PEOPLE v. REESE

Appellant’s Petition for Review

Cal.October 29, 2015

5230259 SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF Crim. CALIFORNIA, Plaintiff and Respondent, Court ofAppeal VS. No. B253610 KEITH RYAN REESE, Superior Court Defendant and Appellant. No. TA125272 - i APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA LOS ANGELES COUNTY SUPREME COURT Honorable John T. Doyle, Judge F | L FE Dp OCT 29 2015 APPELLANT’S PETITION FOR REVIEW Frank A. McGuire Clerk Deputy ESTHER K. HONG CRC State Bar No. 254251 8.25(b! Law Office of E. Hong Inc. 1255 W. Colton Avenue, Suite 502 Redlands, CA 92374 (909) 991-5996 (909) 333-4012 fax ehong@lawyer.com Attorneyfor Defendant and Petitioner TABLE OF CONTENTS ISSUES PRESENTED...sessssecssssssessssssssssscssssessssessssesscessecsssessesececsceses 1 NECESSITY FOR REVIEW .........ccccscssscsssssssssssssessssessssssassssscessesessseeesceees2 STATEMENTOF THE FACTS. ...........ccsssssssssssssssssssssssesssscssscssssessessseseses 6 STATEMENTOF THE CASE........cscscssssssssssssssssssessssecsecsessessessssssssesoseees 7 ARGUMENT........ccsssssssssssscsssssssscssesssersssscsssessssssssssssseseseracaacesssssevsesesssessseses 7 I. MR. REESE’S EQUAL PROTECTION RIGHTS WERE DENIED WHEN HEDID NOT RECEIVE THE TRANSCRIPTS OF THE OPENING STATEMENTS AND CLOSING ARGUMENTS FROM HIS MISTRIAL...esssssssssscesssscessssessssesesestesscessssessessesseceeeees 7 A. Relevant Proceedings ......c.cccccccsessssscscssesssssssssssscsssseseecececececececec, 8 B. An Indigent Defendant Is Presumptively Entitled To “Complete” Transcripts From His Mistrial, Which Includes The Opening Statements And Closing Arguments... cccccscsssesssssssssesssevsssasseasscssseesesevessececscece, 9 C. Mr. Reese Was Not Required To Show A Particularized Need For These Transcripts...........00..seeeseeecneesenenseeeseseeeetseseasssseseessesasessasaeacateses 14 D. Mr. Reese’s Equal Protection Rights Were Violated When The Government Did Not Make A Single Objection To His Request And The Trial Court Still Denied His Request oo... ceccescscssescscsssesereccesecess. 15 E. Alternatively, the Court OfAppeal Erred When It Did Not Consider Mr. Reese’s Arguments Regarding Prejudice ......c.ccccccscccescssceeseccoseces.. 17 Il. MR. REESE’S CONSTITUTIONAL RIGHTS TO COMPULSORYPROCESS WERE DENIED WHEN THE PROSECUTOR AND COURT INTERFERED WITH HIS RIGHT TO CALL THE K-9 OFFICER............ccsssssssssssssssssesssossecscsesscsseseeceosess 18 A. Officer Ramirez’s Testimony Would Have Been Material and Favorable ........ccceccesccssseseessssseseseaecssessssssssscssssesasssssssvacssapesseeserecesecces, 19 i B. Mr. Reese Satisfies The Other Requirements OfA Compulsory- Process Violation Claim 0.0... cccccscecsessssssescsssessceeseecsesecasscseeacavsecacecsees 22 1. The Prosecution Misrepresented That It Would Call Another K-9 Expert AndAn Officer In The Presence OfOfficer RamireZ .....0000....22 2. The Trial Court Erroneously Denied Mr. Reese’s Motion For A Continuance In Order For Officer Ramirez To APP?ceccccccesesescsvess.23 3. The Trial Court’s Erroneously Denied Mr. Reese’s Motion For A Boy AttAChMent oo.ccecseececcesecsssessescssvscsssssssssssesseassssesscassevasassssaseceeces24 C. The Compulsory-Process-Rights Violation Was Prejudicial..........25 TH. MR. REESE WAS DENIED HIS DUE PROCESS RIGHTS TO A FULL AND FAIR TRIAL AND TO PRESENT A COMPLETE DEFENSE.cessesssssssssssssssscsssseesssssssssssssensscensnsssesseeesssssssesssesssssssssnsssets26 IV. MR. REESE’S SUMSTINE MOTION CONTAINED THE REQUIRED DECLARATIONSwscscsssssssssseccssesssscesessssesssssssssssssssene26 V. THERE IS INSUFFICIENT EVIDENCE OF CRIMINAL THREATS wsssssscsssssssessssesnssssssesssssssnansesesessecesesnsssssesassessseseseusnsssasee27 CONCLUSIONwessesssssssssssssssssessssssssnnsseessenseeesessseeeeeessssessassssesnssssssee29 CERTIFICATION OF WORD COUNT..eecssssssssssssssssssssssssssssssssssnsees30 APPENDIX ocssssssssssssssssssecsssssessenssssssnsssoesneneessnsssececessasstassssssnsssssenssuen 1 TABLE OF AUTHORITIES CASES Baustert v. Superior Court (2005) 129 Cal-App.4th 1269.0... cccccccccssessssesssstesstesccsssrscsceseseseceseces 23 Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]...2,5, 26, 27 Britt v. North Carolina (1971) 404 U.S. 226 [92 S.Ct. 431, 30 L.Ed.2d 400]........0..... 9, 10, 13, 16 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] ...cecccccccccsccccessesseees 25 Florida v. Harris (2013) 133 S.Ct. 1050 [185 L.Ed.2d 61)...cccceccccscscsessestssesetstesseseeeeces 5, 20 Gaines v. Municipal Court (1980) 101 Cal.App.3d 556 ...ccceccccsscssscscsssestsssestsessssesstevetececesece.24 Herring v. New York (1975) 422 U.S. 853 [95 S.Ct. 2550, 45 L.Ed.2d 593] ..cecccccsccccccscssssesees 12 In re GeorgeT. (2004) 33 Cal4th, 6200... ecccscsscssscsssseessssssesesacssssessssssvesseetesesesese,29 In re Sassounian (1995) 9 Cal.4th at p. 545occscscssecsesssercsestatsesesesscsevssesecesecscece. 23 In re Tahl (1969) 1 Cal.3d 122occccccscescsscsssesessessssratsestscserecsaceeees 2,5, 26, 27 In re Williams (1994) 7 Cal.4th 572 oo.eccccccsscsesscsssstscsscsecscsesustavscstesesesssseseseeesesceces. 19 Kennedy v. Lockner (9th Cir. 2004) 379 F.3d 104] woesceecsesessesesesesesssesees 4,12, 13, 14 iii People v. Arnold (1926) 199 Cab. 47oeecccsssssscsesccsserecsssscsessesvssssssasscevscaeasseananens 12 People v. Benitez (2001) 105 Cal.Rptr.2d 242 0. ccccccsscescsssssssssscesssssseecsetecseesessnnssseees29 People v. Bradley (1969) 1 Cal.3d 80 oo.cceseeesetessesssescsssecsseesscsesscssstecestessseeveceasaneees 13 People v. Brown (1993) 20 Cal.App.4th 125] occccscsecsecccsscscesssceseecsssssesstesseesens 6, 28 People v. Fuiava (2012) 53 Cal.4th 62200ccccccsesseseescscssssssecescssessssscescessetseaseaseseeees 12 People v. Gamache (2010) 48 Cal.4th 347 ooo cccccecscscseesesesscscecscsscscssscssseverssescsesseasanaees 12 People v. Gonzales (1994) 22 Cal.App.4th 1744 oiccccccccscsscssccesssesssrsstssssestsssasaseass 25 People v. Hosner (1975) 15 Cal.3d 60.0... cceeecesccseees 3, 4, 8,9, 10,11, 14, 15, 16, 17 People v. Ruthford (1975) 14 Cal.3d 399oieccccscescssessssscsssssesscscssssssevscessessesseasesssseeees 23 People v. Soto (1996) 46 CalApp.4th 1596 ooo. cccccsccsccecsscssceceectsnsessessesees 6, 26, 27 People v. Stills (1994) 29 Cal.App.4th 1766 .....cccccsccssssseesccscscssssssssseessesseessssesecaseaes27 People v. Sumstine (1984) 36 Cal.3d 909oocesesesessecsesessescssssscsusecssssvececenteeeesausascarsass27 People v. Tarver (1991) 228 Cal.App.3d 954 ooo ecccccsesessescseesesessssescssseevsesssassesssaceaeass 17 iv People v. Toledo (2001) 26 Cal.4th 220 oooccccssscscsssscscsrscstsesaestsrssesssssessssevessesesee:28 People v. Williams (2013) 218 Cal.App.4th 1038 ...cccccscsseececssstsesescstssssssssssseteceseseeees: 12 Shuford v. Superior Court (1974) 11 Cal.3d 903 oocccccseescscscscscssscesssssrststsssvstsesscaveneceeseses 10, 16 FEDERAL CONSTITUTION First AMendMet..00.. eee ccccsscscsscseeessssseecscsecsscsesssesstsssstssecestessececcece. 27, 29 Sixth AmendMent0...ecccccescecsssescessvsesssseesecacasstssasseascccssstevessesesseeeces 18 CALIFORNIA CONSTITUTION article 1, S€CtION 15leecccecsesscssessescssecseesscesessesrsresssststasseseeeeeees veneeesees 18 RULES Cal. Rules of Court, rule 8.500(b)(1) .ooccecceccscesesesesescscscecseseceeseccececcceece. 2 Cal. Rules of Court, rule 8.320(c)(B).o..c.cceccceccessesestsssesessstecsecececeecsesececes. 12 SUPREME COURT OF THESTATE OF CALIFORNIA THE PEOPLE OF THE STATE OF Crim. CALIFORNIA, Plaintiff and Respondent, Court of Appeal VS. No. B253610 KEITH RYAN REESE, Superior Court Defendant and Appellant. No. TA125272 APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA LOS ANGELES COUNTY Honorable John T. Doyle, Judge APPELLANT?’S PETITION FOR REVIEW TO THE HONORABLE CHIEF JUSTICE AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Defendant Keith Reese (“Mr. Reese”) petitions this Court for a review of this matter after the Court ofAppeal, Second Appellate District, Division Eight issued a decision on September 17, 2015, certified for partial publication, that affirmed the judgment. ISSUES PRESENTED 1. Whether an indigent defendant’s constitutional equalprotection rights are violated whenin preparation forhis retrial, he requests transcripts of opening statements and closing arguments from his mistrial, the prosecution doesnot object, and the trial court denies his request? 2. Whether a defendant’s constitutional compulsory process rights, and due processrights to a full and fair trial and to present a complete defense are denied whenheis unable to call as a witness a K-9 officer whotrained the dog that searched for a gun, and whowaspresentduring the search, because the prosecutor misrepresented that he wouldcall another K-9 expert to testify, and the trial court denied defendant’s motions to continue _andissue a body attachmentfor the officer to appear? 3. Whether a defendant’s prior conviction based ona guilty plea should be stricken and not be used as a sentencing enhancement when he declares that during the previous changeofplea, he was not informedof, and did not knowingly or voluntarily waive any of his Boykin'-Tah? constitutional rights, andthetrial court did not hold an evidentiary hearing, or require the prosecution to provide counterevidence? 4. Whether a defendant’s First Amendmentrights are violated when heis convicted for making criminal threats under Penal Code section 422 for saying the following while pointing a gunat individuals: “You disrespect me,” and “Now you’re goingto learn to stay out of other people’s business”? NECESSITY FOR REVIEW This case presents important four questions of law that this Court should resolve. (Cal. Rules of Court, rule 8.500(b)(1).) First, the Court should resolve whetheran indigent defendant’s equal ' Boykin v. Alabama(1969) 395 U.S. 238, 245 [89 S.Ct. 1709, 23 L-Ed.2d 274). ? Inre Tahl (1969) 1 Cal.3d 122. protection rights are violated when he makesspecific requests for transcripts of the opening statements and closing arguments from his mistrial, the prosecution does not object or suggest an alternative, and the trial court denies his request. In 1975, this Court held thatafter a mistrial, “an indigent defendant in a criminaltrial is Presumed to have particularized need for a transcript of prior proceedings, just as he is Presumed,ifhe needs a transcriptatall, to need nothingless than a complete transcript.” (People v. Hosner (1975) 15 Cal. 3d 60, 66, emphasis added.) If the prosecution does not meetits “burden . . . [to] clearly establish the contrary,” andtranscripts are not provided, then automatic reversal is required. (/d. at pp. 69-70.) In this case, the Court of Appeal found as a matter of law that opening statements and closing arguments are not part of this complete set of transcripts that an indigent defendantis presumptively entitled to after a mistrial. (Op. at 5-15.) Asthis portion of the opinionis certified for publication, trial judges will no longer havea constitutional duty (or statutory duty) to fulfill indigent defendants’ requests for transcripts of opening statements and closing arguments from a mistrial, even whenthe prosecution does not object. Meanwhile, defendants who can afford to pay for such transcripts after a mistrial are still be able to obtain them. Also, while this Court in Hosner placed the burden on the prosecution to “clearly establish”that an indigent defendant does not need the complete setoftranscripts from his mistrial (Hosner, supra, 15 Cal. 3d at 69-70), the Court of Appealheld that a prosecutor’s non-objection to an indigent defendant’s request for such transcripts is immaterial. Furthermore, while this Court in Hosner found that an indigent defendantis “under no obligation to go forward with such a showing of particularized need”for the complete transcripts (Hosner, supra, 15 Cal.3d 3 at p. 67), the Court of Appeal found that because an indigent defendant’s reasons for such transcripts are not good-enough,heis not able to benefit from Hosner’s automatic reversal standard. (Op. at 12, 15.) At the same time, the Court ofAppeal declined to consider on appeal the indigent defendant’s arguments ofprejudiceif a lesser standard were to apply. Justice Flier’s dissent from the majority opinion showsthat there needsto be further clarification of the Hosner holding, especially with respect to whether opening statements andclosing argumentsare part of “complete” transcripts, whether a prosecution’s non-objection matters, and whether a defendant needs to makea sufficient particularized showing for such transcripts in order to invoke the automatic reversalrule. (Dissentat 1-6.) This issue has also been raised to this Court previously in a petition for review, but was not directly addressed by this Court. The Ninth Circuit eventually granted a habeaspetition of a California case, which had been exhausted through California appellate courts, and found that an indigent defendant’s equal protection rights were indeed violated whenhedid not receive complete transcripts from his mistrial, including the opening statements and closing arguments. (Kennedy y. Lockner (9th Cir. 2004) 379 F.3d 1041.) The Court of Appeal found the Ninth Circuit’s holding to be inapplicable (Op. at 13-15), while the dissent agreed with the Ninth Circuit’s finding that transcripts of opening statements and closing argumentsare valuable and should be part of the complete transcripts given to an indigent defendant upon requestif the prosecution does not properly object. (Dissent at 3-5.) This Court should determine whether lower California courts should follow the Kennedy holding,at least with respect to mistrial transcripts of opening statements and closing arguments. 4 Second, this Court should resolve a defendant’s right to compulsory process and due processright to a full andfair trial and to present a complete defense are denied whenheis unableto call as a witnesses a K-9 officer whotrained the dog that unsuccessfully searched for a gun, and who waspresent with the dog during the search. In the Supreme Court’s recent decision in Florida v. Harris (2013) 133 S.Ct. 1050 [185 L.Ed.2d 61], the Supreme Court held that when a K-9 alerts an officer to the presence of the contraband,that this alert may constitute probable cause for a more complete search, but that the defendant mustbe able to argue against probable cause by asking questions regarding the K-9 handler and the search dog. While Mr. Reese’s case does not directly involve Harris probable cause issues, this Court should resolve whetherit is just as important for a defendant to be able to ask the K-9 handler abouthis skills and his K-9’s reliability (i.e., skills, history of search, training) when the K-9 does not actually find the contraband. Mr. Reese was unable to question the K-9 officer who waspresent during the search, who wasthe search dog’s handler, and who knewofthe dog’s skills and abilities. Third, this Court should resolve whethera trial court errs whenit does not hold an evidentiary hearing or require prosecution to provide counterevidence after a defendant submits a declarationstating that he did not understand, explicitly waive, did not sign a written waiver, and/or was not admonished, advised, and spoken properly of any of his Boykin/Tahl rights prior to his guilty plea of a prior strike conviction. The defendant also submitted a letter showing that the previous court was unable to find his records. This Court should also resolve whether a defendant has to declare that “he would not have pleaded guilty had he knownofhis right” only whenthere is “an imperfect advisementofrights” oralso in situations 5 wherehe declares that he wasnotadvisedofany ofhis rights. (Op.at 19; but see People v. Soto (1996) 46 Cal.App.4th 1596, 1606.) Fourth, this Court should resolve whether statements such as “You’re going to learn to stay out of other people’s business” and “You disrespect me” can constitute criminal threats under Penal Code section 422 becausethe speaker had a gun when he madethese statements. In the dicta ofPeople v. Bolin (1998) 18 Cal.4th 297, this Court implicitly found that three phrases that a defendant said while using a gun was “menacing,”but not a criminalthreat: “(1) What are you looking at, bitch?” (2) “shut up” and (3) “he didn’t like having Hispanic people there and that he was going to get us out of there.” (/d. at p. 377, citing People v. Brown (1993) 20 Cal.App.4th 1251, 1253.) For these reasons, Mr. Reese respectfully requests that this Court grant his petition for review. STATEMENT OF THE FACTS Prosecution’s Case Mr. Reeserefers the Court to the “Facts — The Crimes” section of the appellate court’s opinion. (Op. at 2-3.) Defendant’s Case Attrial, Beatrice Reese, the mother,testified that she thought there wasa gun,butdid notsee one. (III R.T. 392.) She did not know why she said to the police that Mr. Reese threatenedto kill Ms. Jackson. (III R.T. 387.) She may havesaid it because people say that there is a gunto get the police to arrive faster. (III R.T. 387.) She never called 911 on Mr. Reese before. (III R.T. 392.) She did not know what causedherto call the police, and did not say that she wasscared of Mr. Reese. (III R.T. 389-390.) 6 Mr. Reese did notthreaten to kill her or cause bodily harm. (III R.T. 390.) Ms. Reese wanted her son to be with Ms. Jackson, but knew that he | spent a lot of time with Adrienne,his friend. (III R.T. 391.) Bruce Reesetestified he smoked crack that night, drank beer and whiskey, and was on Seroquel. (III R.T. 403.) An officer told him that he did notthink Bruce saw a gun becausethey did not find one. He takes 24 medications daily, ofwhich 18 areat night. (III R.T. 404.) Ms. Jacksontestified that Mr. Reese alwaystreated her with love and respect. (III R.T .416.) She knew that he was coming from Adrienne’s house. (III R.T. 416.) Ms. Jackson told Ms. Reese where he was, and Ms. Jacksonprobably puta lotof stuff in her head, which made her mad.(III R.T. 417.) Ms. Jackson was upset because Mr. Reese was supposedto be there, but did not call or text. (III R.T. 417.) Mr. Reese did not threaten or assault her, and she did not see him with a gun. (III R.T. 418.) She did not tell the officer that she was scared of him. (III R.T. 419.) Mr. Reese never hit her or his mother. (III RT. 417.) She had seen Ms. Reese hit Mr. Reese before with her cane, and he just sat there. (III R.T. 418.) STATEMENT OF THE CASE Mr. Reeserefers the Court to the “Facts — The Criminal Case” section of the opinion. (Op.at 3-5.) ARGUMENT I. MR. REESE’S EQUAL PROTECTION RIGHTS WERE DENIED WHENHE DID NOT RECEIVE THE TRANSCRIPTS OF THE OPENING STATEMENTS AND CLOSING ARGUMENTSFROM HIS MISTRIAL Four decades ago, this Court held under the Equal Protection Clause that after a mistrial “an indigent defendantin a criminaltrial is Presumed to 7 havea particularized need for a transcript ofprior proceedings,just as heis Presumed,ifhe needs a transcriptat all, to need nothing less than a complete transcript.” (Hosner, supra, 15 Cal. 3d at p. 66.) Ifthe prosecution does not meetits “burden. . . [to] Clearly establish the contrary,” and transcripts are not provided, then automatic reversalis required. (/d. at pp. 69-70.) The Court ofAppeal ignoredthis clear holding in Hosner and applied a newrule: that an indigent defendantis not entitled to the transcripts of the opening statements and closing argumentsofa mistrial even though:(1) he maderepeated andspecific requests for these transcripts; (2) he stated his reasons for the transcripts although he was not required to; (3) and the prosecution did not make a single objection or Suggest an alternative to these transcripts. Asexplained morefully below, the Court ofAppeal made four errors. A. Relevant Proceedings On April 26, 2013, the court received and granted Mr. Reese’s motion for a complete record oftrial transcripts from hisfirst trial. (I C.T. 105.) On Thursday, June 6, 2013, Mr. Reese received a partial set of transcripts. (I C.T. 138.) The following Monday,June 10, whenthe court asked whetherthe parties wereready for trial, Mr. Reese respondedthat he was not ready because he hadnotreceivedthe full set of transcripts from his mistrial. (III R.T. 1, 4.) The court responded that Mr. Reese was only entitled to the trial testimony. (III R.T. 4.) Mr. Reesestated that he needed “to have opening statements and closing arguments ...so lI won’t make the same mistakes. . . . | have a small amountoftime to study a lot.” He also stated that the transcripts were “related to a discrimination motion. I need the full complete set. I am required by law.” (III R.T. 4-5.) The prosecution did not object. On the afternoon of June 10, Mr. Reese again movedto haveall the transcripts from thefirst trial, and informed the court that he was not given enoughtime to study the transcripts. (III R.T. 9.) The court informed him that he was only entitled to have thetranscripts of the testimony. (I C.T. 149.) Mr. Reese stated that the missing transcripts were “a part ofmy defense .... And I need those transcripts to not make those same mistakes because, you know,self-represented defendant is being taken advantage of.” (III R.T. 10.) The prosecution did not object. The court denied the request, and the secondjury trial began. B. An Indigent Defendant Is Presumptively Entitled To “Complete” Transcripts From His Mistrial, Which Includes The Opening Statements And Closing Arguments First, the Court of Appeal erred whenit found that opening statements and closing argumentsare notpart ofthe “complete”transcript that an indigent defendantis presumptively entitled to after a mistrial. (Hosner, supra, 15 Cal.3 at p. 66.) (Op. at 10-11). As the dissent countered, “opening statements and closing argumentsare noless a part of a trial than the witness testimony.” (Dissent at 2.) In Britt v. North Carolina (1971) 404 U.S. 226, 227 [92 S.Ct. 431, 30 L.Ed.2d 400], the Supreme Court held that the “State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when thosetools are available for a price to other prisoners. . . . [T]here can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that 9 transcriptis needed for an effective defense or appeal.” The Court noted that “even in the absenceofspecific allegations it can ordinarily be assumedthat a transcript of a prior mistrial would be valuable to the defendantin at least two ways: as a discovery device in preparation for trial, and asa tooltthetrial itself for the impeachment ofprosecution witnesses.” (/d. at p. 228.) In Hosner, this Court reiterated a holding from a priorcase that relied on Britt and other federal cases: “that an indigent defendant in a criminaltrial who wasentitled to a free transcript of a prior mistrial was presumptively entitled to afull transcript of those prior proceedings, and that the burden wason the prosecution to show that the defendant would have an effective defense or appeal with anything less than a complete transcript.” (Hosner, supra, 15 Cal.3d at p. 64, citing Shufordv. Superior Court (1974) 11 Cal.3d 903.) The Court of Appeal erred when it found that opening statements and closing arguments from a mistrial are not part of the complete transcripts of prior proceedings. (Op. at 10-11). It improperly restricts the holdings ofHosner, Shuford, and Britt to only mandate transcripts of witnesses’ testimoniesto “effectively rebut the prosecution case and impeach prosecution witnesses.” (Op. at 11-12. But see Dissent at 2 [“I do notfind a need to parse the opening statements andclosing arguments from the rest ofwhat the jury heard andtreat these parts ofthetrial differently.”].) While this Court did not expressly define the meaning of complete transcripts in Hosner,the dicta in that case implicitly shows that opening statements and closing argumentsare included within this definition. The Court noted that it would “reserve decision” on whether the per se standard of prejudice would applyto a denial oftranscript of “some other prior 10 proceeding.” (Hosner, supra, 15 Cal. 3d at p. 71, n.7.) As examples of “other prior proceeding[s],” Court pointed to non-trial events, such as hearings on a motion to suppress, or a motion on voluntariness of a confession (/bid.) Opening statements and closing arguments, which always take place duringtrial, were not included. Instead of following Hosner, the Court of Appeal found as a matter oflaw thattranscripts of opening statements and closing arguments notpart of the “complete”transcripts of prior proceedings described in Hosner because they do not have impeachmentor discovery value. (Op. at 7, 12.) Contrary to this assertion, opening statements andclosing arguments would help a defendantto anticipate the crucial testimonial portions of prosecution’s witnesses, and find ways to impeach them. They would assist with discovery, as a defendant would know which evidenceto find in order to oppose the prosecution’s theory of the case. For example, Mr. Reese could have argued moreeffectively to the trial court that Officer Ramirez’s testimony wasan essential part of his defense because the prosecution’s main theory ofthe caseset forth in the closing arguments was that Mr. Reese hid the gun, and Officer Ramirez’s testimony would show that it was unlikely that the gun was hidden. Healso could have sought out more testimony and evidence to counter the prosecution’s main contentions during his opening statements and closing arguments. Furthermore, this Court in Hosner did not limit the value of mistrial transcripts to just impeachment and discovery. It also foundthat they could be used to rebut evidence. (Hosner, supra, 15 Cal.3d at p. 70.) As the dissent notes, “[t]o rebut simply means “[t]o refute, oppose, or counteract (something) by evidence, argument, or contrary proof.” (Dissentat 3, citing Black’s Law Dict. (7th ed. 1999) p. 1274, col. 1.) Transcripts of the opening statement and closing arguments would assist an indigent 11 defendantto prepareto effectively rebut the prosecution’s evidence. California courts have long acknowledgedthat the opening statements and closing arguments may show the theory or Strategy of a party’s case. (See, e.g., People v. Gamache (2010) 48 Cal.4th 347, 391 [“Defense counsel’s closing argumentreveals a two-part strategy ....”]; People v. Fuiava (2012) 53 Cal.4th 622, 725 (“Lingering doubt was a cornerstone of the defense’s penalty phase strategy, and counsel arguedit at length during closing argument” (emphasis added)]; People v. Arnold (1926) 199 Cal. 471, 477 [“Thedistrict attorney, in his opening statement in outlining his theory of the case andthe facts he expected to prove... .”]; (People v. Williams (2013) 218 Cal.App.4th 1038, 1057 [“The prosecution’s original theory, as expressed in opening argument... .”].) Furthermore, California courts recognize the importanceofclosing argumenttranscripts by making them a required componentofthe appellate record for a defendant’s criminal appeal whenheis the appellant. (California Rules of Court, rule 8.320(c)(B)). This is consistent with the Supreme Court’s long-held viewofthe significance of closing arguments: It can hardly be questioned that closing argument serves to sharpen andclarify the issues for resolution bythetrier offact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versionsofthe case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknessesoftheir adversaries’ positions. (Herring v. New York (1975) 422 U.S. 853, 862 [95 S.Ct. 2550, 45 L.Ed.2d 593].) The Ninth Circuit in Kennedy, supra, 379.3d 1041 also found that opening statements and closing arguments are considered “crucialto the developmentofan effective defense” because they “may provide valuable insight into the government’s strategy.” (Id. at p. 1049.) “Varioustactical 12 and strategic decisions” of the defendant may be influenced, such as being able to “anticipate someof the prosecution’s key arguments, identify . potential weaknessesin its case, assess the relative weight that the prosecution would place on various items of evidence, and better determine what would be neededto refute them.” (/d. at p. 1057.) In Kennedy, the Ninth Circuit granted a habeaspetition, and found that defendant’s equal protection rights were violated when he only received transcripts of witnesses’ testimony after he moved for the complete set of his mistrial transcripts, including the opening statements and closing arguments. (/d. at p. 1045.) The Ninth Circuit “doubt[ed] seriously that a wealthy defendant would ordinarily proceed in a subsequent trial without purchasinga full transcript of the proceedings,including, but not limitedto, . . . the opening statements and closing arguments.” (/d. at p. 1049.) The Court of Appeal found that the Kennedy holding was not binding or applicable. (Op. at 13-14.) But, it is well established that such authority is still “persuasive and entitled to great weight.” (People v. Bradley (1969) 1 Cal.3d 80, 86.) Also, while the Court of Appeal found that the Kennedy dissent, which foundthat the transcripts of the testimonies were sufficient, was morecorrect (Op.at 13), it failed to recognize that the Kennedy dissent notedthat it “might not necessarily disagree with the court’s interpretation ofBritt” if this were a “direct criminal appeal” instead of a habeaspetition. (Kennedy, supra, 379 F.3d at p. 1059 (dis. opn. of O’Scannlain, J.).) Currently, Mr. Reese’s appeals are direct criminal appeals, and not a habeas petition. The Kennedy caseis also particularly relevant because it involved a California case. The Ninth Circuit underscored that the California court of 13 appeal actually “conceded that under California Supreme Court precedent the trial judge erred in failing to provide Kennedy with the full transcript of prior proceedings” and that “that the trial court ‘should have provided’ the ‘additional portions ofthe transcript’ requested by Kennedy.” (Jd.atp. 1050.) Lastly, while the Kennedy court found that transcripts of all proceedings must be provided, from the “commencementofthe judicial action until the entry ofjudgment” which includes motions and rulings,this Court is not being asked to fully adopt Kennedy’s holding. Instead, the sole issue before this Court is whether opening statements and closing arguments are part of the completetranscripts that an indigent defendantis presumptively entitled to after a mistrial upon request. The Court should clarify that they are. C. Mr. Reese Was Not Required To Show A Particularized Need For These Transcripts Second, the Court ofAppealerred whenit required Mr. Reese to demonstrate his particularized need for such transcripts. (Op. at 15.) The Court of Appeal foundthat “there was no Hosnererrorin this case, because defendantwas providedthe transcriptofall the testimony and did not demonstrate why he neededthe opening statements and closing arguments.” (Op. at 15, emphasis added.) It also found that Mr. Reese was not entitled to the Hosner per se rule of reversal because he did not “specifiy[] why it is necessary to an effective defense.” (Op. at 12, emphasis added.) However,as the dissent explained, “Hosner soundly rejected the notion that a defendant should have to show a particularized need for the complete transcript of a mistrial.” (Dissent at 1.) Indeed, in Hosner, this Court expressly held that a defendantis “under no obligation to go forward 14 with such a showingofparticularized need” for the completetranscripts. (Hosner, supra, 15 Cal.3d at p. 67.) Furthermore, even though Mr. Reese wasnotrequiredto state any reasons for the transcripts, he explainedthat the opening statements and closing arguments would help him not make the same mistakes, were related to his discrimination motion, werepart of his defense, were required by law, and impliedthat it would save him timeto studythe transcripts. (IU R.T. 4-5, 10, 15). The Governmentshould not fault him for not providing more specific reasons because hedid nothave the missing transcripts before him, especially when the Government did not make a single objection duringtrial. D. Mr. Reese’s Equal Protection Rights Were Violated When The Government Did Not Make A Single Objection To His Request And TheTrial Court Still Denied His Request Third, the Court ofAppeal erred when it ignored the fact that the Governmentdid not make a single objection to Mr. Reese’s request for these transcripts. As the dissent noted, “the prosecution did nothing to rebut the presumption that appellant needed a completetranscript of the mistrial, including the opening statements and closing argumentsthat he expressly requested.” (Dissent at 2, emphasis added). Under Hosner, this Court held that in order to overcome the presumptionofthe defendant’s entitlement to complete transcripts, the prosecution must either prove that the defendant does not need the transcript, or has access to adequatealternatives. (Hosner, supra, 15 Cal.3d at pp. 66, 68.) If the prosecution in unable to rebut the presumption, and the transcripts are not given to the defendant, then automatic reversal is required. (/d. at p. 70.) 15 While the prosecution’s rebuttal is a crucial part of the Hosnertest to determine whetheran equalprotection violation occurred, the Court of Appealignores this part altogether. It fails to make a singlereferenceto the prosecution’s absolute silence to Mr. Reese’s specific and repeated requests for these transcripts. Instead, the Court of Appeal posits that Mr. Reeseis asking “to expandthe limits ofthe principles set forth in Britt, Shuford, and Hosnerto require that the state provide transcripts of the opening statements and closing arguments in every case” andto “establish[] a categorical rule that the transcript of counsel’s statements must be provided after every mistrial.” (Op. at 12, 13, emphasis in original). Mr. Reeseis not seeking these expansive holdings. Heis only requesting that Hosner be applied. This Court already created a safety valve to prevent full transcripts (including thoseofthe opening statements and closing arguments)to be givenafter every mistrial: the prosecution can either show that the defendant does not need the transcript, or that the defendant has access to adequate alternatives. (Hosner, supra, 15 Cal.3d at pp. 66, 68.) The prosecution must rebut the request duringtrial because otherwise, “[d]ue effectuation of an indigent defendant’s constitutional right to a free transcript of a prior trial would be disserved by allowing the prosecution to postponeuntil a defendant’s appealits litigation, disguised underthe rubric of ‘harmlesserror,’ of the issue of the defendant’ particularized needforthattranscript.” (Jd. at p. 71.) Here, it is undisputed that the prosecution did not make a single objection to Mr. Reese’s request for these transcripts, and did not make a single suggestion of an adequate alternative. “Throughoutthe proceedings, the prosecutor remained unaccountably mute on the subject of appellant’s right to a transcript. Absent any showingby the prosecution which might 16 overcome appellant’s presumptive need fora transcript, .. . error was committed . . . [and] requires automatic reversal.” (People v. Tarver (1991) 228 Cal.App.3d 954, 957.) E. Alternatively, the Court Of Appeal Erred When It Did Not Consider Mr. Reese’s Arguments Regarding Prejudice The automatic reversal standard applies in this case. (Hosner, supra, 15 Cal.3d at p. 70.) In Hosner, this Court noted the difference between trial proceedings and non-trial proceedings whenit held back on deciding whetherthe per se rule of prejudice should apply to “someotherprior proceeding”like a hearing on a motion to suppress or voluntariness of a confession. (/d. at p. 71, fn. 7.) In this case, Mr. Reese was deniedtrial transcripts of the opening statements and closing arguments, and therefore his convictions must be automatically reversed. Yet, when the Court of Appeal decided to not apply the Hosner automatic reversal rule because Mr. Reese did not give good-enough reasons for these transcripts (Op. at 12, 15), it also decided to ignore arguments showing actual prejudice. (Op. at 14-15). The Court of Appeal cannot haveit both ways. It either should be: (1) required to follow Hosner, which mandates automatic reversal when the prosecution does not rebut the defendant’s presumed need for complete transcripts, or (2) required to consider prejudice arguments on appeal when it finds that defendant did not give adequate reasons for trans¢ripts to “invoke the Hosner rule of automatic reversal.” (Op. at 12, 15.) Applying the Chapmanstandard ofprejudice, the prosecution cannot prove that the error is harmless beyond a reasonable doubt. In the closing arguments from the mistrial, the prosecutor emphasized that Mr. Reese hid the gun. He argued that Mr. Reese “hid the gun effectively,” and that the “[b]ottom line is yes, the defendant was successfully able to hide the gun.” 17 (Supp. R.T. 181, 200.) In his rebuttal closing arguments, the prosecutor speculated where the gun was hidden. He argued, “...so whereis the gun’? We don’t know. Hecould have hidden it somewherein the house. He could have thrownit outside, a neighbor’s roof, a neighbor’s yard.” (Supp. R.T. 207.) He speculated that the gun was hidden in the baby’s blankets. (Supp. R.T. 207.) If Mr. Reese had this information priorto his retrial, he would have been able to ask Officer Arzate if he, the dog, or others searched these specific areas. He would have focused on discovery related to the search itself, such making a stronger argumentfor the presence of Officer Arzate, and not wasted time preparing for immaterial side issues, such as the involvement of Department of Children and Family Services(see e.g., III R.T. 629; IV R.T. 909-910). The prosecutor reemphasized at his second retrial that Mr. Reese hid the gun, and had Mr. Reese readthe opening statements and closing arguments from the mistrial, he would have been better preparedto rebut this theory, especially given his limited time to study the transcripts. (III R.T 4-5: IV R.T. 984-985.) Forall these reasons, Mr. Reese’s equal protection rights were violated whenthetrial court denied his request for opening statements and closing arguments from his mistrial, even though the prosecutiondid not object. Il. MR. REESE’S CONSTITUTIONAL RIGHTS TO COMPULSORYPROCESS WERE DENIED WHEN THE PROSECUTOR AND COURTINTERFERED WITH HIS RIGHT TO CALL THE K-9 OFFICER The Sixth Amendment of United States Constitution, and article 1, section 15 of the California Constitution guarantee the defendant’s right to compulsory process. 18 In order to show that compulsory-process rights were denied, a defendant must show (1) government misconduct,(2) interference, and (3) materiality of the witness’s testimony. (/n re Williams (1994) 7 Cal.4th 572, 603.) A. Officer Ramirez’s Testimony Would Have Been Material and Favorable The Court of Appeal found that Mr. Reese’s compulsory process rights were not denied because hedid not meetthe third prong: he did not “demonstrate[] that Officer Ramirez’s testimony would have been material and favorable to the defense.” (Op. at 17.) The Court of Appeal erroneously focused on just two aspects of Officer Ramirez’s potential testimony to find that it was immaterial and cumulative: that the officer would havetestified (1) that no gun was found; and (2) about the size of the apartment. (Op. at 17.) However,in the - following three ways, Officer Ramirez’s testimony would have been material, favorable, and not cumulative. First, Officer Ramirez was present with the K-9 during the search. Officer Arzate, the testifying officer, was not in the apartment when the search occurred. Officer Arzate waited outside while the search took place for twenty to thirty minutes, and only wentin the apartment after the search was completed. (III R.T. 614.) Mr. Reese would have been able to ask specific questions about the search to Officer Ramirez, such as where he and his K-9 actually searched. The prosecutor acknowledged the significance of such information when hearguedin his closing argument that the gun wasnot found because Mr. Reese “could haveputit inside of something, in an oven or up on a shelf or a bucket. He could have thrownit away two houses down,thrown it awayin the yard.” (IV R.T. 984-985.) 19 Officer Arzate could not address these possibilities because he wasnot actually with the K-9 in the apartment during the search, and therefore could not answer whether oven, bucket, or yard were searched. Second, only Officer Ramirez would be able to answerspecific questions about the K-9 that searched the apartment, suchasits abilities and search history. As Mr. Reese arguedtothe court, if Officer Ramirez had been present, he would havetestified that “his dog is a very good dog” andthat his dogis “trained properly” and that he would “find a gun if there’s a gun there.” (III R.T. 624.) Officer Arzate, on the other hand, could not answer whether the dog needed an open space to search. He answeredthat it would “depend[] on the circumstances .. . [and that] the K- 9 officer would be able to explain.” (III R.T. 627.) Recently, the United States Supreme Court stressed the importance of giving defendants the opportunity to ask aboutthe specific training and skills of a K-9 dog that performed a search. In Harris, supra, 133 St. 1050, the Supreme Court held that when a K-9 alerts an officer to the presence of a contraband,that this alert may constitute probable cause for a more complete search. The Court also held that the defendant then “must have an opportunity to challenge such evidenceof a dog’s reliability, whether by cross-examiningthetestifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting thatits standardsare too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments madein thosesettings.” (Id at pp. 1057-1058.) Based on the reasoning in Harris, it is just as important for a defendant, like Mr. Reese, to be able to ask the K-9 handler abouthis skills and his K-9’s reliability (i.e., skills, history of search, training) when the K- 20 9 does not actually find the contraband. These questions would assist the fact-finder to determine whether the contraband wasnot found becauseit did not exist in the first place, or because the K-9 was not skilled enough to find it and morelikely hidden. Mr. Reese arguedto the court that if the K-9 handler had testified, then he would say that his dog was a “very good dog,” and that his dog was “trained properly”and would find a gunifthe gun werethere. (III R.T. 624.) Mr. Reese also arguedin his closing argumentthat if Officer Ramirez hadtestified, he would havesaidthat his “dog would never miss finding a gun. This is what we do. We’retrainedto find a gun. My dogis not going to miss no gun. There wasno gun. My dog would find that. We would make sure my dogfinds this.” (IV R.T. 977.) If Officer Ramirez had madethese statements, thenit is very likely that the jury would have foundthat Mr. Reese did notactually have a gun that night, because otherwise the K-9 would have foundit. Third, Officer Ramirez would have been able to answer general questions about how a K-9 performs a search. Officer Arzate admitted that he did not know “the particulars because[he had] not beentrained specifically.” (III R.T. 625.) While he claimed to know how the dogs generally worked, he could not answer Mr. Reese’s specific questions. WhenOfficer Arzatetestified that a dog’s senses could be overwhelmed by all the different scents in a house or apartment, Mr. Reese asked him how a bombdog could search for a bomb in a crowded airport. (III R.T. 626.) Officer Arzate responded,“I believe they’re trained in a different frequency than just a K9 dog for a gun.” (III R.T. 626.) Mr. Reese also asked whether “it [had] to be an open space for the dog to find the gun?” (III R.T. 627.) Officer Arzate respondedthat it would “just depend{] on the circumstances ... the K9 officer would be able to explain.” (III R.T. 627.) If the jury had 21 heard testimony about how a K-9 dog generally searches for a gun, and training it receives, there is a reasonablepossibility that it would have found that Mr. Reese did not possess a gun that evening, and therefore, the search for a gun was unsuccessful. For these reasons, the Court ofAppeal erred when it found that Mr. Reese did not show the materiality of Officer Ramirez’s testimony. B. Mr.Reese Satisfies The Other Requirements OfA Compulsory- Process Violation Claim Mr. Reese also meets the first and second prongs of a compulsory- processviolation claim: government misconduct andinterference. I, The Prosecution Misrepresented That It Would Call Another K-9 ExpertAndAn Officer In The Presence Of Officer Ramirez First, the prosecution’s misrepresentation to the court that he would call another K-9 handler or expert, and that he would call another officer whowasin the presence of Officer Ramirez, interfered with Mr. Reese’s right to call Officer Ramirez for his defense. (III R.T. 362-366.) Before the trial began, Mr. Reese argued that he would not receive a fair trial and would be prejudiced if Officer Ramirez could not testify. (I R.T. 362.) The prosecution countered that another K-9 handler or expert would testify about how “a dog look[s] for a gun,” how a dogis trained, and the process generally works. (III R.T. 362.) He also stated he would call an officer who waspresent with Officer Ramirez. (III R.T. 364.) Basedonthis representation, the court did not compel Officer Ramirez’s presence. (III R.T. 364.) However, the prosecution did not call a K-9 expert or handler, and did not call an officer who waspresent during the search. (Cf. Peoplev. 22 Ruthford (1975) 14 Cal.3d 399, 409-410, overruled on other groundsin Jn re Sassounian (1995) 9 Cal.4th 535, 545,fn. 7 [finding that prosecution’s intentional or inadvertent failure to disclose details of a witnesses’ inducementto the court was misconductin part becauseit “forestalled further inquiry” by the court about the inducement].) 2. The Trial Court Erroneously DeniedMr. Reese’s Motion ForA Continuance In Order For Officer Ramirez To Appear Second,the trial court erred when it denied Mr. Reese's request for a continuance. (IV R.T. 916-918.) Whena witness is unavailable, there is good cause to continue a case when the requesting party shows the following:“(1) the party seeking the delay has exercised due diligence in securing the attendanceofthe witness at trial by legal means,(2) the testimony of the witnessis material, (3) the testimony is not merely cumulative, (4) the attendance of the witness can be obtained within a reasonable time, and (5) the facts about which the witness is expected to testify cannot otherwise be proven.” (Baustertv. Superior Court (2005) 129 Cal.App.4th 1269, 1277.) Mr. Reese methis burden onall five prongs. Astothefirst prong, Mr. Reese demonstrated due diligence in securing Officer Ramirez’s presence because he subpoenaed Officer Ramirez. The court assumedthat the witness was properly subpoenaed, and there was noreasonto believe otherwise. (IV R.T. 915.) Furthermore, the prosecution had also subpoenaed Officer Ramirez on May14 or 19, and Officer Ramirezstill did not make himself available whenthetrial started. (IV R.T. 910-91 1.) He wason vacation, just as he had been during thefirsttrial.° (Supp. R.T. 126; ? While the prosecution told the Court that Officer Ramirez was not 23 III R.T. 362.) Asto the second, third, andfifth prongs, Officer Ramirez’s testimony would have been material, not cumulative, and could not otherwise be proven, as explained above. As to the fourth prong, Officer Ramirez’s attendance wasobtainable within a reasonable time. The prosecution restedits case on Thursday, June 13, and Mr. Reese requested a continuance to next Tuesday, June 18, when Officer Ramirez was available. (IV R.T. 908.) Furthermore, even before any witnesstestified in this case, the prosecutor informed the court on June 11 that Officer Ramirez was on vacation, but that he had prepared another K-9 expert to testify. (III R.T. 362.) Sincethe prosecutor did not actually call a K-9 expert, the court should have continuedthetrial until the following Tuesday so that Mr. Reese could call Officer Ramirez. (Cf. Gaines v. Municipal Court (1980) 101 Cal-App.3d 556, 560 [“Wethink a subpoenaed material witness’ failure to appear for trial may constitute good cause under section 1382 for the continuanceofa trial beyondits statutory period.”].) Forall these reasons,the trial court abused its discretion whenit denied Mr. Reese’s request for a continuance, and the denial interfered with Mr. Reese’s ability to call Officer Ramirez for his defense. 3. The Trial Court’s Erroneously Denied Mr. Reese’s Motion ForA Body Attachment Third,the trial court’s erroneous denial of Mr. Reese’s motion to issue a body attachmentfor Officer Ramirez interfered with his rightto call available for the first trial because he wassick (III R.T. 362), in actuality, Officer Ramirez wasnotavailable during thefirst trial (as well as the retrial) because he was on vacation (Supp. R.T. 126). 24 Officer Ramirez. On June 13, Mr. Reese requested that the court issue a body attachment for Officer Ramirez if he did not appear. (IV R.T. 906.) The court denied the request. (IV R.T. 915.) The court was well aware of the purpose and effectiveness of body attachments; it had previously ordered them for the prosecution on Beatrice Reese, Fagasa Jackson, and Bruce Reese when they did not appear at a pretrial hearing on June 6. (I C.T. 138.) A body attachment wasrequired because Officer Ramirez did not obey the subpoena. The court’s improper denialof this motion interfered with Mr. Reese’s right to call Officer Ramirez for his defense. C. The Compulsory-Process-Rights Violation Was Prejudicial Lastly, Mr. Reese’s inability to call Officer Ramirez was prejudicial under the Chapman “harmless beyond a reasonable doubt” standard. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1759.) Mr. Reese’s conviction onall counts required a finding that Mr. Reeseactually had a gun in his possession. The charges ofpossession of a firearm and assault with a firearm required possession of a gun. With respect to criminal threats charges, Mr. Reese’s words to Ms. Jackson and to Ms. Reese were non-threatening without the gun.‘ As Officer Ramirez’s material and favorable testimony about his and his K-9’s training and abilities, and testimony about the search would have created reasonable doubt as to whether Mr. Reeseactually possessed a gun, *In Section V ofthis brief, Mr. Reeseasserts that even if he used his gun, there is insufficient evidence of criminal threats because his words were inherently non-threatening. 25 the compulsory process violation was prejudicial. (See Supra Section II.A.) Ill. MR. REESE WAS DENIED HIS DUE PROCESS RIGHTS TO A FULL ANDFAIR TRIAL AND TO PRESENT A COMPLETE DEFENSE The Court of Appeal’s finding that due process rights were not violated because Officer Ramirez’s testimony would have been immaterial is erroneous. (Op.at 17.) For the same reasons that Mr. Reese’s compulsory-process rights were denied, his constitutional due processrights to a full andfairtrial and to present a complete defense were also denied. (Washington v. Texas (1967) 388 U.S. 14, 19 [87 S.Ct. 1920, 18 L.Ed.2d 1019].) Since Officer Ramirez’s testimony would have been material and favorable, as explained in Section I.A and II.C, reversal is required. IV. MR. REESE’S SUMSTINE> MOTION CONTAINED THE REQUIRED DECLARATIONS The Court ofAppeal’s finding that Mr. Reese’s Swmstine motion wasproperly deniedis also erroneous. First, contrary to the Court ofAppeal’s finding (Op. at 19), Mr. Reese’s statements were not conclusory. He submitted a two-page sworn declaration that included the necessary phrase under People v. Soto (1996) 46 Cal.App.4th 1596:“upon pleadingguilty[,] I did not understand or explicitly waive of each ofmy (Boykin/Tahl) rights in open court and on the record.” (Sic.) (I.C.T. 263.) He also declared that he “did not sign a written waiver of my constitutional rights,” and that he “was not admonished nor advised and spoken properly of any waiverorgiving up advise [sic] ofmy constitutional rights.” (I C.T. 264.) He also gave the trial court a letter that showed thathe tried to locate the records through the 26 Riverside Superior Court, but the court could notfind the case underhis information. (IV R.T. 1802-1803.) Second, Mr. Reese wasnot required to declare that he would not have pleaded guilty had he knownofhis right because this statementis only required whenthere is “an imperfect advisement of rights.” (Soto, supra, 46 Cal.App.4th at p. 160.) Mr. Reese declared that he was not advised of any of his Boykin-Tahl rights, and thus wasnot required to make this additional declaration. (See People v. Stills (1994) 29 Cal.App.4th 1766, 1771.) Even though Mr. Reese made the necessary declarations and showed that he was unable to provide any more evidenceto support his claim, the trial court erred by not holding an evidentiary hearing, or requiring the prosecution to submit rebuttal evidence. (I C.T. 207-214.) His sentence, which was improperly doubled, should bereversed, and this matter should be remanded. Vv. THERE IS INSUFFICIENT EVIDENCE OF CRIMINAL THREATS Lastly, the Court ofAppeal erred when it found that Mr. Reese’s conviction for criminal threats against Ms. Jackson and Ms. Reese was supported by sufficient evidence. Based onthe dicta set forth by this Court in Bolin, supra, 18 Cal.4th 297, even if the Courtwere to assumethat Mr. Reesepointed a gun while he said “You disrespect me” to Ms. Jackson, and “Now you’re going to learn to stay out of other people’s business” to Ms. Reese, the statements are not criminal threats. As Mr. Reese was criminalized for protected speech, his First Amendmentrights were violated. (People v. Toledo * People v. Sumstine (1984) 36 Cal.3d 909. 27 (2001) 26 Cal.4th 221, 233.) In Bolin, this Court held that the crime of criminal threat under section 422 does not require an unconditional threat of death or great bodily injury. (Bolin, supra, 18 Cal.4th at p. 340). It disapproved the holding in People v. Brown (1993) 20 Cal.App.4th 1251, which had foundthat a defendant’s threat that he would kill victimsifthey called the police was not a “threat” for purposes of section 422 because it was not “unconditional.” (Jd. at p. 1254.) While discussing the Brown opinion,this Court explainedthe facts that formedthe threat: “the defendant accosted two women approaching their apartment and madeseveral menacing statementsas hepointed a gun at the head of one of the women. Whenthe other said they should call the police, the defendant said he would kill them if they did.” (Bolin, supra, 18 Cal.4th at p. 377, citing Brown, supra, 20 Cal.App.4th at p. 1253.) While the Bolin court did not explain the “menacing statements” the defendant madewhile pointing the gun before hethreatenedto kill them, the Brown opinion provides the phrases:(1) “Whatare you lookingat, bitch?” (2) “shut up” and (3) “he didn’t like having Hispanic people there and that he was going to get us out of there.” (Brown, supra, 20 Cal.App.4th at p- 1253.) While the defendant in Brown madethese three statements while using a gun against the two women,neither the Brown court nor this Court in Bolin found them to be criminal threats. The only statementthat was a criminal threat was the defendant’s last statement that if the women were to call the police, he would kill them. This Court could have characterized the prior statements as criminalthreats, but instead labeled them as “menacing.” Similarly, in this case, even if the Court were to assumethat Mr. 28 Reese pointed a gunathis girlfriend and mother, his statements do not rise to the level of criminal threats under the dicta set forth in Bolin. The statements, “You disrespect me” and “Now you’re going to learn to stay out of other people’s business”are similar to the statements to the menacing statements in Brown. Thisdistinction prevents a slippery slope where a defendant can be charged with criminal threats anytime he makes a commandorcriticism while using a gun. Therefore, the statements do not meet the required elements of a section 422 violation. (In re George T. (2004) 33 Cal.4th, 620, 630.) Asthereis insufficient evidence of criminalthreats, the court violated Mr. Reese’s First Amendmentright to speech when he was punished for noncriminal speech, and his conviction orcriminal threats should be reversed. (People v. Benitez (2001) 105 Cal.Rptr.2d 242, 249.) CONCLUSION For the reasonsstated, the petition for review should be granted. Respectfully Submitted, Dated: October 27, 2015 fi 4 Esther Hong Attorney for Defendant and Petitioner 29 CERTIFICATION OF WORD COUNT I certify under penalty of perjury under the laws of the State of California that this brief contains 8,341 words as calculated by the Microsoft Word software in which it was written. Dated: October 27, 2015 Lh Esther Hortg Attorney for Defendant and Petitioner 30 APPENDIX Opinion of Court of Appeal Filed 9/17/15 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT COURT OF APPEAL ~ SECONDDIST. DIVISION EIGHT F I L E D Sep 17, 2015 JOSEPH A. LANE,Clerk THE PEOPLE, B253610 Sina Lui Deputy Clerk Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA125272) Vv. KEITH RYAN REESE, Defendant and Appellant. APPEALfrom ajudgment of the Superior Court of Los Angeles County. John T. Doyle, Judge. Affirmed. Esther K. Hong, under appointmentby the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel,Jr., and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent. * Pursuant to California Rules of Court, rules 8.1100 and 8.1 110, this opinion is certified for publication with the exception ofparts II, III and IV. Defendant and appellant Keith Ryan Reese was convictedofcriminalthreats, assault with a firearm, and being a felon in possession of a gun. He represented himself at a trial which ended in a hung jury. Priorto the retrial, Reese moved for a transcript of the first trial, and the trial court provided Reese with transcripts of the witnesses’ testimony fromthefirst trial. When Reese objected that he had not been provided with transcripts ofthe opening statements and closing arguments from thefirsttrial, thetrial court rejected his objection. At the conclusion of his secondtrial, a jury convicted Reese as charged. He contends he should have been provided with a transcript of opening statements and closing arguments. He also contends he was denied his right to compulsoryprocess, that the trial court erred in denying his motion to dismiss a prior conviction and that his criminal threats convictions are not supported by insufficient evidence. Weaffirm. FACTS The Crimes On October 4, 2012, Reese’s mother, Beatrice Reese, and her brother, Bruce Reese, were at Beatrice’s apartment with Fagasa Jackson and her baby daughter by Reese. At about 10:00 p.m., Reese arrived at the apartment and wasupset because Beatrice had not picked him up from a friend’s house. When Jackson becameupset because Reese was supposed to be with her, and hadnotcalled or sent a text message, Beatrice began “giving [Reese] a hard time.” At somepoint, Beatrice wentout to the front of the apartment building and called 911. Several Los Angeles Police Department (LAPD)officers respondedto Beatrice’s home. and detained and handcuffed Reese. Officer Manuel Azarte arrived at the property after Reese had already been handcuffed. Officer Azarte interviewed Beatrice, Bruce, and Jackson at the scene. The evidence regarding Officer Azarte’s interviews showedthe following facts: Beatrice and Reese were arguing whenhepulled out a handgun, pointed it at her face, and told her somethingto the effect, “You’re goingto learn to stay out of other people’s business.” Reese had his finger on the trigger when he pointed the gun at her, and was afraid. Beatrice did not say anything else to Reese because she did not want to incite him to further action. Reese then pointed the gun at Jackson and said, “You disrespect me.” Jackson began to say somethingto the effect, “Please don’t do it.” Beatrice was able to walk out ofthe apartment when Reese was engaged with Jackson. Onceoutside, Beatrice called 911.1 Officer Azarte showed Beatrice his gun and asked whether Reese’s gun waslike the officer’s gun. Beatrice said no, that Reese’s gun had a cylinder, unlike the officer’s gun. All three witnesses — Beatrice, Bruce, and Jackson — wereconsistent that Reese had pulled out a gun and had pointedit first at Beatrice and then at Jackson. As Beatrice wasrelating the events to the officer, she seemed scared, but also in disbelief and at other times angry, as thoughshe couldnotbelieve what had happened. Officer Azarte and his partner searched the apartment, but did not find a gun. Officer Azarte’s partner found a leather holster between a recliner and the wall in the living room area. A K9 officer, LAPD Officer Ramirez, respondedto the apartment with his dog and also searched the apartment, but he, too, did notfind a gun. The officers searched the one-bedroom apartment for 20 to 30 minutes. The Criminal Case In November 2012, the People filed an information charging Reese with making a criminal threat against Beatrice and Jackson (counts 1 & 2; Pen. Code, § 422, subd. (a)),? and possession of a firearm by a felon (count 3; § 29800, subd. (a)(1)). Further, the information alleged that Reese personally used a firearm in the commission ofthe two criminal threats counts (§ 12022.5, subd. (a)) and that he had multiple prior strike convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(), ! The prosecution played a recording of the 911 call for the jury. Duringthecall, Beatrice told the operatorthat her son had pulled a gun on her,and that he wasstill inside the house withhis girlfriend. In talking to the 911 operator, Beatrice stated: “I just don’t want him to shootthat girl while he in there.” 2 Further undesignatedstatutory references are to the Penal Code. 1170.12, subds. (a)-(d)). In December 2012, the People filed an amended information re- alleging the original charges, and also alleging that Reese had two priorstrike convictions: assault with a firearm (§ 245, subd. (a)(2)) in Los Angeles County in 1995 and an assault with a firearm (§ 245, subd. (a)(2)) in Riverside County in 1989. In hisfirst trial, Reese’s request to represent himself was granted. Before the beginning of testimony,the trial court granted the prosecution’s s motion to amendthe information to add two countsofassault with a firearm (counts 4 & 5; § 245, subd. (a)(2)). On April 11, 2013, the court declared a mistrial after the jury could not reach any verdicts.3 After thefirst trial, the prosecution filed an amended information which charged Reese with the samefive counts discussed above. A personalfirearm use enhancement wasalleged asto the criminal threats and assault with a firearm counts. (§ 120225, subd. (a).) The amended information alleged that Reese suffered a prior conviction for assault with a deadly weapon in Riverside County in 1988 which qualified as a strike under the Three Strikes Law, and asa prior serious felony conviction under section 667, subdivision (a)(1). At a secondtrial in June 2013, the prosecution presented evidence establishing the facts summarized above. The prosecutor called Beatrice, Bruce, and Jackson and questioned them about whatthey told Officer Arzate on the night of the events at Beatrice’s house. All three deniedtelling the officer that Reese had a gun, made any threats, and that they had been in fear. Last, the prosecutor called Officer Azarte who testified to their statements at the scene. Reese did not present any defense evidence; he argued to the jurors that they should believe the in-court testimony and not Officer Arzate’s information regarding what the witnesses hadreported to him. The jury returned verdicts finding Reeseguilty as charged and findingthe firearm allegations to be true. Thetrial court thereafter foundthe prior conviction allegation true. 3 The record indicates that jury voted nine for guilty andthree for not guilty on each of the counts. Thetrial court sentenced Reeseto a total aggregate term of 17 yearsin state prison as follows: four years for his assault with a firearm conviction as alleged in count4, doubledto eight years for the prior strike conviction, plus four years for the firearm enhancement, plusfive years for the prior serious felony allegation. The court imposed concurrent prison terms on the remaining counts.4 Reesefiled a timely notice of appeal. DISCUSSION 1. The Trial Court Did Not Violate Reese's Right to Equal Protection by Denying Reese the Transcript of Opening Statements and Closing Arguments. Reese was provided with the transcript of every witness whotestified at his prior mistrial, but his request for a transcript of opening statements and closing argument was denied. Reese contendsthis violated his constitutional right to equal protection ofthe law. Wedisagree. Pertinent Background The court declared a mistrialin the first trial on April 11, 2013. On April 26, 2013, Reese filed a motion for a “complete record oftrial transcripts” from thefirsttrial, which the court granted. On June 6, 2013, he apparently received transcripts of thetrial testimony only. On June 10, 2013, the day his secondtrial commenced, Reese argued that he had not receivedfull trial transcripts and was “required to have” opening statements and closing arguments “so [he] [would not] make the same mistakes.” The court denied the request, stating: “When you represent yourself, the court cannot 4 Becausethe criminal threats convictions were based on the sameacts as the assault with a deadly weapon charges, the sentence on those counts should have been imposed and stayed pursuantto section 654. Thetrial court must impose and stay execution of sentence on convictions for which multiple punishmentis prohibited. (People v. Pearson (1986) 42 Cal.3d 352, 359-360.) The sentence imposed is unauthorized, so weare atliberty to correct it now. (People v. Scott (1994) 9 Cal.4th 331, 354-355.) Accordingly, the abstract ofjudgmentis ordered modifiedto reflect counts one and twoare stayed. give you any favors. You will be treated like a lawyerwill be. That’s why people shouldn’t represent themselves. The motion to request the opening statement and closing | arguinents is denied. That was denied previously. That is not evidence.” Later that same day, defendant renewed his motion, and the court again denied it, saying: “That's not partofthe trial transcript which will be admissible in front of the jury. Prior voir dire, opening statements and closing argumentis not part of the transcript for anothertrial.” Reese argued: “And I need thosetranscripts to not make the same mistakes because, you know,self-represented defendant is being taken advantageof.” The court replied: “No, see, when you--when you decideto go pro per, you are a lawyer. Nobody’s taking advantage of you except you put yourself in position where you don’t know what you're doing.” Reese renewed his request one moretime, and once again the court denied it. It explained: “Well, as long as you havethe testimony,that’s what’s important. The--the jury selection, closing arguments, andall that is--you don’t need for this trial. I’m denyingthat.” Pertinent Law As noted, Reese contendsthe denial of the transcript of opening statements and closing arguments violated his equal protection rights underthe federal and state Constitutions. Because the facts are not disputed, we independently review whether a constitutional violation has occurred. (People v. Uribe (2011) 199 Cal.App.4th 836, 856- 857.) | Webegin with Britt v. North Carolina (1971) 404 U.S. 226, 227 (Britt), in which the United States Supreme Court recognized the fundamental and familiar principle that “the State must, as a matter of equal protection, provide indigentprisoners with the basic tools of an adequate defense or appeal, when thosetools are available for a price to other prisoners.” The court cited cases establishing that principle means “there can be no doubt the State mustprovidean indigent defendant with a transcript ofprior proceedings when that transcript is needed for an effective defense or appeal.” (bid, fn. 1.) The “prior proceedings”at issue in Britt were priortrial that had endedin a mistrial, and the lower court had denied the defendant’s request for a transcript of the mistrial as he was 6 preparing for the newtrial. (/d. at p. 226.) Britt explained why, “in the narrow circumstancesofthis case, no violation of [equal protection] has been shown.” (Id. at p. 227.) Britt framed the equal protection issue this way: “The question here is whether the state court properly determined thatthe transcript requested in this case was not needed for an effective defense.” (Britt, supra, 404 U.S. at p. 227.) The court recited the two factors that are relevant to the determination of need: “(1) the value of the transcript to the defendantin connection with the appealortrial for whichit is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” (/d. at p. 228, fn. omitted.) As to the first factor, Britt observed: “Our cases have consistently recognized the value to a defendantofa transcriptofprior proceedings, without requiring a showing ofneedtailored to the facts of the particular case.. . . [E]ven in the absenceofspecific allegations it can ordinarily be assumedthat a transcript of a prior mistrial would be valuable to the defendantin at least two ways: asa discovery device in preparation fortrial, and as a toolatthetrial itself for the impeachment of prosecution witnesses.” ([bid., fn. omitted.) Britt’s references to discovery and impeachment suggest the equal protection question related to defendant’s right to obtain a transcript of the festimony. Based on the secondfactor, the Britt court found, even though defendant was deprived of the discovery and impeachmentopportunities a transcript provides, there was no violation of defendant’s equal protection rights, because there was an adequate alternative to a transcript. The court found defendant’s equalprotection rights were adequately protected becausethetrials took place in a small town, the same court reporter worked on both trials, the court reporter was a “goodfriendofall the local lawyers,” and the reporter would have read backhis notes ofthe mistrial at any time if counsel had informally requested it. (Britt, supra, 404 U.S. at p. 229.) Our Supreme Court took up this issue in Shuford v. Superior Court (1974) 11 Cal.3d 903 (Shuford), another case in which the indigent defendant sought and was denied a transcript of a prior mistrial. The prosecution had a transcript of defense witnesses’ testimonyat the prior trial. The defendant movedfora full transcript and argued “that a study ofa transcript of the entire proceedings was necessary for a proper preparation ofhis defense onthe retrial.” (/d. at p. 905.) In support of his motion, defendantprovided an affidavit of the Chief Deputy Public Defender of Orange County, declaring in pertinentpart that: “[I]t has been the practice of the public defender’s office, in the case of defendants represented by that office in which a jury has not been able to reach a verdictin thefirst trial, to obtain a transcript of the evidenceofthefirsttrial, or relevant portions thereof, before commencing the second trial whenever the attorney believed it would be helpful in his representation of the defendant... .” (/d. at pp. 905- 906.) Relying on Britt and other United States Supreme Court precedent, Shuford held that the indigent defendant whosetrial ends in a hung jury is entitled to a transcript at government expenseto help the defendantprepare for a newtrial. (Shuford, supra, 11 Cal.3d at p. 906.) The court issued a writ of prohibition directing the lower court to vacate its order denying the defendant’s motion for a transcript. (/d. at p. 907.) The court did not decide whether defendant wasentitled to the complete transcript he requested, or only a portion ofthe transcript, leaving that question to be decided by the trial court. (/bid.) Shuford quoted with approval from Mayer v. City ofChicago (1971) 404 U.S. 189 (Mayer), a case involving an indigent defendant'sright to a subsidized transcript on direct appeal. “A “record ofsufficient completeness” does not translate automatically into a complete verbatim transcript... .”” (Shuford, supra, 11 Cal.3d at p. 907, quoting Mayer, at p. 194.) Shuford further quoted with approval from Mayer: “*We emphasize, however, that the State must provide a full verbatim record wherethatis necessaryto assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way. Moreover, where the groundsof appeal, as in this case, 8 makeout a colorable need for a complete transcript, the burden is on the State to show that only a portion ofthe transcript or an “alternative” will suffice for an effective appeal on those grounds.” (Shuford, at p. 907, quoting Mayer,atpp. 194-195.) There was a “colorable need” for a complete transcript in Mayerbecause defendant wishedto assert on appealthat insufficient evidence supported the conviction, and prosecutorial misconduct. (Mayer, supra, 404 U.S.at p. 190.) A defendant ordinarily would needthe entire transcript of testimony to effectively argue insufficient evidence supported the verdict. And a defendant ordinarily would need a transcriptofall proceedings during which the prosecutorallegedly committed misconduct. The needfor a transcript for appeal is analogous, though not the sameas the need for a transcript of a mistrial. Shuford’s reliance on Mayertellsus that, like a defendant seeking to appeal a conviction, a defendantfacing a newtrialis entitled to as much ofthe transcript as is necessary to assure an effective defense on retrial, and when defendant has made a “colorable” showing of a need for a completetranscript beforeretrial, the burden is on the prosecution to show a portion ofthe transcript is sufficient to ensure a fairtrial. Not long after Shuford, our Supreme Court revisited this issue in People v. Hosner (1975) 15 Cal.3d 60 (Hosner). Asin Britt and Shuford, the indigent defendant in Hosner wasfacing a secondtrial after a mistrial. Defendant movedfor a transcript of the mistrial, and thetrial court denied the motion. (Hosner, at p. 62.) The defendant’s motion in Hosnerargued that he neededthetranscript ofthe first trial because it was “necessary for counsel ‘to properly impeach,or to properly cross-examine the eight or nine witnesses whotestified at thefirst trial. The testimony differed in some cases greatly, and in somecasesless than greatly from the information provided to the Grand Jury, the police department, and in all the preliminary hearingspriorto thetrial.’ Defendant also made anindependent request for whateverpart of the record ofthe prior trial had been transcribedfor the prosecution.” (Hosner, at p. 67.) The prosecution agreed to give defendantthe portion oftestimony in their possession from thefirst trial, Si S H U Go o E U S a l g which was only a small part of defendant's testimony. (dd.at p. 68.) oR hb hs Sy st In Hosner, the Supreme Court answered “[t]he question not presented in Shuford [which] is now before us: what showingofparticularized need, if any, must an indigent defendant makein order to becomeentitled to a free transcript ofprior proceedings.” (Hosner, supra, 15 Cal.3d at p. 66.) It held “an indigent defendant in a criminaltrial is presumedto have a particularized need for a transcript of prior proceedings, just as he is presumed, if he needsa transcript at all, to need nothing less than a complete transcript.” (bid.) The court must grant the defendant’s motion unless the prosecution rebuts the presumption of defendant’s “need for the transcript and of the unavailability of adequate alternative devices.” ([bid.) To the extent there is a dispute about whethera full transcript is necessary, the prosecution also has the burden of showing that the defendant would have an effective defense with anything less than a complete transcript. (/d. at p. 64.) Under Hosner,errorin failing to provide a complete transcript requires automatic reversal. (Hosner, supra, 15 Cal.3d at p. 70.) The court held that “{t]he denial ofthe transcript does not merely taint somespecific items of evidence, leaving other items which mightoftheir own force provide overwhelmingevidenceof guilt beyond a reasonable doubt. Rather, in the mannerofthe denial ofthe assistance of counsel, the denial of a transcript of a formertrial infects all the evidence offered at the latter trial, for there is no way of knowing to whatextent adroit counselassisted by the transcript to which the defendant wasentitled might have been able to impeach orrebut any given item of evidence. Even if an appellate court were to undertake the extraordinary burden ofreviewing the records ofbothtrials, the court would be able onlyto hypothesize what use at the latter trial could have been madeofthe transcript of the formertrial.” (/bid.) The court recognized that reviewing courts often employ some speculation when considering how an averagejury would have decided a case absenterror, but the denial of a transcript introduced “anentirely newlevel of compoundconjecture.” (bid.) The reviewing court would haveto first speculate about what evidence the defendant might have impeachedorrebutted, and then speculate about how the jury would havereacted to 10 those speculative efforts. (/bid.) The court characterized this as “speculation running riot.” (/bid.) Thus,a perse rule of prejudice was appropriate. Reesein this case argues the many references in Hosnerto his presumedright to a “full” and “complete”transcript establish that he has a presumptive right to opening statements and closing arguments. Weare not persuadedthe court erred in this case by providing a transcript ofall the evidence at the mistrial, but not Opening statements and closing arguments. The manyreferences in Hosnerto the right to a “full” and “complete”transcript must be understoodin the context ofthe facts and issues that were before the court. The only part ofthe transcript given to the defense in Hosner was a small part of defendant’s owntestimonyat thefirst trial, which obviously had no impeachmentor rebuttal value to the defense whatsoever. In stark contrast, Reesein this case received ail ofthe testimony ofall ofthe witnesses. “It is axiomatic that language in a judicial opinion is to be understoodin accordance with the facts and issues before the court. An opinionis not authority for propositions not considered.”* [Citations.] ‘An appellate decisionis not authority for everything said in the court’s opinion but only “for the points actually involved and actually decided.”’” (People v. Knoller (2007) 41 Cal.4th 139, 154-155.) The facts before the court in Hosner were that defendant was given only a small part of his own testimonyat the mistrial, and noneofthe prosecution witnesses’ testimony. The facts in the previous opinions that were discussed in Hosner sunilarly involved the denial ofthe transcript of testimony. In Britt, the defendant was not given any part ofthe transcript of the mistrial, yet the high court found no equal protection violation because the samecourt reporter transcribed the secondtrial and was available to read backhis notes from thefirst trial. In Shuford, it is not clear from the opinion whether the prosecution providedto defendanta copyofthe transcript of the defense testimonythat the prosecution hadin its possession,butit is clear defendant was not given the transcript ofthe testimony ofprosecution witnesses. Yet Shuford did not hold the defense wasentitled to a completetranscript of the mistrial, leaving to thetrial court to decide on remand whether defendant wasentitled to only a portion ofthe transcript. 11 The equalprotection issue in each of these opinions focused on a defendant’s right to a complete transcript ofall the testimony in order to effectively rebut the prosecution case and impeach prosecution witnesses. Reeseasksus to expandthe limits of the principles set forth in Britt, Shuford, and Hosnerto require that the state providetranscripts of the opening statements and closing arguments in every case. Wedeclineto do so. Britt, the seminal case on this issue, tells us “the outer limits” of the principle that the state must, as a matter of equal protection, provide indigent defendants with the basic tools of an adequate defense “are not clear.” (Britt, supra, 404 U.S. at p. 227.) Similarly, the Hosner court expressly reserved decision on whetherthe per serule of reversal would apply to an erroneous denial ofa transcript of “someother prior proceeding[citation], such as a hearing on a motion to suppress [citation], a hearing on the voluntariness of a confession[citation], or a preliminary hearing whichresulted in the defendant’s discharge from custody.” (Hosner, supra, 15 Cal.3d at p. 71, fn. 7.) Further, we do not believe the Hosner perse rule of reversal was intended to apply in this case, where defendant receiveda transcript ofall the testimony, and explainedhis request for the opening statements and closing arguments only by saying he needed them “to not make the same mistakes.” Defendant was not required to specify how the transcript oftestimony might aid his defense, because Hosner and the four decades of high court precedentestablish without question his equal protection right to a transcript of the testimony. But the defendant who requests otherparts of the transcript without specifying whyit is necessaryto an effective defense may not invoke the Hosnerrule of automatic reversal, The dissent advocates for the defense (withoutcitation to any supporting facts in the record in this case) that the transcript of opening statements and closing arguments maybevaluable “as a toolto help identify the prosecution’s key arguments, identify potential weaknessesin its case, assess the relative weight the prosecution would place on items of evidence, and better determine what appellant would need to refute them.” (Dis. opn. post, at pp. 4-5.) Thus, the dissent argues,it is logical to assume from Hosner 12ae that a defendantfacingretrial needs not only witness testimony but also the statements of counsel. We do not believeit is logical to presume from Hosnera violation of equal protection mandating reversal where defendant made no showinginthetrial court that the statements of counsel hadany value in preparingfortheretrial in this case. The dissent observes that it may not be said categorically that a transcript is “complete” without the statements of counsel. (Dis. opn. post, at p. 3.) We agree there is no categoricalrule that an indigent defendantafter mistrial is only entitled to a transcript of testimony in every case. There may be a case where something more than witness testimony is required to prepare an adequate defenseonretrial. On the other hand, we are not persuaded that Hosnerestablishes a categoricalrule that the transcript of counsel’s statements must be provided after every mistrial.> Werecognize that a majority of a panel of the Ninth Circuit Court of Appeals in Kennedy v. Lockyer(9th Cir. 2004) 379 F.3d 1041 (Kennedy), rejected the argumentthat Britt requires the state to provide an indigent defendantonlya transcript of testimonyof a mistrial, and not other proceedings. (Kennedy, at pp. 1046-1047, quoting Britt, supra, 404 U.S.at p. 227.) After a mistrial in California superior court, Kennedy, an indigent defendant, moved for a completetrial transcript to prepare forhisretrial, including opening statements, closing arguments and other proceedings. (Kennedy, at p. 1044.) Kennedy received only a transcript of the witnesses’ testimony. (/d. at p. 1045.) The California Court of Appealaffirmed Kennedy’s conviction, and our Supreme Court denied review. Kennedyfiled a habeas corpuspetition in federal court, which the Ninth Circuit held should have been granted. (/d. at pp. 1046, 1057.) 5 Perhapsthere should be a uniform rule requiring the state to provide an indigent defendant with the transcript of opening statements, closing arguments, and other proceedings,in addition to the testimony, as a matter of good policy and procedure, However, Hosner doesnotestablish that rule as constitutionally required after every mistrial. 13 Of course, decisions of intermediate federal courts are not binding on us, even on matters of federal constitutional law. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352.) Onthe other hand, federal opinions are often instructive. Having carefully considered Kennedy, wefind the dissent to be far more instructive than the majority. We agree with the dissentthat the majority in Kennedy erred in finding the denial of a transcript ofparts of the mistrial that might be useful is the same as denying a transcript of that whichis necessary to an effective defense. (See, e.g., Kennedy, supra, 379 F.3dat pp. 1059, 106], fn. omitted (dis. opn. of O’Scannlain, J.) [The majority cites no Supreme Court case that extends Britt beyond a requirementthat a transcriptofall testimonial evidence adduced in prior proceedings be madeavailable to indigent defendants;it findsits clearly established Supreme Court precedentnot in the U.S. Reports, but in Black’s Law Dictionary. ... At bottom,the majority offers only a thinly-reasonedjustification to support its extension ofprecedent beyondthatclearly established by the Supreme Court.”].) And, while we do not know why our Supreme Court denied review of Kennedy’s appeal, we note that the opinion ofthe lower appellate court extensively explained why Hosnerdid not mandate reversal where the defendant received a transcript of the testimony but no other proceedings. We would expect our Supreme Court ordinarily would review a decision that resulted in a deprivation ofan indigent prisoner’s rightto equalprotection. (See Kennedy, supra, 379 F.3d at p. 1069 (dis. opn. of O’Scannlain,J.) [“Notwithstanding the eminent reasonablenessoftheir colleagues’ analysis, two judges today inform seven others—astatetrial judge, three state appellate judges, a federal magistrate judge, a federal district court judge, and a federal appellate judge (andthat’s not to mention the seven Justices of the California Supreme Court who summarily denied Kennedy’s state petition for review)—that their understandingofthe law is contrary to clearly established Supreme Court precedent.”].) Wefind it significant that the majority in Kennedy held a harmless error analysis applies where a defendantis provided the transcript oftestimony but not of other proceedings. (Kennedy, supra, 379 F3d at p. 1053.) Hosner, on the other hand,tells us a 14 per se rule ofprejudice applies. mandating reversal, when a defendant’s equal protection rights are violated by the denial of the complete transcript. We do not believe the Hosner court intendedto apply a per se rule of reversal where a defendant received a full and complete transcript ofthe testimony in the mistrial, and defendant’s request for the statements of counsel does not specify why they are necessary to an effective defense. Recentdecisions of the United States and California Supreme Courts recognize that errors requiring automatic reversal—structural error—are the exception rather than _ the rule. As our high court recently explained in People v. Anzalone (2013) 56 Cal.4th 545, errors not subject to the California constitutional harmless error standard ofPeople v. Watson (1956) 46 Cal.2d 818, are those that “‘“regardless of the evidence, may result in a ‘miscarriage ofjustice’ because they operate to deny a criminal defendantthe constitutionally required ‘orderly legal procedure’... .”” [I]t will be the rare case where a constitutional violation will not be subject to harmlesserror analysis.” (Anzalone,at pp. 553-554; see also Neder v. United States (1999) 527 U.S.1, 8-9; People v. Mil (2012) 53 Cal.4th 400, 410.) This sumply is not such a rare case. Wefind noviolation of equal protection in the trial court’s decision to denya transcript of opening statements and closing arguments. Wedo notintend to suggest we are free to conduct a harmless error review in a case governed by Hosner. Plainly, if there is Hosner error, reversal is mandated. We hold that there was no Hosnererror in this case, because defendant was provided the transcript ofall the testimony anddid not demonstrate why he needed the opening statements and closing arguments. II. There Was No Denial of Reese’s Sixth AmendmentRight to Compulsory Process . Reese contendsall of his convictions must be reversed because he was denied his Sixth Amendmentright to compulsory process. He claimsthe prosecutor represented he would secure Officer Ramirez’s presence at court and failed to do so. Further, he claims that the trial court improperly denied his requests for a body attachment and continuance. Wefind noerror. 15 Just before opening statements, thetrial court asked Reese to disclose to the prosecutor the name of any witnessesthat he intended to callat trial. Reese indicated he did not have that information, and notedfurther that the prosecutor already had the contact information on the K-9 handler, Officer Ramirez, whom Reese expectedto call as a witness. Whenthe prosecutor informed Reesethat the K-9 handler was on vacation, Reese said he needed the dog handlerto testify that the apartment he searched was small and there was nowhereto hide a gun. The court indicated that Reese could call his motheror other witnessesto testify about the size of the apartment. Laterintrial, just before Reese wasto present his defense, he movedfor a body attachment for Officer Ramirez. At the same time, Reese movedto continuethetrial for five days until the officer returned from vacation, and, in the event his requests were denied, for a mistrial. The court found the testimony of Officer Ramirez was cumulative of Officer Azarte, who testified that he searched the apartment and found no gun. Thetrial court then denied all of Reese’s motions. Under the “compulsory process” clauses of the federal and state constitutions, a defendant has a constitutional right to compelthe testimony of a witness who has evidence favorable to the defense. (People v. Jacinto (2010) 49 Cal.4th 263, 268-269.) To prevail on a claim that the right to compulsory process was violated, a defendant must establish that the prosecution engaged in conductthat was entirely unnecessaryto the proper performanceofits duties, that the conduct was a substantial cause of the loss of the witness’s testimony, and that the testimony would have been material and favorable to the defense. (/n re Martin (1987) 44 Cal.3d 1, 31-32.) When reviewing Reese’s claim that his compulsoryprocess rights were violated, we use the standard generally applied to issues involving constitutional rights. That is, we defer to thetrial court’s factual findings where they are supported by substantial evidence, and independently review the historical facts to determine whether a constitutional violation occurred. (See People v. Cromer (2001) 24 Cal.4th 889, 894, 900-901; People v. Seijas (2005) 36 Cal.4th 291, 304.) 16 Asregards the right to a mid-trial continuance, our Supreme Court hasheld: “A motion for continuance should be granted only on a showing of good cause.... The trial court has substantial discretion in ruling on midtrial motions to continue a case. and appellate challengesto a trial court’s denial of such a motion are rarely successful. [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 660.) Further: “When a continuance is sought to secure the attendance of a witness,the defendant must establish ‘he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.” [Citation.] The court considers “‘not only the benefit which the movingparty anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, aboveall, whether substantial Justice will be accomplished or defeated by a granting of the motion.’” [Citation.] A trial court’s denial of a motion for continuanceis reviewed for abuse of discretion. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1037; accord, People v. Doolin (2009) 45 Cal.4th 390, 450.) Wefind no violation of compulsory process because Reese has not demonstrated that Officer Ramirez’s testimony would have been material and favorableto the defense. (in re Martin, supra, 44 Cal.3d at p. 32.) Multiple witnessestestified that no gun was found in Beatrice’s apartment. Indeed,that fact is undisputed. Reese had available to him multiple witnessesto testify to thesize of the apartment. Forsimilar reasons, we find no abuse of discretion in denying the midtrial request for continuance. Again, Officer Ramirez’s testimony was undoubtedly cumulative of Officer Azarte and the other witnesses available to Reese. Forall of these reasons, we also reject Reese’s constitutional argumentthat his right to due process — a fair trial — was violated by not awaiting Officer Ramirez’s testimony. 17 Ill. The Sumstine® Motion Reese contendsall of his convictions must be reversed becausethe trial court erred in denying his Swmstine motion. Again, we find noerror. As notedat the outset of this opinion, the amended information alleged that Reese was previously convicted of assault with a deadly weapon in 1988 in Riverside County. After the jury’s verdicts, a bifurcated court trial ensued on the prior conviction. Thetrial court found the prior conviction to be true and thatit qualified as a strike pursuantto the Three Strikes law.? The evidence supporting thetrial court’s finding included a copy of an abstract ofjudgmentreflecting that Reese had pleaded guilty to the offense ofassault with a deadly weaponin 1988. Just prior to sentencing, Reese filed a Sumstine motion in which he requested an order “striking [his] prior strike conviction”on the groundthat he had not been properly advised of his constitutionaltrial rights before he entered his plea in 1988. Reese supported his motion with a personal declaration denying that he had been advised ofhis constitutional trial rights. The trial court heard argument on the motion. At that time, Reese offered a letter from the Riverside County Superior Court which indicated that after a search oftheir records, they could notfind any record of his case. At the end of the hearing, the court denied Reese’s Sumstine motion. In Sumstine, the Supreme Court held that a defendant maycollaterally attack the validity of a prior felony conviction entered pursuantto a plea if he was not advised of his constitutional Boykin-Tahlrights at the timeofthe plea. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin-Tahl).) The Supreme Court has summarized the Sumstine procedure as follows: “When a defendant makessufficient allegationsthat his conviction, byplea, in the prior felony proceedings was obtainedin 6 People v. Sumstine (1984) 36 Cal.3d 909, 918-919 (Sumstine). 7 Wenote that, duringtrial, in front of the jury, Reesestipulated that he had suffered the prior felony conviction. Reese agreed duringtrial that the stipulation would be offered to the jury for purposes of a foundational element — prior felony conviction — as to the firearm possession bya convicted felon count. 18 violation of his constitutional Boykin-Tahlrights, the trial court must hold an evidentiary hearing. At the hearing, the prosecution bears theinitial burden of producing evidence that the defendant did indeed suffer the conviction. The defendant must then produce evidence to demonstrate his Boykin-Tahl rights were infringed. The prosecution then has the right to rebuttal, at which point reliance on a silent record will not be sufficient.” (People v. Allen (1999) 21 Cal.4th 424, 435.) Wefind noerror here because Reese’s Sumstine motion did not contain sufficient allegationsthat his conviction wasobtainedin violation ofhis constitutional Bovkin-Tahl rights, and did not contain sufficient allegations that he would not have pleaded guilty had he received the advisements which he claims he did not. Even generously construed, the Sumstine motion made no more showing than a conclusory claim of inadequate Boykin-Tahl advisements, without an explanation ofthe precise manner in which they failed to live up to legal requirements. Such vagueand conclusory allegations do not warrantrelief under Sumstine. (Sumstine, supra, 36 Cal.3d at p. 924; People v. Soto (1996) 46 Cal.App.4th 1596, 1601 (Soto).) More importantly, Reese did not declare that he would not have pleaded guilty had he knownofhis Boykin-Tahl rights. (See Soto, at pp. 1605-1606.) Indeed, at the hearing in thetrial court, Reese took thetactic of arguing that he had never actually been convicted. This is moreofa sufficiency of the evidence issue than a Sumstine issue. Wefind noerror. IV. Substantial Evidence Supports the Criminal Threats Counts Reese contendsthe evidenceis insufficient to support his convictions for making criminalthreats as alleged in counts 1 and 2. Wedisagree. In reviewing a claim ofinsufficient evidence, an appellate court must examine the record in the light most favorable to the judgment, and determine whetherit contains evidence that is reasonable, credible, and ofsolid value that any rationaltrier of fact could find each element of the crime beyond a reasonable doubt. (Jacksonv. Virginia (1979) 443 U.S. 307, 319; People v. Staten (2000) 24 Cal.4th 434, 460: People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) A reviewing court’s function is not to resolve credibility issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327, 19 357.) Whenthetrial evidence “reasonably justify the jury’s finding as to each element of the offense, the judgment may not be overturned when the circumstances might also reasonably support a contrary finding.” (People v. Lewis (2001) 25 Cal.4th 610, 643- 644). The testimony of a single witness, provided thatit is not inherently incredible or physically impossible,is sufficient to support a verdict. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Twostatements by Reeseare at issue here. First, his statement to Beatrice: “You're going to learn to stay out of other people’s business.” Second, his statement to Jackson: “You disrespect me.” The issue presented by Reese is whethereither statement conveyed a gravity ofpurpose and immediate prospect of being carried out. (People v. Bolin, supra, 18 Cal.4th 297, 339.) The Supreme Court has held that, in determining whethera particular statement will support a conviction for making a criminalthreat, a statement that is ambiguouson its face “may nonetheless be foundto be a criminalthreat if the surrounding circumstancesclarify the communication’s meaning.” (Jn re George I. (2004) 33 Cal.4th 620, 635.) Further, the Supreme Court has held that “prosecution under section 422 doesnot require [proof of] an unconditional threat of death or great bodily injury.” (Bolin, supra, 18 Cal.4th at p. 338, fn. omitted,italics added.) Thus, a “conditional threat” is a criminal threat when its context “reasonably conveysto the victim that[it is] intended... .” (People v. Brooks (1994) 26 Cal.App.4th 142, 149.) The record supports Reese’s criminal threats conviction as to Beatrice. Thetrial evidence showedthat, while Reese waspointing a gun at his mother’s face, he stated, “You're going to learn to stay out of other people’s business.” The surrounding circumstancesclarify that Reese wastelling his mother that he was going to shootherfor getting involvedin his private affairs. The same maybe said with respect to Reese's criminal threat conviction as to Jackson. The evidence showed that, while Reese was pointing a gun at Jackson,hestated, “You disrespect me.” The surrounding circumstancesclarify that Reese wastelling his girlfriend that he was going to shoot her for arguing with him. Reese’s use of a gun gave meaningto the words and conveyed the 20 seriousness of the threat, makingit reasonable for Beatrice and Jackson to perceive a conveyedthreat. To defeat this conclusion, Reese argues the jury unreasonably inferred thathis words, accompanied by the pointing of a gun, constituted criminalthreats. His argument largely relies on Bolin,supra, 18 Cal.4th 297, andsimilar cases. He claims those cases support the proposition that “menacing words” aloneconstitute something less than a criminal threat, and that the words must showa true and intended threat. Reese also argues under Warts v. United States (1969) 394 U.S. 705, 707-708 (Watts), that his criminal threats conviction cannot stand because his words werein the form ofprotected speech. In Watts, the Supreme Court found a defendant’s conditional threat statements in the context of a political rally where he stated that if he was drafted and forced to carry a rifle, the President would bethe first person in his sights. (/d. at pp. 706-707.) Weare not persuadedto find insufficient evidence because the facts of Reese’s case are different in kind from those involved in Bolin andits progeny and those in Watts. We do not see mere menacing words, and wesee nothing in Reese’s current case which remotely resembles thesituation in Watts, where protected speech was involved. DISPOSITION The judgmentis affirmed. GRIMES,J. I concur: BIGELOW,P.J. 21 People v. Reese B253610 FLIER,J., Dissenting I respectfully dissent. I would hold that denying appellant a transcript of opening statements and closing arguments from the mistrial was error under People v. Hosner (1975) 15 Cal.3d 60, 62 (Hosner), and Hosner requires automatic reversal. “Providing equaljustice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope andstrive to movecloserto that goal. [O]ur own constitutional guaranties of due process and equalprotection bothcall for procedures in criminaltrials which allow noinvidious discriminations between personsand different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, “stand on an equality before the bar ofjustice in every American court.”” (Griffin v. Illinois (1956) 351 U.S. 12, 16-17, fn. omitted.) “There can be no equal justice wherethe kindoftrial a mangets depends on the amountofmoney hehas.” (Id. at p. 19.) Thus, the state should provide indigent prisoners with the basic tools of an adequate defense whenthose sametools are available for a price to other prisoners. (Britt v. North Carolina (1971) 404 U.S. 226, 227 (Britt).) | It is this bedrock right to equal protection of the lawthat underlies our Supreme Court’s decision in Hosner. Hosner held that, as a matter ofequal protection, an indigent defendant is presumptively entitled to a free “complete transcript” of a mistrial in preparing forretrial (Hosner, supra, 15 Cal.3d at pp. 62, 66; Shufordv. Superior Court (1974) 11 Cal.3d 903, 906 (Shuford).) Hosner soundly rejected the notion that a defendant should have to showa particularized needfor the complete transcript of a mistrial: “[A]n indigent defendant in a criminaltrial is presumed to have a particularized needfor a transcript ofprior proceedings, just as he is presumed, if he needs a transcript at all, to need nothing less than a complete transcript.” (Hosner, supra, 15 Cal.3d at p. 66.) The prosecution bears the burden of showing the defendant would have an effective defense with somethingless than a complete transcript. (Id. at p. 64.) Here, the prosecution did nothing to rebut the presumptionthat appellant needed a complete transcript of the mistrial, including the opening statements and closing arguments that he expressly requested. If the prosecution does not makethe requisite showing, denying appellant’s motion for a complete transcript of the mistrial abridges his constitutional right to equal protection of the laws and constitutes reversible error. (Hosner, supra, 15 Cal.3d at p. 64; People v. Tarver (1991) 228 Cal.App.3d 954, 957 [when prosecution remained “unaccountably muteon the subject of appellant’s right to a transcript,” presumption was not overcome,and denial of motionfortrial transcripts was error requiring reversal].) The majority holds that Hosner does not compelreversal because Hosner mustbe understoodin the context of the facts and issues that were before the court, and there, the defendant received only a small portion ofhis prior testimony and nothing else. (Hosner, supra, 15 Cal.3d at p. 68.) The majority suggests that Hosner’s presumption of need extends only to witness testimony from the mistrial, but for opening statements and closing arguments, appellant must demonstrate why he needs them for an effective defense. Hosner shouldnot beread so narrowly. I recognize that Hosner and the cases on whichit relied—Shuford and Britt—involveddistinguishable facts insofar as the defendants in those cases receivednotranscriptat all or only some small portion of the prior testimony. (Brit, supra, 404 U.S.at pp. 226-227; Shuford, supra, 11 Cal.3d at p. 905.) But I see no basis on which to conclude that Hosner’s rebuttable presumption of need should notapplyto theslightlydifferent facts in this case. That is, when Hosner says an indigent defendantis presumptivelyentitled to a “complete” and “full” transcript of a mistrial in preparing forretrial (Hosner, supra, 15 Cal.3d at pp. 65, 66, 68, 69), I do not find a need to parse the opening statements and closing arguments from the rest of what the jury heard andtreat these parts ofthetrial differently. The opening statements and closing arguments are no less a part of a trial than the witness testimony. To be sure, they are different from witness testimony in that counsel’s statements are not evidence. (CALCRIM Nos. 104, 222.) But these parts ofthe trial are counsels* opportunity to talk to the jury about what the evidence will or does show,to commenton andinterpret the evidence, and to argue to the jury whyit should decide the case in their client’s favor. One cannot say categorically thata trial is “complete” without these parts of thetrial. Moreover, I am unpersuaded by respondent’s argumentthat we should not consider opening statements and closing arguments on the same footing withtrial testimony becausethey are “not ofcritical value” on retrial of the same charges, cannot be used to impeach witnesses, and do not advancethe underlying goals of Hosner. While these nontestimonialportionsof the trial may not be as valuable as witness testimony in all cases, and appellant cannot use them to impeachwitnesses,| disagree that they do not advance the underlying goals ofHosner. Hosner appreciates the importance of the complete trial transcript both for its impeachmentvalueandits rebuttal value. (E.g., Hlosner, supra, 15 Cal.3d at p. 70 [“[T]here is no way of knowing to what extent adroit counselassisted by the transcript to which the defendant was entitled might have been able to impeachorrebut any given item of evidence.”].) Impeachment and rebuttal are not always the same thing. A witness’s prior inconsistent testimonyobviously is valuable as impeachmentevidenceto discredit that witness. Although impeaching witnesses may be one wayto rebut an adversary’s case, rebuttal may certainly take other forms. To rebut simply means“[t]o refute, oppose, or counteract (something) by evidence, argument, or contrary proof.” (Black’s Law Dict. (7th ed. 1999) p. 1274, col. 1.) Thus, a witness’s prior testimonyis not the only wayto rebut the prosecution’s case. The court’s discussion in Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041 (Kennedy)is instructive on the value of the opening statements and closing arguments. After a mistrial in state court, Kennedy, an indigent defendant, movedfor a completetrial transcript to prepare forhis retrial, including opening statements and closing arguments. (/d. at p. 1044.) Kennedyreceived a transcript of the witnesses’ testimony, but nothing more. (/d. at p. 1045.) Applying federal court precedent (Britt) in a habeas corpus proceeding, the Ninth Circuit determined that Kennedy’s right to “‘a transcript ofprior proceedings whenthat transcript is needed for an effective defense or appeal’” included not just the witnesses’ testimony, but the opening statements, closing arguments, and other proceedings Kennedy had requested. (Kennedy, supra, 379 F.3d at pp. 1046-1047, quoting Britt, supra, 404 U.S.at p. 227.) The court noted that Opening statements and closing arguments “may provide valuable insight into the government’s strategy” and were “crucial to the developmentof an effective defense. Varioustactical and strategic decisions made by Kennedy’s new counsel might have been affected had he been provided with a copy of the prosecutor’s opening statement and closing argument; he might, for example, have been able to anticipate someofthe prosecution’s key arguments, identify potential weaknessesin its case, assessthe relative weight that the prosecution would place on various items of evidence, and better determine what would be neededto refute them.” (Kennedy, at pp. 1049, 1057.) The contention thatsuchprior proceedings need notbe provided wasinconsistent with Britt’s stated purpose of ensuring that the defendant could prepare an effective defense and with the equal protection mandate that poor defendants have the same access to the same basic materials of a defense as the wealthy. (Kennedy,at p. 1049.) Appellant’s priortrial involved the same charges, the same witnesses, and the same prosecutor trying the case. It was a veritable road mapfor the secondtrial. In similar circumstances, the Kennedy court “doubtfed] seriously that a wealthy defendant would ordinarily proceed in a subsequenttrial without purchasing a full transcript of the proceedings, including, but notlimited to, . . . the opening statements and closing arguments.” (Kennedy, supra, 379 F.3d at p. 1049.) Thus, as a tool to help identify the prosecution’s key arguments, identify potential weaknessesin its case, assesstherelative weight the prosecution would place on items of evidence, and better determine what appellant would needto refute them, I can hardly agree with the respondent’s assertion that a transcript of the opening statements and closing arguments “would have had no bearing on appellant’s defense strategy.” I also cannotsaythis sort ofprobable value in rebutting the prosecution’s case did not factor into Hosner declaring a presumptive right to a complete transcript of a prior mistrial. Furthermore, though my colleagues cite favorably to the Kennedy dissent, I do not think the Kennedydissent forecloses the result I reach here. The Kennedy court’s aim on the habeas corpuspetition was to determine whetherthe state appellate court’s decision reflected an objectively reasonable interpretation of clearly established United States Supreme Court precedent. (Kennedy, supra, 379 F.3d at pp. 1059-1060 (dis, opn. of O’Scannlain, J.).) The relevant precedent was Britt. Britt, of course, held that the state must provide indigent defendants with the basic tools of an adequate defense when those tools are available for a price to other defendants, and “[wJhile the outer limits ofthat principle are notclear,”it was at least clear that “the State must provide an indigent defendant with a transcript ofprior proceedings whenthat transcript is needed for an effective defense or appeal.” (Britt, supra, 404 U.S.at p. 227.) The Kennedy dissent characterized Britt as having “fuzzy contours.” (Kennedy, supra, at p. 1060 (dis. opn. of O’Scannlain,J.).) As a result, the dissent believed the state court’s decision to deny Kennedy the nontestimonialparts ofthe transcript represented a reasonable interpretation of Britt. (Kennedy, at pp. 1060, 1062.) Still, dissenting Judge O’Scannlain acknowledged: “If this were a direct criminal appeal, I might not necessarily disagree with the court’s interpretation ofBritt.” (Id. at p. 1059.) Hosner built on Britt and wenteven further. Rather than Brit's “fuzzy”rule that the state must provide “a transcript ofprior proceedings” whenit was “needed for an effective defense” (Britt, supra, 404 U.S.at p. 227), Hosner declared an indigent defendant is “presumptively entitled to a complete transcript ofhisfirst trial” when preparing for retrial (Hosner, supra, 15 Cal.3d at p. 66). We presumethe defendant’s need for such a transcript until the prosecution demonstrates otherwise. I believe the majority’s approach of requiring appellantto initially show a need for transcripts ofthe opening statements and closing argumentsis contrary to Hosner. Indeed,I think the Hosner presumption of needexists precisely becauseit is logical to assume the transcript * ofa mistrial will be valuable in preparing for a retrial on the exact same charges—and this value lies not only in the impeachmentvalue ofprior witness testimony, but in the strategic value to be gleaned from counsels’ statements and arguments to the jury.! In conclusion, the prosecution here made no showing to overcomethe presumptions benefiting appellant—thatis, that he neededthe transcript for an effective defense and needed nothing less than a completetranscript. Absent any showing by the prosecution,the court erred in denying appellantthe transcript in its entirety, which under Hosner requires automatic reversal. (Hosner, supra, 15 Cal.3d at pp. 66, 70.) Until our Supreme Court revisits the issue, I do not believe weare free to conducta harmless error review. I wouldtherefore reverse the judgment. FLIER,J. I This majority observes that I do notcite to any facts in the record to support the notion that the opening statements are closing arguments would have strategic value in helping appellant prepareforretrial. This is because, like Hosner, I presume such transcript was necessary for an effective defense until that presumption has been rebutted. Respondent's attemptto rebut the presumption nowconsists only of conclusory assertionslike those I noted above —that the transcript “would have had no bearing on appellant’s defense strategy,” that it was “not ofcritical value,” and that nothing “transpired during the opening statements and closing arguments that was necessary for an effective defense.” PROOF OF SERVICE I declare that I am overthe age of eighteen years andnota party to the above-titled action. I am in good standing with the California Bar, and my work address is 1255 W. Colton Ave., Ste 502, Redlands, CA 92374. I am familiar with the business practice for collection and processing of mail with the U.S. Postal Service, and the correspondence will be deposited with the U.S. Postal Service this same dayin the ordinary course of business. On October 27, 2015, I served the attached APPELLANT’S PETITION FOR REVIEWbyplacing a true copy thereofin a sealed envelope with postagefully prepaid to be transmitted by USPSregular mail serviceto: Honorable John T. Doyle, Judge Jackie Lacey, District Attorney Los Angeles Superior Court William Michael Pfaff, Deputy South Central District - Compton 210 W. Temple Street 200 West Compton Boulevard Los Angeles, CA 90012 Compton, CA 90220 Lisa Ferreira Keith Reese CDCR #AS4592 California Appellate Project California Medical Facility, H3- 520 S. Grand Avenue, Fourth Floor 330 Los Angeles, CA 90071 P.O. Box 2000 Vacaville, CA 95696-2000 On October 27, 2015, I electronically served a copy of this document from ehong@lawyer.com to the ATTORNEY GENERAL’S OFFICEat docketingLAawt@doj.ca.gov and CALIFORNIA APPELLATE PROJECT at capdocs@lacap.com. I also electronically filed the document with the Clerk of the Court using the Online Form provided by the California Court of Appeal, Second Appellate District. I declare under penalty ofperjury under the lawsofthe State of California that the foregoingis true and correct. October 27, 2015 > fo EsthebK. Hong