PEOPLE v. HERNANDEZ

Respondent's Opposition

Cal.June 24, 2010

ORIGINAL Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. JACOB TOWNLEY HERNANDEZ, Defendant and Appellant. Sixth Appellate District, Case No. H031992 Santa Cruz County Superior Court, Case No. F12934 The Honorable Jeff Almquist, Judge RESPONDENT’S OPPOSITION TO REQUEST FOR JUDICIAL NOTICE EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN 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 TO: THE HONORABLE RONALDM. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: In a motion filed with the answerbrief on the merits, appellant seeks judicial notice of the State Bar Court’s “STIPULATION RE: FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING PUBLIC REPROVAL”in Jn the Matter ofArthurG. Dudley, Bar No. 56921 (Case No. 06-O-10112; filed Feb. 23, 2007.) Respondent opposesthis request. Evidence Codesections 452 and 459 authorize this court to take judicial notice of the records of any court ofthis state. Appellant seeks judicial notice of state bar records to support an inference that the state bar’s public reproval of defense counsel one month priorto thetrial in this case would have had a chilling effect on counsel’s performance and caused him to interpret the trial court’s orders cautiously so as not to risk a contempt finding by the court. (Appellant’s Motion for Judicial Notice, p. 2; AnswerBrief on the Merits, pp. 70-71 & fn. 20.) This court should decline to take judicial notice of the identified document for several reasons. First, appellant seeks to draw inferencesthat are irrelevant to the issue before this Court of whetherthetrial court’s limitation placed on Townley’s consultation with his counsel regarding specific items of evidence wasstructural error. Appellant resists an assessment of defense counsel’s actual performancein this case and argues against the use ofthe test for incompetencein Strickland v. Washington (1984) 466 U.S. 668. (Answer Brief on the Merits at pp. 62-68.) The appellate court found structural error in reversing appellant’s convictions by refusing to consider the actual effect of the trial court’s order on counsel’s performance or on the outcomeofthe trial. Extrinsic evidence of an attorney’s reaction to an erroneous order has no bearing on whetherthe error is structural or instead should be analyzed for prejudice. . Second,as this court has recognized, it is inappropriate to judicially notice documents that have the effect of enlarging the appellate record beyondits four corners in order to determine the merits of a claim of ineffective assistance of counsel. (People v. Cunningham (2001) 25 Cal.4th 926, 1012 & fn. 12; see also People v. Sanchez (1995) 12 Cal.4th 1, 59-60 & fn. 5, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421) Should this court agree with respondentthat the limitations placed on counsel’s consultation with his client are properly addressed under the two-prongtest of Strickland, the proper forum for taking evidence regarding defense counsel’s subjective decisionmakingis a petition for writ of habeas corpus. (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) Notably, appellant supports his judicial notice request of state bar records by citing a decision ofthis court involving a habeas corpus proceeding with a reference hearing on an ineffective assistance claim. (/n re Visciotti (1996) 14 Cal.4th 325, 329, 349-350 & fn. 6.) Third, the inference appellant seeks to draw from the bar recordis speculative. Defense counsel evidently was publicly reproved by the bar after he failed to provide relevant documentation to his former client and failed to assist the client in preparing a federal writ of habeas corpus having repeatedly promised to do so. (Appellant’s Motion for Judicial Notice, Exh. A at pp. 6-7.) Such reproval could suggest that defense counsel would be moreassertive, rather than less so, in safeguarding defendant’s constitutional rights in the instant trial. Lacking counsel’s declaration or testimony offered in a collateral proceeding respecting counsel’s actual performance at defendant’s trial, the proper inference to be drawn from the face of a state bar pleading in a different action remains an unknown. CONCLUSION Accordingly, appellant’s request for judicial notice should be denied. Dated: June 23, 2010 SF2010200237 20296924.doc Respectfully submitted, 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 NLte ly~%~© Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People of the State of California v. Jacob Townley Hernandez No.: $178823 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the 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 placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On June 24, 2010, I served the attached RESPONDENT’S OPPOSITION TO REQUEST FOR JUDICIAL NOTICEbyplacing 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 Clerk of the Court Law Offices of Marc Zilversmit Santa Cruz County Superior Court 523 Octavia Street 701 OceanStreet San Francisco, CA 94102 Santa Cruz, CA 95060-4086 Clerk of the Court The Hon. Bob Lee Sixth District Court of Appeal Santa Cruz Co. District Attorney’s Office 333 West Santa Clara Street, Ste. 1060 701 Ocean Street, Room 200 San Jose, CA 95113 Santa Cruz, CA 95060 Sixth District Appellate Project 100 No. Winchester Blvd., Ste. 310 Santa Clara CA 95050 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on June 24, 2010, at San Francisco, California. Esther A. McDonald Sothaer a4 “ W,OVtaleA Declarant Signature $F2010200237 20297263 .doc