Opinion
No. A154880
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. WILBER R. MELARA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN223262)
The trial court recessed trial proceedings for the day in the middle of the People's cross-examination of defendant Wilber R. Melara, on trial for stabbing a man in the forehead during a heated argument, and ordered that defendant not confer overnight about the substance of the case with his counsel. The order was made after the first day of the defense presentation of evidence in a vigorously contested case. It meant defendant and his counsel could neither discuss that day's proceedings nor prepare together overnight for the next day's, when the defense finished its presentation of evidence, the parties rested and the court held a hearing with counsel regarding jury instructions. Under these circumstances, the court's order was a plain violation of defendant's federal Sixth Amendment right to the effective assistance of counsel under Geders v. United States (1976) 425 U.S. 80 (Geders) and related case law, and under Geders we must presume this error was prejudicial. The People do not contest the merits of defendant's claim but argue he is barred from making it because of his failure to object below. We exercise our discretion to consider the merits because of the importance of the rights affected by the court's order. We reverse.
BACKGROUND
In May 2018, defendant was tried before a jury with another man, Mark Mabutas, on the charge that on or about February 21 2014, the two, with a third man, Lawrence J. Lucero, assaulted David Nunu with a deadly weapon other than a firearm, i.e., a knife (Pen. Code, § 245, subd. (a)(1)), and that in doing so each personally inflicted great bodily injury upon Nunu (§ 12022.7, subd. (a)). We summarize the evidence presented at trial that is relevant to this appeal.
All statutory citations are to the Penal Code unless otherwise stated.
Defendant (as well as Mabutas and Lucero) were also charged with one count of mayhem (§ 203), which count the prosecution dismissed before trial. Additionally, Mabutas was charged with making criminal threats (§ 422).
As part of the prosecution's evidence, Nunu testified that at the time of the incident he was employed as a security guard and bouncer by a business (otherwise unidentified at trial) that rented space in a building near Mission and Laura Streets in San Francisco. He did not carry any weapons, weighed about 240 pounds at the time and was 5 feet 11 inches tall.
Nunu testified that on the afternoon of February 21, 2014, he was sitting in his parked car with his window down in front of his workplace waiting for a cashier to open up the building so he could begin his shift. A young man wearing a motorcycle helmet, whom Nunu did not know, came over and asked him what he was doing there and who he was waiting for. Nunu asked the man who he was and why he wanted to know. The man replied that he was looking out for the neighborhood. Nunu said, "I don't know who you are. I don't have to tell you who I am," to which the man replied, "It's cool, it's cool," and, seeming satisfied with Nunu's answer, turned around and walked away. A second man, also a stranger, whom Nunu identified as defendant Melara, then approached and "pretty much" asked Nunu the same question. Nunu told him "it was none of their concern why I'm there or what I'm doing there." Defendant, "pretty much satisfied with the answer, turned around and also walked away."
Parts of the incident described by the witnesses were captured on surveillance video from the area. Witness testimony included numerous references to the video, portions of which were shown to them and the jury. None of this video is contained in the record, however.
Nunu testified that next he heard an unfriendly voice say, "what did he say[,] what did he say?" A third stranger, whom he identified as Mabutas, then approached him. Defendant and the third man followed behind Mabutas and all three "basically covered [Nunu's] door with their presence." Mabutas leaned into the car window and said, "[W]hat you say motherfucker[,] what you say motherfucker[,] I'll stab you," and he lifted his shirt to show Nunu a seven to eight inch steel knife on his right hip. Nunu "probably" replied, [N]o, you're not," and asked him several times to "get off" the car. Nunu was afraid because he saw Mabutas "brandishing" his knife, defendant with a folding knife and the third man with a knife. Nunu did not threaten anyone or point any weapons.
Nunu testified that he next attempted to open his door and exit the car because he did not want to be "stuck" inside it and "treated like a pin cushion." (He did not think of driving away. ) Before he could open the door, however, Mabutas tried to stab him with his knife. Nunu blocked the knife with his left forearm while still trying to exit. That was when defendant "got his knife and stuck [Nunu] in the head" and kicked the car door several times to try and keep Nunu inside. The third man did not stab Nunu.
Nunu said he was able to exit his car without the men further attacking him. Angry and "bleeding pretty bad," he tried to call 911 but he was "pretty much hysterical." He crossed the street with his cell phone in his hand and went into the Connection bar to have the person working there call 911, and he got a couple of towels at the bar to wipe himself. He went back outside and waited for the police. His attackers were riding their motorcycles "back and forth down the street . . . parading themselves." Nunu pointed out a camera above where he had parked and said to the men, "I got all of you guys."
The police soon arrived. Nunu told them about the incident and was taken to the hospital, where he received sutures in his head and forearm. At trial, he showed scars from his wounds.
Nunu further testified that, as indicated on video, shortly before the incident occurred he went into the Connection bar, which he said was to use the restroom. He did not interact there with any of the three men who later attacked him. He acknowledged that he had previously denied having been in the Connection bar before the incident. He said it had slipped his mind that he had gone there earlier that day to use the restroom, and said that was the first time he had been in the bar.
On cross-examination, Nunu said that just before the incident he ate lunch and looked around as he waited in his car. He saw defendant sitting in a white car in front of the bar, and he also saw Mabutas at some point.
Also on cross-examination, Mabutas's counsel questioned Nunu about whether he knew Mabutas before the incident. Counsel also asked Nunu if he had gone into the tattoo shop next to the Connection bar on the day of the incident. Nunu at first denied going to the tattoo shop that day, recalling that he went to the shop on another day after the incident and described his assailants to the people there after a coworker told him one of them, "Mark," frequented the shop. He went to the shop "out of anger" and asked for "Mark." He did not find Mark there and did not know what he would have done if he had.
Later in the cross-examination, Nunu expressed uncertainty about when he went to the tattoo shop and indicated he could have stopped in front of it right after the incident and said something. He then said he "probably" did speak to someone in front of the tattoo shop as he waited for the police but denied knowing the name "Mark" at that time, and thought he "said tell your boy I'm looking for him." He did so out of anger because his work place was closed, no one was in the bar and some people were at the tattoo shop. He "figured they might have known [Mabutas]." As he discussed this and was shown video of him talking to someone in front of the shop right after the incident, he became more certain that he had gone to the tattoo shop right after the incident and not on a later day. He denied saying at that time that he was going to "fuck up" Mark, recalling that he "said I'll be back." He did not recall what else he might have said. He did not tell police about his going to the shop because they did not ask. He denied going to the Connection bar that day looking for Mabutas or anyone else.
Defendant did not deny that he was involved in the incident and cut Nunu in the forehead. He did contest the type of weapon he used and the extent of Nunu's injuries. Both sides presented evidence on these issues. The remainder of defendant's evidence, which was mostly his own testimony, focused on showing that Nunu was the aggressor in the incident and that defendant acted in self-defense. His counsel began presentation of the defense evidence on May 8, 2018, with the testimony of three witnesses, including defendant.
First, a tattoo artist at the tattoo shop testified that he knew Mabutas from the Connection bar and had seen defendant drinking at the bar as well. Mabutas came into the tattoo shop once in a while and defendant might have come in once. On the day of the incident, the tattoo artist saw Nunu bleeding and angry at the door of the shop, yelling "tell your boy, Mark, that I'll be back." The tattoo artist said video shown to him at trial depicted Nunu as he screamed Mark's name.
Next, a medical expert testified about the severity of Nunu's laceration on the forehead and the kind of tool that might have caused it. He said Nunu's medical records indicated the laceration was not deep and required only the application of sutures, a simple laceration repair. He opined from a photograph that the laceration appeared consistent with one caused by a can opener contained in a "Leatherman" tool.
Defendant then testified on his own behalf. On direct examination, he said that on the day of the incident he and some friends, including Mabutas and Lucero, rode their motorcycles around San Francisco. After that, they went to the Connection bar, which was located a few blocks from defendant's home and frequented by him three or four times a month. He sometimes hung out there with Mabutas, whom he had known since he was 13 years old.
Waiting outside the bar for it to open, defendant went to visit a friend in the tattoo shop, but the friend was not there. Defendant then sat for about 10 minutes in a white car talking to a friend who, wheelchair-bound, did not leave his car very much. There, defendant saw Nunu sitting in a car nearby giving him dirty looks, nodding his head and curling up his lip, which scared defendant.
Defendant further testified that at some point, Lucero approached Nunu's car with defendant walking behind him and talked to Nunu. Defendant, who also wanted to know what Nunu was doing there because he had been looking at defendant "crazy," asked Nunu if they knew each other. Nunu responded in an aggressive tone, "[D]o you come and ask everybody that question?" Defendant said, "[W]ell, if I don't know you, yeah, I want to know what's up. What's going on." Nunu became more aggressive in his tone and said, "[G]et the fuck away from my car, you little fat fuck." Defendant, "a little bothered" by the comment, told Nunu, "[y]ou don't have to talk to me like that, bro." As indicated on video, Lucero then sort of pulled him away from the car and he walked away.
Defendant testified that he had no intention of returning to Nunu's car because it was "not worth it" to "engage in further argument or conversation." Nonetheless, he followed Mabutas, his good friend, when Mabutas went back to the car because he was concerned that Nunu had been "very aggressive." As indicated on a video, Mabutas walked up to the car window and began having a heated conversation with Nunu as defendant stood by the back side of the front passenger door. Defendant testified that Mabutas said, "[W]hy don't you leave?," to which Nunu responded, "[F]uck you." Nunu said to Mabutas, "[M]otherfucker, I'll shoot you," which scared defendant. Mabutas responded, "[W]ell, I'll stab you."
Defendant testified that he next heard Lucero, who was "standing in the back," say, "[W]atch out. He's reaching." Defendant, who had a limited view of Nunu, saw him reach for something in his car console and push open the car door. Defendant could not see where Nunu's right hand was going. Scared, defendant reached into his front left pocket, pulled out his "Leatherman," a "tool" he carried at the time for his plumbing work, and blindly flipped out one of the tools, which turned out to be a can opener. He swung the Leatherman into the car, aiming for Nunu's arm and shoulder to keep him from swinging the car door open. As Nunu pushed the door open, defendant looked into the car as indicated in a video. He saw Nunu fidgeting with something on his lap. Defendant kicked at the door to try to keep Nunu in the car. Mabutas backed up and Lucero walked away.
Defendant further testified that as Nunu got out of his car defendant walked to the front of the bar, turned around, walked to his motorcycle, got on it and left. He looked at Nunu, including to make sure he did not have a weapon. It had not been his intention for the incident to escalate into a fight.
After some questions by Mabutas's counsel, the prosecutor began his cross-examination of defendant on that same afternoon, May 8, 2018. Defendant acknowledged Mabutas had a knife during the incident but said he did not know its size and did not focus on what Mabutas was doing with it. Defendant's own tool had a blade, but he did not use this blade on Nunu.
Defendant further testified on cross-examination that he and his friends were waiting for the bar to open that day, but he was not drinking because he was diabetic. The drink in a brown bag that he was seen holding in a video recorded shortly before the incident was a Diet Coke. Defendant was quizzed about his friendships with Lucero and Mabutas and his recollection of events around the incident, and also was shown some video indicating that when Nunu went into the bar after the incident, Lucero and Mabutas remained outside.
The court then stopped the cross-examination and, with the prosecutor's agreement, adjourned the proceedings for the day in order to attend to another obligation. The court concluded the day's proceedings with the following instructions: "I'll ask everyone to be here at 9:00 o'clock, so if there is anything that comes up overnight, we can take it up in the morning, or you can email me. So then we will continue with [defendant's] cross examination tomorrow. [¶] Okay. So let me just say, [defendant], one of the rules during trial is that when you're—during your cross examination, in the middle of it, overnight you can't talk to [your counsel] about the substance of the case. Okay?" Defendant replied, "Okay." The court continued, "If your car breaks down or something let him know, but don't talk to him about the substance of the case, okay?" Defendant again replied, "Okay." His counsel was silent during this exchange.
At a little after 9:00 a.m. the next morning, May 9, 2018, the court held a short hearing with counsel outside the presence of the jury. The court started by asking, "Is there anything we need to take up this morning before [defendant] retakes the stand?" Defendant's counsel asked to change the order by which he would call certain character witnesses, which the court allowed. He then argued it would be prejudicial to allow the prosecutor to impeach these witnesses by referring to defendant's 1997 conviction for grand theft. The court disagreed because the witnesses knew defendant when he committed that crime, which was one involving honesty. The prosecutor said she would be brief in her cross-examination of these witnesses, and the court instructed her to refer only to a "theft" rather than a "grand theft" conviction.
That same morning, the prosecutor continued to cross-examine defendant, quizzing him about various aspects of the incident while showing him video. Among other things, defendant called the tool he had in his pocket a "utility knife," admitted he "stabbed" Nunu and said when he looked into the car immediately after stabbing Nunu he saw a gun, which was why he kicked the door to try to keep Nunu in the car. (On redirect, defendant said Nunu was "fumbling [the gun] around.") The prosecutor played video of defendant walking away with his back to Nunu and folding up his utility knife; defendant said he folded it up because he no longer needed the knife and turned his back because he saw Nunu was only carrying a cell phone. Asked why he did not call the police to report a man with a gun, he said he could see Nunu did not have a gun in his hand. Defendant also testified that shortly before the incident, as he sat in the white car with his friend, Lucero and Mabutas each went into the tattoo shop.
That morning, the defense called two of defendant's long-time friends who testified about his honesty. Each said her opinion would not be affected if defendant had been convicted of theft in 1997. The parties then rested, and defendant moved to dismiss the great bodily injury allegation for lack of evidence. The court denied his motion.
After the lunch break, defense counsel moved for a mistrial, contending it was so-called "Griffin error" to allow the prosecution to highlight in cross-examination that defendant did not tell the police that he saw Nunu with a gun because defendant had invoked his right to remain silent when he was arrested. (See Griffin v. California (1965) 380 U.S. 609 (Griffin).) The court took the motion under submission. That afternoon, the court held a hearing about jury instructions. The parties discussed a variety of issues, including about instructions relevant to defendant's self-defense theory.
The next day, defense counsel clarified that his motion for a mistrial the previous day was based on Doyle v. Ohio (1976) 426 U.S. 610, 619 (Doyle). (See People v. Thomas (2012) 54 Cal.4th 908, 936 ["Doyle error" when a prosecutor is permitted to use a defendant's post-arrest silence against the defendant at trial].) The trial court denied the motion, concluding neither Doyle nor Griffin error had occurred because the prosecutor had only asked defendant about his pre-arrest conduct, i.e., his failure to contact the police about Nunu's possession of a gun. After a brief discussion of other matters, the court proceeded to give the jury their jury instructions, after which closing arguments began.
The jury found defendant guilty of assault with a deadly weapon, but it found not true the allegation that he personally inflicted great bodily injury on Nunu. The court sentenced defendant to a two-year prison term. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that the order the trial court gave him at the end of the first day of his cross-examination that he not talk to his counsel overnight about the substance of the case violated his federal Sixth Amendment right to the effective assistance of counsel under Geders, supra, 425 U.S. 80 and related case law. The People do not deny that this was error, but argue defendant is barred from making this claim because he did not object below to the court's sequestration order. We shall first discuss the nature of the constitutional violation and then address the People's argument, which is in substance a forfeiture claim.
In Geders, the trial court recessed the trial proceedings at the end of a day after the defendant, Geders, facing drug charges, completed his testimony on direct examination. (Geders, supra, 425 U.S. at pp. 81-82.) The court, over defense counsel's objection, ordered Geders not to talk to his counsel about the case overnight. (Id. at p. 82.) When court convened the next morning, the defense attorney reopened his direct examination of Geders, the prosecutor cross-examined Geders and Geders was allowed to confer with his counsel during the lunch recess. Trial concluded the following day and Geders was convicted on all charges. (Id. at pp. 83-85.)
The United States Supreme Court held the trial court's order that Geders not talk to his counsel about his case overnight deprived him of his Sixth Amendment right to the effective assistance of counsel. (Geders, supra, 425 U.S. at pp. 86-92.) The court, after acknowledging the trial court's discretionary authority to sequester witnesses in general during recesses, continued, "But [Geders] was not simply a witness; he was also the defendant. A sequestration order affects a defendant in quite a different way from the way it affects a nonparty witness who presumably has no stake in the outcome of the trial. A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal case must often consult with his attorney during the trial. Moreover, 'the rule' accomplishes less when it is applied to the defendant rather than a nonparty witness, because the defendant as a matter of right can be and usually is present for all testimony and has the opportunity to discuss his testimony with his attorney up to the time he takes the witness stand." (Id. at p. 88.) The court pointed out that overnight "recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day's testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day's events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer's guidance." (Ibid.) The court concluded, "There are a variety of ways to further the purpose served by sequestration without placing a sustained barrier to communication between a defendant and his lawyer. To the extent that conflict remains between the defendant's right to consult with his attorney during a long overnight recess in the trial, and the prosecutor's desire to cross-examine the defendant without the intervention of counsel, with the risk of improper 'coaching,' the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel." (Id. at p. 91.)
Subsequently, in United States v. Cronic, which also involved a trial court's denial of effective counsel to a defendant (the court severely limited a replacement defense counsel's time to prepare for trial), the high court further explained that the seriousness of a significant Sixth Amendment violation in the trial context requires us to presume such a denial is prejudicial to a defendant: "There are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect is unjustified. [¶] . . . The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial." (United States v. Cronic (1984) 466 U.S. 648, 658-659 (Cronic), fn. omitted.) In these and other circumstances involving a significant denial of the right to counsel, the court held, "a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." (Id. at p. 660, italics added.)
In Perry v. Leeke (1989) 488 U.S. 272 (Perry), the high court distinguished overnight recesses such as the one in Geders from those of a relatively short duration. In Perry, the trial court prohibited the defendant from conferring with his counsel during a 15-minute recess ordered at the conclusion of his direct testimony. (Perry, at p. 274.) The Supreme Court held that "the Federal Constitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in progress if the judge decides that there is a good reason to interrupt the trial for a few minutes." (Id. at pp. 284-285.) The court explained: "The interruption in Geders was of a different character because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that go beyond the content of the defendant's own testimony—matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain. It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. [Citation.] The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right. But in a short recess in which it is appropriate to presume that nothing but the testimony will be discussed, the testifying defendant does not have a constitutional right to advice." (Id. at p. 284.)
The Perry court confirmed that because of the "fundamental importance" of the right to counsel "a showing of prejudice is not an essential component of a violation of the rule announced in Geders. In that case, we simply reversed the defendant's conviction without pausing to consider the extent of the actual prejudice, if any, that resulted from the defendant's denial of access to his lawyer during the overnight recess. That reversal was consistent with the view we have often expressed concerning the fundamental importance of the criminal defendant's constitutional right to be represented by counsel." (Perry, supra, 488 U.S. at pp. 278-279.)
The United States Supreme Court has more recently, in 2002, made clear again that when a trial court bars a testifying witness-defendant from talking with his counsel about the case altogether during an overnight recess, this violates the Sixth Amendment to a degree that prejudice is presumed. The high court stated, "We have spared the defendant the need of showing probable effect upon the outcome and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding." (Mickens v. Taylor (2002) 535 U.S. 162, 166.) Our own high court has favorably quoted Mickens for the proposition that Geders "established a rule of reversal per se," which it declined to apply in the more limited denial of counsel before it. (People v. Hernandez (2012) 53 Cal.4th 1095, 1103, 1108-1111 [attorney barred from discussing with the defendant a sealed transcript of a witness's plea agreement proceedings and a related sealed declaration].)
Following Geders and its progeny, federal appellate courts have consistently held that a defendant's Sixth Amendment right to the effective assistance of counsel is violated by a court's order barring him or her from talking with defense counsel, including just about a defendant's testimony itself, during an overnight or longer recess taken in the middle of the defendant's testimony. (See, e.g., United States v. Sandoval-Mendoza (9th Cir. 2006) 472 F.3d 645, 651 [error to ban overnight attorney-client communication in the middle of the defendant's cross-examination because "any overnight ban on communication falls on the Geders side of the line and violates the Sixth Amendment"]; United States v. Santos (7th Cir. 2000) 201 F.3d 953, 965-966 [error to prohibit attorney-defendant discussion of the defendant's ongoing testimony (but not trial strategy) during overnight recess as "[v]iolations of the rule against flatly prohibiting [such] consultation . . . are treated as complete denials of counsel . . . , and so require reversal even if no prejudice is shown"]; Jones v. Vacco (2d Cir. 1997) 126 F.3d 408, 411, 417 [reversible error to order counsel not speak with defendant "about . . . anything" during multiple-day recess taken in the middle of defendant's cross-examination]; United States v. Cobb (4th Cir. 1990) 905 F.2d 784, 792-793 [reversible error to bar defendant from discussing his ongoing testimony with his attorney during weekend recess because the bar "effectively eviscerated [the defendant's] ability to discuss and plan trial strategy"].)
This case law makes plain that in the present case, we must, in order to determine whether the trial court violated defendant's Sixth Amendment right to the effective assistance of counsel, decide whether the court's order barring defendant's overnight communication with his counsel was substantial enough in its duration and made at a critical time in trial proceedings so as to rise to the level of a Geders violation. We conclude the answer is yes in both instances.
As in Geders, the trial court in this case prohibited defendant from discussing the "substance of the case" at all with his counsel during an overnight recess. Thus, defendant was prohibited from discussing anything about the case with his counsel for approximately 17 hours at a time when, as Geders points out, defendant and counsel typically confer about a variety of important trial issues.
Further, the trial court's order came at a critical time in the proceedings and prevented defendant from discussing with his counsel both the import of the trial proceedings on the day he testified and how the defense was to proceed the next day. Specifically, the court barred any communication between defendant and his counsel at the end of the first day of the defense's presentation of its evidence, with which the defense sought to challenge several of the prosecution's core assertions. The defense presented the bulk of its evidence on this first day, including evidence that defendant acted in self-defense (defendant's testimony), Nunu was aggressively making threats about Mabutas at the tattoo shop immediately after the incident (the tattoo artist's testimony), Nunu's injuries were limited (Laufer's testimony) and defendant struck Nunu with a can opener rather than a knife (Laufer and defendant's testimony). The People's case was by no means assured regardless of this evidence because the People relied heavily on uncorroborated aspects of Nunu's testimony that were vigorously challenged by the defense, particularly via defendant's own testimony. Yet the trial court's order prohibited defendant from discussing with his counsel the impact of the day's presentation on the jury and whether or not to adjust their trial strategy accordingly.
The denial of defendant's ability to confer with his counsel during this particular overnight recess was even more significant because of what occurred the next day at the trial. The day began with the parties debating the order and scope of the testimony to be given by the two defense witnesses who would vouch for defendant's honesty. The morning continued with the prosecution completing its cross-examination of defendant, the defense conducting its redirect examination of defendant, the defense presentation of two character witnesses and all of the parties resting before a lunch recess. Thus, defendant was effectively prohibited from discussing with his counsel overnight such critical matters as what adjustments to make in the defense presentation of the remainder of its evidence; whether any additional evidence was needed; what, if any, motions should be prepared and raised the following morning before the close of evidence; and what steps should be taken at the completion of the parties' presentation of their evidence.
If this were not a critical enough time of trial, on May 9, in the morning after the trial court's overnight bar on defendant-counsel communications about the case, the trial court began its hearing with counsel regarding jury instructions following a 40-minute recess taken after the parties rested, which hearing the court completed that day. The court read the instructions to the jury the following day. "It is indisputable that jury instructions are an important part of a criminal trial." (People v. DeFrance (2008) 167 Cal.App.4th 486, 494.) While defendant had 40 minutes to discuss jury instructions with his counsel before the court began its hearing on the jury instructions, the court's overnight bar may have impeded their ability to communicate on this subject as well.
For these reasons, we conclude the court's error rose to the level of a Geders violation. As our Supreme Court has made clear, a Geders violation requires reversal without a showing of prejudice. (People v. Hernandez, supra, 53 Cal.4th at p. 1103.)
Again, the People do not contest that a Geders violation occurred. They argue only that defendant is barred from bringing this appellate claim because of his failure to object to the court's order below. In doing so, the People rely on two federal appellate cases which held that a defendant must show that the court's order actually interfered with a defendant's right to consult with counsel in order to obtain constitutional relief and, in that context, relied on counsel's failure to object. Neither is particularly persuasive. The first, Bailey v. Redman (3d Cir. 1981) 657 F.2d 21, was issued before the United States Supreme Court made clear in Perry, supra, 488 U.S. at pages 278-279, issued in 1989, and Mickens v. Taylor, supra, 535 U.S., at page 166, issued in 2002, that prejudice is to be presumed when access to counsel is denied during an overnight recess at a critical time of a trial. The second case cited by the People, Stubbs v. Bordenkircher (4th Cir. 1982) 689 F.2d 1205, also predated Perry and Mickens and involved a much lesser denial of a defendant's right to effective assistance of counsel, a bar on communications over a lunch hour recess, which Perry later held does require a showing of prejudice, unlike the overnight recess in Geders. (See also People v. Rogers (2006) 39 Cal.4th 826, 856 [applying forfeiture rule to claim that trial court violated defendant's Sixth Amendment right to counsel by holding in chambers conference concerning juror hardship excusals outside defendant's presence].) Further, at least one court has declined to apply a waiver rule based on a failure to object to a serious Sixth Amendment violation. (See Martin v. United States (D.C. 2010) 991 A.2d 791, 795-796 [waiver of the Sixth Amendment right to counsel cannot be inferred from mere failure by defendant to object to sequestration order; "[F]or aught that appears in the record, appellant and counsel (like the judge and the prosecutor) mistakenly believed [sequestration orders] to be appropriate when directed at testifying defendants too. Ignorance of one's rights is not to be equated with a valid waiver"].)
In any event, we need not determine the merits of either the People's forfeiture argument or of defendant's argument that he cannot forfeit by a failure to object below because of the fundamental nature of his Sixth Amendment right to the effective assistance of counsel, for which he cites People v. Vera (1997) 15 Cal.4th 269, 276-277 ["A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights"], but see People v. Tully (2012) 54 Cal.4th 952, 980 , fn. 9 [People v. Vera "was not intended to provide defendants with an 'end run' around the forfeiture rule, thus eviscerating it"].) It has long been the case that an appellate court has the "discretion to hear a constitutional claim despite its holding or assumption that the rule of forfeiture applies" when a forfeited claim "involves an important issue of constitutional law or a substantial right." (In re Sheena K. (2007) 40 Cal.4th 875, 887 & fn. 7.) We exercise our discretion here because defendant's constitutional and substantial right to the effective assistance of counsel was unquestionably and significantly denied by the trial court's erroneous order. (See People v. West (1990) 224 Cal.App.3d 1337, 1342 ["Substantial rights . . . have been held to include the right to counsel, to cross-examination, and to the presentation of an affirmative defense at the preliminary hearing"].)
DISPOSITION
The judgment is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.