, it
may not be until a defense attorney reviews the opening statements and closing
arguments that the prosecution‘s theory emerges. (See Herring v. New York
(1975) 422 U.S. 853, 862 [It is only during closing argument that ―counsel for the
parties are in a position to present their respective versions of the case as a
whole.‖].)
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.
8
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) 386 U.S. 18
(Chapman). (Washington v. Recuenco (2006) 548 U.S. 212, 218.) Not so for
those federal constitutional errors deemed ―structural,‖ which require automatic
reversal without a demonstration of harm to the defendant. (Ibid.) In Hosner, we
held that the erroneous denial of an indigent defendant‘s motion for a transcript of
a prior trial was indeed structural error that required automatic reversal. (Hosner,
15 Cal.3d at p. 70.) Defendant argues that this holding requires us to reverse the
conviction here regardless of harmless error, while the People argue that Hosner‘s
harmless error holding should be reexamined or, at a minimum, confined to a total
denial of the right to a previous trial transcript.
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) 527 U.S. 1, 9.) For an error to be structural, it must affect the entire
―framework within which the trial proceeds.‖ (Arizona v. Fulminante (1991) 499
U.S. 279, 308, 310 (Fulminante).) Accordingly, denials of the right to the attorney
of one‘s choice (United States v. Gonzalez-Lopez (2006) 548 U.S. 140), to an
unbiased judge (Tumey v. Ohio (1927) 273 U.S. 510), and to a valid reasonable
doubt instruction (Sullivan v. Louisiana (1993) 508 U.S. 275) are all paradigmatic
examples of structural errors. By contrast, the high court has defined errors
susceptible to harmless error review — so-called trial errors — as errors ―in the
trial process itself.‖ (Fulminante, at p. 310.) A prime example is the erroneous
admission of evidence. (Ibid.)
Although the question whether a constitutional violation is structural or trial
error is generally thought to be categorical, the harmless error status of certain
9
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 can be no question, of
course, that the complete absence of counsel is structural error. (See Chapman,
supra, 386 U.S. at p. 23, fn. 8, citing Gideon v. Wainwright (1963) 372 U.S. 335.)
Notwithstanding this fact, the high court has held that the absence of counsel at a
critical stage of trial can be subject to harmless error review. (See Coleman v.
Alabama (1970) 399 U.S. 1, 10-11 [counsel‘s absence at preliminary hearing
subject to harmless error review, in a case where state law prohibited prosecution
from using anything from preliminary hearing at trial].) Similarly, we have
applied harmless error analysis to the temporary absence of counsel during trial.
(See People v. Ayala (2000) 24 Cal. 4th 243, 269 [applying Chapman to erroneous
exclusion of counsel during portion of hearing conducted pursuant to Batson v.
Kentucky (1986) 476 U.S. 79]; People v. Hogan (1982) 31 Cal. 3d 815, 848-850
[applying Chapman where trial court responded to jury inquiry without consulting
defense counsel], disapproved on another ground in People v. Cooper (1991) 53
Cal. 3d 771, 836.) Various other courts have done the same. (See, e.g., Key v.
People (Colo. 1994) 865 P.2d 822, 826-827 [applying harmless error review to
defense attorney‘s absence for scheduling conference with jurors during
deliberations]; U.S. v. Toliver (3rd Cir. 2003) 330 F.3d 607, 615 [trial court
responds to jury inquiry without consulting with defense counsel]; Vines v. U.S.
10
(11th Cir. 1994) 28 F.3d 1123, 1129 [attorney briefly absent during witness
testimony].)4 So what matters in determining whether certain violations of law in
the adjudicatory process are fully structural or subject to appropriate harmless
error review is not only the fact an error occurred, but the nature and extent of it.
In Hosner, we concluded it was structural error for an indigent defendant to
suffer the near-total5 denial of a prior trial transcript. The denial of a transcript,
we reasoned, ―infects‖ the entire second trial, and an appellate court could only
―hypothesize‖ what effect the transcript of a previous trial would have on the
defendant‘s retrial. (Hosner, 15 Cal.3d at p. 70.) Moreover, an automatic reversal
rule was required to ensure that the prosecution had an incentive to challenge ––
before trial –– the defendant‘s right to a transcript. (Ibid.) And the defendant‘s
right would be undermined by allowing the prosecution to wait until an appeal to
litigate the need for a transcript ―disguised under the rubric of ‗harmless error.‘ ‖
(Id. at p. 71, fn. 7.) At the same time, we reserved decision on whether a rule of
automatic reversal should apply to the erroneous denial of a request for the
transcript of other proceedings, such as a hearing on a motion to suppress. (Ibid.)
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 Fulminante, supra, 499 U.S. at pp.
307-308.) Access to the transcript of a previous trial could conceivably affect
4 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.
5 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.)
11
every aspect of a retrial, from the trial‘s most granular subtleties to its overall
course. Possession of a transcript gives a defendant facing retrial the potential to
impeach each and every witness called at both trials. Evidence that initially
seemed overwhelming might have been successfully rebutted, had the defendant‘s
attorney anticipated the government‘s theory and prepared to argue against it. For
these reasons, denial of the right to an entire transcript affects the ―entire conduct
of the trial from beginning to end‖ and therefore is not amenable to harmless error
review on appeal. (Id. at p. 309.)
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 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) 379 F.3d 1041, 1053.) We agree. The wrongful withholding of
part of a previous transcript does not affect the ―entire conduct of the trial from
beginning to end‖ and thus defy harmless error review. (Fulminante, supra, 499
U.S. at p. 309.) Rather, when the denial of the right to a previous trial transcript is
less than total, appellate courts will often have little difficulty conducting harmless
error review. If the missing portions of the transcript cover witness testimony, a
court can consider whether the defense was unable to counter that testimony at the
retrial (for example by impeaching the witness or witnesses on discrepancies
between the testimony offered at each trial). Similarly, if the portion missing is, as
in this case, counsel‘s statements, a court can determine whether the record
indicates that the defense attorney failed to anticipate the prosecution‘s overall
theory or its argument as to a specific dispute. What we therefore conclude is that
where a defendant is erroneously denied all — or, as in Hosner, practically all —
of the previous trial transcript, the error is structural. But where a defendant is
12
wrongly denied only portions of the previous trial transcript, the error is amenable
to harmless error review.
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) 55 Cal. 4th 342, 367
(Aranda).) To determine whether the People have carried their burden, we
examine the entire record and must reverse if there is a ― ‗ ―reasonable
probability‖ ‘ ‖ that the error contributed to the verdict. (Ibid.)
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 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.
13
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 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 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
14
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 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 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.)
15
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.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Reese
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 240 Cal. App. 4th 592
Rehearing Granted
__________________________________________________________________________________
Opinion No. S230259
Date Filed: March 9, 2017
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: John T. Doyle
__________________________________________________________________________________
Counsel:
Esther K. Hong, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Shaw McGahey Webb, Michael R. Johnsen, Nima Razfar and Nathan Guttman, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Esther K. Hong
Law Office of E. Hong Inc.
1255 West Colton Avenue, Suite 502
Redlands, CA 92374
(909) 991-5996
Nathan Guttman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2390