PEOPLE v. REESERespondent’s Answer Brief on the MeritsCal.June 28, 2016Ju the Supreme Court of the State of Caltfornia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. KEITH RYAN REESE, Defendant and Appellant. SUPREME COURT FILED JUN*28 2016 Case No. $230259 Frank A. McGuire Clerk Deputy Second Appellate District, Division Eight, Case No. B253610 Los Angeles County Superior Court, Case No. TA125272 The Honorable John T. Doyle, Judge ANSWERBRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California GERALDA. ENGLER Chief Assistant Attorney General LANCEE.WINTERS Senior Assistant Attorney General SHAWN MCGAHEY WEBB MICHAEL R. JOHNSEN Supervising Deputy Attorneys General NIMA RAZFAR Deputy Attorney General. State Bar No. 253410 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2390 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Nima.Razfar@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented.....ccscssscsssssssssseesseeeeeecteeeeseseeseesssusessssseseeeeeseeeessssnsssssssssseeeI Statement of the Case ........ccceccsccsssecessecessecesssseeseecesescaeetsaeeesseeesseessseeesateees 1 ALQUMEN0... eccceceecsseeeseceneseceenecesaeecessenecsseseseeceseeseaeeseesaaeesssessesseesesaars 4 I. The Presumption that an Indigent Defendant Facing Retrial Needsa Transcript ofthe Initial Trial does not Extend to the Opening Statements or Closing Arguments ofCounsel...se eeeeeeccaseseeecsesseseeesneesatens 4 A. Relevant Precedents ...........cccccssessscesseeteneesstssessesssneenes 5 B. The Presumption of Need for a Trial Transcript Before Retrial Applies to Witness Testimony but not Opening Statements or Closing Arguments of Counsel.........:cccccccssecsseesereesssesseseateeees 8 C. Reese’s Counterarguments are Unpersuasive........... 1] D. Because Reese did notMake an Adequate Showing ofNeed, the Trial Court’s Denial of Transcripts of Opening Statements and Closing Arguments Satisfied Equal Protection ..............e 14 II. Evenif an Indigent Defendant is Presumed to Need a Transcript of Counsel’s Opening Statements and Closing Arguments Prior to Retrial, the Failure to Provide Part of a Transcript is not Structural Error.............. 15 COMCIUSION .......c:ccccssccccecescessseesseceseecesseecssesenaecessesescsesseceaauessaneeeesenesssascnseees 20 TABLE OF AUTHORITIES Page CASES Britt v. North Carolina (1971) 404 US. 226 oe eeeeeeceeesesereneneteneeneneeeentenensnenseenesenens sores DASSIM Chapman v. California (1967) 386 U.S. 18 vc cccccccsccssecseesseeesecseeeeaecnesseesarecsaseesaesenssaseneeeanenaes 18 Coleman v. Alabama (1970) 399 U.S. L veceescescesssceeeteeteceneesecessseseseseseesseseaseeersesessssessesnsssanets 17 Crane v. Kentucky . (1986) 476 U.S. 683 ooo cccccseseeeeeesecneeeseseeeeensanseseeesanecseererseesseeeesesegteas 9 Delaware v. Van Arsdall (1986) 475 US. 673 iccceesseeeeeseetsseetessessenecscnsesssceeeeeatereeseseessesearanens 9 Draperv. Washington (1963) 372 U.S. 487 oc ecceeesecseenseneessseseeeseesscscessaeessseessesenensssaseentens 5,18 Griffin v. Illinois (1956) 351 US. 12eeeceveenssentenessueesnssesunenssseneannsaessegny 5, 6,7 Harrington v. Richter (2011) 562 U.S. 86... eccececeeeecnreteeeesnececeneeneeeneeseseeasseueesescnsesseseeessesseeegs 12 Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d L041entersteeeeseeetaetieees 11, 12, 18 Mayerv. City ofChicago | (1971) 404 U.S. 189occceecseeeee rene eeeeeneeeeeeeseeeeteeaseasessanesneasens 6, 7, 18 Miller v. Gammie (9th Cir. 2003) 335 F.3d 889...eeeeceneeeeseesseseeeeseeseseeeseesseeneeteaeegs 12 People v. Anzalone | (2013) 56 Cal.4th 545 eeececcesseseescetsesscssensessesceseseseesesesetsasegs 16 People v. Ayala (2000) 23 Cal.4th 225 occcccccsesceceteceneeneesecseeseeseesenecessassssssenesseserersaes 9 i People v. Brown (2003) 31 Cal.4th 518 woeseste testesteanesnssneereaseserssntenssneenssesneeny 9 People v. Frye , (1998) 18 Cal4th 894 ooceecssseecseesesecseessessscsseessesnsessetsscenteeneesas 14 People v. Hosner (1975) 15 Cal.3d 60... cecccesseeeceecsacersecseeetseesaecesecaeersneessesettenseasepassim People v. Knoller (2007) 41 Cal.4th 139iccseesseeeeseseteerecseesseereesssseessssssseeseseaaeens 17 People v. Linton (2013) 56 Cal.4th 1146oeeee eereneeeetieesesteeseesesseesseessesenseeeagees 12 People v. Markley | (2006) 138 Cal.App.4th 230.0...ceceener eeeeeess esses eessssessenesaeseeees 9 People v. Pampa-Ortiz (1980) 27 Cal.3d 519...eeeeseeeeeneteerteree re resceseneereaseeeneeeenseateees 17 People v. Reese (2015) 240 Cal.App.4th 592.cecsccessecesesseeseseerseceeenseteesenseeerses 3,4 People v. Whalen (2013) 56 Cal.4th 1 ieeee seeccseessecsensssessessessessserseenseeseesereeneeneswe 14 Roberts v. LaVallee (1967) 389 U.S. 40 oo. eccecceesceeeseeececeeseesenesseesseeesesseeesseessessesetsessesanenees 17 Ross v. Moffitt (1974) 417 U.S. 600 weeseeeeneeteeeeecenereseesssesesseseneeesseseesesasenasees 13 Shuford v. Superior Court (1974) 11 Cal.3d 903 ...ccececeeseeccneeeseeesenseseeeceecnseeeseesseseessesecsesens 7,9, 10 United States v. Bagley (1985) 473 U.S. 667 o.eeccecesesseereneeeereneenesineensneereeseeseassseseenesnenseaneeseneaneens 9 Washington v. Recuenco (2006) 548 U.S. 212eeeeeeeereeceneereteettetsessessseesseeeseeereeseeseeneaseate 16 Washington v. Texas (1967) 388 U.S. 14eeeeeceesereeeeeseetsesensenerseeeens veveesaeeneeaeeatenaeesae 9 lil White v. Woodall (2014) 134 S. Ct. 1697 occ ccceesseecsneceeneceesseetsaeesseeeeaeseasessaeeeesessneseaees 12 Wright v. Van Patten (2008) 552 U.S. 120... eccssecseeseeccnsecseeeeeeeceessnerseteeeseeseeeaeseerseenseses 12 CONSTITUTIONAL PROVISIONS Cal. Const., art. VI, § 13 .ccccccccccssccsnecessesseessesseeseseseneeeseeeceeetasecsueseaeeees 16 COURT RULES Cal. Rules of Court, rule 8.320(c) veseeeessccssssusassssasnsanusasvesereseessnsasusnasssseceeseees 14 Cal. Rules of Court, rule 8.320(C)(9)(B) .....cececeeceeetceeeeeeseeeeseeeeeeneeesneeeenees 13 iv ISSUE PRESENTED Did the trial court violate defendant’s constitutional right to equal protection of the laws whenit denied his request for transcripts of the opening statements and closing arguments from hisfirst trial, which ended in a mistrial? STATEMENTOF THE CASE Appellant Keith Reese was charged with criminal threats, possession of a firearm by a felon, and assault with a firearm, arising from an incident in which he pointed a gun at his motherandhis girlfriend during an argument. (ICT 95-96.) Ataninitialtrial, the prosecutor’s opening statement recounted that the evidence would show that Reese approached his mother, Beatrice Reese, during an argument, pointed a gunat her face,and threatened her by saying, “Now you’re goingto learn to stay out of other people’s business.” According to the prosecutor, the evidence would also show that Reese then pointed the gunat his girlfriend, Fagasa Jackson, andsaid, “You _ disrespected me.” (ART 15-16.) The prosecutor also played a 911 call in which Beatrice said that she did not want Reese to shoot Jackson. (ART 18-19.) Representing himself, Reese gave an opening statement tn which he told the jury not to believe the prosecution’s version ofevents. He asserted that he never used a gun, no one everstated he used one, and the incident was nothing morethan a family disagreement. (ART 20-21.) During the evidentiary portion ofthetrial, the prosecutor called Beatrice, Jackson, and Beatrice’s brother, Bruce Reese, who had witnessed the incident. They all denied that Reese had brandished a gun. Beatrice claimed that she was on medication at the time she madethe 911 call, which wasplayed for the jury, and Brucesaid that he was also on medication, which made him imagine things. (ART 26, 35-36, 61-62, 64, 68-69.) The prosecution therefore relied on the testimony of Los Angeles Police Officer Manuel Arzate, who had talked to the witnesses at the scene shortly after the incident. Officer Arzate explained that when he responded to the scene the witnesses appeared to be afraid. (ART 95.) Beatrice told him that Reese had pointed a revolver at her face while threatening her, and that he had donethe sameto Jackson. Beatrice said that she feared Reese would shoot her. (ART 80-83.) Jackson gave an account of the incident that was consistent with Beatrice’s. (ART 85-86.) And Brucestated that he had frozen once he saw Reese holding a gun. (ART 89.) A search of the premises turned up a holster but no firearm. (ART 91, 94.) In closing argument, the prosecutor emphasized that the statements the witnesses had made to Officer Arzate were consistent with the 911 call and were therefore morebelievable thanthetrial testimony. (ART 180- 183, 199-200.) The prosecutor also argued that appellant could have hidden the gun,so the fact that no gun was found with the holster did not undermine the prosecution’s case. (ART 193-195, 200.) Forhis part, Reese argued that it would makenosenseto hide a gun butnotits holster and therefore Officer Arzate’s testimony was not credible. (ART 201-204.) According to Reese, the absence of the gun showedthat he was not guilty of the crimes. (ART 204-205.) The jury deadlocked on the charges, and a mistrial was declared. (1CT 78-79, 100-103.) After the mistrial, Reese made a motion for a complete set of transcripts, which was granted. (1CT 105.) Just before jury selection for the retrial was to begin, however, Reese complained that the transcripts of the first trial that he had received did not include opening statements and | closing arguments. He argued that he neededtranscripts of those parts of the proceedings “so I won’t make the same mistakes.” Thetrial court responded that Reese wasentitled only to transcripts oftrial testimony and not of opening statements and closing arguments. (3RT 1, 4-5.) Reese renewedhis request later the same day. The court again denied the request and remindedReese, “That’s notpart of the 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.” (3RT 9-10, 15-16.) At the retrial, which commencedthe following day, the prosecutor madethe same points during his opening statement, but did not play the 911 call. GRT 367-370.) Reese elected not to make an opening statement (4RT 933). The evidence unfolded along the samelines asat theinitial trial: Beatrice, Jackson, and Bruce denied that the incident happened as alleged by the prosecution 3RT 380, 384, 377-380, 392, 397-398, 411, 415, 418-419), the jury heard the 911 call (3RT 377), and Officer Arzate testified about the witness’ statements at the scene shortly after the incident (3RT 607-609, 611-614, 624-626). The closing arguments mirrored those of theinitial trial. (4RT 957-959, 962-963, 976-977, 981, 984-985.) At the conclusion oftheretrial, the jury found Reese guilty of all the charges, and the court sentenced him to an aggregate term of 17 years in state prison. (ICT 190-191, 203; 2CT 344-351.) On appeal, Reeseraised a challengeto thetrial court’s ruling regarding the transcripts, claiming that the failure to provide him transcripts | of the opening statements and closing arguments oftheinitial trial violated his right to equal protection of the laws. (People v. Reese (2015) 240 Cal.App.4th 592, 597.) In a portion ofits opinion that wascertified for publication, a divided panel of the Court of Appeal rejected the claim. After surveying pertinent decisions of the United States Supreme Court and this Court, the majority held that the presumptiveright to a “full” and “complete”transcript as discussed in those precedents—noneofwhich addressed the precise issue presented by this case—did not extendto the opening statements and closing arguments of counsel. (/d. at pp. 601-605.) The majority reasonedthat the constitutional presumption focuses on “a defendant’s right 'to a complete transcript ofall the testimony in order to effectively rebut the prosecution case and impeach prosecution witnesses.” (Id. at p. 602.) And while “(t]here may be a case where something more than witness testimony is required to prepare an adequate defense on retrial,” there is no “categoricalrule that the transcript of counsel’s statements must be provided after every retrial.” (Ud. at p. 603.) The | majority concluded that there was noviolation of equal protection in this case because Reese “wasprovided the transcript of all the testimony and did not demonstrate why he needed the opening statements and closing arguments.” (/d. at p. 605.) Justice Flier dissented. She would have held that this Court’s precedent mandates a presumption that a defendantonretrial is entitled to a transcript of the initial trial that includes the statements of counseland that the failure to provide any part ofthat transcript requires automatic reversal. (People v. Reese, supra, 240 Cal.App.4th at pp. 605-610 (dis. opn. of Flier, J.).) ARGUMENT I. THE PRESUMPTION THAT AN INDIGENT DEFENDANT FACING RETRIAL NEEDS A TRANSCRIPT OF THE INITIAL TRIAL DOES NOT EXTEND TO THE OPENING STATEMENTS OR CLOSING ARGUMENTS OF COUNSEL Underthe Equal Protection Clause, an indigent criminal defendant facing retrial is presumed to need a “full” and “complete”transcript of the mistrial to ensure an adequate defense. The purpose of this presumption, andthe history of its application, show that it governs witness testimony but not opening statements or closing arguments of counsel. When an indigent defendant wants a transcript of something more than witness testimony, the constitutional presumption does not apply, but the transcript may nonetheless be required if the defendant makes a showing that such a transcript is necessary to an effective defense at the retrial. Reese did not make such a showing and therefore was not deniedhis right to equal protection. His conviction should be affirmed. A. Relevant Precedents The United States Supreme Court first established the right to a free trial transcript in Griffin v. Illinois (1956) 351 U.S. 12, holding that the Equal Protection Clause was violated where a criminal defendant could not obtain “adequate appellate review” without a transcript and could not afford to buy one. (/d. at p. 16.) In that circumstance, the Court held, the state wasobligated to provide a free transcript or some “other meansofaffording adequate and effective appellate review.” (/d. at pp. 19-20.) Several years later, the Court reaffirmed this holding in striking down a Washingtonstate rule that authorized a free transcript on appeal only if the trial judge certified that the defendant’s grounds for appeal were nonfrivolous. (Draper v. Washington (1963) 372 U.S. 487, 494-499.) The Court emphasized, however,that “part or all of the stenographic transcript in certain cases will not be germaneto consideration of the appeal, and a State will not be required to expendits funds unnecessarily in such circumstances.” (/d. at 495.) The Constitution is satisfied, the Court held, if “a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration.” (/d. at p. 498.) “[T]he fact that an appellant with funds may choose to waste his money by unnecessarily including in the recordall of the transcript does not meanthat the State must waste its funds by providing what is unnecessary for adequate appellate review.” (/d. at p. 496.) In Britt v. North Carolina (1971) 404 U.S. 226, the Court applied these principles to an indigent defendant facingretrial. It held that, while the outer limits of the right to a free transcript were not clear, they would govern in such a situation: “the State must provide an indigent defendant with a transcript of prior proceedings whenthat transcript is needed for an effective defense... .” (/d. at p. 227.) The Britt Court thus defined the scope of the constitutional right by reference to the defendant’s need for the transcript, which in turn depends on twofactors: the value ofthe transcript to the defendant in connection with theretrial, and the availability of alternative devices that would fulfill the same functionsas a transcript. (Ibid.) With respect to the value ofa transcript, the Court noted that “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 as a toolat thetrial itself for the impeachmentofprosecution witnesses.” (/d. at p. 228.) Andas for alternative means, the memory of counsel (and the defendant) would likely be insufficient to perform the function of a transcript, as would “limited access” to the court reporter. (Ud. at pp. 228-229.’ On the sameday the Court decided Britt, it again reaffirmed Griffin in a different case by invalidating an Illinois rule restricting the provision of free transcripts in misdemeanorappeals. (Mayer v. City ofChicago (1971) 404 U.S. 189, 193-199.) The Court emphasized that, under Griffin, “the state must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way.” (/d. at p. 195.) The Court also ' Onthe facts of the case, the Britt Court held that a transcript was not required because an adequate alternative that was “substantially equivalent to a transcript” existed in the form of ready and thorough access to the court reporter. (Britt, supra, 404 U.S. at p. 229.) clarified the presumption used to implementthat rule: “where the grounds of appeal . . . make out 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.” (/bid.) And the Court observed that a “record of sufficient completeness . . . does not mean that [the defendant] is automatically entitled to a full verbatim transcript”; if the State can show that “something less than a complete transcript would suffice”then the Constitution is satisfied. (/d. at pp. 198- 199.) This Court took up the issue of free trial transcripts in a pair of cases decided on the heels of Britt and Mayer four decades ago. Shufordv. Superior Court (1974) 11 Cal.3d 903 held that the rule of Griffin and Britt applied to a criminal defendant facing retrial who wasindigent but who nonetheless had retained counsel (under a contingency agreementrelating to a separate civil matter). (Ud.at pp. 905-906.) The Court noted, however, that the defendant was not necessarily entitled to a “complete transcript,” but that the burden would be on the prosecution upon remand to show that a portion of the transcript, or an alternative, would be adequate. (Jd.at p. 907, citing Mayer, supra, 404 U.S. at pp. 194-195.) A yearlater, this Court decided People v. Hosner (1975) 15 Cal.3d 60, in which it addressed moredirectly the issue of Britt’s requirement of need for the free transcript. The Court held that an indigent defendant facing retrial is “presumptively entitled to a complete transcript ofhis first trial” unless the prosecution can “overcome the presumptions of defendant’s particularized need for the transcript and of the unavailability of adequate alternative devices.” (/d. at p. 66.) Examining the proceedings below, the Court observed that the prosecution had turned overto the defendant a transcript of only “a small portion of defendant’s testimony at the priortrial” and had made no showingthat this was adequatefor purposesofretrial. (/d. at pp. 67-69.) The Court concludedthatthis violated the defendant’s right to equal protection. (Jbid.) Hosner went on to hold that federal authority required automatic reversal in this situation, reasoning that the lack of a transcript tended to taint the entire trial and there was now way of knowing how “the transcript to which the defendant was entitled” may have affected counsel’s litigation of the retrial. (Hosner, supra, 15 Cal.3d at p. 70.) Nonetheless, the Court noted thatits per se rule of reversal regarding the denial ofa trial transcript did not necessarily apply to the denial of a transcript “of some other prior proceeding”suchas a suppression hearing, a hearing on the admission of evidence,or a preliminary hearing resulting in the defendant’s discharge. (Id. at p. 71, fn. 7.) B. The Presumption of Need for a Trial Transcript Before Retrial Applies to Witness Testimony but not Opening Statements or Closing Arguments of Counsel The decisions of the United States Supreme Court and of this Court makeclear that an indigent defendant facingretrial is presumed to need a “full” and “complete”transcript of the initial trial unless the prosecution can show that only portions ofthe transcript, or something in lieu of a transcript, would suffice to facilitate an effective defense. The precedents do not directly address what constitutes a “full” or “complete”transcript of the priortrial that an indigent defendant is presumed to need. But the scope of the presumption is illuminated by consideration of the purposes of the constitutional rule and the context of the cases applyingit. The presumption of need used to implement the rule that an indigent defendant must be given the basic tools needed for an effective defense—a narrowerissue than the scopeofthe rule itself—focuses on discovery and impeachment. The Britt Court explained that the Equal Protection Clause requires that an indigent defendant be provided “thebasic tools of an adequate defense.” (Britt, supra, 404 U.S. at p. 227.) Thus, a transcript of a mistrial must be given to an indigent defendantpriorto retrial “when that transcript is needed for an effective defense.” (/d. at p. 227.) And “it can ordinarily be assumedthata transcript ofa prior mistrial would be valuable to the defendantin at least two ways: as a discovery device in preparation for trial, and as a toolat thetrial itself for the impeachment ofprosecution witnesses.” (/d. at p. 228.) Shuford acknowledged these foundations of the constitutional rule (Shuford, supra, 11 Cal.3d at pp. 906-907), as did Hosner, which notedthat the failure to provide “the transcript to which the defendant wasentitled” would be prejudicial because of its impact on the evidencein the retrial and, in particular, on counsel’s ability “to impeach or rebut any given item of evidence” (Hosner, supra, 15 Cal.3d at p. 70). It is the evidence that was used against the defendantin thefirsttrial that constitutes discovery and may be used for impeachmentat theretrial, and thusit is the transcript of witness testimony that a defendantis presumed to need for an adequate defense. (See People v. Markley (2006) 138 Cal.App.4th 230, 241 [“[T]he transcript ofthe first trial would contain testimony pertaining to the same chargesat issue in the retrial—in most cases, from the same witnesses whowill becalled to testify at the retrial. For this reason,the transcript ofthe first trial constitutes ‘a basic tool[ ] of an adequate defense.’”].) Indeed, a transcript of the evidenceitself directly implicates a defendant’s broader constitutional right to “a meaningful opportunity to present a complete defense” (Crane v. Kentucky (1986) 476 U.S. 683, 690), including the rights to confrontation and effective cross- examination, including impeachment (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678; United States v. Bagley (1985) 473 U.S. 667, 676-677 see also People v. Brown (2003) 31 Cal.4th 518, 538), and to present testimony that is “relevant,” “material;” and “vital to the defense” (Washingtonv. Texas (1967) 388 U.S. 14, 16; see also People v. Ayala (2000) 23 Cal.4th 225, 269). A transcript of opening statements and closing arguments of counsel does not serve the same purpose,or implicate the same constitutional concerns,that a transcript of witness testimony does. The circumstances addressed in Britt, Shuford, and Hosner—the leading decisions directly addressing the right.to a free transcript prior to retrial—do not support any more expansive an interpretation of the presumption of need. In Britt, the defendant was given no transcript whatsoever, and was presumedto need a transcriptfor retrial. That would haveviolated equal protection, except that an adequate alternative existed underthe particular facts of the case. (Britt, supra, 404 U.S. at pp. 228- 230.) In Shuford, the trial court similarly denied the defendant’s request for a transcript outright. (Shuford, supra, 11 Cal.3d at p. 905.) The matter was remanded for a determination whether only a portion ofthe transcript, or an alternative, would “suffice to assure him an adequate defense uponretrial.” (d. at p. 907.) And in Hosner, the defendant was given a “partial transcript” amounting to only “a small portion of the defendant’s testimony at the prior trial.” (Hosner, supra, 15 Cal.3d at p. 68.) In that context, the Court held that the defendant was presumptively entitled to a “complete” transcriptofhis first trial. (/d. at p. 66.) None of these cases suggests that the presumptive need for a “full” and “complete”transcript would be broader than a transcript of witness testimony. Although an indigent defendant is notpresumed to need more than a transcript of witness testimony beforeretrial, that does not mean that equal protection would never demand more. If an indigent defendant can demonstrate that a transcript of some other part of the trial proceedingsis “needed for an effective defense”(Britt, supra, 404 U.S. at p. 227), then the Constitution requires that the transcript be provided for free. Requiring the defendant to demonstrate needin this situation makes sense because the prosecution is not necessarily privy to the defendant’s trial strategy; outside 10 the core category of witness testimony,it is more pragmatic to ask the defendant to show whya particular transcript is needed than to ask the prosecution to show whythe opposing party would not need the transcript. Applying the presumption only to witness testimony also makes sense because any need to refer to the exact words of opening statements and closing arguments (and other portions of the proceedings), if it were ever even necessary, would be muchlesscritical than the needto refer to the exact words of a witness’s testimony. C. Reese’s Counterarguments are Unpersuasive Reese offers several arguments as to why the presumptionfor a “full” and “complete”transcript should, to the contrary, be construed to encompass opening statements and closing arguments of counsel. Hefirst places heavy reliance on the Ninth Circuit Court of Appeals’ decision in Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041, which determined that United States Supreme Court authority clearly establishes an indigent defendant’s constitutional right to a transcript of a mistrial including the opening statements and closing arguments of counsel. (AOB 11-14.) His reliance is misplaced. Kennedy’s construction of what constitutes a “full” and “complete”trial transcript is dubious for the reasons already discussed. But the decision is flawed for a more fundamental reason, in that the court apparently failed to appreciate, and therefore did not address, the distinction between the scope of an indigent defendant’s equal protection right to a mistrial transcript and the more narrow and specific question of the scope of the presumption of need. Kennedy simply concluded that an indigent defendantfacingretrial “must be provided”with transcripts of “among other things, motions and the court’s rulings thereon, as well as opening statements, closing arguments,jury instructions, and relevant colloquies.” (Ud. at p. 1049.) Andit did so without any discussion of the scope, or even mindfulness of the existence, of the presumption that the Supreme Court 11 has used to effectuate the constitutional rule. Its analysis is therefore unsound. Equal protection may or may not compel the provision of the varioustranscripts identified by the Kennedy court, depending on whether they are “needed for an effective defense.” The question in anyparticular case is whether a showing of need has been made, or whether a presumed need has been rebutted. Because the Ninth Circuit in Kennedy asked and answeredthe wrong question, its analysis is unpersuasive and should be . rejected. (See People v. Linton (2013) 56 Cal.4th 1146, 1182, fn. 8 [“We are not bound,of course, by decisions of the lower federal courts, even on federal questions, but they may be considered for their persuasive weight.”].)” * Moreover,it is questionable whether Kennedy remains good authority in light of subsequent federal habeas decisions. (See Millerv. Gammie (9th Cir. 2003) 335 F.3d 889, 900 (en banc) [circuit precedent not binding where intervening Supreme Court decision has “undercut the ' theory or reasoning underlying the prior circuit precedent in such a waythat the cases are clearly irreconcilable”].) Since Kennedy wasissued, the United States Supreme Court hasclarified that its precedentis clearly established as to a particular claim only whenit “squarely addresses”the sameissue and provides a “clear answer.” (Wright v. Van Patten (2008) 552 U.S. 120, 125-26; see also White v. Woodall (2014) 134 S. Ct. 1697, 1706-1707.) The Court has also made clear that an unreasonable application of its authority is one that is “so lacking in justification that there wasan error well understood and comprehendedin existing law beyondany possibility for fairminded disagreement.” (Harringtonv. Richter (2011) 562 U.S. 86, 103; see also Stephen R. Reinhardt, The Demise of Habeas Corpusandthe Rise of Qualified Immunity (2015) 113 Mich. Law Rev. 1219, 1228 [“this description ofAEDPA is completely untethered from Supreme Court precedent. The Court had never before used the ‘fairmindedjurist’ standard to describe the “unreasonable application’ test in AEDPA ....”].) Kennedy’s claim could not meet these standards since the United States Supreme Court’s cases do not define with any particularity the scope of the presumption of need for a mistrial transcript. . 12 Reese also argues that this Court in Hosner implicitly concluded that the opening statements and closing arguments of counsel “are included in a completetrial transcript” because it observedthat “‘a lower standard of prejudice could apply whena transcript of a non-trial proceedingis improperly withheld.” (AOB 15-16.) But Hosner did not address with any particularity the scope of Britt’s presumption of need, an issue that was not presented in that case and which in any event is a separate question from the standard of prejudice that should apply once an equal protection violation has been established. (See Arg.II, post.) Hosner simply identified several non-trial proceedings that would not be subjectto its rule of automatic reversal. That cursory observation should beoflittle, if any, import in the present analysis. In addition, Reese points to a numberofways in whicha transcript of opening statements and closing arguments would be “helpful” to the preparation of a defense in advanceofretrial, principally in that they would show what evidence the prosecution emphasized and whatits strategy for | the case was. (AOB 16-21.) However, the question of what portions of the record should be constitutionally presumed necessary to an effective defense is narrower than the question of what portions of the record might simply be “helpful.” Even if a transcript of opening statements and closing arguments might help a defendant facingretrial, it would not directly serve the rationale of ensuring discovery and the opportunity for impeachmentof witnessesso that it may be presumedthat such a transcript is needed for an effective defense. (See Ross v. Moffitt (1974) 417 U.S. 600, 616 [“The question is not one of absolutes, but one of degrees .... the fact that a particular service might be ofbenefit to an indigent defendant does not meanthatthe service is constitutionally required”’].) Andfinally, Reese invokes California Rule of Court 8.320(c)(9)(B), which makesa transcript including opening statements and closing 13 arguments of counsela part of the standard record on appeal, and he argues that this rule underscores the importance of such a transcript. (AOB 22.) WhatCalifornia’s rules of court provide for as a matter-ofstate law, however, is not coextensive with what the federal constitution requires as a matter of equal protection. California’s appellate rules call for transcripts ofproceedings that even Reese appears to acknowledge would notfall within Britt's presumption of need. (Compare AOB 15-16 [arguing that Hosner’s identification of non-trial events (such as pretrial evidentiary rulings) as outside the scopeof its per-se reversal rule showsthattrial events are subject to presumption of need] with Cal. R. Ct. 8.320(c) [requiring transcripts of, amongother things, pretrial evidentiary rulings].) But in any event, what is needed for an effective defenseatretrial is different from what is needed for an effective appeal. Appellate issues may be based on whatis said during opening statements(see, e.g., People v. Frye (1998) 18 Cal.4th 894, 983 [addressing claim that defense counsel ineffectively highlighted anticipated evidence in opening statement that he did not introduceattrial]) or during closing arguments(see, e.g., Peoplev. Whalen (2013) 56 Cal.4th 1, 77 [“it is misconduct for a prosecutor, during argument, to misstate the law”]). Whereas onretrial, the need for a transcript derives from its value as a discovery device and as a source of impeachment material. (Britt, 404 U.S. at p. 228.) D. Because Reese did not Make an Adequate Showingof Need, the Trial Court’s Denial of Transcripts of Opening Statements and Closing ArgumentsSatisfied EqualProtection Given that the presumption of need for a transcript before retrial encompasses only witness testimony, it was incumbent upon Reesein makinghis request for a transcript of opening statements and closing arguments to demonstrate a need for the transcript. He arguesthat his statementto the trial court that the transcript would have saved him time 14 and helped him avoid the same mistakes wassufficient to establish the requisite need. (AOB 22-23.) But where the presumption of need does not apply the defendant must show notjust that the requested transcript would be helpful but that it is necessary to secure an effective defense. (See Britt, supra, 404 U.S.at p. 227; cf. Hosner, supra, 15 Cal.3d at p. 65 [where presumption does apply, burden is on State to show that less than complete transcript would be adequate to secure effective defense].) Reese’s justification, particularly in the context ofthis short and straightforward trial, was insufficient to show that he neededto refer to the opening statements and closing argumentsoftheinitial trial in order to have an effective defense at the retrial. There was nothing complex or obscure about the parties’ trial strategies and arguments, and the requested transcript would have hadlittle value as a reference source. Thetrial court’s ruling was therefore sound, and the judgment should be affirmed. II. EVEN IF AN INDIGENT DEFENDANT IS PRESUMED TO NEED A TRANSCRIPT OF COUNSEL’S OPENING STATEMENTS AND CLOSING ARGUMENTSPRIOR TO RETRIAL, THE FAILURE TO PROVIDE PART OF A TRANSCRIPT IS NOT STRUCTURAL ERROR Even if Reese werecorrectthat the constitutional presumption of need for a full recordpriorto retrial includes a transcript of the opening statements and closing arguments of counsel, he is incorrect that reversal is automatically required. (AOB 26.) The failure to provide a portion of a trial transcript to an indigent defendant beforeretrial is subject to review for harmlessness. To the extent Hosner couldberead as holding to the contrary, that decision should beclarified or reexamined. And because the 3 Insofar as the presumption applied, Reese is correctthat it was not rebuttedin the trial court. (AOB 24-26.) 15 error asserted by Reese was harmless on the facts of this case, his conviction should be affirmed. Article VI, section 13 of the California Constitution provides: “No judgmentshall be set aside, or new trial granted, in any cause, on the . ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for - any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained ofhas resulted in a miscarriage ofjustice.” As this Court has observed,reversal for structural error—errorthat affects “the framework within whichthe trial proceeds”—is limited to instancesof: “adjudication by a biased judge”; “the complete deprivation of counsel”; “the unlawful exclusion of grand jurors based on race”; “the infringement on the right to self-representation’’?; “the denial of a public trial”; “and the giving of a constitutionally deficient instruction on the reasonable doubt standard.” (People v. Anzalone (2013) 56 Cal.4th 545, 553-554.) The United States Supreme Court has similarly observed that the category of structural error is limited to a class of cases in which there has been complete denial of counsel, a biasedtrial judge, racial discrimination in selection of grand jury, denial of self-representationat trial, denial of public trial, or a defective reasonable-doubtinstruction. (Washington v. Recuenco (2006) 548 U.S. 212, 218, fn.2.) In Hosner, this Court concludedthat the failure to turn over any part of the mistral transcript except for “a small portion of the defendant’s testimony” required automatic reversal because “in the mannerofthe denial of the assistance of counsel, the denial of a transcript of a formertrial infects all the evidenceofferedat thelattertrial, for there is no way of knowing to what extent adroit counselassisted by the transcript to which the defendant was entitled might have been able to impeachor rebut any 16 given item of evidence.” (Hosner, supra, 15 Cal.3d at pp. 68, 70.) Hosner relied in part on the United States Supreme Court’s decision in Roberts v. | LaVallee (1967) 389 U.S. 40, which held that an indigent defendant is entitled to a preliminary hearing transcript upon request beforetrial. (/d. at p. 42.) Although Roberts did not specifically address the question of harmlessness, the dissent in that case characterized the decision as requiring automatic reversal. (Jd. at p. 44 (dis. opn. of Harlan, J.); see also Hosner, supra, 15 Cal.3d at pp. 70-71.) Both of those cases, however, involved a total, or effectively total, deprivation of a transcript and therefore must be understoodin that light. (See People v. Knoller (2007) 41 Cal.4th 139, 154-155 [“It is axiomatic that languagein a judicial opinionis to be understood in accordance with the facts and issues before the court”].) The situation here, in which Reese was givenall of the witness testimony before his retrial, cannot be said to have completely infected the retrial in the mannerposited by the Hosner Court. Indeed, Hosner analogized the error in that case to a complete denial of counsel. (Hosner, supra, 15 Cal.3d at p. 70.) And while the complete denial of counsel is recognized asa structural error, the denial of counselat only one stage of the proceedings may be subjectto harmlessness review. (See, e.g., Coleman v. Alabama (1970) 399 US.1, 9- 10; People v. Pampa-Ortiz (1980) 27 Cal.3d 519, 529.) The error here, if there waserror, is much more analogoustothe latter type of constitutional defect that is subject to assessmentfor its impact on the outcomeofthe trial. The equal protection cases governing this issue, moreover, have consistently recognizedthat the scopeofthe right to a “full” and “complete”transcript is defined by a defendant’s need for the transcript to ensure an effective defense (see Britt, supra, 404 U.S.at p. 227; see also Hosner, supra, 15 Cal.3d 60 at p. 65), and that in some cases portions of the 17 transcript that are not germane do not haveto be provided to an indigent defendant (see Mayer, supra, 404 U.S. at pp. 194-195; Draper, supra, 372 USS. at pp. 495-496). The presumption of need is therefore just that: a presumption. In thetrial court, the State may undertake to show that only a portion of the transcript (or some alternative) would suffice to secure the defendant an effective defense. (See Mayer, supra, 404 U.S. at p. 195; see also Hosner, supra, 15 Cal.3d at p. 65.) It would makelittle sense to say that such a showing is permissible in the trial court but that on appeal no such showing may be madeto avoid reversal of the conviction. Hosner did not elaborate on the parameters ofits per-se-reversalrule, other than to point to several examples of non-trial proceedings to which the rule would not apply. (Hosner, supra, 15 Cal.3d at p. 71, fn. 7.) In light of its facts, however, andin light of the pertinent equal protection authority, Hosner must be understoodas calling for per se reversal only whenthe denial of a transcript to an indigent defendant is complete or effectively complete. Even Kennedy, upon which Reeserelies, is in accord. Thecourt there observed: “Where the state completely fails to provide an indigent defendant with a transcript of a mistrial for use in connection with a secondtrial, we would likely find structural error,” but “[w]here the state fails to provide only a portion of the transcript ... we conclude that harmless error analysis applies.” (Kennedy, supra, 379 F.3d at p. 1053.) Accordingly, reversal is not required here if the record showsthat the error was harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24.) Reese’s initial trial, and his retrial, wererelatively short and the issues weré straightforward. Bothtrials involved only four witnesses. He was giventranscripts ofall the witness testimony from thefirsttrial. In the trial court, Reese stated that hewanted the transcripts of opening statements and closing arguments so that he would not repeat the sameerrors from thefirst trial. (See 3RT 4-5, 10.) 18 But other than arguing that the transcripts would have been useful, Reese has never explained how they would haveactually affected his defense at the retrial. And it is difficult to see how the transcripts would havealtered Reese’s strategy. Unlike the transcripts of witness testimony, the transcripts of opening statements and closing arguments had no impeachmentor discovery value. Although they may have helped to reveal the prosecution’s theory ofthe case,that theory was basic and uncomplicated and would have been obvious even to a casual observer of the prior proceedings: the witnesses’ testimonyat trial was not believable, and their statements close in time to the incident were morereliable. Reese, who acted as his ownattorney at both trials, could not have failed to understand and rememberthat theory. On this record, there can be no reasonable doubtthat the outcomeofthe trialwould have been the same even if Reesehad been given transcripts of the opening statements and ~ closing arguments from hisfirst trial. Thus, even if the trial court erred by failing to provide Reese those transcripts, the judgment should be affirmed. 19 CONCLUSION The Court of Appeal’s judgment should be affirmed. Dated: June 27, 2016 NR:In LA2016600265 52148096.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General LANCEE. WINTERS Senior Assistant Attorney General . SHAWN MCGAHEY WEBB MICHAELR. JOHNSEN Supervising Deputy Attorneys General LL NIMA RAZFAR Deputy Attorney General Attorneysfor Respondent 20 CERTIFICATE OF COMPLIANCE I certify that the attached ANSWER BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 6,188 words. Dated: June 27, 2016 KAMALAD. HARRIS Attorney General of California an NIMA RAZFAR Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE Case Name: People v. Keith Ryan Reese No.: $230259 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter. | am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On June 27, 2016, I served the attached ANSWER BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail system of the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Esther K. Hong The Honorable John T. Doyle, Judge Attorney at Law Los Angeles County Superior Court 1255 W. Colton Avenue, Suite 502 Compton Courthouse Redlands, CA 92374 200 W. Compton Blvd. Counsel for Appellant Department F Compton, CA 90220 William Pfaff Deputy District Attorney Los Angeles County District Attorney's California Appellate Project Office 520 S. Grand Ave., 4" Floor 210 W. Temple St., 18th Floor Los Angeles, CA 90071-2600 Los Angeles, CA 90012 On June 27, 2016, I caused eight copies of the ANSWER BRIEF ON THE MERITSinthis case to be delivered to the California Supreme Court at 350 McAllister Street, First Floor, San Francisco, CA 94102-4797 by FedEx, Tracking # 8682 5506 3634. On June 27, 2016, I caused one electronic copy of the ANSWER BRIEF ON THE MERITSin this case to be submitted electronically to the California Supreme Court by using the Supreme Court's Electronic Document Submission system. On June 27, 2016, I caused one electronic copy of the ANSWER BRIEF ON THE MERITSinthis case to be served electronically on the California Court of Appeal by using the Court's Electronic Service Document Submissionsystem. I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on June 27, 2016, at Los Angeles, California. A D. Kartikarini OKDcl_artKOR Declarant Signature LA2016600265 62030548.doc
