PEOPLE v. HERNANDEZ

Respondent's Petition for Review

Cal.December 18, 2009

Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF S 1a es 93 CALIFORNIA, - oe Case No.Plaintiff and Respondent, SUPREME COURT . FILED JACOB TOWNLEY HERNANDEZ, DEC 18.2009 Defendant and Appellant. Frederick K. Ohirich Clerk Sixth Appellate District, Case No. H03199 japuty Santa Cruz County Superior Court, Case No. F12934 The Honorable Jeff Almquist, Judge PETITION FOR REVIEW EDMUNDG. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. 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 Plaintiffand Respondent TABLE OF CONTENTS Page Issue Presented... eeeeeeeeseeescescsesseseescessessessccssssesscsessssesssssecsecsseenacacterees 1 Statement of the Case and Facts .0......ccccccsscssessessssessssccssessscsssscseceeerectecsees 1 A. Procedural background..............cceceeeeeeeeeeee veceeeees 1 B. Thetrial court’s challenged order..........cccccceeseeeee 2 C. Flores’s trial testimony............cccecceccecseseesscseeseseesens 4 D. Further prosecution evidence............cccceecsseeseeseseeees 7 E. Defense Case .......cccceccceecsscesseseececeseesseesecsecsesesecastesens 9 F, Verdict and appeal .0........ceccceceesseseeseeeessessccescevsnens 9 Reasons for Granting ReVieW .....c..c.cccccscsssssssesssecsesscesecsesesetstsstssesseassesesses 11 I. This Court should grant review to ensurethat the narrow structural-errorrule is not unduly expandedto require automatic reversal of convictions where the potential prejudice of a claimed error mayreliably be determined from the record ........ccececescsscecescsssssesecteeeeneee 11 A. IntrOductiOn...........ceeecceesssesesseseesseseesscsseesecssceseessease 11 B. Because Townley did not suffer a total denial of the right to counsel, he must demonstrate prejudice to establish a violation of the Sixth Amendmentcounsel clause.............cccecccscesesessceeeeeee 14 C. 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 amenable to harmless error reVieW ........ccccccccceececccceeessceessacceessaseee 19 COMCI]USION ......ececeeeeceeensccuccceseccessececessasececeesssscesecensseseesseutsttecececerccceccececes 22 TABLE OF AUTHORITIES Page CASES Arizona v. Fulminante (1991) 499 US. 279eeeeececeesseceseneeeesecesensesseeeneceeeseeseeseeeseees 12, 15, 20, 21 Brady v. Maryland (1963) 373 U.S. 83.eceesecsscsesceestsssseeeeseseseessessseeseneeseneeseeessenensessensseneees 18, 19 Brooks v. Tennessee (1972) 406 U.S. 605... eee eeeseesessecesesseeesesseseseeeneessaeseesecesseseseesaneneeecaseenes 16 Chapmanv. California (1967) 386 U.S. 18eeeeeeeseesseseesecseneseeeceseseeaeseeseeneeesensesenseaseensenaas 13, 22 Cobb v. United States (4th Cir. 1990) 905 F.2d 784 occccesesecescceeceseeeceeenseneeseeeesssseseseneeeeneegs 13 Ferguson v. Georgia (1961) 365 U.S. 570...eee eseeeeecseceeesecscesceseesscessessecssesesersesseasesesesuersscesseteees 16 Geders v. United States (1976) 425 U.S. 80.eeeeects ceeesececeesensnesasenesssenseneesensesensens 12-13, 16, 21 Gideon v. Wainwright (1963) 372 U.S. 335 .ceeeeseecscceseesessscesesseseecssesscesaseessenesessesseennesseneeeaes 16, 20 Herring v. New York (1975) 422 U.S. 853 wo. eeceeeescecseeseceseeseeseecesseaesenseessevseeseessessesseeeeeseeseereteees 16 Kansas v. Ventris (2009) U.S. ___ [129 S.Ct. 1841]ecceceneenesceeneneeeeeneseneeneenernees 14 Kyles v. Whitley (1995) 514 U.S. 419eeceeeeeeeeseesesensecsesseseesessssseeseeesesseeesesessnenseneeeetiees 18 McKaskle v. Wiggins (1984) 465 U.S. 168...eeeees ceeeteeteeenseeeeeeceasssteesnessecseneeesscnssaeeseneenes 20 Mudd v. United States (D.C. Cir. 1986) 798 F.2d 1509ooeececeeeseceesseeeeesnessseaseneeeseesessseneeneees 13 il Neder v. United States (1999) 527 US. 1 2]Feb peewee eww ee ewe m meen me emcee e a emer eens een een erat bene n wert ena sera reeerancerecetsireeese de b People v. Ervine (2009) Cal-4th — [2009 WL 4546348] ooo.eeescssscsssssecsscseeseseaees 18 Perry v. Leeke (1989) 488 US. 272.ececcccsecsecsseesceseesecseseseesseneesessessesees 12, 14, 16-18, 21 Rose v. Clark (1986) 478 U.S. S70eeeececescesceeceeeseeecnscsescesesscsescsesecaecsecscssesstseseeavscenes 22 Scarpa v. Dubois (Ast Cir. 1994) 38 F.3d 1 eeeecccccseseeseesessssesssscsesssecsssssssscesesecatscseceaearaees 19 Schaeffer v. Black (8th Cir. 1985) 774 F.2d 865 oe. ecccescsecsesssesscscseessssscsesscsssscsssssscserseseeesseees 13 Strickland v. Washington (1984) 466 U.S. 668 oo. ccesececsceseesseeesecsscsesecscsccscscsscsccaccsessecsecseasenees 12-19 Sullivan v. Louisiana (1993) 508 U.S. 275 veecscsssssssssssscsseecsssesscesesesessuveesesssanesssssesssecesssssecsssssssees 21 Tumey v. Ohio (1927) 273 U.S. S10... cceeeecesesesssesessessessessceesecsssecscsessesecsscsecsecsecsvaceesseneeees 2] United States v. Bagley (1985) 473 US. 667oeccecescscesesecseeseseceeseseseescscsssssscsesesecsucessuvscsstasseeesenees 18 United States v. Brown (9th Cir. 1970) 425 F.2d 1172 voce ceeccecccccssesccessecseccssccsscessscesscsecsecesceseersece 17 United States v. Cronic (1984) 466 U.S. 648 vocelececcccececcesceecsssescsssesesscscesecsssesenseses 12-16, 18-19 United States v. Gonzalez-Lopez (2006) 548 U.S. 140.ecccceccescesecseecesseestsesececsscsesstaseeveeesaeees 15, 20, 21, 22 United States v. Sandoval-Mendoza (9th Cir. 2006) 472 F.3d 645 woe ccecccececccsscescessessccessecssecsssssssscscscesesesoseee 13 United States v. Santos (7th Cir. 2000) 201 F.3d 953 voicecececesssccescssscsscccssecssscessscessscsessesecesees 13 United States v. Washabaugh (9th Cir. 1971) 442 F.2d 1127 oeecccceccescsccseescssscecscscecestsvsstsvssecssevseeaesseees 17 lil Waller v. Georgia (1984) 467 US. 39eeceete rierentnetternenrerseress beecteenceees ciceetees 20 STATUTES Welfare and Institutions Code § 707, SUDG.(d)(2).....cececssceseeseceesescssesseesssescsesscsesesessessesseessesseseseceesesersensatees 1 CONSTITUTIONAL PROVISIONS Federal Constitution Sixth AMendMent ..........cccccccceccccessccececceecsesessceseseeseetecessessseeseeaees 1, 10, 12-20 COURT RULES California Rules of Court Rule 8.500(€).........ccesecscesccseeetenecscesececceasesecnsesssseceuseesseeesssnsacsseaecssceenstarentens 1 iV Respondentrespectfully petitions for review of the published decision of the Court of Appeal for the Sixth Appellate District. (Exhibit A.) The Court of Appeal filed its decision on November 9, 2009. Respondent did not seek rehearing. This review petition is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUE PRESENTED Whetherthetrial court’s order, precluding counsel from discussing with the defendant a sealed declaration of a testifying prosecution witness and transcriptofthat witness’s plea-bargain proceedings, amountedto a complete deprivation of the right to counsel under the Sixth Amendment not amenable to harmless error review, or instead implicated the right 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? STATEMENT OF THE CASE AND FACTS A. Procedural Background. Appellant Townley’, Ruben Rocha,Jesse Carranco, and Noe Flores, were charged with attempted murder. The charges arose from an incident in which victim Javier Lazaro, who was innocently walking downa street, was chased by three menalighting from a passing car and shot multiple . times. Townley and Carranco weretried together as adults under Welfare and Institutions Code section 707, subdivision (d)(2). On January 25, 2007 3 the court granted Townley’s motionto severhis trial from that of his ' Forthe sake of clarity, we refer to appellant as Townley because that is the name usedin the opinion below by the Court of Appeal. codefendants. (People v. Hernandez, H031992, Typed Opn.at p. 5 [hereafter “Typed Opn.”].) “Before [Townley’s] trial[,] both Flores and Rocha entered into plea agreements in whichthe 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 pleadedguilty to assault with force likely to produce great bodily injury, with an expected sentence of two years. On the same date 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 wassealed bytrial court order. As a condition of his plea, Flores executed a declaration under penalty of perjury detailing his involvementin the crimes. The declaration was ordered sealed, to be openedonly if Flores was called as a witnessattrial to testify about any matters covered in the declaration. Thetrial court stated that the sealing order wasfor the protection of Flores, who had been stabbedinjail, to prevent evidence of his cooperation from circulating in the jail or prison populations. (Typed Opn.at pp. 6-7, 21 y Before appellant’s trial, Townley’s and Carranco’s counsel were provided discovery, which included sheriff's departmentreports that summarized statements by several witnesses, including those given in two * The samesealing order applied to codefendant Rocha. Rocha, however, wasnot called as a witness at the trial. Consequently, the - appellate claim resolved below concernsonly the court’s consultative restriction on defense counselasit relates to witness Flores. interviews of codefendant Flores. The attorneys also were provided a copy of the tape-recorded sheriff's interview with Flores. (Respondent’s Request for Judicial Notice, Exhibit A [sheriff departmentreport];° see 1 RT 45-46; 3 RT 580-581; 8 RT 1924 [court references the police reports/witness interviews providedin discovery]; 8 CT 1743, 1745-1746 [Townley’s counsel acknowledges having reviewed sheriff? sinterview with Flores and summarizes content of interview in a discovery motion].) 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 with a copy of the declaration signed by Flores at the time of his changeofplea, with the understanding that neither the declaration’s existence, norits content, would be discussed with their clients or others. (3 RT 551-552, 569; 8 CT 1782 [counsel acknowledges receipt of document]; 4 RT 756, 761; Court’s Exh. 6A (sealed) [copy of declaration, unsigned].) Counsel for Carranco and Townley jointly moved to vacate the order preventing them from discussing with their clients the declarations of codefendants Rocha and Flores. (Aug. CT 34; 3 RT 568, 584.) Ina 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 Carranco and Townley remainedfree to discuss with their clients the voluminouspolice reports and witness statements providedin discovery,as the 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; 8 RT 1924.) The court > The Court of Appeal took judicial notice of this document in an order dated January 14, 2009. observed that the defendants would be present to hear trial testimony by the witnesses, and that 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 copiesof the transcript of Flores’s change ofplea 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 ofproceedings on April 17, 2007 (sealed).) C. Flores’s Trial Testimony Rochadid nottestify at appellant’s trial. On the second dayoftrial testimony, May 11, 2007, Florestestified 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.) Flores recountedat trial that, 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 Accordto 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 showed Flores 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 HarperStreet, where Carranco and Gonzalez hada 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 known as Sureno gangterritory. (8 RT 1912; 12 RT 2850-2851 2855; 17 RT 4019-4020, 4023; 18 RT 4266.) 2 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 grabbed a 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 waited in the driver’s seat with the engine running, he heard what sounded like firecrackers. Carranco, Townley, and Rocharan 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 May 11, 2007, the trial court conducted brief hearing in the presence of 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 nondisclosureto 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 objection by Carranco’s counsel to be allowed to discuss declaration with his client].) * This appears to be the samedeclaration that was earlier provided to counsel by the prosecutor on April 27, 2007. (8 CT 1782; 3 RT 551, 569.) Thereafter, on May 23, 2007, defense counsel] used Flores’s declaration extensively to cross-examine the witness.° 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 witnesses as 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 denied at trial. (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 provided at 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-years prison sentence. (12 RT 2874-2876, 2884-2885; 13 RT 3041.) Counsel for Carranco broughtout that 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 contents of this declaration are true at the time I enter my plea;” and “J understandthatif called as a witness I musttell the truth.” (12 RT 2908-2909.) Aside from permissible use made of them during cross-examination, the actual documents remained underseal duringtrial. Thetrial court instructed the jury, “[Y]Jou’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 > Flores’s declaration was marked as Defense Exhibit B, but was not admitted into the trial evidence. (See 8 RT 1921; 12 RT 2885.) credibility.” (12 RT 2876-2877.) It further instructed that “[t]he declaration of Noe Flores that you heard aboutin this case wasa 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 Hondastopin thestreet, 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 jumpedout ofthecar, ran towards him, and in Spanish demanded to know whether he was a Norteno or a 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 wasshotfive times, and he sustained injuries to his right hand, _his right knee, his left thigh, his back, and his abdomen. Thebullet that entered his back fractured his rib and bruised his lung. Twobullets were not surgically removed and remainedin his body. (11 RT 2513-2528, 2532, 2536.) He did not see who had shot him. (6 RT 1312, 1316-1317; 7 RT 1508, 1512.) Ginger Weisel and David Bacon witnessed the attack. Weisel saw three men quickly approach Lazaro, call out “mother-fucking scrap,” and demand to know where Lazaro was from. Lazaro respondedthat he did not “claim” anything and was simply going home. One man approached within three feet of Lazaro and shothim six to eight times in rapid succession. The victim fell to the ground as the man continued to shoot. The other two men stood within two to seven feet of the shooter. (11 RT 2650-2653, 2679, 2682, 2691-2692; 20 RT 4864-4865.) The shooter wore a 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 heard five or six shots in rapid succession. Bacon was aboutfifty 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 was drinking at the Harper Street apartment when Townley, Flores, Carranco, and Rocha returned. (14 RT 3230, 3285-3289, 3292-3294.) She heard a car pull up and, shortly thereafter, a tap on the window. Gonzalez wentto the window and spokebriefly with someone outside. The voices outside sounded anxious and 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.) Minuteslater, Townley, Carranco, Flores, and Rochaentered the apartment. (12 RT 2790-2792, 2864-2865; 13 RT 3121]- 3123.) Fritts-Nash recounted that Townley worea red and blackplaid jacket andthat he referred to the Watsonville Nortenos at one pointin the conversation. (13 RT 36123-3124, 3129-3130; 14 RT 3304.) Carranco and Gonzalez conversed in hushed tones, then 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.) ° Townley was aboutfive feet seven inches tall. Carranco was about five feet six inches tall. Rocha was about five feet nine inchestall. Flores was betweenfive feet six inches and five feet seven inchestall. (20 RT 4837, 4844, 4846; 21 RT 5067-5069.) Notlong after, 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 andFritts-Nash remained in 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 needed to hide the gun andthat he was “looking at 25to life.” He secreted the gun in one shoe, and a small velvet bag of bullets in the other. When Fritts-Nash asked if he shot someone, Townley rolled his head in a circular fashion and did not deny it. (13 RT 3140-3146; 14 RT 3317-3324.) In a later search, police found a .25 caliber handgun and 20 live roundsof .25 caliber ammunition on Townley. (9 RT 2063-2068, 2072; 11 RT 2577.) Five gunshot casings recovered at the crime scene were the same caliber and manufacturer as those found in Townley’s shoe. (17 RT 4029, 4032, 4047.) Townley’s hands, and the sleeves of his red and black plaid jacket, tested positive for gunshot residue, with the largest concentration on theright hand andthe right shirt sleeve. (9 RT 2069- 2070; 13 RT 3066-3069, 3073-3077, 3080.) E. Defense Case Townleydid not testify. He called Lori Kaminski as an expert in gunshotresidue. (21 RT 5036.) She explained various ways a person can comeinto contact with gunshot residue withoutactually firing a gun. She opined thatit is unreliable to conclude thata person fired a gun basedsolely on the presence of gunshot residue onthat person’s handsor clothing. (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 andpersonalinfliction ofgreat bodily injury. (9 CT 2004, 2024-2030.) He wassentenced to life imprisonmentfor attempted murder and to 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 was basedonthetrial court’s order prohibiting defense counsel from disclosing to Townley the contents or existence of the declaration executed by Flores and the changeofplea transcript prepared in Flores’s case. | - Pursuant to 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 under seal. (Court’s Exhibits 3A, 4A, 5A, 6A; RT 761.) The Court of Appeal reversed. It declared that the trial court’s consultationrestriction on Townley’s attorney with respect to the sealed documents in Flores’s case was not narrowly tailored or adequately justified by concernsfor witness safety. It held the order violated Townley’s Sixth Amendmentright to the “effective assistance of counsel.” (Typed Opn.at p. 19-22.) The Court of Appeal did not consider, as a predicate to its finding of a constitutional violation, whether the consultative restriction on counsel caused actual prejudice to the defense. Nor did the appellate court conduct harmless error analysis after finding the constitutional violation. Instead, the Court of Appeal held that the order impinging the consultative aspect of counsel’s representation wasa “structural” defect requiring automatic reversal. (Typed Opn.at pp. 18-24.) Responding to 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 tosign, since defense counsel was permitted to cross-examine him on the signed declaration. (Typed Opn.at pp. 26-27.) Even if Flores’s unsigned prior 10 draft declarations were material evidence favorable to Townley, the Court of Appeal alternatively held that the defense’s lack of access to Flores’s draft declarations was harmless beyond a reasonable doubt: “The jury was fully informedofthe details of the plea bargain between Flores and the prosecution. He was cross-examined on the discrepancy betweenhis testimony andhis declaration, including the statement in 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.) REASONS FOR GRANTING REVIEW I. THIS COURT SHOULD GRANT REVIEW TO ENSURE THAT THE NARROW STRUCTURAL-ERROR RULE IS NOT UNDULY EXPANDED TO REQUIRE AUTOMATIC REVERSAL OF CONVICTIONS WHERE THE POTENTIAL PREJUDICE OF A CLAIMED ERROR MAYRELIABLY BE DETERMINED FROM THE RECORD A. Introduction The Sixth District held that the order prohibiting defense counsel from conferring with Townley on Flores’s declaration and changeofplea transcript, which wasrelevant to Flores’s testimony for the prosecution at trial, was unjustified and, hence, an erroneous “topical ban” on consultation. (Typed Opn. at p. 11) The People do not challenge the specific ruling by the Court of Appealthatthetrial court’s order precluding counsel from discussing the sealed documents with Townley wasnot supported by sufficient reasons disclosed in the record of this case. The People challenge the Court of Appeal’s second holding:that a “topical” ban on attorney-defendant consultation, no matter how 1] insignificant or amenable to harmless error analysis on the record of the case,is a per se violation of the Sixth Amendment’s right-to-counsel clause requiring reversal without regard to the impact of the ban on counsel’s performanceor the fairnessof the trial. The Court of Appeal incorrectly found “structural” error. Neither the United States Supreme Court northis Court has considered that issue. Theissueis a significant one and guidance by this Court is necessary. Errors, even those of federal constitutional magnitude, generally do not require reversal absent a showing of prejudice. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-308 (Fulminante).) Indeed, somepractices rise to the level of constitutional violations only where prejudice to the accused is shown. For example, with respect to violations ofthe Sixth Amendment’s counsel clause, the defendant generally must establish prejudicein order to make out the constitutional violation, unless a complete denial of counsel occurred in a critical stage of the proceeding. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland), United States v. Cronic (1984) 466 U.S. 648, 658-659 & fn. 25 (Cronic).) In contrast, the category of structural error, reversible without a showing of prejudice, has beenreserved for a very limited class of constitutional errors that affect “the framework within which thetrial proceeds.” (Fulminante, . supra, at p. 310.) Howtheseprinciples apply to topical consultative bans has not been established definitively. The Supreme Court has never ruled on the subject. Geders v. United States (1976) 425 U.S. 80 (Geders), heldthata trial court’s order denying defendant access to counsel 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.) Perry v. Leeke (1989) 488 U.S. 272 (Perry), foundthat a showing of prejudice “is not an essential componentof a violation of the rule 12 announced in Geders,” where the defendant suffered an “‘[a]ctual or constructive denial of the assistance of counsel altogether’ .. .” during a substantial recess in the trial. (/d. at pp. 278-279, quoting Stricklandv. Washington, supra, 466 U.S. at p. 692.)’ As the Sixth District acknowledged, Geders “involved a total ban, though limited temporarily, on attorney-client communication, not what we maycall a topical ban”that “prevent[ed] an attorney from talking with a defendant abouta part of the evidence.” (Typed Opn.at p. 11, fn. omitted.) The federal circuit courts have split on the issue. For example, 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 his client was not subject to a presumption of prejudice under United States v. Cronic, supra, 466 U.S. 648, and that the order’s effect on counsel’s performance must be assessed under the two-prongtest of Strickland, including whether there was a reasonable probability of a different result. 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 thatthe trial court’s order prohibiting the defendant and his attorney from discussing the defendant’s testimony during an overnight recess violated the Sixth Amendment. Otherreversible trial error in each case, however, made it unnecessary for those courts to determine whether the error wasstructural or subject to harmlesserror analysis under Chapmanv. California (1967) 386 U.S. 18. Cobb v. United States (4th Cir. 1990) 905 F.2d 784, 791-792, and Muddv. United States (D.C. Cir. 1986) 798 F.2d 1509, 1512, held that the ’ This observation was arguably dicta because the Court went on to find no constitutional violation from an order preventing the attorney from consulting with his client during a 15-minute recess in the defendant’s testimony. (Perry, supra, 488 U.S. at pp. 280-285.) 13 trial court’s order prohibiting defendant from discussing his testimony with his attorney during a weekendrecess violated the Sixth Amendment, and reversed without a consideration of prejudice. B. Because Townley Did Not Suffer a Total Denial of the Right to Counsel, He Must Demonstrate Prejudice to Establish a Violation of the Sixth Amendment Counsel Clause Here, the Court of Appeal applied Geders and Perry to hold that an order prohibiting defense counsel from conferring with his client on a specified topic— a “topical ban,” (Typed Opn.at p. 11)—-violates the Sixth Amendmentright to counsel, and requires automatic reversal, without regard to the actual effect on counsel’s performance orthe ultimate fairness ofthe trial. In so concluding, the court rejected an applicationofthe test in cee Strickland that would require Townley to show “‘the kind of prejudice analysis that is appropriate in determining whetherthe quality of a lawyer’s 999 performanceitselfhas been constitutionally ineffective.’” (Typed Opn.at p. 22, quoting Perry, supra, 488 US. at p. 280.) That holding requires review as it is a significant error of constitutional magnitude. The Sixth Amendmentguaranteesthat “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” This guarantee includes “‘the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.’” (Kansas v. Ventris (2009) U.S. __ [129 S.Ct. 1841, 1844-1845], quoting Michigan v. Harvey (1990) 494 U.S. 344, 348.) The Sixth Amendmentright to counsel “‘is the right to the effective assistance of counsel.” (Cronic, supra, 4766 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 not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conducton thereliability of the trial process, the Sixth 14 Amendment guarantee is generally not implicated.” (Cronic, supra,at p. 658.) Ordinarily, defendant bears the burden of proving that counsel’s acts or omissions prejudiced the outcomeofthetrial in order to demonstrate a constitutional violation. (Cronic, supra, 466 U.S. at p. 658; Strickland, supra, 466 U.S. at p. 685.) As the United States Supreme Court recently explained: Having derived the right to effective representation from the purposeof 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 elementof theright 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 reasonably likely that they have). Thus, a violation of the Sixth Amendmentrightto effective representation is not “complete” until the defendant is prejudiced. See Strickland, supra, at 685. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 147 (Gonzalez- Lopez), parallel citations omitted.) A defendant challenging the constitutional adequacy of counsel’s performance under Strickland must show a “reasonable probability that . . . the result of the proceedings would have been different” sufficient to undermine confidencein the outcome of the trial. (Strickland, supra, 466 U.S.at p. 694.) In rare and narrowly-defined circumstances, however, a Sixth Amendmentviolation is shown, and reversal is mandated, absent an individual assessmentofprejudice in the particular case. The complete denial of counsel in violation of the Sixth Amendmentis a “structural defect[] in the constitution of the trial mechanism”that “affect[s] the framework within whichthetrial proceeds,” and thus “deffies] analysis by ‘harmless error’ standards.” (Arizona v. Fulminante, supra, 499 U.S.at pp. 15 309-310; see Gideon v. Wainwright (1963) 372 U.S. 335.) Such Sixth Amendmentviolation may be shown withoutany particularized assessment ofprejudice to the accused where “counsel waseither totally absent, or prevented from assisting the accused during critical stage of the proceedings.” (Cronic, supra, 466 U.S. 659, fn. 25.) Those circumstances “are so likely to prejudice the accused that the cost oflitigating their effect in a particularcase is unjustified.” (/d. at p. 658, fn. omitted.) As examples, Cronic listed among others, Herring v. New York (1975) 422 U.S. 853, 863-865 [bar on defense counsel’s summation at benchtrial]; Brooks v. Tennessee (1972) 406 U.S. 605, 612-613 [requirementthat defendantbe first defense witness], and Ferguson v. Georgia (1961) 365 U.S. 570, 593-596 [bar on defense counsel’s direct examination of defendant]. Cronic and Perry deemed Geders error—the complete denial of counsel concerning all matters during an overnight recess in the trial—to be an error that “is not subject to the kind ofprejudice analysis that is appropriate in determining whetherthe quality of a lawyer’s performance itself has been constitutionally ineffective.” (Perry, supra, 488 U.S.at p. 280; accord, Cronic, supra, 466 U.S.at p. 659, fn. 25.) Cronic emphasized, however,that “[a]part from circumstances of that magnitude . . 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.” (466 U.S. at p. 659, fn. 26.) Nothing of that magnitude, however, happenedin this case. The opinion by the Sixth District in this case blurredthe line between Strickland and Cronic by holdingthat a topical interference with the consultative aspect of counsel’s representation, no matter how discrete or limited, is a per se Sixth Amendmentviolation requiring automatic reversal. But Geders and Perry require per se reversal only where the interferenceis so 16 significantthatit effectively denies a defendant “‘the assistance of counsel 299altogether. 466 U.S.at p. 692.) (Perry, supra, 488 U.S. at p. 280, quoting Strickland, supra, That level of interference was not shown here. Counsel wasnot prevented from meeting withhisclient, from discussing defensestrategy, from investigating the case, or from cross-examining Flores—as the Court of Appeal’s own discussion of the harmlessness of withholding Flores’s unsigned draft declarations makes clear. (Typed Opn.at p. 27.) 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 pretrial discovery of witness statements does notitself establish a Sixth Amendmentviolation. (United States v. Brown (9th Cir. 1970) 425 F.2d 1172, 1174; United States v. Washabaugh (9th Cir. 1971) 442 F.2d 1127, 1129.) | Moreover, defense counsel had at his disposal police reports summarizing all pretrial witness statements, including two statements by Flores shortly after the shooting, as well as a tape recording of the interview between Flores and the police. These statements, despite their substantial similarity to the content of Flores’s sealed declaration, were not made subject to the consultation restriction imposed by the court on counsel. (See 3 RT 580-581; 8 RT 1924.) In addition, 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. Townley of course witnessed Flores’s testimony himself. He wasnotrestricted in his ability to discuss anyofthe testimony with his attorney, including details of Flores’s signed declaration revealed during cross-examination. As this 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. Accordingly,the test 17 of Strickland applies, and Townley must show a “reasonable probability that . . . the result of the proceedings would have been different” sufficient to undermine confidence in the outcomeofthetrial in order to make out a Sixth Amendmentviolation. (Strickland, supra, 466 U.S. at p. 694.) The Court of Appeal erroneously found a constitutional violation without holding Townleyto that burden. Nor was Townley’s burden to show prejudice eliminated by the fact that the interference with counsel came from an external source, namely a court order. “The fact that the accused can attribute a deficiency in his representation to a source externalto trial counsel does not make it any moreorless likely that he receivedthe typeoftrial envisioned by the Sixth Amendment, nordoesit justify reversal of his conviction absent an actual effect on the trial processor the likelihood of such an effect.” (Cronic, supra, 466 U.S.at p. 662, fn. 31; but see Perry, supra, 488 USS.at p. 279 [observingthat “direct governmental interference with the right to counsel is a different matter”].) Indeed, had the prosecution team in Townley’s case 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 process violation, 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 beendifferent, i-e., the Sixth Amendmentprejudice 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); see also People v. Ervine (2009) __ Cal.4th [2009 WL 4546348 at *14-15] [defendant claiming that the government’s receipt of privileged confidential information violated his right to counsel underthe 18 California Constitution and his right to due process must show that he was prejudiced in the preparation of his defense].) It would be illogical to treat the error here—limited and merely delayed non-disclosure to the defendant personally—as fundamentally more serious and pervasive,so as to trigger automatic reversal, than Brady error that involves complete non-disclosure to the entire defense yet does not warrant reversal without an inquiry into probable prejudice. Tellingly, the Sixth District held that the trial court’s order “unjustifiably infringed on [Townley’s] constitutional right to the effective assistance of counsel.” (Typed Opn. at p. 22, emphasis added.) Butit reached this conclusion without requiring Townly to show a reasonable probability that the order affected counsel’s ability to representhis client in a mannerthat undermined confidence in the outcomeofthetrial. (Strickland, supra, 466 U.S.at p. 694.) Cronic’s presumption ofprejudice is “the exception, not the rule.” (Scarpa v. Dubois (1st Cir. 1994) 38 F.3d 1, 12.) It applies only to the most expansive forms of interference with counsel’s performance that amount to a constructive denial of counsel altogether. The Sixth District’s unwarranted expansion ofthis per se rule of reversal has the potential to generate unwarranted reversals in any numberofcases involving erroneous, albeit constitutionally insignificant, interferences with the consultative aspect of counsel’s performance. C. Even if the Consultative Restriction Imposedin this Case Does Not Come Within the Strickland test for “Effective” Assistance of Counsel, it is Nonetheless “Trial Error” and Amenable to Harmless Error Review Even if an erroneousinterference with counsel’s ability to confer with his client on a subject relevant to the defense constitutes a kind ofviolation of the Sixth Amendmentthatis not governed by Strickland, that conclusion 19 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.” (Arizona v. Fulminante, supra, 499 U.S. at p. 306.) Gonzalez-Lopez, supra, 548 U.S. 140 held that an erroneous order denying defendanthis counsel of choice violates the Sixth Amendment, andthat “[n]o additional showing of prejudice is require to make the violation ‘complete.”” (/d.at p. 146.) Nonetheless, the Court went on to consider whetherthe error was subject to review for harmlessness under Arizona v. Fulminante, supra, 499 U.S. 279. (id. at p. 148.) In Fulminante, the high court divided constitutional error into two classes: “trial error” which “occurred during the presentation of the case to 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” and “structural defects,” which “defy analysis by ‘harmless-error’ standards” because they “affec|t] the framework within whichthetrial proceeds,” are not “simply an errorin the trial processitself.” (499 U.S. at pp. 307-310.) The court restsits finding of structural error primarily “upon the difficulty of assessing the effect of the error.” (Gonzalez-Lopez, supra, 548 U.S.at p. 149,fn. 4.) It also takes into consideration the “irrelevance of harmlessness”’ to a particular constitutional violation, such as a denial ofthe right to self-representation. (Ibid.) Includedin thelist of “structural defects” are the total deprivation of the right to counsel at trial (Gideon v. Wainwright, supra, 372 U.S. 335), the denial of the right of self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168, 177-178, n. 8), the denial of the right to a public trial (Waller v. Georgia (1984) 467 U.S. 39,49, n. 9), the denial of the right to an 20 impartial judge (Tumey v. Ohio (1927) 273 U.S. 510), and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction (see Sullivan v. Louisiana (1993) 508 U.S. 275). (Neder v. United States (1999) 527 U.S. 1, 8.) Gonzalez-Lopez added tothat list the erroneous deprivation of the right to counsel of choice, which 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 unquantifiable and indeterminate ....’” (548 U.S.at p. 150, internal citation omitted.) 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 consultation is “structural” error and reversible per se. That inquiry depends on the “difficulty of assessing the effect of the error”in the context of thetrial record as a whole. (United States v. Gonzalez-Lopez, supra, 548 U.S.at p. 149, fn. 4.) The consultative ban on identifiable items of evidence—the sworm statement and plea bargain transcript ofa testifying prosecution witness— does notbear directly on the “framework within whichthetrial proceeds” and can be “quantitatively assessed in the context of other evidence presented in order to determine whether it was harmless beyond a reasonable doubt.” (Fulminante, supra, 499 U.S.at pp. 307-308, 310.) The court may review thetrial record to determine whetherthe restrictive order 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 of his pretrial statements to police. It could also considerthe significance of Flores’s testimonyto the conviction. Flores did not identify the shooterat trial. Other independent evidence establishedthat fact, including 21 Townley’s admission to a friend shortly after the shooting that he was “looking at 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. Structuralerroris “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.) The Sixth District failed to perceive that harmlesserror analysis is not “impossible” on this record. (Gonzalez-Lopez, supra, 548 U.S.at p. 150.) Its duty was to assess whether and howthetrial court’s limitation on client consultation affected the outcomeofthe trial, measured against the standard for harmlessness set forth in Chapman v. California (1967) 386 U.S. 18. Its failure to do so violates United States Supreme Court precedent and necessitates review by this Court. CONCLUSION Accordingly, respondent respectfully requests that the petition for review be granted. Dated: December 18, 2009 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN epee Deputy Attorney General AMY HADDIX Deputy Attorney General Attorneysfor Plaintiffand Respondent SF2007403148 20239533.doc 22 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 6428 words. Dated: December18, 2009 EDMUND G. BROWN JR. Attorney General of California AF~ AMY HADDIX Deputy Attorney General Attorneysfor Plaintiffand Respondent Exhibit A ia DOCKETEDSIXTH APPELLATE DISTRICT | : | SAN FRANCISCO | | NOV 1 6 2009THE PEOPLE, H031992 p Mere (Santa Cruz County py £,DIAMOND _| Plaintiff and Respondent, Super. Ct. No. F12934) Ne§ FF? Ly Wh, " Court af Appaai - Sixth Ap . Dist JACOB TOWNLEY HERNANDEZ, F iL a NOY 0 9 2008 Defendant and Appellant. MICHAEL J. YERLY, Clerk By DEPUTY After a jury trial defendant Jacob Townley Hernandez (Townley) was convicted of premeditated attempted murder, in violation of Penal Code sections 187, subdivision (a), and 664. Thejury also found true theallegations that Townley had personally used a gun and had personally inflicted great bodily injury in committing the crime. (Pen. Code, § 12022.53, subdivision (c); § 12022.7, subd. (a).) On appeal, he raises numerousissues bearing on his right to consult with counsel, admission of statements made by witnesses in police interviews, prosecutor misconduct, improperjudicial comments, admission of ~ gang evidence, andjury instructions. He further challenges the denialofhispretrial motion to suppress evidence obtained asa result of his detention. On July 23, 2009, this court filed an unpublished opinion affirming the judgment. On August 14, 2009, we granted Townley’s petition for rehearing to give more attention to a gag orderthat prevented defense counsel from discussing the contents of two declarations by witnesses with Townley. Upon further review,for the reasons stated below, wewill reverse the judgment." | I. Background Seventeen-year-old Townley was accused by information with attempted murder, committed with three accomplices: 18-year-old Jose Ruben Rocha, 16-year-old Jesse Carranco, and 18-year-old Noe Flores. The charges arose from the shooting of Javier Zurita Lazaro around 9:00 p.m. on February 17, 2006. In a telephonecall at about 7:00 “p.m.that night, Townley asked Flores to "do a ride." Flores drove his 1992 white Honda “Accord to pick up Townley and hisgirlfriend, Amanda Johnston, in Santa Cruz. Once in the car, Townley showedFlores a small black.handgun, which Flores handled and returned to Townley. Townley directed Flores to drive to Watsonville, where they picked up Carranco (known as "Little Huero") and Rocha (knownas "Listo"), whom Flores had not met before. Townley was wearing People's Exhibit 23, a red and blackplaid flanneljacket, which Johnston had given him as a gift. Carranco wore a red hooded sweatshirt; he had four dots tattooed on his knuckles, signifying his association with the Norteno gang. Flores wore black sweatpants, a white T-shirt, gloves, and a black zip-up hooded sweatshirt. Rocha worea black flannel jacket with whitein it. The group then drove back to Santa Cruz, dropping Johnstonoff before heading . downtown. They wentto an apartment on Harper Street where Anthony Gonzalez lived. About 20 minutes later, the four drove toward the Ocean Terrace apartments, located at the corner of Merrill Street and 17th Avenuein an area known as Sureno gangterritory. As they were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk across the street, walking back to his apartment at the Ocean Terrace complex. Lazaro, aged 29, wasnot associated with any gang, but the sweatshirt he wore wasblue, the color Since we have focused on this one issue on rehearing, our opinion has remained the same on other issues to the extent they remain relevant to this appeal and opinion. associated with the Surenos. Carrancotold Flores in a "[k]ind of urgent" voice to turn antaround and pull over, and Flores did so. Grabbing a T-ball bat that Flores kept in the front passenger area, Carranco jumpedoutofthe car, along with Townley and Rocha. Flores waited in the driver's seat with the engine running. He heard what soundedlike firecrackers; then the three others ran back to the car and Carranco told him "urgently"to go. Flores drove away rapidly with his passengers and followed Carranco's directions back to Gonzalez's apartment. Lazarotestified that as he was walking back to his apartmenthe heard three or four voices from inside Flores's car, and then someoneyelled, "Comehere." He thought it was directed at someoneelse, so he continued walking without turning around. Just as he reached the parking lot of the apartment complex, he saw the groupget out ofthe car and run acrossthe street toward him. They asked him whether he was Norteno or Sureno. At that point Lazaro wasfrightened and ran, until hefelt something push him to the ground. Lazaro received five gunshot wounds,including a fractured rib and a bruised lung. Two bullets remained in his body. Lazaro did not see who shot him, but Ginger Weisel, Lazaro's neighbor, was in the parking lot when Lazaro walked away from the group. She heard them call out "fucking scrap" and ask where Lazaro was from before seeing one of them shoot Lazarosix to eight times. Lazarofell after about four shots. Weisel recalled that the shooter was about _ five feet, nine inches tall” and wore a red and black plaid Pendleton shirt. Weisel called 911 from her apartment and returnedto help Lazaro. David Bacon was driving on 17th Avenue when he saw Flores's car parked in a no-parking zone. He saw what appeared to be two Latino males of high school age, about five feet 10 inchestall. Seconds later he heard snapping sounds and saw oneofthe | ? One ofthe detectives who investigated the case testified that Townley was about five feet, seven inches. Carranco wasaboutfive feet, six inches; and Rocha, aboutfive feet, nine inches. group standing in a "classic shooting position,” holding a gun. He heard a total of five or six shots from what appearedto be a smail-caliber gun. Bacon had the impression that the shooter worea plaid jacket, which could have been People's Exhibit 22. The second man appeared to be a lookout. Bacon then saw twopeople run back to the car, which’ sped away. Heparked his car, called 911, and returnedto help Lazaro, who waslying on the ground with two womentending to him. Emergency personnelarrived within a minute after the last shot. Susan Randolph stepped outside her home on 17th Avenue when she heard the gunshots. She described the three as young Latinos between 16 and 20 years old, ranging from five feet, six inches to five feet, nine inches. ~ Julie Dufresne was driving on 17th Avenuewith Jeanne Taylor when she heard popping noises that sounded like fireworks, followed immediately by three people running acrossthestreet in front of her car. They were all abouther height, five feet nine or 10 inches, or probably shorter, and they appeared to be between 15 and 20 years old. One worea thin, red and black plaid flannel jacket. Taylor thought there were five popping sounds, followed by the "three young men" running acrossthe street in front of the car. One of them wasless thanfive feet, five inches and wore whatlooked like a plaid Pendleton shirt in black and red. He appeared to be staggering as if he were drunk or "havingdifficulty with his coordination." The other two weretaller; one wore a white and black plaid shirt, People's Exhibit 22, and the other a hooded sweatshirt. When they reached the white car, one went to the backseat on the driver's side, and the other two went aroundto the passenger side. Taylor thought that People's Exhibit 23 looked like the red and black shirt the "shorter person" had been wearing; Dufresne "couldn't say for sure." Randi Fritts-Nash wasone ofthe teenagers drinking at the Harper Street apartment. Sitting in Gonzalez's bedroom with five others, she heard a carpull into the parking lot, followed by a couple of knocks at the window. Gonzalez wentto the window andthen left the room. Before heleft, Fritts-Nash heard the anxious voices of two people outside, one of whom said the words "hit" and "scrap." When Gonzalez reappeared, Townley andthe other three were with him. Townley was Wearing a red and black plaid jacket, People's Exhibit 23. Fritts-Nash heard Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley pull a small handgun out of his pocket and wipeoffthe prints with a blanket. Townley moved the gun several times from one pocketto another, saying, "I need to hide this gun." Healso told her he was "looking at 25 to life." Rejecting Fritts-Nash's suggested hiding place, Townley put the gun in his shoe and a small black velvet bag ofbullets into his other shoe. Townley told her to cross her fingers for good luck. Fritts-Nash asked him if he had shot someone; his head movementindicated an affirmative answer. . Townley and Carranco weretried together as adults under Welfare and Institutions Code section 707, subdivision (d)(2). On January 25, 2007, the court granted Townley's motion to sever his trial from that of his codefendants. Before trial both Flores and Rocha entered into plea agreements in which the prosecution would reduce the charges in exchangefortheir 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. Rochapleaded guilty to assault with force likely to produce great bodily injury, with an expected sentence oftwo years. On the same date that Flores and Rochaentered their pleas, April 17, 2007, the prosecutionfiled a motion to reconsolidate the cases against Carranco and Townley, which the court subsequently granted on April 26, 2007. The jury found Townley guilty of attempted premeditated murder and found the People's allegations of firearm use and great bodily injury to be true. (Pen. Code, § 12022.53, subds (b), (c), (d); § 12022.5, subd. (a); § 12022.7, subd.(a).) On September 12, 2007, he wassentencedto life in prison with the possibility of parole for the attempted murder, with a consecutive term of 25 yearsto life for the section 12022.53 firearm enhancement. Il. DISCUSSION A. ISSUES RELATED TO WITNESS DECLARATION I. Restriction on Attorney-Client Discussion ofthe Flores Declaration The guilty pleas in Flores's and Rocha's cases were taken in closed proceedings and the reporter's transcripts were sealed bytrial court order.’ At Flores's plea hearing the prosecutor stated that Flores would be permitted to serve his sentence outofstate "because hewas previously stabbedin the jail. There are very serious concerns abouthis physical well-being." Rocha's declaration stated that he understood that he had "to tell the judge in open court and under oath what I myself did on February 17, 2006." In Flores's declaration, on the other hand, he stated: "I understandthat I have totell the judge in open court and under oath that the contents of this declaration are true." He also stated, "I do understand that I may be called as a witness in any hearing related to the events that transpired on February 17, 2006." At each change-of-plea hearing, the court ordered the declaration to befiled under seal, to be openedonly if the prosecution called him to testify about any of the matters covered in the declaration. Defense counsel were permitted to look at the document, but they were "prohibited from discussing the contents or the existence of the document with their client or any other person." Defense counsel also were not permitted to have a copy of the declarations. As the Attorney General notes, Flores's counsel emphasizedthat, even if the declaration was opened underthose circumstances,it "will not ultimately be > The sealed transcripts and declarationsare in the record on appeal and have been: provided to appellate counsel, but, on April 15, 2008, this court denied Townley's request to unseal these documents. Accordingly, they remain sealed and should not be disclosed in a documentfiled publicly. (Cal. Rules of Court; rule 8.160(g).) Though the Attorney General opposed the request to unseal the documents, the Attorney General's later brief quoted from the sealed transcripts, possibly recognizing that the court's orders cannot be justified without reference to the sealed record. part of the paperworkthat follows Mr. Flores to his prison commitment." Thereafter, the prosecution provided a written copy to the defense counsel.‘ Counsel for Townley and Carranco were unsuccessful in moving to withdraw the order not to discuss the contents or existence of the documentwith their clients. Ata hearing from which the defendants were excluded, the court reasoned that it would be improperto rescind the order without Flores's and Rocha's counsel being present. The court did advise defense counsel thatif the witnessestestified inconsistently with their statements, then the sealing order "would be undone" and counsel would be free to cross- examine them with the declarations. When the prosecutorasserted that defense counsel hada right to use the documents to cross-examine and impeach them,the court stated, "That's going little beyond what we put on the record, those plea agreements. The agreement wasfor their protection." The court agreed with the prosecutor's statement, "So once they take the stand, the order would necessarily disappear becauseit doesn't make sense anymore." Neither Flores nor Rocha was on the prosecutor's list ofproposed witnesses filed April 27, 2007. Rocha wasnot called as a witnessat trial. Flores was called as a witness on the second day oftrial testimony. At the end of the day, in the jury's absence,his * The Attorney General asserts that counsel "received both Flores's sealed declaration and his plea hearing transcript with ample time to prepare for cross- examination." It is unclear from the record what happened with the reporter's transcripts of the changeofplea hearings. The court did provide counsel with copiesin orderto explain its denial of an in limine motion. After this ruling,the court stated, "you need to give those back to the court reporter." The prosecutorasserted to have understoodthat the court had orderedthat "the copiesofthe transcript would be made available with the same understanding and under the same conditions as were the declarations." The court responded,"I think I did, actually, and they're — and it actually would be more prophylactic if we just left them sealed and tooktheplea if all he agrees to dois testify truthfully. ... [{] So you can keep those. You can't show those to yourclient. You can't show them to anybodyelse." We are not sure whether "those" referred to the declarations or the transcripts, or how it "would be more prophylactic" to allow counsel to retain copies ofthe transcripts. attorney was called in to a hearing at which the court explained that, "in order to provide for adequate cross-examination of Mr. Flores .. . that Counsel be provided with copies of his statement. .. . [T]he statement may not be shared with the clients. We'vealready talked about that." "They're subject to the same nondisclosure to clients, to investigator, to other attorneys[. I]t's only to be used by" defense counsel for purposesof cross- examination. "They haveto be returned." Carranco's counsel asked again to be able to discuss it with his client. The court denied the request, pointing out that counsel had a lengthy statement from Floresto the police. The court added, "Put that in your briefcase and do not share it with Mr. Carranco. Put it in [your] briefcase right now." Direct examination of Flores resumed twotrial days later. He was the sole witness on the fifth day of testimony. During Carranco's cross-examination of Flores, the prosecutor successfully objected to defense counsel's readingthetitle of the document. Carranco's counsel tried to ask Flores about the requirement that he sign the declaration in order to obtain the three-year sentence; again the prosecutor's objection wassustained, as was a question about Flores's methamphetamine use on the nightofthe shooting. In the jury's absence, the court explained thatit also sustained someofthe prosecutor's objections because they were "questions about things that weren't in the document... suggesting to the jury that we'd intentionally omitted facts. Andthat's misleading." The court stated that "[t]he documentis sealed for protection of Mr. Flores." The examination of Flores concluded on the sixth day of testimony. Eventually the trial court took judicial notice of the fact that the declaration was part of the plea bargain and accordingly instructed the jury. On appeal, Townley contendsthat the court's restrictions beforetrial and during examination of Flores violated Townley's Sixth Amendmentright to consult with his attorney. Finding no California authority directly on point, we review federal authority. Maine v. Moulton (1985) 474 U.S. 159 (106 S.Ct. 477) recognized at pages 168 and 169: "Theright to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendmentsis indispensable to the fair administration of our adversarial system of criminal justice. [Fn. omitted.] Embodying 'a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself (Johnson v. Zerbst (1938) 304 US. 488 462-463). the ri htt 7ht to counsel safeguards thegq other rights deemedessential for the fair prosecution of a criminal proceeding." "The special value ofthe right to the assistance of counsel explains why‘i]t has long been recognized that the right to counselis the right to the effective assistance of counsel.'" (U.S. v. Cronic (1984) 466 U.S. 648, 654 [104 S.Ct. 2039], quoting McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [90 S.Ct. 1441].) Courts have recognized that legal assistance can be more effective when attorneys and clients are allowed to confer, consult, and communicate. Inevitably,there are . practical limitationsthat restrict the opportunities of criminal defendants to consult with their attorneys, including the defendant's custodial status, technological meansavailable, the attorney's other commitments,the availability of courtrooms, the needs for orderly and timely court proceedings. In the context of a request for continuance, the United States Supreme Court has recognized, "Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwiseto preparefortrial violates a defendant's Sixth Amendmentright to counsel." (Morris v. Slappy (1983) 461 U.S. 1, 11 [103 S.Ct. 1610].) But when the government unjustifiably interferes with attorney-client communication, the result may be determinedto be a violation of a criminal defendant's constitutional "right to the assistance of counsel." (Geders v. United States (1976) 425 U.S. 80, 91 [96 S.Ct. 1330] [Geders].) In Perry v. Leeke (1989) 488 U.S. 272 (109 S.Ct. 594) (Perry), the United States Supreme Court discussed 20 cases from federal and state courts (but not California) in footnote 2 on page 277 in support of the proposition: "Federal and state courts since Geders have expressed varying viewson the constitutionality of orders barring a criminal defendant's access to his or her attorney duringa trial recess." (Cf. Annot., Trial court's order that accused andhis attorney not communicate during recess in trial as reversible error under Sixth Amendment guaranty of right to counsel (1989) 96 A.L.R. Fed. 601; Annot., Scope and extent, and remedyor sanctionsfor infringement, of accused's right to communicate with his attorney (1966) 5 A.L.R.3d 1360.) In Geders, the United StatesSupreme Court held "that an order preventing petitioner from consulting his counsel ‘about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged on his right to the assistance of counsel guaranteed by the Sixth Amendment." (Geders, supra, 425 U.S. 80, 91.) In Perry, the United States Supreme Court held "that the Federal Constitution does not compeleverytrial judge to allow the defendant to consult with his lawyer while his testimonyis in progressif the judge decides that there is a good reasontointerrupt the trial for a few minutes.” (Perry, supra; 488 U.S. 272, 284-285.) "[W]hen a defendant becomesa witness, he has no constitutional right to consult with his lawyer while heis testifying." (/d. at p. 281.) In Perry, "[a]t the conclusion ofhis direct testimony, the trial court declared a 15-minute recess, and, without advancenotice to counsel, ordered that petitioner not be allowedto talk to anyone, including his lawyer, during the break." Ud. at p. 274.) California decisions are in accord. People v. Zammora (1944) 66 Cal.App.2d 166 (Zammora) appears to have been a gang case of sorts (though not a criminalstreet gang) involving 22 defendants, 12 ofwhom were convicted of murder and assault with a deadly weapon. (/d. at pp. 173-174.) On appeal, the defendantsasserted "that the right of appellants to defend in person and with counsel was unduly restricted by the seating arrangementofthe appellants in the courtroom, which, together with certain rulings of the court, prevented the defendants from consulting with their counsel during the course of the trial or during recess periods." (/d. at p. 226.) The defendants wereseated in a group in the courtroom at sufficient distance from the five defense counselas to be unable to confer except by walking the distance between their locations. (/d. at pp. 227, 234.) The court had ordered that counsel nottalk to the defendants during court recesses. (Ud. at p. 227.) The appellate court observed: "To us it seems extremely importantthat, during the progress ofa trial, defendants shall have the opportunity of conveying information to their attorneys during the course of the examination of witnesses. The right to be represented by counselatall stages of the proceedings, guaranteed by both the federal 10 and state Constitutions, includes the right of conference with the attorney, and such right w g sto confer is at no time more important than during the progress ofthetrial." (Zammora, supra, 66 Cal.App.2d 166, 234.) "The Constitution primarily guarantees a defendant the right to present his case with the aid of counsel. That does not simply meantherightto have counsel presentat the trial, but means that a defendant shall not be hindered or obstructed in having free consultation with his counsel, especially at the critical moment whenhis alleged guilt is being made the subject of inquiry by a jury swornto pass thereon." (/d. at pp. 234-235.) The convictions were reversed on this basis. (Id.at pp. 235-236.) People v. Miller (1960) 185 Cal.App.2d 59 presented a different situation. In that case the trial court denied a defendant's request to confer with his attorneyin the middle of the defendant's cross-examination. Theappellate court concluded, "Therefusal ofthe trial court to permit the defendant to speak to his counsel in the midst ofhis cross- examination did not constitute an infringement uponhis constitutionally guaranteed right to counsel. This right assures a defendant of every reasonable opportunity to consult with his counsel in the preparation and presentation of his defense [citations], but does not confer upon him the right to obstruct the orderly progress ofa trial." (/d. at pp. 77-78.) The court orders in the cases above involveda total ban, though limited temporally, on attorney-client communication, not what we maycall a topical ban. None of the above cases involved an order preventing an attorney from talking with a defendant abouta part of the evidence.” The samedistinction applies to Jones v. Vacco (2d Cir. 1997) 126 F.3d 408, on which Townleyrelies. In that case, the trial judge ordered the > In Moore v. Purkett (8th Cir. 2001) 275 F.3d 685, the court restricted the criminal defendant's method of communicating,telling him if he had anythingto say to his attorney while court wasin session, he should write a note, and not speak, no matter how quietly. The attorney objected that the defendant's writing skills were limited. Ud. at p. 687.) The appellate court concluded that "Moore wasactually or constructively denied the assistance of counsel altogether duringtrial court proceedings." (/d. at p. 689.) 1] defendantnot to talk to his attorney during an overnight break in his cross-examination. (id. at p. 411.) The court found Geders controlling. Ud. at p. 416.) Townley also invokes precedent involving court orders containing topical bans of varying durations. In fourcases,trial courts barred defense attorneys from discussing the defendant's testimony, though explicitly or implicitly allowing consultation on other topics. In Mudd v. United States (D.C. Cir. 1986) 798 F.2d 1509 (Mudd), the restriction was imposed during a weekend recess between the defendant's direct and cross- examination. (Id. at p. 1510.) In U. S. v. Cobb (4th Cir. 1990) 905 F.2d 784 (Cobb), the restriction was imposed during a weekendrecess in the cross-examination ofthe defendant. (Jd. at p. 1990.) InU.S. v. Santos (7th Cir. 2000) 201 F.3d 953 (Santos), the restriction was imposed during an overnight recess between the defendant's direct and cross-examination. The court also essentially told defense counsel to comply with Perry. (Ud. at p. 965.) In U. S. v. Sandoval-Mendoza (9th Cir. 2006) 472 F.3d 645 (Sandoval- Mendoza), the restriction was imposed during two morning recesses, a lunch recess, and an overnight recess in the defendant's cross-examination. (Jd. at p. 650.) In Mudd, which predated Perry, the court concludedthat, "While the order in this case was indeed morelimited than the one in Geders, the interference with [S]ixth [A]mendmentrights was notsignificantly diminished." (Mudd, supra, 798 F.2dat p. 1512.) "[AJn order suchasthe onein this case can have a 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 in Cobb had "no difficulty in concluding thatthe trial court's order, although limited to discussions of Cobb's ongoing testimony,effectively denied him access to counsel." (Cobb, supra, 905 F.2d at p. 792.) Santos concluded, "Perry makesclear, as do the cases before andafterit (though someofthe 'before' cases go too far, by forbidding any limit on discussions between lawyer and client), that while the judge mayinstruct the lawyer not to coachhisclient, he may not forbid all ‘consideration of the defendant's ongoing testimony’ during a substantial recess, 488 U.S. at 284, since that would as a practical matter preclude the 12 assistance of counselacross a range oflegitimate legal and tactical questions, such as warning the defendant not to mention excluded evidence." (7d. at p. 965.) The appellate court concluded that defense counselin that case "was given confusing marching orders that may well have inhibited the exercise of Sixth Amendmentrights" (/d. at p. 966.) In 2006, the Ninth Circuit, in reliance onGeders and Perry, concluded in Sandoval-Mendoza "that trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess." (Sandoval-Mendoza, supra, 472 F.3d at p. 651, fn. omitted.) In view ofthis rule, the trial court "erred in prohibiting Sandoval-Mendoza andhis lawyer from discussing his testimony during an overnight recess." (Jd. at p. 652.)° | Perry explained that a criminal] defendant's right to the assistance of counsel does not include obtaining advice during short trial recesses about how to answer ongoing cross-examination. However, it does protect "the normal consultation between attorney and client that occurs during an overnight recess [which] would encompass matters that go beyond the content of the defendant's own testimony — matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability ofother ° In United States v. Triumph Capital Group, Inc. (2d Cir. 2007) 487 F.3d 124, the Second Circuit Court ofAppeals claimed to "join oursister circuits and hold that a restriction on communication during a long recess can violate the Sixth Amendment even if the restriction bars discussion only of the defendant's testimony." (/d. at p. 133.) This purported holding was dictum, however. In that case, the trial court rescindedits order after three hours, so it was only in effect between 5 p.m. and 8 p.m. (Ibid.) The appellate court's actual conclusion wasthat "the court's restriction wastrivial - and did not meaningfully interfere with the defendant's Sixth Amendmentrights to effective assistance of counsel." (/d. at p. 135.) The defense counsel was on notice within 20 minutes ofthe court order that the Government might seek rescission of the order and was aware within two hoursthat the rescission waslikely. (/bid.) Moreover, the following day, the defendant wasgivenall the time he needed to confer with his attorney before resuming the witness stand for cross-examination. (Jd. at p. 136.) 13 witnesses, trial tactics, or even the possibility of negotiating a plea bargain." (Perry, supra, 488 U.S. 272, 284; ouritalics.) Despite this language in Perry, one decision, on which the Attorney General heavily relies, has upheld an order barring a defense attorney from identifying to the defendant oneofthe witnesses anticipated the following dayat trial. In Morganv. Bennett (2d Cir. 2000) 204 F.3d 360 (Morgan), the Second Circuit Court ofAppeals concluded "that Geders and Perry stand forthe principle that the court should not, absent an important need to protéct a countervailing interest, restrict the defendant's ability to consult with his attorney, but that when such a needis present and is difficult to fulfill in other ways, a carefully tailored, limited restriction on the defendant's right to consult counsel is permissible." (/d. at p. 367.) In Morgan, the defendant was charged with murderas well as the attempted murder of a formergirlfriend. Thegirlfriend was a potential witness. Beforetrial, she declined to testify because two associates of the defendant had madethreatening statements while visiting her in jail. The defendant had also been making comments to the witness in the courthouse halls. (/d. at pp. 362-363.) It was apparently to avoid further witness intimidationthat the trial court madeits order. (/d. at p. 368.) The appellate court stated: "In the present case, the problem addressed by the state trial court's limited gag order was far more troubling than the possibility of witness coaching involved in Geders and Perry, for intimidation of witnesses raises concerns for both the well-being of the witness and her family and the integrity of the judicial process." (Id. at p. 367.) The court concluded "that valid concernsfor the safety of witnesses andtheir families and for the integrity of the judicial process may justify a limited restriction on a defendant's access to information knownto his attorney." (/d. at — p. 368.) The court upheld the order, observing that its impact was quite limited. The attorney and client could discuss everything except the expected appearance of one witness. Since the witness had already been scheduledto testify, defense counsel 14 presumably wasalready prepared to cross-examineher, so there was no impact on counsel's preparation. (/d. at p. 368.} Again, wefind California law in general accord. At issue in Alvarado v. Superior Court (2000) 23 Cal.4th 1121 (Alvarado) was not an order confining information to defense counsel, but "the validity of an order, entered priortotrial in a criminal action, that authorizes the prosecution to refuse to disclose to the defendants or their counsel, both prior to andattrial, the identities of the crucial witnesses whomthe prosecution proposesto’callattrial, on the groundthat disclosure of the identities of the witnesses is likely to pose a significant danger to their safety." (/d. at p. 1125; first italics ours.) The court concluded thatit violated neither the right of confrontation nor due process to keep a witness's identity secret before trial for good cause. (/d. at pp. 1034-1036.) "'Good cause'" is limited to threats or possible danger to the safety of a victim or witness, possibleloss or destruction of evidence, or possible compromiseof other investigations by law enforcement." (Pen. Code, § 1054.7.) The court noted that, included in California discovery statutes in the Penal Code,"is the requirementthat a prosecutor disclose the names and addressesofthe individuals whom heor sheintends to callat trial. (§ 1054.1, subd. (a).) The disclosure may be made to defense counsel, whois prohibited from revealing, to the defendantor others, information that identifies the address or telephone numberofthe prosecution's potential witnesses, absent permission by the court after a hearing and a showing of good cause. (§ 1054.2.)" (Alvarado, supra, at p. 1132.) The Supreme Court found that "the evidence presentedto thetrial court clearly justified its order protecting the witnesses’ identities beforetrial." (Alvarado, supra, 23 Cal.4th at p. 1136.) In issuing its order.after a series of in camera hearings from which the defense was excluded,the trial court explainedin part: the charged crime was apparently an organized jailhouse murderof a snitch ordered by the Mexican Mafia prison gang; the Mexican Mafia is knownfor ordering the murders of other snitches and it has an excellent intelligence-gathering network; before such a murderis ordered, the gang has an informaltrial based in part on paperwork identifying the snitch; and one of 15 the three prospective witnesses had been cut while in jail and warned notto testify. Ud. at pp. 1128-1125.) As to precluding pretrial disclosure to the defense, the court stated: "weare _ keenly awareofthe serious nature and magnitude of the problem of witness intimidation. [Fn. omitted.] Further, we agree thatthe state's ability to afford protection to witnesses whose testimonyis crucial to the conduct of criminal proceedingsis an absolutely essential elementof the criminaljustice system. As we have explained,a trial court has broad discretion to postpone disclosure of a prospective witness's identity in order to protect his or her safety, and mayrestrict such pretrial disclosure to defense counsel (and ancillary personnel) alone." (Alvarado, supra, 23 Cal.4th at pp. 1149-1150.) However, the Supreme Court reacheda different conclusion aboutthe impact on the rights of confrontation and cross-examination of keeping a witness anonymous during trial. The court reviewed United States Supreme Court authority requiring witnesses in criminaltrials in general to provide their names and residences during cross-examination and a numberof California and federal appellate opinions considering whether danger to the witness changed those requirements. (Id. at pp. 1141-1146.) It summarized precedentas follows on page 1146. "In short, although the People correctly assert that the confrontation clause doesnot establish an absolute rule that a witness's true identity always mustbe disclosed, in every case in which the testimony ofa witness has been found crucialto the prosecution's case the courts have determined thatit is improper at trial to withhold information (for example, the name or address ofthe witness) essential to the defendant's ability to conduct an effective cross-examination. (Accord, Roviarov. United States [(1957)] 353 U.S. 53 [when an informant is a material witness on the issue of guilt, the prosecution must disclose his or her identity or incur a dismissal]; Eleazerv. Superior Court (1970) 1 Cal.3d 847, 851-853 ... [when an informantis a material witness to the crime of which the defendantis accused, the prosecution must disclose the informant's name and whereabouts]; People v. Garcia (1967) 67 Cal.2d 830 ... [same].) [Fn. omitted. ]" 16 The court concludedin Alvarado,"thestate's legitimate interest in protecting individuals who, by chance or otherwise, happen to become witnessesto a criminal offense cannotjustify depriving the defendant ofa fair trial. Thus, when nondisclosure of the identity of a crucial witness will preclude effective investigation and cross- examination of that witness, the confrontation clause does not permitthe prosecution to rely upon the testimony of that witnessat trial while refusing to disclose his or her identity." (/d. at p. 1151.) "[W]e concludethatthe trial court erred in ruling, on the record beforeit, that the witnesses in question may testify anonymously at trial." (Jd. at p. 1149, fn. omitted.) It is also relevant to our analysis that a criminal defendantin Californiais generally entitled to discover beforetrial "[rJelevant written . . . statements of witnesses ... whom the prosecutor intends to call at the trial." (Pen. Code, § 1054.1, subd.(£); cf. Funk v. Superior Court (1959) 52 Cal.2d 423, 424.) People v. Fauber (1992) 2 Cal4th 792 stated on page 821: "[T]he existence of a plea agreementis relevant impeachment evidence that must be disclosed to the defense becauseit bears on the witness's credibility. (Giglio v. United States (1972) 405 U.S. 150, 153-155 ....) Indeed, we have held that 'when an accomplicetestifies for the prosecution, full disclosure of any agreementaffecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility.’ (People v. Phillips (1985) 41 Cal.3d 29, 47..." ” In contrast, under the federal Constitution, "[a] criminal defendantis entitled to rather limited discovery, with no general right to obtain the statements of the Government's witnesses before they have testified. (Fed. Rules Crim. Proc. 16(a)(2), 26,2.)" (Degen v. U. S. (1996) 517 U.S. 820, 825 [116 S.Ct. 1777].) Therule providing for such discovery is sometimesreferred to in federal law as the Jencksrule. It is becauseofthis critical difference between federal and California law that we do not attach muchsignificance to the decision in Harris v. United States (D.C. Cir. 1991) 594 A.2d 546, which is otherwise factually most similar. In that case, two days before a witnesstestified, the government gave defense counsel the witness's taped (Continued) 17 With the foregoing precedent inmind, we examinetheorderat issue and the parties’ contentions, Absent countervailing considerations,Flores's written statement should have been disclosed to the defense during pretrial discovery once the prosecutor determined to call him as a witness, particularly becauseit reflected a plea agreementthat waspotentially relevant to his credibility. In this case, there were apparently some countervailing considerations that motivated thetrial court to order the conditional sealing ofthe statement as well as the reporter's transcript of Flores's changeofplea hearing that contained thecourt's sealing order. Flores's counsel expressed his concern that the paperwork not follow him into prison. The court several times stated that the order was madefor the protection of Flores. Onappeal, the Attorney Generalasserts that "[t]his state's policy of protecting witnesses from bodily harm andintimidation is in accord with the principles in Morgan." "fT]he trial court's order here wasnarrowly tailored to address a compelling need to protect witness Flores's life. Flores was a cooperating witnessin a gang-motivated confession, which discussed a numberof crimes with which the defendant had not been charged. Before ruling on the government's request for a protective order limiting disclosure, the trial court gave defense counsel a chanceto review the tape, but barred counsel from givingthe tapeor a transcriptof its contents to the defendant. "[I]t was unclear whether counsel could discuss its contents with him." (/d. at p. 547.) The following day, the governmentlimited its request to allow counselto discuss the contents _ without giving the defendant a physical copy. Defense counsel said he might have no objection to that approach, and did not object thereafter. (/d. at p. 548.) On appeal the defendant contended "thathis right to effective assistance of counsel wasviolated by the trial court's ruling temporarily prohibiting full discussion of the tape between him and defense counsel." (/bid.) The appellate court concluded, "[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." (/d. at p. 549.) It was reasonable ofthe trial court to "place a temporary and limited restriction on defense counsel's use of what waspossibly Jencks material" while the court itself completed screening the tape. bid.) Since the defense got the tape earlier than required by the Jencksrule, the court found "no violation of Harris's right to effective assistance of counsel." (/bid.) 18 attempted murder. He had been assaulted and stabbed with a knife while in pretrial pM (tineasaetads ae lta an anncustoay. Citing a veb site an ev. Reyes (2008) 165 Cal.App.4th 426, 7 m u vr 429, the Attorney Generalclaims, "[i]t is well established that a cooperating witness's assistance to law enforcement is severely punished (usually with death) when the ‘paperwork’ documenting the individual's cooperation becomes knownto the gang community." This assertion is an attempt to create a record that was not madein this case to justify a restriction broader than the one upheld in Morgan, supra, 204 F.3d 360. In that case, defense counsel wasprohibited from disclosing that the attempted murder victim would be appearing as a witness the following day. In this case, defense counsel was prohibited, as best we cantell, from both showingFlores's written declaration to Townley and discussing its contents with him, whether before, during,or after Flores's testimony at trial. Contrary to the Attorney General's characterization, this went well beyond "simply prevent[ing] the documentary evidenceofFlores's cooperation . . . from being circulated through [Townley]into jail and prison populations." Ifthat were the court's objective, it could have been served by a much morelimited order prohibiting counsel from providing Townley with a copy, while permitting discussion ofits contents. The Attorney Generalasserts that the "order did not materially impede defendant's ability to consult with his attorney about Flores's knowledgeofthe crime andhis statements.” After all, Townley and his counsel had access to a police report of an interview of Flores. According to the Attorney General, "[t]hese statements were substantially similar." According to a part of Townley's petition for rehearing that was filed underseal, there are 23 different details in the declaration. Since the declaration remains under seal, it would be improperfor us to discuss purported differences in an opinion that will becomepart of the public record. To the extent there was no difference between the report and the declaration, we perceive no needto prohibit defense counsel from discussing the contents of the declaration with Townley. But we have to wonder whythe prosecutordrafted a declaration for Flores to sign if his other pretrial statements were equally incriminatory. 19 The Attorney General further points out that Townley did eventually learnattrial »about the existence and contents o€ s's sealed declaration, at least to the extent that its contents were brought out during direct and cross examination of Flores. The Attorney General asserts that "nothing in the court's order prevented counsel from discussing fully with his client Flores's testimonyattrial." Wedonotbelieve that the scope of the court's order was that clear. During in limine motions, the court acceded to the prosecutor's statement that "the order would necessarily disappear" once Flores or Rochatook the witness stand. Butlater, during the direct examination ofFlores, the court denied a request by Carranco's counsel to discuss the statement with his client and instructed counsel to put the written statementin his briefcase immediately. The court hadinitially explained the terms and conditionsofthe sealing order at Flores's changeofplea hearing, but Townley's attorney was not presentat that hearing andits transcript was itself sealed, at least initially. As restated by the court during thetrial, the order could be reasonably interpreted as prohibiting counsel from discussing, the contents of the declaration with Townley evenafter Florestestified to the contents. Any ambiguity in the sealing order could well encourage defense counselto err on the side of caution to avoid therisk of "inviting the judge's wrath, and possibly even courting sanctions for contempt ofcourt, in disobeying the judge's instruction.” (U. S.v. Santos, supra, 201 F.3d 953, 966.) For the sake of discussion, we will accept the holding of Morgan, supra, 204 F.3d 360, "that the court should not, absent an important need to protect a countervailing interest, restrict the defendant's ability to consult with his attorney, but that when such a need is presentandis difficult to fulfill in other ways, a carefully tailored, limited restriction on the defendant's right to consult counselis permissible." (/d. at p. 367.) Even underthis test, the challenged order exhibits fatal defects. As indicated above, it was not carefully tailored to serve the objective of keeping "paperwork" out of the handsofprison gangs. Instead, it appears to have beentailoredto allow the prosecution to producetrial testimony that was a surprise to Townley,if not his counsel. It was also tailored to impede counsel's investigation of the accuracy ofthe declaration, 20 as he was prohibited from discussing its contents with Townley, his investigator, and 4anvone els oDMv In addition, assuming that such a nondisclosureorder could bejustified based on an "important need" for witness protection, there was no express finding or showing of this kind of good cause. Rule 2.550 of the California Rules of Court provides in part: "Unless confidentiality is required by law, court records are presumedto be open." (Subd, (c).) "The court may order that a record be filed undersealonly if it expressly finds facts that establish: ‘[§] (1) There exists an overriding interest that overcomesthe right of public accessto the record; [{] (2) The overriding interest supports sealing the record; [{] (3) A substantial probability exists that the overriding interest will be prejudiced if the recordis not sealed; [{]] (4) The proposedsealing is narrowly tailored; and [{]] (5) Noless restrictive meansexist to achieve the overriding interest." (Subd. (d).)° Wedo not discount the evidence that Flores was stabbed in jail. But we see neither evidence nora finding in the record that this assault was directed or intended by Townley or his codefendant or the Mexican Mafia or any other gangto silence Floresin this case. There is no allusion in the sealed record to other hearings at which Flores or theprosecution made such a showing. Onthis point, the record pales in comparison to the evidence of witness intimidation before the trial courts in Morgan and in Alvarado. And wenotethat, despite the compelling showing made in Alvarado, the California Supreme Court concluded that it did not justify allowing witnesses in a prison gang case ® Similar rules are applied in determining when "public accessto a criminal proceeding may be denied: (1) there must be 'an overridinginterest thatis likely to be prejudiced' if the proceedingis left open; [fn. omitted] (2) 'the closure must be no broader than necessary to protect that interest’; (3) 'the trial court must consider reasonable alternatives to closing the proceeding’; and (4)thetrial court mustarticulate the interest being protected and makespecific findings sufficient for a reviewing court to determine whether closure was proper." (People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, quoting Waller v. Georgia (1984) 467 U.S. 39, 45, 48.) 21 to testify anonymouslyattrial. In that case, the court discussed a numberof other ways by which the government could attempt io ensure witness safety and prevent witness intimidation. (Alvarado, supra, 23 Cal.4th 1121, 1150-1151.) In seeking to accomplish these worthy objectives, trial courts should consider the entire range ofavailable alternatives before imposing orders that restrict open communication and consultation between criminal defendants and their counsel about the written pretrial statements of prosecution witnesses against the defendant. Without more evidence of good cause for a court order barring defense counsel from discussing the contents of Flores's written declaration with Townley, we conclude that this order unjustifiably infringed on Townley's constitutional right to the effective assistance of counsel. The remaining question is what standard of prejudice applies to such a constitutional violation. That was the question on which the United States granted certiorari in Perry, supra, 488 U.S. 272. (Id. at p. 277.) The court concluded,"[t]here is merit in petitioner's argument that a showing ofprejudiceis not an essential component of a violation of the rule announced in Geders. In that case, we simply reversed the defendant's conviction without pausing to consider the extent of the actual prejudice,if any, that resulted from the defendant's denial of access to his lawyer... ." (/d. at pp. 278-279.) The court distinguishedits later discussion in Strickland v. Washington (1984) 466 U.S. 668 of "the standard for determining whether counsel's legal assistanceto his client was so inadequatethatit effectively deprived the client of the protections guaranteed by the Sixth Amendment." (Perry, supra, at p. 279.) Strickland’s citation of Geders "was intended to makeclear that '[a]ctual or constructive denial of the assistance of counselaltogether’ [citation], is not subject to the kind ofprejudice analysis that is appropriate in determining whether the quality of a lawyer's performanceitself has been ‘constitutionally ineffective." (/d. at p. 280.) Despite this clear holding, the Attorney General arguesthat the automatic reversal rule adopted by Perry does not qualify under later United States Supreme Court rules for identifying structuralerror. 22 U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140 (126 S.Ct. 2557) explained this concept at pages 148 and 149. "In Arizona v. Fulminante. 499 U.S. 279... (1991), we divided constitutional errors into two classes. Thefirst we called 'trial error,’ because the errors ‘occurred during presentation ofthe case to the jury' and their effect may 'be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.' (/d., at 307-308 (internal quotation marks omitted).) These include 'mostconstitutionalerrors.’ (/d., at 306.) The secondclass of constitutional error wecalled ‘structural defects.’ These 'defy analysis by "harmless-error" standards' because they ‘affec[t] the framework within whichthetrial proceeds,’ and are not 'simply an errorin the trial processitself.’ (fd., at 309-310 [fn. omitted.] See also Neder v. United States, 527 U.S. 1, 7-9... (1999).) Sucherrors include the denial of counsel, see Gideon v. Wainwright, 372 U.S. 335 .. . (1963), the denial ofthe right of self-representation, see McKaskle v. Wiggins, 465 U.S. 168, 177- 178, n. 8, ... (1984), the denial of the right to public trial, see Waller v. Georgia, 467 US. 39, 49, n. 9, .. . (1984), and the denial ofthe right to trial by jury by the giving of a defective reasonable-doubtinstruction, see Sullivan v. Louisiana, 508 U.S.275... (1993)." To thatlist of structural errors, U. S. v. Gonzalez-Lopez, supra, 548 U.S. 140 added "erroneous deprivation of the right to counsel of choice." (Id. at p. 150.) The United States Supreme Court has not expressly considered whether Geders involveda structural defect or a trial error. Some federal courts have avoided answering this question by finding other reversible error. (U. S. v. Sandoval-Mendoza, supra, 472 F.3d 645, 652; U.S. v. Santos, supra, 201 F.3d 953, 966.) However, Geders was among the casescited in footnote 25 of U. S. v. Cronic, supra, 466 U.S. 648 for the proposition, "The Court has uniformly found constitutional error without any showingofprejudice when counsel waseither totally absent, or prevented from assisting the accused during a critical stage of the proceeding." (/d. at p. 659, fh. 25.) Jones v. Vacco, supra, 126 F.3d 408 stated, "Inherent in Geders, and later madeexplicit, is the presumptionthat prejudice is sO likely to follow a violation of a defendant's Sixth Amendmentrightto counselthatit 23 constitutes a structural defect which defies harmless error analysis and requires automatic reversal." (Ud. at p. 416.) Mudd, supra, 798 F.2d 1509, which was decided before Perry, reasoned: "We find that a per se rule best vindicates the right to the effective assistance of counsel. To require a showing ofprejudice would not only burden one of the fundamentalrights enjoyed bythe accused[citation], but also would create an unacceptable risk 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, what they were prevented from discussing, and how the order altered the preparation of his defense." (Ud. at p. 1513.) Weneed not wanderfar afield to determine whether the United States Supreme Court meant what it said in Perry. The Attorney General provides no authority that the United States Supreme Court has retreated from that holding. The Attorney General's attempts to minimize the impactoftherestriction in this case of "counsel's ability to confer with his client on one very limited topic" do not alter our conclusion that on this topic — the written declaration of an accomplice who wasa significant witnessat trial — Townley was deprived by court orderofthe effective assistance of counsel. It follows that Townley is entitled to reversal without making a showingofprejudice resulting from this error. In light of this conclusion, we consider other issues only to the extent necessary to provide guidancein the event of a retrial. We need not and do not reach Townley's claims of prosecutorial misconduct and improper judicial comment. 2. Testimony by Flores to a Particular Version ofFacts "A prosecutor may grant immunity from prosecution to a witness on condition that he or she testify truthfully to the facts involved. (People v. Green (1951) 102 Cal.App.2d 831, 838-839 ....)" (People v. Boyer (2006) 38 Cal.4th 412, 455.) "[A]n agreement [that] requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain." (People v. Fields (1983) 35 Cal.3d 329, 361.) "But if the immunity agreementplaces the witness under a strong compulsionto testify in aparticular fashion, the testimony is 24 | tainted by the witness's self-interest, and thus inadmissible. (People v. Medina (1974) 41 CalApp.3d 438, 455...) Such a'strong compulsion’ maybe created by a condition ‘that the witness not materially or substantially change her testimony from her tape- recorded statement already givento . . . law enforcementofficers.” ' (People v. Medina, supra, 41 Cal.App.3d at p. 450.)" (People v. Boyer, supra, 37 Cal.4th at p. 455.) In this case Townley contendsthat Flores's declaration compelled him to testify to the version of facts contained in that documentorrisk being prosecuted for perjury and losing the benefit of his plea bargain. That compulsion, Townleyinsists, "tainted" Flores's testimony, resulting in error that was prejudicial in light of the importancethe prosecutor placed on thistestimony. We disagree. In the declaration Flores averred that the statements he was making in the document were "true under penalty of perjury." He had discussed his statement with his attorney and had not been threatened or offered an agreementto testify in exchangefor telling the truth in the declaration, aside from the plea agreementhis attorney had negotiated. Flores's understanding that he would be expected to — indeed, "have to"-- tell the judge that he had madetruthful statementsin the declaration did not nullify his claim in the declaration itself that he wastelling the truth. The trial court properly interpreted Flores's statement to mean that ifhetestified, he must do so truthfully. Furthermore, we have taken judicial notice of a subsequent modification of Flores's declaration. The challenged sentence was replaced with the following: "I understand that I have to acknowledgeto the Judge in open court and underoath that the contents of this declaration are true at the time of the entrance ofmy plea." Also added wasFlores's handwritten statement, "I understand if called as a witness I musttell the truth." Flores was cross-examined on these changesattrial. In these procedural circumstances wefind no error. The declaration at issue does © not compare to People v. Medina, supra, 41 Cal.App.3d at page 450, where accomplice witnesses were given immunity on the condition that they not "materially or substantially" alter their testimony from the recorded account they had givento the police. Also clearly distinguishable is People v. Green, supra, 102 Cal.App.2d at pages 838-839, where the accomplice was promised dismissal of the case against him if his 25 testimony resulted in the defendant's being held to answer for the same charges. It was not improper to require the witnessto teil the truth in court. 3. Earlier Versions of Witness Declarations Townley next contends that he should have been afforded the opportunity to inspect previous versions of Flores's and Rocha's declarations, which they had declined to sign, along with correspondence between the prosecutor and Flores aboutfactual scenarios Flores refused to confirm. In Townley's view, these materials were discoverable under section 1054 andits predecessor authority, People v. Westmoreland (1976) 58 Cal.App.3d 32. In Westmoreland, the court held that the prosecutor must disclose to the defense "any discussions he may have had with the potential witness as to the possibility of leniency in exchange for favorable testimony even though no offer actually was made or accepted." (58 Cal.App.3d at pp. 46-47.) Townley further argues that the withholding of these "discussions of leniency" denied him his constitutional rights to due process and confrontation of witnesses. Thetrial court expressed the view that prior drafts of the witnesses’ plea agreements were "not evidence of anything." It did, however, query whether an unsigned version might allow the jury to find a discrepancy worth exploringattrial. The prosecutor maintained that this was work product, a "creature of [her] head" which was not discoverable, and the People adhere to this position on appeal. After extensive discussion among counsel and the court, the court reiterated its opinion that an unsigned declaration was not evidence of anything and that no obligation to produceit arose under Brady v. Maryland (1963) 373 U.S. 83 (83 S.Ct. 1194). Wefind no error in this ruling. Even discounting the People's position that the prosecutor's suggested version represented her work product, we nonetheless agree with — the court that the unsigned declaration was not relevant or material evidence. This case does not presentfacts similar to those in Westmoreland, 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 atrangement that was not disclosed to the defense. Flores was not promised leniency 26 beyond the negotiated disposition of his case. Andhere the witness did not agree to any p rat ction ot uac th valavran ret AS zversion 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-examinethe witness. Furthermore, even if any prior draft was material evidence favorable to the defense, any error in excluding it was harmless beyond a reasonable doubt. (Cf. People v. Phillips, supra, 41 Cal.3d 29,48 [failure to disclose agreement between prosecution and witness's attorney butnot communicated to witness harmless error].) The jury was fully informedofthe details of the plea bargain between Flores andthe prosecution. He was cross-examined on the discrepancy betweenhis testimony andhis declaration, including the statement in 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 withholdingofthe earlier versions offered to Flores was not prejudicial to Townley. B. EXCLUSIONOF DEFENDANTS DURING DISCUSSIONS OF DECLARATIONS Townley next claimsthat his exclusion from hearings at which the declarations were discussed violated his constitutional right to be presentat critical stages of the proceedings against him. "Therule is established that a defendant has a federal constitutional right that emanates not only from the confrontation clause of the Sixth Amendmentbut also from the due process clause of the Fourteenth Amendment to be presentat any stage of the criminal proceedings ' "thatis critical to its outcomeif his presence would contribute to the fairness of the procedure."' [Citations.]" (Peoplev. Marks (2007) 152 Cal.App.4th 1325, 1332-1333.) It is also settled, however, that "a defendant does not have a rightto be present at every hearing held in the course ofa trial, ‘Duringtrial, a defendantis not entitled to be personally present at the court's discussions with counsel occurring outside the jury's presence on questions of law or other matters unless the defendant's presence bears a reasonable and substantialrelation to a full opportunity to defend against the charges. [Citation.] A defendant claiming a violation of the right to personal presenceattrial bears the burden of demonstrating that personal 27 tH presence could have substantially benefited the defense. [Citation.]'" (People v. Price (1991) 1 Cal4th 324, 407-408.) Townley has not met that burden. He has not shownthat his physical presence would have contributed to his attorney's efforts to secure a retraction of the order to withhold the declarations from him. Nor does he offer argument to support the bare assertion that "the error was not harmless beyond a reasonable doubt." C. ADMISSION OF WITNESS STATEMENTSFOR IMPEACHMENT Attrial the prosecution called Anthony Gonzalez and Sarah Oreb, who were among the teenagers at Gonzalez's Harper Street apartment when Townleyarrived with Flores, Carranco, and Rocha. Oreb, who was Gonzalez's girlfriend at the time, said that she was "pretty drunk" whensheriffs arrived. To one of the officers, Stefan Fish, however, Oreb appeared to be sober. Several of the teenagers were taken to the sheriff's office for interrogation. During herfirst interview by Detective Pintabona, Oreb said she saw the white Honda, a statement she deniedat trial. Oreb contributed no further information to Pintabona; she swore "on [her] life up and down"that she did not hear anyone say what Pintabona quoted fourothers as saying, that the visitors to Gonzalez's apartment had "just shot somescraps." Even when Pintabona insinuated that she could be treated as an accessory, sheinsisted that she wastelling him the truth and that he was "badgering " her to get her to lie. While sitting with the others in the hallway, Oreb saw Gonzalez being taken into custody. A short time later, angry and frustrated, she was re-interviewed. This time Oreb said she heard the words "hit" or "scrap." Attrial, she explained that she had told that to Pintabona only so that she could go home. Bythat time it was almost 7:00 a.m.; she had not slept and had not eaten since the evening. Stefan Fish, a sergeant by the timeoftrial, testified that the day after the shooting, Oreb contacted him by telephone and agreed to meet with him because she "felt bad"that she had not previously told the investigator what she had heard the night before. Oreb said that she was at the window in Gonzalez's apartment whenshe heard oneofthe people outside say that a "Scrap gothit." 28 Attrial Oreb recanted muchofher statement to the police. During examination as a hostile witness by the prosecution, she denied hearing the words "I hit a scrap" spoken outside the window. Shetestified that the police took her andherfriends to the police station, where shetold the officers that she had not heard anything outside the window. The police did not believe her, and they kept threatening to lock her up "just like [her] boyfriend,” so she eventually lied and told the officer what he wanted to hear. Oreb deniedtelling Sergeant (then Deputy) Fish that she felt bad about lying the day before; she initiated the contact only to ask him why Gonzalez had beenarrested. In light of Oreb's adamantretraction, the prosecutor soughtto play for the jury a recordingofthe first police interview between Officer Pintabona and Oreb. Over-defense objections, the court allowed the evidence,finding that Oreb's trial testimony was "a fabrication ... It was really shocking." Based ona draft prepared jointly by Townley's counsel andthe prosecutor,the trial court gave the jury a cautionary instruction about the use of that evidence. The court explained that any opinion, conclusion, or summary of the facts by the officer was an interviewing technique which could not be used as evidence ofeither defendant's guilt. The jury was admonishedto "totally discount what the police officer says," particularly those statements that the officers "know things" about the defendants. Instead, the jurors were permitted to weigh whatthey heard in the taped interview against what Oreb had said on the witness stand "about how that interview was conducted." On appeal, Townley contends that Oreb's incriminating statements should not have been admitted because they were coerced: She was only 16 years old, she was intoxicated, she was deprived of food and sleep for six hours, and she was threatened without Miranda warningsbeforeshe finally told the officer what he wanted to hearto avoid beingarrested. The evidence on these points wasnot so straightforward, however. Oreb did not appear to be inebriated to Deputy Fish whenhearrived at the apartment. Attrial Oreb said she arrived at 1:00 or 2:00 in the morning; yet during the interview—which appears to have lasted between 30 minutes and an hour-- Pintabona mentioned that it was 3 a.m. 29 After listening to the CD recording, Oreb conceded that she was not threatened, but only felt threatened. She also admitted that she was not threatened during the second interview whenshetold the detective "what he wanted to hear." The trial court found that "Oreb's statements about what happened during the interview were quite consistent with what happened during the interview." The transcripts of hertrial testimony and the recorded interview support this factual conclusion. Oreb resisted the officer's attempt to persuadeherto accedeto his account of the statement about shooting a "scrap." She admitted that there was no badgering orthreats in the secondinterview, at which she voluntarily admitted hearing the reference to "scraps." And even if the second interview was a productofthe earlier pressure, the effect did not carry over to the contact with Deputy Fish the next day, which she initiated by asking specifically for him. Oreb told the deputy that she had heard the words "hit" and "scrap," and that she felt bad for not having admitted this earlier. There is no evidence that this disclosure was precipitated by traumaor the fear of arrest; Oreb herself denied having repeated those words and explained that she had contacted the deputy only to discuss Gonzalez's arrest. Additionally, almost six weeksafter the shooting, while Gonzalez was out of custody, Oreb met with Detective Montes, whoinvestigated gang-related cases for the district attorney's office. Montes showeda photo spread to Oreb. In the courseoftheir meeting, she told him that at the window of Gonzalez's apartmentshe had overheard "somebody say they hit a scrap." Oreb was not threatened with custody, nor was Gonzalez in custody at that time. She mentioned the statement three times, and her demeanor was "[c]Jalm, patient, soft spoken[, and] pleasant." She was cooperative, "[j]ust fine.” Finally, in none ofthe interviewsdid she attribute the "scrap" reference to Townley. Taking all of these circumstances into account, we find no conceivable prejudice from Oreb's statements. Any error in admitting the assertedlycoerced statement was harmless beyond a reasonable doubt. (Cf. People v. Cahill (1993) 5 Cal.4th 478, 510 [adopting the federal standard prejudice standard for evaluating admission of defendant's coerced confession]; Arizona v. Fulminante (1991) 499 U.S. 30 N o 79, 306-312 [111 S.Ct. 1246]; see also People v. Lee (2002) 95 Cal.App.4th 772, 789 [coerced identification of defendant not harmless beyond a reasonable doubt where other evidence of defendant's guilt insufficient.) Whenpoliceofficers arrived at the Harper Street apartment, they saw that Gonzalez was drunk and wasbeing held up by Oreb. Sergeant Sulay thought Gonzalez was "probably still under the influence" when he wasatthe station being interviewed, an impression reinforced by Gonzalez attrial. During the interview, however, he said he did not think hewasstill drunk. The transcript of the interview with Gonzalez reflected his persistent denials of knowledge. Eventually, the interviewer arrested Gonzalez "for accessory to attempted murder" because he was "covering up." At that point he was read his Mirandarights. That interview lasted about 45 minutes in the early morning of February 18, 2006. Ina second conversation with Detective Sulay, Gonzalez offered the statement that Townley had cometo his houseand said, "We beat up some scrap," and shortly afterward the police showedupandstarted "harassing" him andtherestofthe group. Attrial Gonzalez said that he did not recall making this statement. Townley contends that Gonzalez, like Oreb, was coerced into giving the inculpatory statement. We disagree. Thefirst interview was not unduly prolonged, nor, contrary to Gonzalez's claim attrial, did the interviewertell him what he wanted Gonzalez to say. The evidence of Gonzalez's degree ofinebriation was conflicting. The bare fact that the interviewer advised Gonzalez that if he withheld information he could be considered an accessory after the fact did not in itself make his later statement involuntary. "There is nothing improperin confronting a suspect with the predicament he or she is in, or.with an offer to refrain from prosecutingthe suspect if the witnesswill cooperate with the police investigation. More is needed to show thattestimony is the - inadmissible product of coercion ...." (People v. Daniels (1991) 52 Cal.3d 815, 863.) Unlike the defendant in People v. Lee, supra, 95 Cal.App.4th 772, on which Townley relies, neither Oreb nor Gonzalez was threatened with an accusation of the charged crime 31 itself. Our independent review reveals no coercion in violation of Townley's due process rights. D. INSTRUCTION ON VOLUNTARY INTOXICATION Jeanne Taylor, who was the passengerin the car driven by Julie Dufresne,testified at trial that she saw three young menrunning acrossthe street in front of the car. The shorter one in the red and black plaid Pendleton jacket (which she recognized when shown People's Exhibit 23) was memorable because he had a "staggeredga[it]" and was "almost stumbling." Having been professionally involved in body mechanics, Taylor thoughtthe gait "looked like a staggering drunk in an attempt to run.. . . Not losing his balance, just having difficulty with his coordination." Townley contendsthat in light of this testimony, the trial court had a duty to instruct the jury on voluntary intoxication with CALCRIM No. 626. Recognizing that he did not request such instruction, he arguesthat it should have been given sua sponte because there was substantial evidence that the shooter was voluntarily intoxicated. Ifthe jury had received the instruction, Townley maintains,the jury might not have found intent to kill or premeditation and deliberation. Townley's argument cannot succeed. The Supreme Court hasrepeatedly held that "an instruction on voluntary intoxication, explaining how evidence of a defendant's voluntary intoxication affects the determination whether defendant had the mentalstates. required for the offenses charged, is a form ofpinpointinstruction thatthe trial court is ‘not required to give in the absence of a request." (People v. Bolden (2002) 29 Cal.4th 515, 559, citing People v. Saille (1991) 54 Cal.3d 1103, 1120; see also People v. Rundle (2008) 43 Cal.4th 76, 145, disapproved.on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fh. 22.) Nor would it have been error to refuse the instruction had there been a request. "A defendantis entitled to such an instruction only when thereis substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.'"" (People v. Williams (1997) 16 Cal.4th 635, 677; accord, People v. Roldan (2005) 35 Cal.4th 646, 715.) Jeanne Taylor was the only witness who suggestedthat the person wearing Exhibit 23 "looked 32 like a staggering drunk"as he ran acrossthe street; no other witness made any observation or reported that he had been drinking, muchless that he was incapable of forming the requisite intent for attempted murder. It is not remotely probablethat the jury could have had a reasonable doubt on the question of whether Townley was "not conscious ofhis actionsor the nature of those actions,” within the meaning of CALCRIM No. 626. Thus, no pinpoint instruction on voluntary intoxication was necessary. E. INSTRUCTION ON INTENT TO KILL Thetrial court instructed the jury with CALCRIM Nos.875 and 915, which defined the lesser offenses of assault with a deadly weapon and simple assault. Townley recognizes that these were properinstructions in themselves, but he asserts error in the failure of the court to state clearly that these instructions applied only to the assault crimes. By giving "[c]ontradictory instructions," Townley argues, the court "eliminated the prosecution's burdenofproving intent to use force andintentto kill in the attempted murder, premeditation and enhancement instructions." This contention requires no expansive analysis, because the record discloses no ambiguity inthe instructions given. Thetrial court introduced each crime andassociated element and enhancementby clearly stating what the prosecution hadto prove forthat specific concept. In defining attempted murder, for example, the court explicitly stated that the People mustaffirmatively prove the defendant's specific intent to kill the victim.. In defining premeditationand deliberation, the court twice stated that it was the prosecution's burden to prove the allegation and that these elements could not be inferred merely from the commission of an assault with a deadly weapon. The explanationsofthe assault charges wereclearly distinguished from the instructions pertaining to attempted murder. Wefind no reasonablelikelihood that the jury was confused or misledinto incorrectly applying the intent instructions. (Cf. People v. Kelly (2007)42 Cal.4th 763, 791 [no reasonablelikelihood the jury would have interpreted instruction not to require intent]; People v. Coffman (2004) 34 Cal.4th 1, 123 [no reasonablelikelihood the jury was confused by lack of instruction defining implied malice].) 33 F. HOLDING CASE FOR MEDINA Townley requested that this court "defer consideration of the appeal" pending the Supreme Court's decision in People v. Medina, No. $155823 regarding the "natural and probable consequences" doctrine. The Supreme Court's opinion in Medina has now been filed, and it offers no ground for reversalin this case. G. ADMISSION OF GANG EVIDENCE Townley nextasserts prejudicial error in admitting evidence of gang membership, vocabulary, and behavior,because he was not a gang member. "Even if the evidence had some relevance to Carranco's case, the court should have denied the prosecutor's 11th- hour motion to consolidate their cases," presumably for the same reason, that it was irrelevant to Townley's. We find noerror. "In cases not involving the gang enhancement, we haveheld that evidence of gang membershipis potentially prejudicial and should not be admittedifits probative valueis minimal. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905 ....) But evidence of gang membershipis often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gangaffiliation-- including evidence ofthe gang'sterritory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-- can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Peoplev. Hernandez (2004) 33 Cal.4th 1040, 1049.) Here there was abundantevidencethat the shooting was gangrelated andthat Townley had participated for the benefit of the Norteno gang, even though he wasnot a member. Codefendant Carranco clearly was a Norteno member; the occupants ofthe car talked about finding a Sureno;the victim happenedto be wearingblue,the colorofthe rival Sureno gang and was walking outside an apartment complex associated with the Surenos; the assailants demanded to know whether the victim was a Norteno or a Sureno and one yelled the word "scrap"; and later at Gonzalez's apartment—-a Norteno-safe refuge-- one of them mentioned having "hit a scrap," a slang reference to assaulting a Sureno. Given the irrefutable motivation for the shooting, this evidence was 34 unquestionably probative. It made no difference that Townley was not a formal member of the Norteno gang. Thus, even without the evidence recovered from a search ofhis bedroom (which included itemsreflecting a Norteno association), the record unambiguously supportsthetrial court's admission of testimony explaining the practices, culture, and parlance of these rival gangs. Likewise, it was neither error nor prejudicial to admit testimony from Sergeant Fish and Detective Montes that the Ocean Terrace apartments were associated with the Surenos. Because the admission ofthe gang evidence wasproper as to Townley,his assertion of prejudice from the joint.trial with Carranco mustalsofail. H. DETENTION AND TRANSPORTATION Before trial the defense moved to suppress the evidence ofthe gun and ammunition found in Townley's shoes while being transported to the sheriff's station. The defense argued that the evidence wasthe fruit of an unlawful detention; although Townley wassubject to a probation search, the scope ofthat condition did not encompass consent to any detention for questioning. The trial court denied the motion, relying on the probation search condition and the evidencethe officers had gathered from interviewing witnesses in Gonzalez's bedroom.” The court agreed with the prosecutor's suggestion that the officers had probable cause to arrest Townley based on these interviews, but the prosecutorinsisted that the transportation was only a detention. The | court foundthat the officers had "probable cause to accuse him of something" when they decided to transport Townley, and they "certainly had probable causeto arrest him" once they had the information from Fritts-Nash about the gun in his shoe. ” Theseinterviews gave the officers reason to suspect Townley as a participant in — the crimeor at least an accessory after the fact. Sergeant Sulay in particular believed that Townley's nervous behavior and evasive responses to questioning indicated that he knew more than he was saying. He also admitted ownership ofthe red and blackplaid jacket, People's Exhibit 23. Once Sulay obtained information about the gun and ammunition from Fritts-Nash, he considered it urgent to contact the deputy transporting Townley, whowasridingin the patrol car unhandcuffed. 35 The People concede that the decision to transport Townley was a "de facto"arrest, but they maintain that it was supported by probable cause. Alternatively, they argue, the probation search condition, along with the information supplied by Fritts-Nash, provided an independent sourcefor the search of the shoes, thereby attenuating anyillegality of the transportation. Evenifprobable causeto arrest was lacking, we agree that the valid probation search condition attenuated the connection betweenthe transportationto the sheriff's station and the subsequent discovery of the concealed gun and ammunition. (Cf. People v. Brendlin (2008)45 Cal.4th 262, 272 [outstanding warrant sufficiently attenuated connection between unlawfultraffic stop and subsequent discovery of drug paraphernalia].) Disposition The judgmentis reversed. 36 ELIA,J. WE CONCUR: RUSHING,P.J. PREMO,J. People v. Townley Hernandez H031992 37 Trial Court: Trial Judge: Attorney for Appellant: Attorneys for Respondent: People v. Townley Hernandez 1031992 Santa Cruz County Superior Court Hon.Jeff Almquist Marc J. Zilversmit Edmund G. Brown,Jr., Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General 38 DECLARATION OF SERVICE BY U.S. MAIL Case Name: The People ofthe State of California v. Jacob Townley Hernandez Case No.: H031992 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe 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, correspondenceplaced 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 course of business. On December 18, 2009, I served the attached PETITION FOR REVIEWbyplacing 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 Law Offices of Marc Zilversmit Clerk of the Court 523 Octavia Street Sixth District Court of Appeal San Francisco, CA 94102 — 333 West Santa Clara Street, Ste. 1060 San Jose, CA 95113 The Honorable Bob Lee Santa Cruz Co. District Attorney's Office Attn: Executive Director County Government Center Sixth District Appellate Program 701 Ocean Street, Room 200 100 North Winchester Blvd., Suite 310 Santa Cruz, CA 95060 Santa Clara, CA 95050 County of Santa Cruz Main Courthouse Superior Court of California 701 OceanStreet Santa Cruz, CA 95060-4086 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 December18, 2009, at San Francisco, California. ao |. < Esther A. McDonald thrTY Donal Declarant Signature SF2007403148 20241291 .doc