PEOPLE v. HERNANDEZ

Respondent's Opening Brief on the Merits

Cal.May 13, 2010

Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. JACOB TOWNLEY HERNANDEZ, Defendant and Appellant. Case No. 8178823 DOD AARTLE Peres cee: gheeeyed yf e saad SUPREME COURT FILED Sixth Appellate District, Case No. H031992 Santa Cruz County Superior Court, Case No. F12934 The Honorable Jeff Almquist, Judge MAY 1 8 2019 Frederick kK, Ohrich Clark Deputy RESPONDENT’S OPENING BRIEF ON THE MERITS EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General SETH K. SCHALIT Supervising Deputy Attorney General AMY HADDIX Deputy Attorney General State Bar No. 183944 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone:(415) 703-5893 Fax: (415) 703-1234 Email: Amy.Haddix@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented ...........:cccsccesecssscessecescecseeeeesceeseseeceeseeaeesesseesseesseseseesoeeeeensnees ] Introduction ..........ccccceccescscesseesseeeececssecersceeecsceereneeseseeseceseseeseeaseaeseseeesesesonens ] Statement of the Case and Facts .000........ eee eeeeeeesseceeseeeeseseesesueerscnesesneeseesees 3 A. Procedural background.............:::csccceseeeeceeeeeeeseeeeeeeees 3 B. Thetrial court’s challenged order...eeeseeeeeeee 3 C. Flores’s trial testimony .............:ceseesseceseseneeeteeeeeeenees 5 D. Further prosecution evidence............eceseeseeeeeeeeeneres 8 E. Defense Case .........ccccecccccsceeeescesseecesceceeeceececneeesenerenees 11 F, Verdict and appeal.............eeseeecceeseeceeeeeeereceeeeeeetenes 11 Summary ofArgument...cc eceeeeeeeeeceeeceeseneeeeesececaeressseceesseeeeeeaseavegs 13 ATQUMENL000...eee eeeseeseeeseseeseeeeeseeseeeessceecsseneesuecesaceseeeceeaesesesssussesseseeeeeneesoes 15 I. The limitation placed on Townley’s consultation with his counsel regarding specific items of evidence did not deny counsel’s assistance altogether and did not warrantreversal of the conviction without an assessment Of PrejUdiCe ........ eee eeeeseseceeeeeeeeseesaeeesseeeenaene 15 A. Overview of structural efror ............eeeeeeeeresereeeeeeeees 15 B. Sixth Amendmentright to counsel cases.................. 16 C. Cronic and the.presumption of prejudice cases........ 18 D. Geders and Perry—theright to consultation............ 24 E. Because Townley did not suffera total deprivation of the right to counsel, he must satisfy the two-prong test of Strickland in order to establish a Sixth Amendmentviolation................ 26 F, Even if the consultative restriction imposed in this case does not come within the Strickland test for “effective” assistance of counsel, it is nonetheless “trial error” and is amenable to harmless error review ..........:00000eescesesecsesenseaeeneeeees 42 G. Remand is warranted ............::ccscesseceeeeeeseeeeeseceeeeeees 45 TABLE OF CONTENTS (continued) Page Il. Thetrial court correctly held that previous, unsigned versions of the declaration proffered by the prosecutor to Flores were not discoverable.............cccscccssscesseesceeseerenas 47 Conclusion.........cccccceescccessneeseseesseeeceeeesseeeesacecescesersecenaeeseseessseseatsesaeessaeeeas 53 li TABLE OF AUTHORITIES Page CASES Alvaradov. Superior Court (2000) 23 Cal.4th 1121 ooo.ceccccsssecsseccnsecescessceceeeecseesaeesseseseceeeeeeeseens 28 Arizona v. Fulminante (1991) 499 US. 279oeceeccceesceeeecesceneeseeeseenssseesseeeees 15, 16, 18, 27, 42, 43 Barber v. Municipal Court (1979) 24 Cal.3d 742 .ooecececccesccsssceseesseccesseeesseceesseessesssenssseeeneesseseeseeneeeess 4] Batson v. Kentucky (1986) 476 U.S. 79... eeceessccessceeeseeesneeeseeesecsseeesseensecensesesesaessteesstentessaeas 16 Bell v. Cone 535 U.S. 685 (2002)... eececeeeeeeseesececeeseesenleneeeseeanenseeeees 18, 20, 22, 25, 28 Bittaker v. Woodford (9th Cir. 2003) 331 F.3d 715 (em banc)...... eee cecsseseeesceseesseeseesneeseeeteeeeeees 39 Brady v. Maryland (1963) 373 US. 83oeceeseccsecesceceseesseesecesecessenstesseeneesseeseeeees 35, 47, 48, 51 Brooks v. Tennessee (1972) 406 US. 605eee cececccsceeresseessessseseesesseeseessessessesesesesneceesassecsecsseeeenees 19 Burdine v. Johnson (Sth Cir. 2001) 262 F.3d 336 oo..ccceesssssssseessesessseesesecssessesecsseseesesseseesecseess 33 Chapmanv. California (1967) 386 US. 18.eeecceeeesseeesseseeeneeesetseeeceeesesseenseeaes20, 37, 42, 45, 46 Clark v. Wood (8th Cir. 1987) 823 F.2d 1241ceececesssesesscssesseecesessscnsesesseseneeseseeseees 34 Cobb v. United States (4th Cir. 1990) 905 F.2d 784 ooo. eececcecsecsseseeseseecesceecesessessessesseneesserees 37, 39 Coleman v. Alabama (1970) 399 U.S. Licceeeecececessceeeseesseceseesseeececeecsceseeesseeseeessesecesueesecsseseersesteees 20 lil Corenevski v. Superior Court (1984) 36 Cal.3d 307 ooo.eeeeeseeceseneteerececsseessesserecsceesseneesecssnessnesesierees 32 Davis v. Alaska (1974) 415 US. 308...ec eeeeeetsesesseseescseceeseesessessesseneeseereeenecsseesneenesnenses 19 Degen v. United States (1996) 517 U.S. 820...cee eceesecetetereesesereeseceseeseeeseeeesseesesseeessessesesesneeseeaes 29 Delaware v. Van Arsdall (1986) 475 U.S. 673. ceceeeecseesceeeeceeereeseessesssssevssesesseseserseererseeseense 19, 20, 42 Ferguson v. Georgia (1961) 365 U.S. 570.ecceseesseteeesensseereseseussevseseesesssesseesseseessesensssenseenengs 19 Florida v. Nixon (2004) 543 U.S. 175 vo eeceeseeeseeseeserseenecesenersecsuseeeseesrseeensenesnee 18, 20, 22, 23 Geders v. United States (1976) 425 U.S. 80...eecteeseesceereeeteerssesessetesenens 14, 19, 24-26, 35, 37, 38 Gibbons v. Savage (2d. Cir. 2009) 555 F.3d 112.eeecsseescesceesecsessenecseneeseeseeeensenseeenees 27 Gideon v. Wainwright (1963) 372 U.S. 335... .eeecceseeseesesseeteeeeeeeseeeeeeecsesseseeneneenees 16, 18, 25, 43, 44 Hamilton v. Alabama (1961) 368 U.S. 52...ececeeteeteeeeeeeceettenseteeeseeaeseeeeessneaneneseeeeseresseeneeneegs 19 Harris v. United States (D.C. App. 1991) 594 A.2d S46...cei cccsececeererseenseeetecseceeecseneenaeeeeneneey 29 Herring v. New York ; (1975) 422 ULS. 853ee cecccceecenecneeseceseeeeesesseesesasseaseeesaressssesaesaesseeeseeneenenss 19 Holloway v. Arkansas (1978) 435 U.S. 475 ve cccccccccsesseeseeseeseeeressessesscsessessassnesseressesaeeaseneessesaeeees 21 In re Marriage ofArceneaux (1990) 51 Cal.3d 1130 occee ceseeseeessereesetesseseeeesessesesnseneeeeessseesenees 40 In re Scott (2003) 29 Cal.4th 783 .....cccecceeesscereesssseenereesessesssseeesestesseseseessseesseenenees 39 In re Terrorist Bombings of U.S. Embassies in East Africa (2d Cir. 2008) 552 F.3d 93......cecesseeeenecseneesesesseneeseesesersesseecsessseseesseeeseeaees 2 iv In re Visciotti (1996) 14 Cal.4th 325 ooocccceccesececesenceeseeeseeeeecesseceesenaeecseensecesseeerseeees 21 Jones v. Vacco (2d Cir. 1997) 126 F.3d 408.0.eecseceeeeescesecescecesseeeseesessseeseseaseeseeeseeeeess 36 Kansas v. Ventris (2009) — US. [129 S.Ct. 1841]eeeceeeecseeseeeeesececeesesestetesseeseees24 Kyles v. Whitley (1995) 514 U.S. 419Lceccceeceecesessceesresecseesseesseeecsasetecesesesenseseeeseeesseeseens 35 Lockhart v. Fretwell (1993) 506 U.S. 364.eecccecsseeeeseesseeeeceeeeneeseesecseceseeseesncesseenesesseeseeenees 25 McKashkle v. Wiggins (1984) 465 US. 168oooceeceeeeseceeseneescesecsceseeeseeeseceeseeeeneeeseesseenes 16, 44 McKesson HBOC,Inc. v. Superior Court (2004) 115 CalApp.4th 1229 ooccccsesssecsteseeesseeeseesesesseeesecesseeenseene 50 Mickensv.Taylor (2002) 535 U.S. 162.0... ecccececesceseeseeesecesessececeeseseseseeessenecesenseensees 22, 23, 25 Moore v. Purkett (8th Cir. 2001) 275 F.3d 685 ooo.cecccccsecssecssessesecssceeseseesetessessecsssesserseses 36 Morgan v. Bennett (2d Cir. 2000) 204 F.3d 360.000... .ccccccscssesesccessesessesecssesscsecsecesesseeceersecereseees 2 Morris v. Slappy (1983) 461 US. Linceee eeccesessssseeeseseesesscseeeseessssecessessecneseasensesseceseeesaeeeess 28 Mudd v. United States (D.C. Cir. 1986) 798 F.2d 1509 ooocceccceeeseesenscesssesseeeseecseeasens 38, 39, 40 Neder v. United States (1999) 527 U.S. Looe ee eceeeseeceessseseesseeessececseesseeseesecsasecseeseeeseeeasssecesarsrsessses 16 People v. Breverman (1998) 19 Cal4th 142 ooecccccccesssesssssecssssseeeseseeseessseesessecsessessenssreseesees 46 People v. Bui (2010) 183 Cal.App.4th 675 oo... ccccccscccssseesecsesseecseeseesscssseseucsessscesseseneses27 People v. Cahill (1993) 5 Cal4th 478 ooo cccccccscssecssescsssesessessesceeeescsscsessessssssesseesecaneseeses 46 People v. Cox (2000) 23 Cai.4th 665 (2000)...cccceeeecenessenecnenssseeserenseneteeseeneneenes 46 People v. Doolin — (2009) 45 Cal4th 390occeeseeecscssesesseeesecessesesseeseneeseensenenseseesseaes 23, 28 People v. Ervine (2009) 47 Cal4th 745 oo. ceeeeseeesessescsecsesessesscnseseeserseeeseneeneees 35, 40, 41 People v. Jenkins (2000) 22 Cal4th 900 000... eceeeecesceseeeseeesseeeessseseccsescseeneesecseeneesesseeneeesees 33 People v. Lamb (2006) 136 Cal.App.4th 575 oo...cecccecssseseseeserecesesseneeeeesseeeeesaesneateees 49 People v. Marshall (1996) 13 Cal4th 799 occseseceeeseeerseesessessessessecessessensessessenecsaessesenaeeas 45 People v. Memro (1995) 11 Cal4th 786 ooo. eeeeeeescesesseseeecssesecseseesseesensesesseseeneenseseseeeasees 34 People v. Noriega (2010) 48 Cal4th 517 oo... eececeeeceecseeessevsecnecnseenssessensesseeeeseensenseseneensees 34 People v. Rundle (2008) 43 CalAth 76 oc.cece ceeeecsscenersecseesseeseesscsscnseeeesscessecsessesseensesseenes 28 People v. Scott (1994) 9 Cal.4th 331 ooo ececseeseeeeeseeseelenseesecscesscesssssesssesesseasesseenseseeeneeanes 40 People v. Watson (1956) 46 Cal.2d 818 oo...eee ceceeeceeceeseecseeesceseessessseseaseassesssesseseaesaseeeeseeegs 46 People v. Westmoreland (1976) 58 CalApp.3d 32 oo... cececcescesscseescesseesseesesssestesssseessessesseseseesees 51, 52 People v. Williams (1979) 93 CalApp.3d 40 0... cseeeecesessserereseessscsseseesesssesseeneressesesseneneeseeees 49 Perry v. Leeke (1989) 488 U.S. 272 oooeeceseceeceseeeeeneeeeees 12, 14, 24, 25, 27, 33, 37, 38, 43 Portundo v. Agard (2000) 529 U.S, 6] .ccccccccccecceesceseeceseesecesecseeseaeerseeesereaeeeaecnseesseeraseesessasoesees 25 Powell v. Alabama (1932) 287 U.S. 45 vooccccccccccceseeeeeeeeeetesseseesceaasceseeesaesueeeeeeestesssaesaseeeraseeeers 20 vi Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 ooo.ccc cccecccecesecseenseeseeseessesseessecsseseeeseesensensrens 30, 5i Roe v. Flores-Ortega (2000) 528 U.S. 470...eecenececceseeeecseessscesccseecseesesseesseceaseesesseeesscesssenaeenes 28 Rose v. Clark (1986) 478 U.S. 570... ecceeeesecsssceneesscceenecssceeteccscsssceeneeseeeesseeeeseersneeesees 45 Roviaro v. United States (1957) 353 U.S. 53.eececccccseesessessesessesesseseacenescencesesessesesssescsecsecsesessseaceasens 28 Rowland v. Superior Court (2004) 124 Cal.App.4th 154 ooo. ccccsccsessessesseesesessesseesscsessecsseeeessessserrens 49 Rushen v. Spain (1983) 464 U.S. 114eeeectcesecnesseseesseeseeseeseesesseseeseesseecsescnsecsesaseseeenss 43 Schaeffer v. Black (8th Cir. 1985) 774 F.2d 865 oooceeeesessseeeseesssceesseccseeeeseeessesseseeens 35, 36 Snyder v. Massachusetts, 291 U.S. 97 (1934) occ cecceceeseesesessessseeseeseceesecsecaeeessssseseeseceeaeeteseeseeseeaeees 43 Strickland v. Washington (1984) 466 U.S. 668.0...cceseeteeteeeeens 12-14, 17, 22, 25, 26, 28, 32-35 Sullivan v. Louisiana (1993) 508 U.S. 275 ...cccccccccccesssscssessssscsssesecesseccecseesssecesssesssesescusseesenes 16, 44 Thompson v. Superior Court (1997) 53 Cal.App.4th 480 oo... cccccccsscsscsscssesecssssessessecssssccsecsesssocsesscesees 49 Tumey v. Ohio . (1927) 273 U.S. SVOei ccceesesssessesessesseeseeecsscsecsscsesseseccseesecssceenesconsens 16, 44 United States v. Abu Ali (4th Cir. 2008) 528 F.3d 210 vocecesecesscesccsecssccececcessceecsecssceeesscesuece 31 United States v. Agurs (1976) 427 U.S. 97 ee ecceeeesesessessseseessesesevseseseseessessacsesseseseseseessacsseneseeseesees 35 United States v. Bagley (1985) 473 U.S. 667 oo... eeceececsseseseseecenessssesesesssseececsesescsescsesesesesseeessteseecavans 35 United States v. Brown (9th Cir. 1970) 425 F.2d 1172 voce cecccccescsscccesecssceecescsecsesesetsessasecsuecsssce 29 vii United States v. Cronic (1984) 466 US. 648cece 13, 14, 17-23, 28, 33, 35, 36, 41, 44 United States v. Danielson (Oth Cir. 2003) 325 F.3d 1054 oo.eccseesessssesseeesseesseeeesssesseceseeseseneaenenes 34 United States v. Gonzalez-Lopez (2006) 548 U.S. 140...eeeeeeeceseeeeeseereeneeeeneenens 16-18, 27, 41, 42, 44, 45 United States v. Irwin (9th Cir. 1980) 612 F.2d 1182 woesceccscscseesceneneesensesenssesesseeneeeesenenaeneees 34 United States v. Morrison (1981) 449 US. 36]eeeeesetceeteeecsessessseecsseeeseesseeneneeseesseeseeeseeterey 25, 43 United States v. Padilla (2d Cir. 2000) 203 F.3d 156.0... eceeccessscesseeesenesessetseneenesnesensenecseensersatseeeens 2 United States v. Sandoval-Mendoza (Oth Cir. 2006) 472 F.3d 645 ooo. cescsceesseseseeeeseneesenseceeseeeenensenseneseneessees 37 United States v. Santos (7th Cir. 2000) 201 F.3d 953 woesscecsssesessessscsnetseeseeesesensenenssereaetetseres 37 United States v. Steele (6th Cir. 1984) 727 F.2d 580 oo... esescsscessesetsseeseeseseneeneeeeseneesensereeneneeeeseeees 34 United States v. Triumph Capital Group, Inc. (2d Cir. 2007) 487 F.3d 124... eccccesccseesesseneesseneeseseeeseseseessnneeetesensessenes 36 United States v. Washabaugh (9th Cir. 1971) 442 F.2d 1127 occccceecsseeseeeeeeneeseteeseneeseseeneneeseneeetees 29 Vasquez v. Hillery- (1986) 474 U.S. 254.eecessesesecseeecsessecsseseeceesssasseneeeeseeseesesseeeneneesesasenteries 16 Waller v. Georgia (1984) 467 U.S. 39.eceeeeeseeecteeneeserssessesesseeeeeeteeneesseeneereaseeeseensenees 16, 44 Weatherford v. Bursey (1977) 429 U.S. 545 .ccccccescesecseecreeecseessersevnenseesessesaseecsesseeseesenesseeaeenees 34 White v. Maryland (1963) 373 U.S. 59.eecceeseeseeesseeneeeeceseeseeeecssesseessssessseeseeseasseesaeeneesees 19, 20 Williams v. Kaiser (1945) 323 U.S. 47] ocececesseesseseesesecssessessceevscesesseeeseeseesesseseesseeseseeneesaseseas 19 Viil Williams v. Woodford (9th Cir, 2002) 306 F.3d 665 ooo ccccccccccesesseecsessstcseccssecsssensevsessereesssents 34 Wright v. Van Patten (2008) 552 U.S. 120.eeeeeccsceceseeteeesseseesseesecsecesseseeeessesnecseeees 19, 23, 24 STATUTES Code of Civil Procedure § O34cccccccessseceesseecseecsseecssecessesescaesevesseessssesseeessesesesueecsecessvsnsessesnaeesss 40 § 2018.030ucececcccccesscccessseceessccsccssscecscsensesveeseessceessnssesescectueeseenssnaesecs 50 Penal Code § 1054.ee cccesecessecccstesceeecseecssseecessseseessssssscesseessusecesusesenssseesauesesesaeserea 48 § 1054.1oeecccesscccesssseceesstescsssssrsveneusssessrsuescceauscevescessausueccusaseseers 47, 49 § 1054.6... cecccccesscecessceessesesseeesscseseessevenscessucesssssvauscesesssecsesansecaraceertneeenes 50 Welfare and Institutions Code § TOT(A)(2) ....ececccceseesssccccessscecssescccsssnsescesssstecevsssecesasseesurssnscsesevsanenevensutenseess 3 CONSTITUTIONAL PROVISIONS Sixth Amendment........eeeeeeeeeeeees 1-2, 11-13, 15-18, 21-22, 24-26, 28-29, 33-34, 36-39, 41-43, 46, 53 CouRT RULES California Rules of Court Rule 8.500(a)(2) 0... ccsccccessccsccssessesseeeseeseeseseesecsecseeesseesesseccsesersessevsuseeeseneeeas 47 ix ISSUE PRESENTED Whetherthe trial court’s order, precluding counsel from discussing with the defendant a sealed declaration of a testifying prosecution witness and a transcript of that witness’s plea-bargain proceedings, amounted to a complete deprivation of the right to counsel under the Sixth Amendment not amenable to harmlesserror review,or instead implicated the nght to “effective” assistance of counsel so that the defendant must demonstrate probable prejudice to establish a Sixth Amendmentviolation and to obtain reversal of the judgment? INTRODUCTION Appellant Townley! and three accomplices were charged with attempted murder of Javier Lazaro. Beforetrial, two accomplices entered plea bargains, under which they were required to provide declarations under penalty of perjury that detailed the offense. Thetrial court sealed the declarations and the change-of-plea transcripts to prevent proofthat the two accomplices had inculpated others in the crime from circulating within the prison system, possibly endangeringtheirlives. Oneofthose two accomplices, Flores, later testified for the prosecution in a joint trial of Townley and the remaining codefendant. As part of pretrial discovery, Townley’s attorney had received sheriff's department reports that summarized two statements by Flores and a copy of a tape-recorded interview with Flores. Townley’s counselalso received copies of Flores’s plea-bargain declaration and the change-of-plea transcript in Flores’s case, for use in counsel’s cross-examination of Flores, but counsel was ordered not to show those documents to, or discuss their content with, Townley or anyoneelse, including a defense investigator. ' Forthe sake of clarity, we refer to appellant as Townley because that is the nameusedin the opinion below by the Court of Appeal. Townley andthe codefendant were convicted of attempted premeditated murder, and the jury found that Townley had personally used a gun and personally inflicted great bodily injury. The Court of Appeal found that the trial court’s consultative restriction on Townley’s counsel regarding the sealed documentsin Flores’s case was not narrowlytailored or adequately justified by a sufficient showing of potential danger to Flores, and, accordingly, held the trial court’s order was error. Although federal court decisions validate consultative restrictions on confidential topics in appropriate circumstances (see, e.g., In re Terrorist Bombings of U.S. Embassies in East Africa (2d Cir. 2008) 552 F.3d 93, 118, 120-128; Morgan v. Bennett (2d Cir. 2000) 204 F.3d 360, 365-368; United States v. Padilla (2d Cir. 2000) 203 F.3d 156, 158-160), the People do not challenge the Court of Appeal’s finding that the record fails to support the restriction in this case. (Peoplev. Hernandez (Nov.9, 2009, H031992) at pp. 20-22 (hereafter “Typed Opn.”).) The People do challenge the Court of Appeal’s holding that the consultative restriction amounted to a per se violation of Townley’s Sixth Amendmentrightto effective assistance of counsel that required reversal without inquiring into the impact of the ban on counsel’s performance or on the outcomeofthe trial. As will be shown,the error here does notfall within the limited category of errors warranting a “presumption” of counsel’s ineffectiveness; nor is it one of the rare “structural” defects in trial proceedings that is unamenable to harmless-error review. Accordingly, the judgment of the Court of Appeal must be reversed and the matter remanded with directions for the appellate court to determine whetherthe assumederror adversely affected counsel’s performancein a mannerthat prejudiced the outcomeofthetrial. STATEMENT OF THE CASE AND FACTS A. Procedural Background Javier Lazaro was innocently out walking when he was chased by three men alighting from a passing car and shot multiple times. Following an investigation, Townley, Ruben Rocha, Jesse Carranco, and Noe Flores werearrested and charged with attempted murder.” (Typed Opn.at p. 2.) On January 25, 2007, the court granted Townley’s motion to sever his trial from that of his codefendants. (Typed Opn.at p. 5.) “Before [Townley’s] trial[,] 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 samedate that Flores and Rochaentered their pleas, April 17, 2007, the prosecution filed a motion to reconsolidate the cases against Carranco and Townley, which the court subsequently granted on April 26, 2007.” (Typed Opn.at p. 5.) B. The Trial Court’s Challenged Order Flores entered his guilty plea in a closed proceeding, and the reporter’s transcript of the hearing was sealed by an orderofthetrial court. As a condition of his plea, Flores executed a declaration under penalty of perjury detailing his involvementin the Lazaro shooting. The court sealed the declaration, to be opened only if Flores wascalled as a witnessattrial to testify about any matters covered in the declaration. Thetrial court * Townley and Carranco were charged as adults under Welfare and Institutions Code section 707, subdivision (d)(2). stated that the sealing order wasfor the protection of Flores, who had been stabbedin jail, to prevent evidence of his cooperation from circulating in the jail or prison populations. (Typed Opn.at pp. 6-7, 21.) Before trial, Townley’s and Carranco’s counsel were provided discovery, which included sheriff's department reports that summarized statements by several witnesses, including those made byFlores in two interviews. The defense attorneys also received a copy ofthe sheriff's tape- recorded interview with Flores. (See 7 CT 1516-1517, 1543-1564 [motion to severfiled by Townley summarizes Flores’s interview with sheriff's personnel andincludesas exhibits a partial copy of sheriff's report and partial copy oftranscript of taped interview with Flores] *. 8 CT 1743, 1745-1746 [Townley’s counsel acknowledges having reviewedsheriff's interview with Flores and summarizes content of interview in a discovery motion]; see 1 RT 45-46; 2 RT 387-388; 3 RT 580-581; 8 RT 1924 [court references the police reports/witness interviews provided in discovery].) On April 24, 2007, Townley’s counsel moved to compel discovery of Flores’s sealed declaration. (8 CT 1741-1742.) On or about April 27, 2007, the prosecution provided both defendants’ counsel a copy of Flores’s sealed declaration, with the understandingthat neither the declaration’s existence norits content would be discussed with their clients or others. (3 RT 551-552, 569 [counsel for both defendants acknowledgereceipt of document]; 8 CT 1782; 4 RT 761 [counsel for Townley acknowledges > The samesealing order applied to codefendant Rocha. Rocha, however, was notcalled as a witnessat the trial. Consequently, the appellate claim resolved below concerned only the court’s consultative restriction on defense counselasit related to witness Flores. * On January 14, 2009, the Court of Appeal took judicial notice of the entire sheriffs report. The entire tape-recorded interview with Flores provided to the defense in discovery does not appearin the appellate record. receipt of document]; Court’s Exh. 6A (sealed) [unsigned copy of declaration].) Counsel for Carranco and Townley jointly movedto vacate the order preventing them from discussing with their clients the declarations of Rocha and Flores. (Aug. CT 34; 3 RT 568, 584.) In a hearing on May3, 2007, from which Carranco and Townley were excluded (3 RT 549, 584), the court denied the motion,finding that it would be improperto rescind the sealing order without counsel for Flores and Rocha present. (3 RT 580.) : The court emphasized that counsel for Carraneo and Townley remained free to discuss with their clients the voluminouspolice reports and witness statements provided in discovery,asthe restriction only related to discussing the “odds and ends that are in the signed statements from Mr. Flores and Mr. Rocha.” (3 RT 580-581; see also 8 RT 1924.) The court observed that the defendants would be present to heartrial testimony by the witnesses, andthat if Flores or Rochatestified inconsistently with their respective declarations, the witness’s declaration would be unsealed and available to counsel for cross-examination. (3 RT 581-582.) On May4, 2007, counsel received copiesofthe transcript of Flores’s change-of-plea hearing subject to the restriction that counsel not show the transcript to the defendants or defense investigators. (4 RT 758-759, 761; Court’s Exhibit 3A [transcript of proceedings on April 17, 2007 (sealed)].) C. Flores’s Trial Testimony Onthe second dayoftrial testimony, May 11, 2007, Flores testified as a prosecution witness. Flores’s plea agreement required his sworn declaration describing the offense, but not his testimony. (11 RT 2697- 2698; 12 RT 2874-2876, 2884-2885, 2887, 2905.) Attrial, Flores recountedthat, around 7:00 p.m. on February 17, 2006, he received a call from his friend, Townley, asking Flores to “do[] a ride.” (8 RT 1892-1893; 11 RT 2707-2708; 12 RT 2821-2824, 2832; 20 RT 4856- 4857.) Flores drove his 1992 white Honda Accord to pick up Townley and his girlfriend. (8 RT 1891, 1899; 12 RT 2825.) Townley wore a red and black plaid flannel jacket. (12 RT 2893, 2914, 2917-2918; 14 RT 3370; 17 RT 4287-4288.) In the car, Townley showedFlores a small black handgun. (8 RT 1900-1901, 1903-1904; 12 RT 2831.) Townley directed Flores to drive to Watsonville, where they picked up Carranco and Rocha,neither of whom Flores had met before. (8 RT 1888-1890, 1905-1908; 11 RT 2705-2706; 12 RT 2832, 2834-2836; 20 RT 4890.) At Carranco’s direction, Flores drove to Anthony Gonzalez’s apartment on Harper Street, where Carranco and Gonzalez had a private conversation. (8 RT 1912-1914, 1917-1918; 12 RT 2839, 2843-2844, 2847.) Afterward, Carrancotold Flores to drive to the Ocean Terrace Apartments, a large complex located at 17th Avenue and Merrill Street, which was knownas Sureno gangterritory. (8 RT 1912; 12 RT 2850-2851, 2855; 17 RT 4019-4020, 4023; 18 RT 4266.) They saw a man walking on the sidewalk wearing a blue sweatshirt. (12 RT 2928; 13 RT 3051-3052.) Carranco in a “[k]ind of urgent” voice instructed Flores to “turn around”and “pull over,” and Flores did so. (11 RT 2713-2715; 12 RT 2755-2756, 2853.) Carranco grabbeda baseball bat from the front seat of the car and jumpedout of the car with Townley and Rocha. (12 RT 2759-2761, 2766-2767, 2826, 2857, 2911.) As Flores waitedin the driver’s seat with the engine running, he heard what sounded like firecrackers. Carranco, Townley, and Rocha ran back to the car where Carranco “urgently” told Flores to “go.” (12 RT 2774, 2776-2780, 2857, 2860, 2915.) Flores sped away and followed Carranco’s directions back to Gonzalez’s apartment. (12 RT 2780-2781, 2784.) On May11, 2007, the trial court conducted a brief hearing in the presenceof Flores’s counsel during a break in Flores’s direct examination. The court ordered that Flores’s declaration be provided to both defense counsel,” but reiterated that the declaration remained “subject to the same nondisclosure to clients, to investigators, to other attorneys, it’s only to be used by [Townley’s counsel] and [Carranco’s counsel] for purposes of doing cross-examination of Mr. Flores.” (8 RT 1920-1921; see also 8 RT 1923-1924 [court overrules request by Carranco’s counselto unseal Flores’s declaration].) Thereafter, on May 23, 2007, defense counsel used Flores’s declaration extensively to cross-examine Flores.° Both counselelicited the fact that the declaration stated that on the night of the crime, Flores wore a red and black plaid shirt, which was described by witnessesas the shirt worn by the shooter. (12 RT 2818-2821, 2893-2894.)’ Counsel for Carranco brought out Flores’s admission in the declaration that he touched the clip of Hernandez’s gun,a fact Flores denied attrial. (12 RT 2890.) Counsel also brought out that Flores did not mention in his declaration Carranco directing him whereto drive that evening, a detail he providedat trial. (12 RT 2903-2904.) Both counsel asked Flores about his having originally been charged with attempted murder, which carried a maximum term oflife in prison, and his pleading guilty to assault with a firearm for a substantially reduced three-year prison sentence. (12 RT 2874-2876, 2884- ° This appears to be the declaration provided to counsel by the prosecutor on April 27, 2007. (8 CT 1782; 3 RT 551, 569; 4 RT 761.) ° Flores’s declaration was marked as Defense Exhibit B, but was not admitted into evidence. (See 12 RT 2885-2886.) "In responseto this inquiry, Flores explained that he had worn a black shirt on the night of the shooting and that the contrary statementin the declaration was wrong. (12 RT 2818-2821, 2893-2894.) Flores’s testimony wasconsistent with other evidence, including Townley’s girlfriend’s testimonythat on the night of the shooting Townley wore a black and red pendleton shirt that she had given him asa gift (14 RT 3370), and evidence that Townley wasin possession ofa black and red shirt during an interview withpolice later that night (15 RT 3531; 20 RT 4830). 2885; 13 RT 3041.) Counsel for Carranco brought outthat at the time of his plea agreement, Flores had to sign a declaration under penalty of perjury that set forth the circumstances surrounding the shooting. (12 RT 2886-2887.) Counsel for Carrancoelicited on cross-examination that the declaration included these provisions: (1) “I understand that I have to acknowledgeto the Judge in open court and underoath the contentsofthis declaration are true at the time I enter my plea”; and (2) “I understand that if called as a witness I musttell the truth.” (12 RT 2908-2909.) Notwithstanding the permissible use by both counsel during Flores’s cross- examination of information in the plea-bargain documents, the documents themselves remained underseal duringtrial. Thetrial court instructed the jury, “[YJou’re entitled to know someofthe circumstances involving Mr. Flores’s plea in this case because it goes to an issue of his credibility, and it’s one of the factors that you’ll be told you can consider in weighing his credibility.” (12 RT 2876-2877.) It further instructed that “[t]he declaration ofNoe Flores that you heard about in this case was a part ofhis plea agreement with the District Attorney’s office.” (21 RT 5071.) D. Further Prosecution Evidence The man wearing the blue sweatshirt, 29-year-old Javier Lazaro, lived at the Ocean Terrace Apartments. He was not a gang member. (6 RT 1279-1281.) Lazaro was walking towards his apartment around 9:00 p.m., whenhe noticed an older white Hondastop in the street, and heard a heated exchange and someonesay “come” in Spanish. Lazaro ignored the commotion and kept walking. (6 RT 1283-1287, 1306-1309; 7 RT 1505- 1506; 11 RT 2650-2651.) Three or four men jumpedoutofthe car, ran towards him, and in Spanish demanded to know whether he was a Norteno ora Sureno. Lazaro fled, terrified. (6 RT 1312, 1316-1317; 7 RT 1508, 1512.) Something hit him, and he fell. (6 RT 1297, 1300-1301.) Lazaro wasshot five times, and hesustained injuries to his right hand, his right knee,his left thigh, his back, and his abdomen. The bullet that entered his back fractured his rib and bruised his lung. Twobullets were not surgically removed and remained in his body. (11 RT 2513-2528, 2532, 2536.) He did not see whohad shot him. (6 RT 1312, 1316-1317; 7 RT 1508, 1512.) Ginger Weisel and David Bacon witnessedthe attack. Weisel saw three men quickly approach Lazaro, call out “mother-fucking scrap,” and demand to know where Lazaro wasfrom. Lazaro respondedthat he did not “claim” anything and was simply going home. One manapproachedwithin three feet of Lazaro and shot him six to eight times in rapid succession. Lazaro fell to the ground as the man continued to shoot. The other two men stood within twoto seven feet of the shooter. (11 RT 2650-2653, 2679, 2682, 2691-2692; 20 RT 4864-4865.) The shooter worea red and black plaid shirt and was approximately five feet nine inchestall. (11 RT 2653- 2655, 2668, 2671; 14 RT 3363-3365.)° Bacon wasdriving his car when he heard what soundedlike firecrackers. He turned around and saw a manstanding in a shooting position, with his arm outstretched and pointed towards the ground. Bacon saw muzzle flashes and heardfive or six shots in rapid succession. Bacon was about 50 percent certain the shooter wore a plaid jacket. A second person stood within 20 feet of the shooter acting as a “lookout.” (7 RT 1526-1534, 1538, 1540-1541; 8 RT 1782-1784, 1797, 1799.) Randi Fritts-Nash wasdrinking at the Harper Street apartment when Townley, Flores, Carranco, and Rochareturned. (14 RT 3230, 3285-3289, 8 Townley was aboutfive feet seven inchestall. Carranco was about five feet six inchestall. Rocha was aboutfive feet nine inchestall. Flores was betweenfive feet six inches andfive feet seven inchestall. (20 RT 4837, 4844, 4846; 21 RT 5067-5069.) 3292-3294.) She heard a car pull up and, shortly thereafter, a tap on the window. Gonzalez went to the windowandspokebriefly with someone outside. The voices outside sounded anxiousand fearful, and Fritts-Nash overheard the words “hit” and “scrap.” She could not say who uttered them. (13 RT 3111-3118; 14 RT 3282-3283, 3298-3300, 3550-3551; 16 RT 3874; 17 RT 4022.) Minutes later, Townley, Carranco, Flores, and Rocha entered the apartment. (12 RT 2790-2792, 2864-2865; 13 RT 3121-3123.) Fritts- Nash recounted that Townley worea red and black plaid jacket and that he referred to the Watsonville Nortenos at one point in the conversation. (13 RT 36123-3124, 3129-3130; 14 RT 3304.) After Carranco and Gonzalez conversed in hushed tones, Carranco and Rochaleft in a white sport utility vehicle. (12 RT 2793-2796, 2798, 2800, 2866-2867; 13 RT 3126-3127, 3138-3139; 14 RT 3305-3308, 3311, 3342-3343.) Notlongafter, police arrived at the Harper Street apartment, which was a known gang hangout. (15 RT 3510-3513.) As police spoke to peoplein the living room, Townley and Fritts-Nash remainedin Gonzalez’s bedroom. (13 RT 3137; 14 RT 3313.) Townley removed a small black gun from his pocket and wiped it down for fingerprints. He told Fritts-Nash that he neededto hide the gun and that he was “looking at 25to life.” He secreted the gun in one shoe and a small velvet bag of bullets in the other. WhenFritts-Nash asked if he shot someone, Townleyrolled his head in a circular fashion and did not denyit. (13 RT 3140-3146; 14 RT 3317-3324.) In a later search, police found a .25-caliber handgun and20 live rounds of .25-caliber ammunition on Townley. (9 RT 2063-2068, 2072; 11 RT 2577.) Five gunshot casings recovered at the crime scene were the samecaliber and manufacturer as those found in Townley’s shoe. (17 RT 4029, 4032, 4047.) Townley’s hands andthe sleevesof his red and black plaid jacket tested positive for gunshot residue, with the largest 10 concentration on the right hand and the right shirt sleeve. (9 RT 2069-2070; 13 RT 3066-3069, 3073-3077, 3080.) E. Defense Case Townley did not testify. He called Lori Kaminski as an expert in gunshot residue. (21 RT 5036.) She explained various ways a person can comeinto contact with gunshot residue without actually firing a gun. She opinedthatit is unreliable to conclude that a person fired a gun based solely on the presence of gunshotresidue on that person’s handsorclothing. (21 RT 5036, 5039-5040, 5042-5043, 5047-5048, 5052, 5061, 5065.) F. Verdict and Appeal A jury convicted Townley of willful, premeditated, and deliberate attempted murder with personal use of a gun and personalinfliction of great bodily injury. (9 CT 2004, 2024-2030.) He was sentencedto life imprisonmentfor attempted murderandto 25 yearsto life for the firearm enhancement. (12 CT 2884-2885, 2887.) On appeal, Townley claimeda violation of his Sixth Amendmentright to consult his attorney. The claim wasbased onthetrial court’s order prohibiting defense counsel from disclosing to Townley the contents or existence of the declaration executed by Flores and the change-of-plea transcript prepared in Flores’scase. Pursuantto an order of the Sixth District on April 15, 2008,the plea transcripts of Flores and Rocha, and copies of their declarations were provided to appellate counsel, but remain underseal. (Court’s Exhibits 3A, 4A, 5A, 6A; RT 761.) The Court of Appeal reversed. It declared thatthe trial court’s consultationrestriction on Townley’s attorney with respect to the sealed documentsin Flores’s case was not narrowly tailored or adequately justified by concerns for witness safety. (Typed Opn.at pp. 18-22.) It held 1] the order violated Townley’s Sixth Amendmentrightto the “effective assistance of counsel.” (Typed Opn.at p. 22.) The Court of Appeal refused to apply the two-prongtest of ineffective assistanceset forth in Stricklandv. Washington (1984) 466 U.S. 668 (Strickland), and therefore never determined that the order had an adverse effect on counsel’s performancethat resulted in actual prejudice. In rejecting such an analysis, it observed that““[a]ctual or constructive denial of the assistance of counsel altogether” [citation], is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performanceitself has been constitutionally ineffective.’” (Typed Opn.at p. 22, quoting Perry v. Leeke (1989) 488 U.S. 272, 280 (Perry).) Nor did the appellate court conduct harmlesserror analysis after finding the constitutional violation. (Typed Opn.at pp. 22-24.) Instead, the Court of Appeal held that the order impinging the consultative aspect of counsel’s representation was a “structural” defect requiring automatic reversal. (Typed Opn.at pp 23-24.) In light of this conclusion, the court did not reach Townley’s claims of prosecutorial misconduct and improper judicial comment. (Typed Opn.at p. 24.) Respondingto a separate claim in the eventofretrial, the Court of Appeal held that it was proper to withhold from the defense previous draft versions of Flores’s declarations, which the witness had declined to sign. The court foundthat the unsigned declarations were not relevant ” Carranco separately appealed his judgment. (People v. Carranco, Case No. H032412.) Carranco’s and Townley’s appeals were not consolidated for briefing or decision. Carranco joined in Townley’s claimed Sixth Amendmentviolation without offering additional briefing. On February 24, 2010, the Court of Appeal reversed Carranco’s conviction in an unpublished opinion adopting its analysis in this case. On April 5, 2010, the People filed a petition for review. (Case No. $181567.) 12 impeachment evidence. (Typed Opn.at pp. 26-27.) Alternatively, on an assumption that Flores’s unsigned prior draft declarations were material evidence favorable to Townley, the Court of Appeal held that the defense’s lack of access to Flores’s draft declarations was harmless beyond a reasonable doubt: “The jury was fully informed ofthe details of the plea bargain between Flores and the prosecution. He was cross-examined on the discrepancy betweenhis testimony andhis declaration, including the statementin the declaration that he had been wearing a ‘red and black Pendleton shirt’ on the night of the shooting. In addition, the court instructed the jury that Flores’s declaration waspart of his plea agreement with the prosecution. The withholding of the earlier versions offered to Flores was not prejudicial to Townley.” (Typed Opn.at p. 27.) This Court granted the People’s petition for review. SUMMARY OF ARGUMENT The Sixth Amendmentright to effective assistance of counsel exists to ensure the defendant’s rightto receive a fair trial. (United States v. Cronic (1984) 466 U.S. 648, 658 (Cronic).) “Absent someeffect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” (/bid.) Accordingly, in the mill-run of cases, Strickland calls for a determination of“‘actual ineffectiveness’” underthe facts of the particular case. (Strickland, supra, 466 U.S.at p. 686.) To makeout such a constitutional violation, the defendant must show that counsel’s performance fell below an objective standard of reasonableness andthat counsel’s failure so affected the adversary process as to undermineconfidencein theresult of thetrial. In rare and narrowly defined circumstances, a Sixth Amendment violation is shown, and reversal is mandated, absent an individual assessment of counsel’s performanceor the effect thereof on the outcome of the case. Such circumstances include where “counsel waseither totally 13 absent, or prevented from assisting the accused during a critical stage of the proceeding.” (Cronic, supra, 466 U.S. 659,fn. 25.) In Geders v. United States (1976) 425 U.S. 80, 91 (Geders), the Court reversed a conviction without an assessmentofprejudice wherethe trial court denied the defendant access to counsel altogether during a 17-hourrecess in the middle of the defendant’s trial testimony. Unlike in Geders,the trial court’s order preventing Townley andhis counsel from consulting about a part of the evidence—namely Flores’s declaration and change-of-plea transcript—did not result in an “‘[a]ctual or 299 constructive denial of the assistance of counsel altogether.’” (Perry, supra, 488 U.S.at p. 279, quoting Strickland, supra, 466 U.S.at p. 692.) Counsel was not prevented from meeting with Townley, from discussing defense strategy, or from investigating the case. Townley and his counsel knew of Flores’s identity and received discovery ofhis pretrial statements to sheriff's personnel. Counsel received the sealed documents for use in cross-examining Flores, and wasfree to discuss that testimony with his client. Accordingly, the Court of Appeal erred in deeming the limited consultative restriction in this case to be a structural defect akin to a complete denial of counsel. Neither the United States Supreme Court northis Courthas considered whattest applies to a consultative ban on attorney-defendant communication regarding specified topics or items of evidence. Cronic holds that discrete errors in defense counsel’s performance, whether caused by counsel’s own omission or by an external source, must be assessed underthe Strickland framework. (466 U.S.at p. 662 & fn. 31, p. 666 & fn. 41.) Applying that framework, to establish a constitutional violation, it was defendant’s burden to show that, as a result of the consultative restriction, “counsel’s performance wasdeficient” and that “the deficient performance prejudiced the defense.” (Strickland, supra, 466 U.S.at p. 687.) 14 Ultimately, however, even if prejudice need not be shown to make out a Sixth Amendmentviolation wherethetrial court erroneously interferes with attorney-client communications on a relevant defensetopic, that conclusion does not require per se reversal as the appellate court held. Any Sixth Amendmenterrorin this case should remain subject to proof by the state that the error was harmless beyond a reasonable doubt. Because the consultative restriction on specified items of evidence did not undermine the adversarial frameworkofthe trial and can be quantitatively assessed for prejudice in the contextofthe trial record as a whole, the appellate court erred in dispensing with harmless-error review. ARGUMENT 1. THE LIMITATION PLACED ON TOWNLEY’S CONSULTATION WITH HIS COUNSEL REGARDING SPECIFIC ITEMS OF EVIDENCE DID NOT DENY COUNSEL’S ASSISTANCE ALTOGETHER AND DID NOT WARRANT REVERSAL OF THE CONVICTION WITHOUT AN ASSESSMENT OF PREJUDICE A. Overview of Structural Error Arizona v. Fulminante (1991) 499 U.S. 279 (Fulminante) divided eeeconstitutional error into two classes: ““‘trial error’” which “occurred during the presentation ofthe caseto the jury,” the effect of which may “be quantitatively assessed in the context of other evidence presented in order to determine whether[the error was] harmless beyond a reasonable doubt” (id. at pp. 307-308), and “structural defects,” which “defy analysis by ‘harmless-error’ standards” because they “affec[t] the framework within whichthetrial proceeds”and are not “‘simply anerror in the trial process itself’ (id. at pp. 309-310). Structural errors “‘infect the entire trial process,’ [citation], and ‘necessarily rendera trial fundamentally unfair,’ [citation]. Put another way,these errors deprive defendants of ‘basic protections’ without which‘a criminaltrial cannotreliably serve its 15 function as a vehicle for determination of guilt or innocence .. . and no criminal punishment may be regarded as fundamentally fair.’ [Citation.]” (Neder v. United States (1999) 527 U.S. 1, 8-9 (Neder).) Becauseit is difficult or impossible to assess the prejudicial effect of structural error on the ultimate fairness of the trial (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 149, fn. 4 (Gonzalez-Lopez)), such errors “defy analysis by ‘harmless error’ standards.” (Fulminante, supra, 499 U.S.at pp. 309-310.) An error mayalso qualify as structural where prejudiceis essentially irrelevant to safeguarding the constitutional rightat issue, such as where the defendantis denied his right to self-representation. (Gonzalez-Lopez, supra, at p. 149, fn. 4.) Includedin thelist of “structural defects” are the total deprivation of the right to counselat trial (Gideon v. Wainwright (1963) 372 U.S.335), the denial ofthe right of self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168, 177-178, n. 8), the denial of the right to counsel of choice (Gonzalez-Lopez, supra, 548 U.S.at p. 152), the denial of the right to a public trial (Waller v. Georgia (1984) 467 U.S. 39, 49, fn. 9), the denial of the right to an impartial judge (Tumey v. Ohio (1927) 273 U.S. 510), the existence of racial discrimination in the selection of the grand jury (Vasquez v. Hillery (1986) 474 U.S. 254) or the petit jury (see Batson v. Kentucky (1986) 476 U.S. 79, 100), and the denial of the right to trial by jury by giving a defective reasonable doubtinstruction (Sullivan v. Louisiana (1993) 508 U.S. 275). (See also Neder, supra, 527 US.at p. 8 [listing structural error cases].) B. Sixth Amendment Right to Counsel Cases The Sixth Amendment guaranteesthat “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” This guarantee includesthe right to counsel of choice for nonindigent defendants * (Gonzalez-Lopez, supra, 548 U.S.at p. 144) and the “‘right to the effective 16 assistance of counsel” (Cronic, supra, 466 U.S.at p. 654, quoting McMannv. Richardson (1970) 397 U.S. 759, 771, fn. 14). “[T]he right to effective assistance of counsel is recognized notforits ownsake, but becauseofthe effect it has on the ability of the accused to receive a fair trial. Absent someeffect of challenged conduct on the reliability of the trial process, the Sixth Amendmentguarantee is generally not implicated.” (Cronic, supra, 466 U.S.at p. 658.) Accordingly, with respect to violations of the Sixth Amendment’s right to effective assistance of counsel, a defendant must establish both deficient performance and prejudice to makeoutthe constitutional violation. (Strickland, supra, 466 USS. at p. 687; Cronic, supra, 466 U.S.at p. 658.) As the United States Supreme Court recently explained: Having derived the right to effective representation from the purpose of ensuringa fair trial, we have, logically enough, also derived the limits of that right from that same purpose. See Mickens |v. Taylor (2002) 535 U.S. 162], 166. The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific elementofthe right to counsel at issue there—effective (not mistake-free) representation. Counsel cannotbe “ineffective” unless his mistakes have harmed the defense(or, at least, unless it is ‘ reasonablylikely that they have). Thus, a violation of the Sixth Amendmentrightto effective representation is not “complete” until the defendantis prejudiced. See Strickland, supra, at 685. (Gonzalez-Lopez, supra, 548 U.S. at p. 147.) A defendant challenging the constitutional adequacy of counsel’s performance under Strickland must show that (1) counsel’s performance wasdeficient, and (2) a “reasonable probability that but for counsel’s [deficient performance] theresult of the proceedings would have been different” sufficient to undermine confidence in the outcomeofthetrial. (Strickland, supra, 466 U.S.at p. 694.) In rare and narrowly defined circumstances, a Sixth Amendment violation is shown,and reversal is mandated, absent an individual 17 assessmentof prejudice in the particular case. The complete denial of counselattrial in violation of the Sixth Amendmentis a “structural defect[] in the constitution of the trial mechanism”that “deflies] analysis by ‘harmless error’ standards.” (Fulminante, supra, 499 U.S.at p. 309; see Gideon v. Wainwright, supra, 372 U.S. 335; Cronic, supra, 466 U.S.at p. 659.) Likewise, the erroneous denial of counsel of choiceis a structural defect not amenable to review for prejudice. The right to counsel of one’s choice does not exist to ensure a fair trial. Therefore, an erroneous order denying a defendant his counsel of choice violates the Sixth Amendment, and “[{n]o additional showing of prejudice is required to make the violation ‘complete.’” (Gonzalez-Lopez, supra, 548 U.S.at p. 146, fn. omitted.) Nor is such a violation amenable to traditional “harmless error” review. The erroneous deprivation of the right to counsel of choice affects “myriad aspects of representation,” including investigation and discovery, developmentofthe theory of defense, plea bargaining, jury selection, evidence presentation, and jury argument, in waysthat are “necessarily 299unquantifiable and indeterminate.”” (/d. at p. 150, internal citation omitted.) C. Cronic and the Presumption of Prejudice Cases Cronic, supra, 466 U.S. 648 “recognized a narrow exception to Strickland’s holding that a defendant whoasserts ineffective assistance of counsel must demonstrate not only that his attorney’s performance was deficient, but also that the deficiency prejudiced the defense.” (Florida v. Nixon (2004) 543 U.S. 175, 190.) There, the Court “held that a Sixth Amendmentviolation may be found ‘without inquiring into counsel’s actual performance or requiring the defendant to showthe effect it had on the trial,’ Bell v. Cone, 535 U.S. 685, 695 (2002), when ‘circumstances [exist] that are so likely to prejudice the accusedthat the cost of litigating 18 their effect in a particular case is unjustified,’ Cronic, supra, at 658.” (Wright v. Van Patten (2008) 552 U.S. 120, 124.) Cronic recognized several categories of “presumed”prejudice delineated in the Court’s prior precedent. First, prejudice is presumed where counselis either totally absent or is prevented by government action from assisting the accusedat a “critical stage” of the proceeding. (Cronic, supra, 466 U.S.at pp. 659 & fn. 25.) As examples, the court cited Geders v. United States, supra, 425 U.S. at p. 91 (order preventing defendant from consulting with his counsel “‘about anything” during a 17-hour overnight recess), Herring v. New York (1975) 422 U.S. 853, 865 (trial judge’s order denying counsel the opportunity to make a summation at close of bench trial), Brooks v. Tennessee (1972) 406 U.S. 605, 612-613 (law requiring defendantto testify first at trial or not at all deprived accused of“the “guiding hand of counsel’in the timing of this critical elementof his defense”), Hamilton v. Alabama (1961) 368 U.S. 52, 55 (denial of counsel at arraignment), White v. Maryland (1963) 373 U.S. 59, 60 (per curiam) (denial of counsel at preliminary hearing), Ferguson v. Georgia (1961) 365 U.S. 570, 596(statute retaining common law incompetencyrulefor criminal defendants, which denied the accused the right to have his counsel question him to elicit his statements before the jury), and Williams v. Kaiser (1945) 323 U.S. 471 (failure to appoint counsel upon defendant’s request prior to entry of defendant’s guilty plea).'° '° At least two categories of error that Cronic deemedreversible without an assessmentofprejudice have since beenheld to be subject to harmless-error review. Delaware v. Van Arsdall (1986) 475 U.S. 673, 682- 683, rejected the view that Davis v. Alaska (1974) 415 U.S. 308 requires automatic reversal where thetrial court erroneously limits cross- examination. “Davis plainly rests on the conclusion that on the facts of that case, the error might well have contributedto the guilty verdict. Davis should notbe readas establishing, without analysis, a categorical exception (continued...) 19 Second, a presumption of prejudice is warranted when “there [is] a breakdownin the adversarial process” (Cronic, supra, 466 U.S.at p. 662) such that “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” (id. at p. 659). In commenting onthis category of “presumed”prejudice, the Supreme Court hasclarified that “the attorney’s failure must be complete.” (Bell v. Cone (2002) 535 U.S. 685, 697.) The category is reserved for “situations in which counselhasentirely failed to function as the client’s advocate.” (Florida v. Nixon, supra, 543 USS. at p. 189.) Third, the court will presume prejudice “where counselis called upon to render assistance under circumstances where competent counsel very likely could not.” (Bell v. Cone, supra, 535 U.S. at p. 696, citing Cronic, supra, 466 U.S.at pp. 659-662.) As an example, Cronic cited Powell v. Alabama (1932) 287 U.S. 45, where six days before a capital murdertrial, the trial judge appointed “‘all the members of the bar’ for purposes of arraignment. On the day oftrial, a lawyer from Tennessee appeared on behalf of persons “interested” in the defendants, but announced that he was unprepared and therefore unwilling to represent the defendants on such short notice. The Supreme Court reversed the convictions without an evaluation of counsel’s performanceat trial. (287 U.S. at pp. 56-60.) It held that under the circumstances presented, the likelihood that counsel (...continued) to the harmless-error rule.” (Van Arsdall, supra, at p. 683.) Coleman v. Alabama(1970) 399 U.S. 1, 10-11 clarified that the denial of counsel at the preliminary hearing is subject to harmless error review under Chapmanv. California (1967) 386 U.S. 18. (Compare White v. Maryland, supra, 373 U.S. 59 [finding reversible error without an assessment of prejudice where the defendant, without the assistance of counsel, entered a guilty plea at the preliminary hearing, andhis initial plea was later introduced into evidence against him attrial].) 20 could have performedas an effective adversary was so remote as to have madethe trial inherently unfair. Another example was Hollowayv. Arkansas (1978) 435 U.S. 475, where defense counsel was ordered, over his objection, to simultaneously represent three codefendants with divergent interests. (/d. at pp. 478-480.) The Holloway Court presumed that the conflict, “which [the defendant] and his counseltried to avoid by timely objections to the joint representation”(id. at p. 490), undermined the adversarial process, both because joint representation of conflicting interests is inherently suspect and because counsel’s conflicting obligations to multiple defendants “effectively sea[!] his lips on crucial matters” and makeit difficult to measure the precise harm arising from counsel’s errors. (Id. at pp. 489-490.) In setting forth these categories of presumed prejudice, Cronic cautioned that “{a]part from circumstances of [the magnitudelisted], there is generally no basis for finding a Sixth Amendmentviolation unless the accused can show howspecific errors of counsel underminedthereliability of the finding of guilt. [Citations.]” (466 U.S. at p. 659, fn. 26.) Most cases discussing Cronic have emphasized the narrownessofits application. As this Court observedin In re Visciotti (1996) 14 Cal.4th 325, “[NJotwithstanding the broad languagein the Cronic opinion [citation] to the effect that when ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,’ the right to competent counsel has been denied and the result of the trial is presumptively unreliable, the actual application of Cronic has been much morelimited. Defendants have been relieved of the obligation to show prejudice only where counsel waseither totally absent or was prevented from assisting the defendant at a critical stage.” (/d. at p. 353.) The Supreme Court “illustrated just how infrequently the ‘surrounding circumstances[will] justify a presumption of ineffectiveness’ 21 in Cronicitself.” (Florida v. Nixon, supra, 543 U.S.at p. 190.) There, the Court declined to apply the presumption of prejudice to the facts before it: the defendant’s counsel was young; his principal practice wasreal estate; it washis first jury trial; and he had only 25 days to prepare fortrial on complex fraud charges. (466 U.S.at pp. 663-666.) The Court rejected an “inference that counsel was unable to discharge his duties”(id. at p. 658) and instead demanded that the defendant make out a claim ofineffective assistance of counsel by pointing to specific errors and demonstrating prejudice (id. at pp. 666-667 & fn. 41). Bell v. Cone, supra, 535 U.S. 685 refused to apply a presumption of prejudice where the defendant claimed his counselfailed to “mount some case for life” after the prosecution introduced evidencein the sentencing hearing and gave a closing statement. (/d. at p. 697.) There, the Court observed that “[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.” (/d. at pp. 696- 697.) “[R]espondent’s argumentis not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counselfailed to do so at specific points.” (/d. at p. 697.) “The aspects of counsel’s performancechallenged by respondent—thefailure to adduce mitigating evidence and the waiverof closing argument—areplainly of the sameilk as other specific attorney errors we have held subject to Strickland’ s performanceand prejudice components.” (/d. at pp. 697-698.) Mickens v. Taylor (2002) 535 U.S. 162 “confirmed that claims of Sixth Amendmentviolation based on conflicts of interest are a category of ineffective assistance of counsel claims that, under Strickland, supra, 466 US.at page 694, generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceeding would have been 22 different.” (People v. Doolin (2009) 45 Cal.4th 390, 417.) There, the Court refused to apply a presumption of prejudice “‘unblinkingly’”to all kinds of attorney interference. (Mickens, supra, 535 U.S. at p. 174.) A defendantis “spared . . . the need of showing probable effect upon the outcome” only where “assistance of counsel has been denied entirely or during a critical stage of the proceeding.” (/d. at p. 166.) “[O]nly in ‘circumstancesof that magnitude’ do we forgo individual inquiry into whether counsel’s inadequate performance underminedthereliability of the verdict.” (/bid., quoting Cronic, supra, 466 USS. at p. 659, fn. 26.) Florida v. Nixon, supra, 543 U.S. 175 described Cronic as a “narrow exception to Strickland’s holding that a defendant whoasserts ineffective assistance of counsel must demonstrate not only that his attorney’s performance wasdeficient, but also that the deficiency prejudiced the defense.” (/d. at p. 190.) A presumption ofprejudice is “reserved for situations in which counselhas entirely failed to function as the client’s advocate.” (/d. at p. 189.) There, the court declined to presume prejudice where counsel concededhis client’s guilt in a capital case. (/d. at p. 190.) Wright v. Van Patten, supra, 552 U.S. 120 refused to apply a presumption of prejudice where counsel appeared for the defendant by speaker phone,rather than in person. The Court reasoned: “Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. Even if weagree with Van Patten that a lawyer physically present will tend to perform better than one on the phone,it does not necessarily follow that mere telephone contact amountedto total absence or ‘prevented [counsel] from assisting the accused,’ so as to entail application of Cronic. The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstancesarelikely to 23 result in such poor performancethat an inquiry into its effects would not be worth the time.” (/d. at p. 125.) D. Geders and Perry—The Right to Consultation The Sixth Amendmentright to counsel guarantee includes “‘the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense fortrial.’” (Kansas v. Ventris (2009) U.S. __ [129 S.Ct. 1841, 1844-1845], quoting Michiganv. Harvey (1990) 494 U.S. 344, 348.) Geders, supra, 425 U.S. 80 held that a trial court’s order preventing the defendant from consulting his counsel ““about anything’” during a 17-hour recess in the middle of the defendant’s trial testimony violated the defendant’s right to the assistance of counsel guaranteed by the Sixth Amendment. (/d. at p. 91.) The court observed: It is commonpractice during such recesses for an accused and counsel to discuss the events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be madeandstrategies to be reviewed. The lawyer may needto obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry alonglines notfully explored earlier. At the very least, the overnight recess during trial gives the defendant a chanceto discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendantis ill-equipped to understand and deal withthe trial process without a lawyer’s guidance. (Id. at p. 88.) The Court reversed the defendant’s conviction without inquiry into the actual prejudice, if any, that resulted from the defendant’s denial of access to his lawyer during the overnight recess. (/d. at pp. 91-92.) Perry, supra, 488 U.S. 272 deemed Geders error—the complete denial of counsel concerning all matters during an overnight recessin the trial—to be an errorthat “‘is not subject to the kind of prejudice analysis that is appropriate in determining whetherthe quality of a lawyer’s performanceitself has been constitutionally ineffective.” (/d. at p. 280, 24 citing Cronic, supra, 466 U.S.at p. 659 & fn. 25.) Perry went on to hold that the orderin that case forbidding defense counsel from consulting with his client during a 15-minute recess in the defendant’s testimony, did not amountto constitutionalerrorat all. (/d. at pp. 280-281.) Later Supreme Court cases have affirmed that Geders established a rule of per-se reversal. In doing so, however, those cases describe the deprivation of counsel as complete. (See, e.g., Bell v. Cone, supra, 535 U.S. at p. 696, fn. 3 [noting that cases where prejudice was presumed “involved criminal defendants whohad actually or constructively been denied counsel by governmentaction,” including the order in Geders “preventing defendant from consulting his counsel ‘about anything”during a 17-hour overnight recess . . .”]; Mickens v. Taylor, supra, 535 U.S. at p. 166 [we have presumed prejudice where “assistance of counsel has been denied entirely or during a critical stage of the proceeding,” citing Cronic, Geders, and Gideon]; Portundo v. Agard (2000) 529 U.S. 61, 69 [Geders held that defendant’s “sequestration for an extended period of time denies the Sixth Amendmentnght to counsel”]; Lockhart v. Fretwell (1993) 506 U.S. 364, 378 & fn. 2 [prejudice is presumed where “counsel is prevented from offering assistance duringa critical phase of the proceedings”as in Geders where “attorney-client consultation [was] prevented during overnight recess”; Strickland, supra, 466 U.S.at p. 686 [governmentviolates the Sixth Amendmentright to effective assistance by placing a “bar on attorney-client consultation during overnight recess’’].) United States v. Morrison (1981) 449 U.S. 361 summarized the rule derived from cases like Gideon and Gedersas follows: “Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should betailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant casesreflect this approach.” (/d. at p. 364.) “The premise of ourprior cases 25 is that the constitutional infringementidentified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced someotherprejudice to the defense. Absent such impacton the criminal proceeding, however,there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition ofthe defendant’s right to counsel and to a fairtrial.” (/d. at p. 365.) E. Because Townley Did Not Suffer a Total Deprivation of the Right to Counsel, He Must Satisfy the Two-Prong Test of Strickland in Order to Establish a Sixth AmendmentViolation As the Court of Appeal acknowledged, the consultative ban in Geders involveda “total ban, though limited temporally, on attorney-client communication, not what we maycall a topical ban.” (Typed Opn.at p. 11.) Unlike in Geders, the trial court’s order in this case did notrestrict counsel’s access to Townley or order him not to consult with Townley ““about anything” during a significant portion ofthe trial. (Geders, supra, 425 US.at p. 91.) Rather, it prohibited defense counsel from conferring with Townley on discrete topic—Flores’s declaration and change-of-plea transcript. While acknowledging that no United States Supreme Court or California Supreme Court authority addressed “an order preventing an attorney from talking with a defendant about a part of the evidence” (Typed Opn.at p. 11), the Court of Appeal concludedthat such a ban violated the rule in Geders and effectively denied Townley access to counsel. (Typed Opn.at pp. 11-12, 18-22.) In so concluding,the court did not evaluate the potential effect of the trial court’s order on counsel’s performance. Rather, it summarily concluded that “[w]ithout more evidence of good cause for a court order barring defense counsel from discussing the content of Flores’s written declaration with Townley, we concludethat this order unjustifiably infringed on Townley’s constitutionalright to the effective assistance of 26 counsel.” (Typed Opn.at p. 22.) Likewise, the court refused to consider the potential impactofthetrial court’s ruling on the outcomeofthetrial. It reasoned: “Stricklana’s citation to Geders ‘was intended to makeclear that “{a]ctual or constructive denial of the assistance of counsel altogether” [citation], is not subject to the kind of prejudice analysis that is appropriate in determining whetherthe quality of a lawyer’s performanceitself has 999been constitutionally ineffective.’” (Typed Opn.at p. 22, quoting Perry, supra, 488 US. at p. 280.) “We need not wanderfar afield to determine whether the United States Supreme Court meant whatit said in Perry... . The Attorney General’s attempts to minimize the impact ofthe restriction in this case of ‘counsel’s ability to confer with his client on one very limited topic’ do notalter our conclusion that on this topic — the written declaration of an accomplice whowasa significant witnessattrial — Townley was deprived by court orderofthe effective assistance of counsel. It follows that Townleyis entitled to reversal without making a showing of prejudice resulting from this error.” (Typed Opn.at p. 24.) The Court of Appeal erred by deeming any interference with counsel’s communications on defense-related topics to be a structural defect. Only those errors that “affec[t] the framework within which thetrial proceeds” (Fulminante, supra, 499 U.S.at pp. 307-310)or are virtually impossible to assess for prejudice (Gonzalez-Lopez, supra, 548 U.S. atp. 149, fn. 4), will so qualify. Contrary to the Court of Appeal’s holding, “[iJt does not necessarily follow . . . that every deprivation in a category considered to be ‘structural’ constitutes a violation of the Constitution or requires reversal of the conviction, no matter how brief the deprivation or howtrivial the proceedings that occurred during the period of deprivation.” (Gibbons v. Savage (2d. Cir. 2009) 555 F.3d 112, 120 [discussing unjustified, temporary closure of the courtroom during jury voir dire]; People v. Bui (2010) 183 Cal.App.4th 675 [same].) “Not every restriction 27 on counsel’s.time or opportunity to investigate or to consult with his client or otherwise to preparefortrial violates a defendant’s Sixth Amendment right to counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 11.) Whether the court will presume prejudice in a given circumstance “turns on the magnitudeofthe deprivationofthe rightto effective assistance ofcounsel.” (Roe v. Flores-Ortega (2000) 528 U.S. 470, 482,italics added.) Asset forth above,the rule in Cronic presumes prejudice only under “the most egregious conditions. Bell v. Cone, supra, 535 U.S. 684 explained that the state’s action must result in the actual or constructive “‘complete denial of counsel.’” (/d. at p. 696.) Short of “complete” interference, the two-prongtest set forth in Strickland applies. As this Court observed in People v. Rundle (2008) 43 Cal.4th 76, “[T]he presumption of prejudiceis a prophylactic measure established to address ‘situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendmentright to counsel.’” (/d. at p. 173, quoting Mickens, supra, 535 U.S. at p. 176, Rundle disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421.) That level of interference was not shown here. Counsel was not prevented from meeting with Townley, from discussing defensestrategy, from investigating the case, or from cross-examining Flores. Townley and his counsel knew Flores’s identity and his status as a former codefendantin the case. Nothingin thetrial court’s consultation restriction prevented counsel from asking Townley what, if anything, he knew about Flores or from investigating Flores’s background. (Cf. Roviaro v. United States (1957) 353 U.S. 53, 60-61 [when an informantis a material witness on the issue of guilt, the prosecution mustdisclose his or her identity or incur a dismissal]; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1148-1152 [court erred in allowing witness to testify anonymouslyattrial].) 28 Although defense counsel could not discuss the content of Flores’s sealed declaration or plea agreement with Townley or a defense investigator, the denial of discovery of witness statements doesnotitself establish a Sixth Amendmentviolation. Thus, for example, in federal court “[a] criminal defendantis entitled to rather limited discovery, with no general right to obtain the statements of the government’s witnesses before they havetestified. Fed. Rules Crim. Proc. 16(a)(2), 26.2” (Degenv. United States (1996) 517 U.S. 820, 825.) “A restriction on defense counsel that prevents him from revealing what is possibly Jencks material does not materially interfere with counsel’s duty to advise a defendantontrial- related matters.” (Harris v. United States (D.C. App. 1991) 594 A.2d 546, 549; accord, United States v. Brown (9th Cir. 1970) 425 F.2d 1172, 1174; United States v. Washabaugh (9th Cir. 1971) 442 F.2d 1127, 1129.) The Court of Appeal contrasted the federal rule with the broader discovery provisions in California, which entitle a defendantto pretrial disclosure of ““[rjelevant written . .. statements of witnesses ... whom the prosecutor intendstocall at the trial.” (Typed Opn. at p. 17, quoting Pen. Code, § 1054.1, subd. (f).) It nowhere explained, however, whya statutory discovery violation would amount to a Sixth Amendmentdeprivation of the right to effective assistance of counsel. In any event, defense counsel had other discovery itemsathis disposal which included sheriff’s department reports that summarized two interviews of codefendant Flores and a copyofthe tape-recorded sheriff’ s interview with Flores. (See 7 CT 1516-1517, 1543-1564; 8 CT 1743, 1745- 1746; 1 RT 45-46; 2 RT 387-388.) These statements were not subject to the consultation restriction imposed by the court on counsel. (See 3 RT 580-581; 8 RT 1924.) In his pretrial statement, Flores maintained that he drove three men—Jake, Little Huero, and Listo—aroundin his car, that he stopped in a residential neighborhood,and that the three men jumpedout. 29 Flores heard popping noises, and then the three men returned to the car and told him to drive. He did not witness the shooting, but did see Jake (Townley) in possession of a gun prior to the shooting. (See 7 CT 1545- 1548.) Thetrial court found that this discovery wassufficiently comprehensive to enable defense counsel to adequately consult with Townley and to prepare a defense. (See 3 RT 580-581; 8 RT 1924.) In addition, defense counsel was given Flores’s sealed declaration and his changeofplea transcript in sufficient time for the effective use of both records by counsel conducting cross-examination of that witness. (8 CT 1782; 3 RT 551, 569; 4 RT 758-759; Statement of the Case and Facts, ante, at pp. 7-8 [summarizing cross-examination].)'! Impeachmentthrough '! The Court of Appeal asserted that it was “unclear from the record what happenedwith the reporter’s transcripts of the change-of-plea hearings.” (Typed Opn.at p. 7, fn. 4.) We perceive no ambiguity. Ata hearing on May 4, 2007,thetrial court provided counsel with copies of the plea transcripts in order to explain its’denial of an in limine motion. (4 RT 757-758.) When Carranco’s counselaskedif the transcripts could be unsealed, the court initially responded, “No. I’m not saying that. I’m telling you what’s in it. It may not be... unsealed. In fact, it shouldn’t be delivered to youat this time because it contains references to the factual statement. And you’re notparties to that proceeding. ... [So] you need to give those back to the court reporter.” (4 RT 758.) The prosecutor stated her understanding that “the Court had ordered the . . . copies of the transcript would be madeavailable with the same understanding and under the same conditions as were the declarations.” (4 RT 759.) The court replied, “I think I did... .” It then ruled, “So you can keep those. You can’t show those to your client. You can’t show them to anybodyelse. Only you maysee them,and there’s no reason whyanyinvestigator would haveto look at them, soit’s really physically only the two of you Counsel may look at those documents.” (4 RT 759-760.) In context, the court’s reference to “those” documents appears clearly to reference the change-of- plea transcripts. Defense counsels’ extensive cross-examination of Flores regarding the terms ofhis plea agreementfurther dispels any ambiguity that counsel had accessto the relevant plea transcripts. (See 12 RT 2874-2876, 2884-2887.) 30 cross-examinationis a legal endeavor, and defense counsel did not require consultation with his client to perform that task effectively. (See United States v. Abu Ali (4th Cir. 2008) 528 F.3d 210, 254 [defendant was not deniedhis right of confrontation where counsel cleared pursuant to the Classified Information Procedures Act was allowed full accessto classified documents and allowed to cross-examine the government’s witness concerning these matters, but could not to reveal their contentto the defendant].) Ultimately, however, Townley witnessed Flores’s testimony himself. He wasnotrestricted in his ability to discuss any of that testimony with his attorney. Notably, cross-examination of Flores revealed that he had admitted in his declaration to having worn a red and black Pendleton shirt, which was described by witnesses as the shirt worn bythe shooter. (12 RT 2818-2821, 2893-2894.) The court order did not prevent Townley and his counsel from discussing the significance of that admission onceit wasrevealed in Flores’s testimony. (12 RT 2818-2821, 2893-2894.)'” Asthis record demonstrates, Townley did not suffer an “actual or constructive denial of the assistance of counsel altogether”as a result of the court’s limited consultation restriction. Nor did counsel entirely fail to subject the prosecution’s case to meaningful adversarial testing. Thetrial court’s order limited counsel’s ability to confer with his client on one very limited topic—the sealed declaration and plea transcript of Flores—noton '* The Court of Appeal queried whetherthetrial court’s sealing order could have been construed by a cautious defense counsel to apply to Flores’s testimonyitself. (Typed Opn.at p. 20.) There is no support in the record for such a construction. The court’s pretrial sealing order was limited to Flores’ declaration and changeofplea transcript. (3 RT 551, 569; 4 RT 758-760; 8 RT 1921.) The court affirmed that counsel could use the documents to impeach Flores on cross-examination. (8 RT 1921.) It defies logic to interpret the court’s sealing order to apply to Flores’s direct or cross-examination testimonyelicited in open court in the defendant’s presence. 31 Flores himself, not on Flores’s testimony, and not on lines of rebuttal or impeachmentof Flores’s testimony. Counsel was able to discuss with Townley the content of Flores’s statement to sheriff's personnel, potential defense theories (such as Flores or Carranco having been the actual shooter), and Flores’s actual trial testimony. Counsel wasable to investigate the shooting by sharing with an investigator information from his ownclient and information containedin the sheriff's investigative reports, including the statements of the other defendants. And counsel wasable to use the sealed documents to cross-examineFloresat trial. Accordingly, the test of Strickland applies, and Townley must show(1) thetrial court’s order adversely affected counsel’s performance, causingit to “[fall] below an objective standard of reasonableness”; and (2) “a reasonable probability that, but for counsel’s [objectively deficient performance], the result of the proceeding would have been different,” sufficient to undermine confidence in the outcomeofthetrial. (Strickland, supra, 466 U.S.at pp. 688, 694.) ° This is true despite the fact that interference with counsel came from an external source, rather than from counsel’s own omission. “The fact that 'S In his answerto the petition for review, Townley alleged as a separate claim oferrorthatthe trial court’s consultative restriction infringed on his constitutional right to the ancillary services becauseit “precluded counsel from showingthe declaration to, or discussing the declaration with ... the investigator.” (Answerat pp. 13-14.) In Corenevski v. Superior Court (1984) 36 Cal.3d 307, 319-320, this Court observed that the rightto effective assistance of counsel includesthe rightto ancillary services necessary in the preparation of a defense. Because the services of an investigator exist to ensure counsel’s effectiveness attrial, Townley’s claim of interference with investigative services would be governed by the same analysis set forth above. Under Strickland, he would be required to show how the order “precluded counsel from investigating and preparing to rebut or exploit any of the factual assertions in the declaration” (Answerat p. 13) and that the alleged interference with counsel’s investigation prejudiced the outcomeofthe trial. The claim, therefore, requires no separate analysis and provides no independentbasis for reversing thetrial court’s judgment. 32 the accused canattribute a deficiency in his representation to a source external to trial counsel does not makeit any moreorless likely that he received the type oftrial envisioned by the Sixth Amendment, nor doesit justify reversal of his conviction absentan actual effect on the trial process or the likelihood of such an effect.” (Cronic, supra, 466 U.S.at p. 662,fn. 31.) In Cronic, the court refused to adopt a “presumption of prejudice” simply because defense counsel labored under an “external constraint” imposed bythetrial court’s decision to give counsel only 25 days to prepare fortrial. (/bid; accord, Burdine v. Johnson (Sth Cir. 2001) 262 F.3d 336, 345 [Cronic “directly dispelled” the argumentthat “the cause of a Sixth Amendmentdeficiency should control whether a presumption of prejudice was warranted”]; but see Perry, supra, 488 U.S. at p. 279 [observing that “direct governmental interference with the right to counsel is a different matter”].) Where, as here, the trial court restricts attorney- client communications over counsel’s objection, there is clearly no “tactical basis” for counsel’s omission. Nonetheless, the reviewing court must consider whether the court’s order so impaired counsel’s ability to communicate with the defendant or otherwise prepare the defense as to amountto deficient performance, and if so, whether defendant was prejudiced in the sense that counsel’s omissions “so underminedthe proper functioning of the adversarial processthat the trial cannot be relied on as having produced a just result.” (Strickland, supra, 466 U.S.at p. 686.) This conclusion is born out by examining other types of government interference which do not merit a presumption ofprejudice. People v. Jenkins (2000) 22 Cal.4th 900 emphasized that where a defendant claims the conditions of his confinement denied him the effective assistance of counsel under the Sixth Amendment, he must show that“the conditions of [his] confinementso interfered with his ability to communicate with counselor assist in the defense”that actual prejudice resulted. (Jd.at p. 33 1002-1003.) There, the court was assured that despite variousinterferences, “substantial attorney-client contact was ensured.” (/d. at p. 1005.) People v. Noriega (2010) 48 Cal.4th 517 [2010 WL 1267136, *3] held thatthe trial court’s erroneoussubstitution of one appointed counsel for another did not violate the Sixth Amendmentabsent a showingthat replacement counsel wasconstitutionally ineffective under Strickland. Where the government improperly interferes with the attorney-client relationship and thereby obtains information abouttrial strategy, such interference does not amount to a Sixth Amendmentviolation absent a showing ofprejudice. (Weatherford v. Bursey (1977) 429 U.S. 545, 551- 558; United States v. Danielson (9th Cir. 2003) 325 F.3d 1054, 1069 {construing Weatherford].) “[MJere governmentintrusion into the attorney-client relationship, although not condoned bythe court,is notitself violative of the Sixth Amendmentright to counsel. Rather, the right is only violated whenthe intrusion substantially prejudices the defendant.” (United States v. Irwin (9th Cir. 1980) 612 F.2d 1182, 1186-1187, fn. omitted; accord, Williams v. Woodford (9th Cir. 2002) 306 F.3d 665, 683.) Wherethe interference with counsel involves a particular piece of evidence obtained by the prosecution, courts have “put the burden on the defendant to show prejudice [in order to make out a constitutionalviolation]... . ‘Placing the burden on the defendant in such cases makes goodsense,for the defendantis in at least as good a position as the government to show why, and to what degree, a particular piece of evidence was damaging.’ [Citation].” (Danielson, supra, 325 F.3d at p. 1070; accord, Clark v. Wood (8th Cir. 1987) 823 F.2d 1241, 1249-1250; United States v. Steele (6th Cir. 1984) 727 F.2d 580, 586-587; People v. Memro (1995) 11 Cal.4th 786, 835-836 [to demonstrate a Sixth Amendmentviolation ofhis rightto counsel based on the government’s seizure and review ofprivileged documents, defendant was required to show demonstrable prejudice, or 34 substantial threat thereof]; see also People v. Ervine (2009) 47 Cal.4th 745, 766 [summarizing cases].) Indeed, had the prosecution team in Townley’scase failed to disclose altogether the documents made subject to the court’s consultation restriction, the claim of error would have been governed by Brady v. Maryland(1963) 373 U.S. 83. Brady requires, as a component of establishing a due processviolation, that the defendant demonstrate the materiality of the withheld evidence by showing a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different, i.e., the Sixth Amendment prejudice standard of Strickland. (Kyles v. Whitley (1995) 514 U.S. 419, 433-436; see United States v. Bagley (1985) 473 U.S. 667, 682-683 (opn. of Blackmun,J.).) Notably, Cronic cited United States v. Agurs (1976) 427 U.S. 97, a Brady prosecutorial misconductcase, to support its conclusion that “external constraints” imposed by the government on defense counsel do notjustify reversal of a conviction absent an adverse effect on the outcomeofthetrial or the likelihood of such an effect. (Cronic, supra, 466 U.S.at p. 662, fn. 31.) It would be illogical to treat the error here— limited and merely delayed nondisclosure to the defendant personally—as fundamentally more serious and pervasive,so as to trigger automatic reversal, than Brady error that involves complete nondisclosureto the entire defense yet does not warrant reversal without an inquiry into probable prejudice. The Court of Appeal looked to federal circuit court authority to expand the automatic-reversal rule in Geders to “topical” consultative bans on attorney-client communication. However,the federal cases reveal disagreement, not resolution, of the question before this Court. Schaeffer v. Black (8th Cir. 1985) 774 F.2d 865, 866-868, held that an order preventing counsel from discussing a prison investigative report with 35 his client had to be assessed under the two-prongtest of Strickland, including whether there was a reasonable probability of a differentresult. The court was “unpersuaded”that the alleged error warranted a presumption of prejudice under Cronic. The court observed that the challenged order did not cause a “breakdownofthe adversarial process” andthat “external constraints” on counsel’s performancedo not, standing alone, warrant a presumption of prejudice. (/d. at pp. 866-868.) “Since no showingoflikelihood of actual prejudice related to failure to disclose the report has been shown, we concludethat appellant’s claim of ineffective assistance of counselfails ....” (/d. at pp. 867-868)" United States v. Triumph Capital Group, Inc. (2d Cir. 2007) 487 F.3d 124 held thatthetrial court’s overnight ban on counsel’s communication with the defendant abouthis testimony did not violate the Sixth Amendmenton the facts of that case. There, the court concludedthat “a restriction on communication that lacks justification, like the one here, may be sufficiently insignificant that it does not amountto a constitutional violation.” (d. at p. 134.) In finding no Sixth Amendmentviolation, the court considered, among other things, that that the overnight ban did not bar all communication, only discussion of the defendant’s testimony, and that '4 In his answerto the petition for review, Townley asserts that the Eighth Circuit changed course in Moore v. Purkett (8th Cir. 2001) 275 F.3d 685 and adopted a position directly contrary to the People’s argument. (Answerat p. 8.) He misreads the case. Moore involveda trial court order prohibiting the defendant, who had only limited writing skills, from talking quietly with his counsel during the trial. Such a ruling restricted consultation on all defense-related topics while court wasin session. (/d.at ‘pp. 687-689.) It did not involve, as in Schaeffer and this case, a limited consultative ban on an identifiable topic or piece of evidence. As the Court of Appeal acknowledged,“[t]he same distinction applies to Jones v. Vacco (2d Cir. 1997) 126 F.3d 408,” wherethetrial court restricted all communication between the defendant and his attorney during an overnight recess. (Typed Opn.at p. 11.) 36 defendant and his counsel were given as muchtimeas they required to consult on any topic the following day. The Second Circuit found Geders not applicable because the orderin the case before it did not “prevent the defendant from communicating, unfettered, with his attorney aboutthe full panoply oftrial related issues . . . nor meaningfully interfere[] with the quality of advice and counsel the attorney is able to provide....” (Jd. at p. 135.) United States v. Sandoval-Mendoza (9th Cir. 2006) 472 F.3d 645, 651-652, and United States v. Santos (7th Cir. 2000) 201 F.3d 953, 965-966, held that the trial court’s order prohibiting the defendant andhis attorney from discussing the defendant’s testimony (but not other topics) during an overnight recess in cross-examination violated the Sixth Amendment. Other reversible trial error in each case, however, made it unnecessary for those courts to determine whetherthe error wasstructural or subject to harmless error analysis under Chapman vy. California, supra, 386 U.S. 18. Santos expressed somereservation on the subject, observing that the per se rule of reversal set forth in Perry “is in sometension with the narrowing of the scope of automatic reversal in recent decisions by the Supreme Court” and wasnotclearly applicable to the more limited order imposedin that case. (201 F.3d at p. 966.) Sandoval-Mendoza likewise observedthat, although Geders implied a rule of automatic reversal, that case “preceded many recent Supreme Court decisions requiring prejudice as well as constitutional error for reversal.” The court ultimately declined to decide whether “an overnight prohibition of communications regarding the defendant’s testimonyis structural error... .” (472 F.3d at p. 652,fn. omitted.) Cobb v. United States (4th Cir. 1990) 905 F.2d 784 considered trial court’s order prohibiting the defendant from discussing his cross- examination testimony with his attorney during a weekendrecess. The 37 court held that the order deprived the defendantof his Sixth Amendment right to consult with counsel and that the error wasreversible per se under Geders. (Id. at p. 791.) The court declined to distinguish the facts beforeit from Geders becausethe court order “left Cobb free to discuss with his attorney any matters notrelated to his ongoing cross-examination ....” (/d. at p. 792.) It reasoned, “To remove from Cobbthe ability to discuss with his attorney any aspect of his ongoing testimony effectively eviscerated his ability to discuss and plan trial strategy... . [§]] We have no difficulty in concludingthatthetrial court’s order, although limited to discussions of Cobb’s ongoing testimony, effectively denied him access to counsel. Accordingly, his convictions must be reversed.” (/d. at p. 792.) Mudd v. United States (D.C. Cir. 1986) 798 F.2d 1509, 1512, likewise applied the rule of automatic reversal in Gedersto a trial court’s order prohibiting defense counsel from speakingto his client aboutthe client’s testimony over a weekend recess. (/d. at p. 1510.) That case, which predated Perry, adopteda rule that “a trial court may not place a blanket prohibition onall attorney/client contact, no matter how brief the trial recess.” (/d. at p. 1511.) The court observed that there were “obvious, legitimate reasons [defendant] may have neededto consult with counsel about his upcoming cross-examination.” (/d. at p. 1512.) The court concluded that such an order“can havea chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating the court’s directive.” (/bid.) The court further held that a per se rule [of reversal] best vindicates the right to the effective assistance of counsel. To require a showing of prejudice would not only burden one of the fundamentalrights enjoyed by the accused, see Powell, 287 U.S. at 68-69, but also would create an unacceptablerisk of infringing on the attorney- client privilege. [Citation.] The only way that a defendant could show prejudice would be to present evidence of what he and counsel discussed, and what they were prevented from 38 discussing, and how theorderaltered the preparation ofhis defense. Presumably the government wouid then be free to question defendant and counsel about the discussion that did take place, to see if defendant nevertheless received adequate assistance. [§] We cannot accept a rule wherebyprivate discussions between counsel and client could be exposed in order to let the government show that the accused’s sixth amendmentrights were notviolated. (Ud. at p. 1513.) A review of these cases refutes Townley’s claim that federal authority uniformly applies the Geders rule ofper se reversal to “any order banning discussion of any substantive topic regarding the charges for which the defendantis on trial.” (Answerat p. 4.) Although Mudd and Cobbso hold, the rationale for imposinga rule of per se reversal to a ban on attorney- client communications regarding a specified topic or item of evidence does not withstand scrutiny. It is not inimical to justice that “private discussions between counsel and client... be exposed” (Mudd, supra, 798 F.2d at p. 1513), so that the reviewing court can determine whether defendant was denied his Sixth Amendmentright to effective assistance of counsel. On the contrary, courts have long recognized that a defendant whoalleges constitutionally ineffective assistance waivesthe attorney-client privilege to the extent necessary to resolve the claim. (/n re Scott (2003) 29 Cal.4th 783, 814; Bittaker v. Woodford (9th Cir. 2003) 331 F.3d 715, 716 (en banc) [discussing waiver of privilege on federal habeas].) Both the Mudd court and the appellate court in this case voiced concern that restricting attorney-client communication on a specified topic or item of evidence may havea “chilling effect” on counsel’s performance as a whole, andthat “any ambiguity in the sealing order could well encourage defense counselto err on the side of caution to avoid the risk of ‘inviting the judge’s wrath, and possibly even courting sanctions for 999contempt of court, in disobeying the judge’s instruction.’” (Typed Opn.at p. 39 20, quoting United States v. Stantos, supra, 201 F.3d at p. 966; accord, Mudd, supra, 798 F.2d at p. 1512.) However, any ambiguityin the trial court’s orderis easily corrected by defense counsel’s objection and request for clarification. (See People v. Scott (1994) 9 Cal.4th 331, 351; In re Marriage ofArceneaux (1990) 51 Cal.3d 1130, 1133-1134 [discussing Code of Civil Procedure section 634].) Notably, defense counsel in this case did not state any confusion over the scope of the court’s consultative restriction. This Court has declined to presumea “chilling effect” on counsel’s performance even in cases of egregious and pervasive government interference in the attorney-client relationship. People v. Ervine, supra, 47 Cal.4th 745 held that the defendant was not deprived ofhis federal or state constitutional right to effective assistance of counsel where jail personnel entered the defendant’s cell while he was in court and reviewed confidential attorney-client information. In that case, there was no evidencethat the jail personnel had shared the information with any memberofthe prosecution team. This Court refused to presumeprejudice from the interference in attorney-client communications, noting that “the record contains no evidence that defendant wasprejudiced in the preparation of his defense.” (Id. at p. 770.) It further rejected the defendant’s argumentthat “‘[a]n inevitable consequence’ oftheintrusion by the sheriffs department was an ‘enduring fear’ concerning the privacy of his communications with counsel, which impaired his federal right to the effective assistance of counsel. Underour case law, however, a defendant’s inability to consult with counselor to assist in his defense must appearin the record. [Citation.] Here, defendantnot only fails to identify any instance in which his relationship with counsel was impaired (or, indeed, to claim that more direct methods of communicating with his attorney were inadequate), but he wasoffered the opportunity, at the time the trial court denied his motion 40 to dismiss, to renew his claim of error and submit additional evidence, but never did 50. Becausehis claim still is not supported by any reference to the record, we mustreject it. [Citation.]” (/d. at p. 769.) Ervinedistinguished Barber v. Municipal Court (1979) 24 Cal.3d 742, where an undercover government agent posing as a codefendantinfiltrated confidential meetings between the defendants andtheir attorneys, and then communicatedprivileged information to his supervisors. There, the Court held that the defendant was deprivedofhis constitutional right to the effective assistance of counsel under the federal and state constitutions. The court did not presumeprejudice, however, but instead noted that “the record demonstrated that the petitioners had been prejudicedin their ability to prepare their defense in that they had become‘[d]istrustful of each other and fear[ful] that any one of them might also be an undercoverpolice officer’ and thus refusedto participate or cooperate in their defense, which ‘resulted in counsel’s inability to prepare adequately for trial.’” (/d.at p. 756.) Accordingly, the Court of Appeal erred in finding that the consultative restriction in this case “unjustifiably infringed on [Townley’s] constitutional right to the effective assistance of counsel” (Typed Opn.at p. 22) without inquiring into the effect of the order on counsel’s actual performanceor on the outcomeofthe trial. Because the surrounding circumstances do notjustify a presumption of ineffectiveness, Townley’s Sixth Amendmentclaim cannotbe “sufficient without inquiry into counsel’s actual performanceattrial.” (Cronic, supra, 466 U.S.at p. 662.) Further, “Counsel cannotbe ‘ineffective’ unless his mistakes have harmed the defense(or, at least, unless it is reasonably likely they have). Thus, a violation of the Sixth Amendmentright to effective representation is not ‘complete’ until the defendant is prejudiced.” (Gonzalez-Lopez, supra, 548 USS.at p. 147.) 4] F. Even if the Consultative Restriction Imposedin this Case Does Not Come Within the Sirickland Test for “Effective” Assistance of Counsel, It Is Nonetheless “Trial Error” and Is Amenable to Harmless Error Review Evenif an erroneous interference with counsel’s ability to confer with his client on a subject relevant to the defense constitutes a kind ofviolation of the Sixth Amendmentthat is not governed by Strickland, that conclusion does not require per se reversal as the Sixth District held. (Typed Opn.at p. 22.) Any Sixth Amendmenterrorin this case should remain subject to proofby the state that the error was harmless beyond a reasonable doubt. The high court has “‘applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.” (Fulminante, supra, 499 U.S. at p. 306.) In Delaware v. Van Arsdall, supra, 475 U.S. 673, the Court emphasizedthat “[s]ince Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (/d. at p. 681.) “The harmless-error doctrine recognizes the principle that the central purpose ofa criminaltrial is to decide the factual question of the defendant’s guilt or innocence[citation], and promotes public respect for the criminal process by focusing on the underlying fairness ofthe trial rather than on the virtually inevitable presence of immaterial error. [Citation.]” (/bid.) Gonzalez-Lopez, supra, 548 U.S. 140 held that an erroneous order denying defendant his counselof choice violates the Sixth Amendment, and that “[n]o additional showing of prejudice is required to makethe violation ‘complete.’” (Ud. at p. 146, fn. omitted.) Nonetheless, the Court considered whetherthe error was subject to review for harmlessness under Arizonav. 42 Fulminante, supra, 499 U.S. 279, and ultimately concluded that it was not. (/d. at pp. 148-151.) United States v. Morrison, supra, 449 U.S. 361, assumed, without deciding, that the defendant’s Sixth Amendmentright to counsel was violated when federal agents interviewed her without counsel present. The . Court further assumed that prejudice was not a necessary prerequisite to establishing the constitutional violation. (/d. at p. 364.) Yet, the Court held that the constitutional violation could be harmless and that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictmentis plainly inappropriate, even though the violation may have been deliberate.” (/d. at p. 365, fn. omitted.) Citing Morrison, the high court in Rushen v. Spain (1983) 464 U.S. 114 observed that the defendant’s rights to be present and represented by counsel duringall critical stages of the proceedings“are subject to harmless error analysis, see, e.g., United States v. Morrison, 449 U.S. 361, 364-365 (1981) (right to counsel); Snyder v. Massachusetts, 291 U.S. 97, 114-118 (1934) (right to presence), unless the deprivation, by its very nature, cannot be harmless. See, e.g., Gideon v. Wainright, 372 U.S. 335 (1963).” (Id. at p. 119, fn. 2.) Contrary to the Sixth District’s opinion, neither Geders nor Perry answers the question whether an interference with attorney-client communication short ofan absolute ban on all consultation is “structural” error and reversible per se. The factors guiding that inquiry provethat the alleged constitutionalerror in this case is not “structural” and is amenable to harmlesserror review. First, the consultative ban on identifiable items of evidence—the sworn statementand plea bargain transcript of a testifying prosecution witness—did notbear directly on the “framework within which thetrial proceeds ....” (Fulminante, supra, 499 U.S. at p. 310.) It was not 43 equivalent to the total deprivation of the right to counselat trial (Gideonv. Wainwright, supra, 372 U.S. 335), the denial ofthe right to a public trial (Waller v. Georgia, supra, 467 U.S. 39), the denial of the right to an impartial judge (Tumey v. Ohio, supra, 273 U.S. 510), or the denial of the rightto trial by jury by the giving of a defective reasonable-doubt instruction (Sullivan v. Louisiana, supra, 508 U.S. 275). Second, Townley’s right to consult with counsel is not on par with those rights that exist independentofthe fair trial guarantee, such that prejudice becomes“irrelevant” to the constitutional inquiry. (Gonzalez- Lopez, supra, 548 U.S.at p. 149, fn. 4.) Such is the case with the defendant’s right to self-representation. Because its exercise “usually increasesthe likelihood ofa trial outcome unfavorable to the defendant,its denial is not amenable to ‘harmlesserror’ analysis.” (McKaskle v. Wiggins, supra, 465 U.S.at p. 177, fn. 8.) By contrast, “the right to effective assistance of counsel is recognized not for its own sake, but becauseofthe effect it has on the ability of the accusedto receivea fair trial. Absent some effect of challenged conducton thereliability of the trial process, the Sixth Amendment guaranteeis generally not implicated.” (Cronic, supra, 466 U.S. at p. 658.) An alleged violation of that right is thus suited to harmless- error analysis. Third, it is neither impossible nor particularly burdensometo assess the prejudicial effect of a consultative ban on attorney-client communications involving specified items of evidence. (Gonzalez-Lopez, supra, 548 U.S.at p. 149, fn. 4.) In Gonzalez-Lopez, the Court found the erroneous deprivation of the right to counsel of choice to be reversible per se. That error affects “myriad aspects of representation,” including investigation and discovery, developmentofthe theory of defense, plea bargaining, jury selection, evidence presentation, and jury argumentin waysthat are “‘necessarily unquantifiable and indeterminate.” (/d.atp. 44 150, citation omitted.) Here, by contrast, the reviewing court may consider the trial record as a whole to determine whetherthe restrictive order involving discrete items of evidence altered counsel’s ability to impeach and rebut Flores’s testimonyattrial. It can also determine whetherthe ~ error wastrivial to counsel’s representation in light of other discovery that revealed Flores’s identity and the content ofhis pretrial statements to sheriff’s personnel. It could also consider the significance of Flores’s testimonyto the conviction, including the fact that Flores did not identify the shooterat trial and that other independent evidence showed Townley to be the shooter, including his admissionto a friend shortly after the shooting that he was “lookingat 25 to life,” his possession of the shooter’s jacket and the probable murder weapon,and the presence of gunshotresidue on his jacket and hands. Structural error is “the exception and not the rule,” so muchso that there exists a “strong presumption”constitutional errors can be assessed for harmlessness. (Rose v. Clark (1986) 478 U.S. 570, 578-579; accord, People v. Marshall (1996) 13 Cal.4th 799, 851 [“‘There is a strong presumption anyerrorfalls within the latter category, andit is the rare case in which a constitutional violation will not be subject to harmless error analysis”].) The Court of Appeal failed to perceive that harmless error analysis is not “impossible” on this record. (Gonzalez-Lopez, supra, 548 U.S. at p. 150.) Its duty was to assess whether and how thetrial court’s limitation on client consultation affected the outcomeofthe trial, measured against the standard for harmlessnessset forth in Chapman v. California, supra, 386 U.S. 18. Its failure to do so violates United States Supreme Court precedent and warrantsreversal. G. Remand is Warranted Should this Court hold that a prejudice inquiry is mandatedin this case, either under the Strickland test or as a componentof a harmless error 45 inquiry under Chapman, remandis appropriate to allow the Court of Appeal to pass on that question in the first instance. In the Court of Appeal, Townley argued that the trial court’s limitation on his consultation with counsel was“structuralerror, reversible per se.” (AOB 42.) He alternatively argued that prejudice was shown on the record undereither the state standard set forth in People v. Watson (1956) 46 Cal.2d 818 or the federal standard announced in Chapman,supra, 386 U.S. 18. (AOB 42-45.) The People countered that the consultative restriction did not materially impede defense counsel’s performance (RB 20-23) andthat it did not prejudice the outcomeofthetrial in any event (RB 24-29). The Court of appeal declined to apply Strickland or Chapman and instead found a Sixth Amendmentviolation that was reversible per se without considering whetherthetrial court’s order had an adverse effect on counsel’s performanceor on the outcomeofthe trial. (Typed Opn.at pp. 22-24.) Undersimilar circumstances, this Court has deemed“it appropriate to remandthe matter to the Court of Appeal to afford that court an opportunity in the first instance to entertain and resolve the question of prejudice” under the principles announced by the Court. (People v. Cox (2000) 23 Cal.4th 665, 677 (2000); accord, People v. Breverman (1998) 19 Cal.4th 142, 178- 179; People v. Cahill (1993) 5 Cal.4th 478, 510.) If the Court of Appeal determinesthatthetrial court’s consultative restriction does not require reversal, it may then proceed to address the additional claimsoferror raised on appeal (see Typed Opn.at p. 24). (Cox, supra, at pp. 677-678; Cahill, supra, at p. 510.) 46 If. THE TRIAL COURT CORRECTLY HELD THAT PREVIOUS, UNSIGNED VERSIONS OF THE DECLARATION PROFFERED BY THE PROSECUTOR TO FLORES WERE NOT DISCOVERABLE In his answerto the petition for review, Townley presented as an additional issue for review whetherthe trial court violated his statutory right to discovery and his constitutional right to due process by denying his motion to compel production of unsigned, draft declarations that the prosecutorhadsentto Flores in anticipation of his plea agreement. (Answerat pp. 14-16; Cal. Rules of Court, rule 8.500(a)(2).) Becausethis Court did not limit the issues in its grant of review, we address Townley’s claim." Priorto trial, Carranco filed a motion requesting discovery of unsigned, draft declarations that the prosecutor hadsent to Flores'® in anticipation of his plea agreement. Townley joined in the discovery request. (3 RT 568.) Defendants argued that the documents qualified as prior statements of a witness under Penal Codesection 1054.1 and material exculpatory evidence under Brady v. Maryland, supra, 373 US. 83. (Aug. CT 29-30; 3 RT 552-554.) Thetrial court observed that the draft statements were “never signed by anybody, [or] acknowledged as being correct” and thus were “not evidence of anything.” (3 RT 552.) The prosecutorstated that “[a] creature of my headis not discoverable. I think that’s the purest form of work product.” (3 RT 554.) “My—myperception about whatI think happened on February 17th, it doesn’t have anything to do with anything.” (3 RT 555.) The prosecutor acknowledgedreceiving communications from Flores’s counsel about the proposed declaration '° Footnote 13, ante, addresses the other issue Townley presented in his answer. '® Defendants also soughtpretrial discovery of draft declarations sent to Rocha. Because Rochadidnottestify, we limit our discussion to the discovery request involving Flores’s plea agreement and declaration. 47 which suggested some of its contents were incorrect or unnecessary. (3 RT 558.) The court observedthat the plea deal reached by Flores and the prosecutor could be explored by counsel on cross-examination. (3 RT 559.) The court concluded, however, that “under 1054 and following sections of the [Penal] Code that [the draft declarations] are not discoverable because they are not evidence. Cases under Brady say the same thing. ... The blank document prepared by an attorney whois, in fact, the opposing attorney, in the context which the documentarises which is never signed by the witness is not evidence of anything.” (4 RT 754- 755.) Accordingly, the court denied the discovery motion. (4 RT 756.) The court likewise disallowed questions by Carranco’s counsel to Flores during cross-examination about who had drafted the declaration and the content of the initial drafts. (12 RT 2887-2888.) The Court of Appeal rejected Townley’s claim of error: Wefind noerrorin this ruling. Even discounting the People’s position that the prosecutor’s suggested version represented her work product, we nonetheless agree with the [trial] court that the unsigned declaration was not relevant or material evidence. This case does not present facts similar to those in [People v. Westmoreland (1976) 58 Cal.App.3d 32], where the prosecutor remained silent while the witness falsely testified that he had not been offered the opportunity to plead guilty to a lesser offense. Here there was no attempt to mislead the jury or any arrangementthat wasnot disclosed to the defense. Flores was not promised leniency beyondthe negotiated disposition of his case. And here the witness did not agree to any version of the document except the one he signed. That was the relevant evidence that was material to Flores’s credibility, and on that document defense counsel were permitted to cross-examine the witness. (Typed Opn.at pp. 26-27.) The Court of Appeal’s conclusion wascorrect. “[S]tatements of witnesses . . . constitute material of a nonderivative or noninterpretative 48 nature.” (People v. Williams (1979) 93 Cal.App.3d 40, 63-64; accord, Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 486.) The draft declaration authored by the prosecutor and neversigned by Flores was not the latter’s statement. Hence, it was nondiscoverable under Penal Code section 1054.1, subdivision (f), which authorizes discovery of“[rJelevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutorintendsto call at the trial.” The cases relied upon by Townleyare distinguishable. (Answerat pp. 14-15.) Rowland vy. Superior Court (2004) 124 Cal.App.4th 154 held that the defense is required to disclose any unrecorded oral statements of defense witnesses communicated to defense counsel by a third party investigator. (/d. at p. 166.) People v. Lamb (2006) 136 Cal.App.4th 575 held that an expert witness’s notes about his interviews with witnesses and his calculations about the cause of an accident are discoverableas a statement by the expert in connection with the case. (/d. at p. 580.) Thompson v. Superior Court, supra, 53 Cal.App.4th 480 held that “raw written notes of witness interviews, other than attorney work product, are ‘statements’ as defined in [the discovery statutes] and thus must be disclosed by both sides.” (/d. at p. 485.) By contrast, the unsigned draft declaration in this case did not reflect a “statement” by Flores, but rather the “thought processes”of the prosecutor. (/d. at p. 488 [drafts expressing the report writer’s thought processes, impressions, or opinionsare protected work product].) Unlike the Court of Appeal, we see no reason to “discount” the prosecutor’s argumentthat the draft declaration was protected work product. The draft declaration here was the product of the prosecutor’s distillation of the police reports and witness statements, and encompassed her conclusions about the crime. (3 RT 555, 565-566.) The prosecutor did not speak directly with Flores in drafting the declaration, and the proposed 49 declaration,in its original form, was neither endorsed nor adopted by Flores. Code of Civil Procedure section 2018.030, incorporated by reference into Penal Codesection 1054.6, “absolutely protects from discovery writings that contain an ‘attorney’s impressions, conclusions, opinions, or legal research ortheories.”” (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 814 (Rico), quoting Code Civ.Proc., § 2018.030.) “The protection extends to an attorney’s written notes about a witness’s statements.” (/d. at p. 814.) “When a witness’s statement and the attorney’s impressionsare inextricably intertwined, the work product doctrine provides that absolute protection is affordedto all of the attorney’s notes.” (/bid. [notes drafted by paralegal and edited by attorney, summarizing a strategy session with designated defense experts, was work product].) This draft declaration was not even prepared by the witness’s counsel, but rather by counsel for an adverse party engagedin plea bargaining. It was not a verbatim record of a statement by Flores, not a product of consultation by the prosecutor with Flores, and not a statement attested as true by Flores. It reflected the prosecutor’s thoughts and impressions of the case. As such, it was protected work product. (Rico, supra, 42 Cal.4th at p. 815; Pen. Code, § 1054.6.) Townley contendsthat the prosecutor waived the work product privilege by showing the draft versions of the declaration to Flores and his counsel. “Waiver... occurs by an attorney’s ‘voluntary disclosure or consent to disclosure of the writing to a person other than the client who has no interest in maintaining the confidentiality of the contents of the writing.’ [Citation.]” (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1239.) Here, the prosecutor released the draft declarations to Flores as a part of the confidential plea negotiations, and the existence of the sealing order demonstrates Flores’s interest in maintaining 50 confidentiality over both the plea negotiations and the declaration. The prosecutor promptly asserted an attorney work productprivilege as against Carranco’s and Townley’s discovery request. (3 RT 554-555.) Accordingly, there was no waiverofthe work productprivilege. (See Rico, supra, 42 Cal.4th at p. 815, fn. 8.) Townleyalso arguesthat the draft declarations werein effect a discussion with Flores aboutthe possibility of leniency in exchange for favorable testimony and were thus discoverable under Brady v. Maryland, supra, 373 U.S. 83 and People v. Westmoreland (1976) 58 Cal.App.3d 32. The Court of Appealcorrectly rejected this argument. The terms of the plea agreement with Flores were set forth in the sealed declaration and on the record at Flores’s change of plea hearing. Counsel for Townley and Carranco were provided with copies of these documents and were allowed to cross-examine Flores on the subject of his plea agreement. (See 12 RT 2884-2890, 2905-2908.) Specifically, both counsel asked Flores about his having originally been charged with attempted murder, which carried a maximum term oflife in prison, and his pleading guilty to assault with a firearm for a substantially reduced three-year prison sentence. (12 RT 2874-2876, 2884-2885; 13 RT 3041.) Counsel for Carranco broughtout thatat the time of his plea agreement, Flores had to sign a declaration under penalty of perjury that set forth the circumstances surrounding the shooting. (12 RT 2886-2887.) Counsel for Carranco elicited on cross-examination that the declaration included these provisions: (1) “I understand that I have to acknowledge to the Judge in open court and under oath the contents of this declarationare true at the time I enter my plea”; and (2) “I understand that if called as a witness I musttell the truth.” (12 RT 2908-2909.) Unlike the documents provided to counsel, the prosecutor’s draft versions of the declaration had no tendencyto establish Flores’s bias or an 5] inconsistency with Flores’s trial testimony. Hedid not draft them,sign them, or otherwise adopt them ashis. This case is thus unlike People v. Westmoreland, supra, 58 Cal.App.3d 32, where a prosecution witnesstestified falsely in response to a question whether he had been offered the opportunity to plead guilty toa lesser offense. Despite knowing the witness gave a misleading answer on cross-examination, the prosecutor in Westmoreland remainedsilent and ~ failed to correct the testimony. (/d. at pp. 41-46.) The Court of Appeal concludedthat the “prosecutor’s failure to clarify Robison’s misleading testimony amountedto the withholding of material evidence pertaining to the credibility of a key prosecution witness’ testimony... .” (/d. at p. 46.) Here, by contrast, the terms of the plea agreement were fully disclosed. There is no evidence that Flores made knowingly misleading statements about the deal. No due process violation has been shown. Ultimately, however the Court of Appeal concludedthat anyerror in failing to discover the prior draft material was “harmless beyond a reasonable doubt. [Citation.] The jury was fully informedofthe details of the plea bargain between Flores and the prosecution. He wascross- examined on the discrepancy betweenhis testimony andhis declaration, including the statement in the declaration that he had been wearing ‘red and black Pendleton shirt’ on the night of the shooting. In addition, the court instructed the jury that Flores’s declaration waspart ofhis plea agreement with the prosecution. The withholding of the earlier versions offered to Flores was notprejudicial to Townley.” (Typed Opn.at p. 27.) Assumingthe appellate court applied the correct harmless error standard, its conclusion wascorrect, and Townleyis not entitled to relief on this claim. 52 CONCLUSION For the reasons stated, the Court of Appeal erred in reversing the judgmentbasedonits finding a Sixth Amendmentviolation. Accordingly, respondent respectfully requests that the Court of Appeal’s judgment be reversed and the case be remandedto that court for further proceedings. Dated: May 10, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General DONALD E. DENICOLA Deputy Solicitor General SETH K. SCHALIT Supervising Deputy Attorney General AMY HADDIX Deputy Attorney General Attorneysfor Respondent SF2010200237 40449728 .doc 53 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S OPENING BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 15,407 words. Dated: May 10, 2010 EDMUND G. BROWN JR. Attorney General of California / / . f f f. L- t AMY HADDIX Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People ofthe State of California v. Jacob Townley Hernandez Case No.: $178823 I declare: I am employedin the Office of the Attorney General, whichis the office of a member ofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary courseofbusiness. On May10, 2010, I served the attached RESPONDENT’S OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Marc J. Zilversmit The Honorable Bob Lee Law Offices of Marc Zilversmit Santa Cruz County Superior Court 523 Octavia Street 701 Ocean Street San Francisco, CA 94102 Santa Cruz, CA 95060 Sixth District Appellate Project Clerk of the Court 100 North Winchester Blvd., Suite 310 Santa Cruz County Superior Court Santa Clara, CA 950590 701 Ocean Street Santa Cruz, CA 95060-4086 Clerk, Court of Appeal, Sixth District 333 W. Santa Clara Street, Suite 1060 San Jose, CA 95113 1 declare under penalty of perjury under the lawsofthe State of California the foregoingis true and correct and that this declaration was executed on May 10, 2010, at San Francisco, California. Esther A. McDonald cathorIN cDswale Declarant Signature SF2010200237 40455539 .doc