People v. ReesePeople v. Reese
We hold that we meant what we said in Hosner: An indigent defendant facing retrial is presumptively entitled to a “full” and “complete” trial transcript — and this entitlement extends to counsel‘s statements. The trial court and Court of
I.
Defendant Keith Ryan Reese is an indigent pro se defendant. He was charged with making criminal threats (
At a pretrial hearing on April 26, the court granted defendant‘s motion for a “complete record of trial transcripts.” The court continued the retrial date to June 10. On June 6, the defendant received a transcript that included all witness testimony from the first trial, but omitted the opening statements and closing arguments. Before trial commenced on June 10, defendant argued that he did not receive the “full set of transcripts which I am entitled to.” The trial court responded that it had ordered “all the testimony” and that defendant was “entitled only to the testimony given.” Defendant argued that he was “required” to have transcripts of the opening statements and closing arguments so that he “won‘t make the same mistakes,” given that he had a “small amount of time to study a lot.” Without hearing from the prosecution, the trial court denied the request and the defendant‘s motion for a continuance. After a three-day trial, the jury found
A divided panel of the Court of Appeal rejected defendant‘s challenge to the denial of his request for a transcript of the opening statements and closing arguments. The majority recognized that a defendant facing retrial is presumptively entitled to a transcript of the first trial, but held that the presumption applies only to witness testimony. The majority reasoned that a defendant is required to demonstrate a need for other portions of the trial transcript, including opening statements and closing argumеnts. Concluding that defendant failed to demonstrate any such need, the majority affirmed the convictions.2 By contrast, the dissent argued that Hosner‘s presumption applied to counsel‘s statements as well as witness testimony. Because the prosecution did nothing to rebut Hosner‘s presumption, the dissent found federal constitutional error.
We granted defendant‘s petition for review to determine whether the trial court violated his constitutional rights when it denied his request for a transcript of the opening statements and closing arguments from his first trial.
II.
A.
The federal Constitution guarantees indigent criminal defendants a free transcript of trial рroceedings for their defense. The high court first announced this principle in Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), where it concluded that refusing to provide indigent defendants with trial transcripts on appeal violated equal protection. (Id. at p. 19.) The decision was grounded on a straightforward principle: that equal protection bars any distinction between
So important is an indigent defendant‘s right to transcripts of prior proceedings that it applies in misdemeanor cases — even where the defendant is sentenced only to a monetаry fine. (Mayer v. City of Chicago (1971) 404 U.S. 189, 196-197.) And it applies not only on appeal but where an indigent defendant faces retrial. (Britt, supra, 404 U.S. at p. 227.) In Britt, the court held that an indigent defendant facing retrial has a right to a free transcript of the first trial. In so holding, the court emphasized the importance of two factors that determine whether an indigent defendant‘s interest in obtaining a transcript of prior proceedings is strong enough to entitle him or her to the transcript: (1) the value of the transcript to the defendant; and (2) the availability of alternative means that would fulfill the same functions as a transcript. (Ibid.) In elucidating the first factor, thе court rejected any notion that a defendant is required to demonstrate a need for the transcript. Instead, Britt concluded that courts could ordinarily assume that a defendant would benefit from the transcript of an earlier trial. (Id. at p. 228.) What cannot be assumed — because of the second factor — is that an indigent defendant is automatically entitled to a transcript of the prior proceeding. With the second factor, the court struck a balance that appears calibrated to protect defendants’ interests without imposing unnecessary costs on the government:
While Britt established the basic framework for considering an indigent defendant‘s claim to the transcripts of a previous trial, the Britt defendant‘s concession prevented the court from fully considering what showing would be required to overcome the defendant‘s presumption of need for a transсript. We first addressed that issue in Shuford v. Superior Court (1974) 11 Cal.3d 903. In Shuford, we relied on Mayer to hold that, if the defendant is entitled to a transcript, the state bears the burden of showing that a mere portion of the trial transcript (or a transcript alternative) will suffice. (Shuford, at p. 907.) Because the defendant in Shuford demonstrated a particularized need for the transcript, however, we had no occasion in that case to address the issue raised by Britt‘s statement that a court can ordinarily assume that indigent defendants benefit from access to a previous trial transcript. We considered this issue and its relationship to Britt a year later, in Hosner. The question there was whether the “mere facts” of a defendant‘s indigence and timely request for a transcript presumptively entitled him to one. (Hosner, supra, 15 Cal.3d at p. 64.) We answered in the affirmative, holding that the federal Constitution‘s equal protection clause presumptively entitles an indigent defendant facing retrial to a complete transcript of his first trial. (Id. at p. 66.)
Our holding in Hosner proves important in two respects. First, Hosner established that a defendant need not demonstrate any particular need for the transcript, as such a need is presumed. (Hosner, supra, 15 Cal.3d at p. 65, fn. 4.) Second, Hosner reiterated that a defendant ”is presumed, if he needs a transcript at
Given the scope of the equal protection principles we articulated in Shuford and Hosner, we need look no further than those cases to decide whether the trial court violated defendant‘s equal protection rights in this case. Before the start of the retrial, defendant requested the entire transcript of his first trial — including the opening and closing statements. Because defendant had the benefit of Hosner‘s presumption, he was entitled to a full and complete transcript of his first trial unless the prosecution ” ‘clearly establish[ed] the contrary.’ ” (Hosner, supra, 15 Cal.3d at p. 69, quoting People v. Jones (1944) 24 Cal.2d 601, 609.) Here — as the People concede — the prosecution made no showing whatsoever that defendant could muster an adequate defense without access to a transcript of the opening and closing statements from his first trial. In fact, the trial court denied the request dеspite the prosecution never addressing defendant‘s request. The trial court erred in doing so because the prosecution had done nothing to rebut
In contrast, the Court of Appeal read Hosner‘s presumption as applying only to transcripts of witness testimony. This led it to conclude that a defendant facing retrial must demonstrate a need for other portions of the trial transcript. But we decline to read Hosner so narrowly, because the constitutional interests at stake foreclose any conclusion that Hosner‘s presumption applies only to witness testimony. In the context of criminal adjudication, the equal protection clause guarantees an indigent defendant‘s opportunity to mount a similar defense against criminal charges as can a wealthy defendant. (See Griffin, 351 U.S. at p. 17 [Equal protection safeguards “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 of justice in every American court,’ ” quoting Chambers v. Florida (1940) 309 U.S. 227, 241].) As noted above, Hosner‘s holding is grounded in this important equal protection principle. (See Hosner, supra, 15 Cal.3d at p. 62.) It is simply inconsistent with the purpose of this guarantee to distinguish between transcripts of witness testimony and transcripts of counsel‘s statements — both of which a wealthy defendant is certain to purchase — when determining whether Hosner‘s presumption applies. For this very reason, we said nothing in Hosner to suggest that its framework applied only to transcripts of witness testimony. To the contrary — we described the transcript to which the defendant was presumptively entitled as a “full transcript of prior proceedings” and a ”complete transcript of his first trial,” not merely a transcript of witness testimony. (Id. at pp. 65-66, original italics omitted, italics added.)
In support of the Court of Appeal‘s holding, the People cite the high court‘s statement in Britt that the transcript of a previous trial is “assumed” to be valuable to a defendant “in at least two ways: as a discovery device in preparation for trial,
The considerable importance of counsel‘s statements does not imply, however, an equivalence for all purposes between such statements and evidence. The prosecution remains free, of course, to reference these distinctions when attempting to carry its burden of establishing that anything other than a full and complete transcript (including opening statements and closing arguments) suffices to guarantee the defendant an adequate defense. We simply hold here that any differences between a transcript of witness testimony and that of counsels’ statements do not justify exempting opening statements and closing arguments from Hosner‘s presumption of entitlement. The Court of Appeal erred when it held otherwise.
Having found federal constitutional error, we must decide if it requires reversal of defendant‘s conviction. Most federal constitutional errors are subject to harmlеss error review under Chapman v. California (1967) 386 U.S. 18 (Chapman). (Washington v. Recuenco (2006) 548 U.S. 212, 218.) Not so for those federal constitutional errors deemed “structural,” which require automatic reversal without a demonstration of harm to the defendant. (Ibid.) In Hosner, we held that the erroneous denial of an indigent defendant‘s motion for a transcript of a prior trial was indeed structural error that required automatic reversal. (Hosner, 15 Cal.3d at p. 70.) Defendant argues that this holding requires us to reverse the conviction here regardless of harmless error, while the People argue that Hosner‘s harmless error holding should be reexamined or, at a minimum, confined to a total denial of the right to а previous trial transcript.
By their very nature, structural errors render a trial fundamentally unfair or an unreliable determinant of a defendant‘s guilt or innocence. (Neder v. United States (1999) 527 U.S. 1, 9.) For an error to be structural, it must affect the entire “framework within which the trial proceeds.” (Arizona v. Fulminante (1991) 499 U.S. 279, 308, 310 (Fulminante).) Accordingly, denials of the right to the attorney of one‘s choice (United States v. Gonzalez-Lopez (2006) 548 U.S. 140), to an unbiased judge (Tumey v. Ohio (1927) 273 U.S. 510), and to a valid reasonable doubt instruction (Sullivan v. Louisiana (1993) 508 U.S. 275) are all paradigmatic examples of structural errors. By contrast, the high court has defined errors susceptible to harmless error review — so-called trial errors — as errors “in the trial process itself.” (Fulminante, at p. 310.) A prime example is the erroneous admission оf evidence. (Ibid.)
Although the question whether a constitutional violation is structural or trial error is generally thought to be categorical, the harmless error status of certain
In Hosner, we concluded it was structural error for an indigent defendant to suffer the near-total5 denial of a prior trial transcript. The denial of a transcript, we reasoned, “infects” the entire second trial, and an appellate court could only “hypothesize” what effect the transcript of a previous trial would have on the defendant‘s retrial. (Hosner, 15 Cal.3d at p. 70.) Moreover, an automatic reversal rule was required to ensure that the prosecution had an incentive to challenge — before trial — the defendant‘s right to a transcript. (Ibid.) And the defendant‘s right wоuld be undermined by allowing the prosecution to wait until an appeal to litigate the need for a transcript “disguised under the rubric of ‘harmless error.’ ” (Id. at p. 71, fn. 7.) At the same time, we reserved decision on whether a rule of automatic reversal should apply to the erroneous denial of a request for the transcript of other proceedings, such as a hearing on a motion to suppress. (Ibid.)
There is no reason for us to depart from Hosner‘s reasoning with respect to the total — or all-but-total — denial of the right to a previous trial transcript. For those errors, a reviewing court is in no position to assess the effect of thе violation: the court cannot know how a second trial might have unfolded had the defendant the benefit of the prior trial transcript. (See Fulminante, supra, 499 U.S. at pp. 307-308.) Access to the transcript of a previous trial could conceivably affect
What does not follow from this conclusion is that the erroneous withholding of any portion of a previous trial transcript is automatically structural error. On this issue, the Ninth Circuit held that the partial denial of the right to a previous trial transcript is subject to harmless error review, and suggested that the total denial of the same right would be structural error. (See Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041, 1053.) We agree. The wrongful withholding of part of a previous transcript does not affect the “entire conduct of the trial from beginning to end” and thus defy harmless error review. (Fulminante, supra, 499 U.S. at p. 309.) Rather, when the denial of the right to a previous trial transcript is less than total, appellate courts will often have little difficulty conducting harmless error review. If the missing portions of the transcript cover witness testimony, a court can consider whether the defense was unable to counter that testimony at the retrial (for example by impeaching the witness or witnesses on discrepancies between the testimony offered at each trial). Similarly, if the portion missing is, as in this case, counsel‘s statements, a court can determine whether the record indicates that the defense attorney failed to anticipate the prosecution‘s overall theory or its argument as to a specific dispute. What we therefore conclude is that where a defendant is erroneously denied all — or, as in Hosner, practically all — of the previous trial transcript, the error is structural. But where a defendant is
We must now determine whether the defendant‘s inability to access a part of the transcript was harmless in this case. Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. (People v. Aranda (2012) 55 Cal.4th 342, 367 (Aranda).) To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a ” ’ “reasonаble probability” ’ ” that the error contributed to the verdict. (Ibid.)
In this case, our review of the record convinces us that the error was harmless beyond a reasonable doubt. The People charged defendant with making criminal threats, possession of a firearm by a felon, and assault with a firearm. The charges arose out of an incident at the home of defendant‘s mother. The prosecution alleged that defendant‘s mother called 911 and, once officers arrived, defendant‘s mother, uncle, and girlfriend all stated that defendant had threatened his mother and girlfriend with a firearm. Both of defendant‘s trials revolved around two key disputes. First, the three witnesses from the scene all recanted substantial portions of their earlier statements during their trial testimony. Second, the officers recovered a holster in the mother‘s apartment but did not find any firearm despite searching with a gun-sniffing dog.
Several factors underscore why the error did not contribute to the verdict. The prosecution‘s case was straightforward and quite similar at the two trials. During his opening statement and closing argument at the first trial, the prosecutor argued that the witnesses recanted to protеct defendant and that defendant had hidden the firearm. Defendant, by contrast, argued that the officers had lied about the witnesses’ allegations at the scene and that there had never been a gun at all.
Moreover, the retrial took place just two months after the initial trial, and defendant represented himself both times. There is no indication that defendant failed to anticipate the prosecutor‘s arguments, or that the constitutional violation otherwise prejudiced his defense. Throughout the retrial, defendant drew out testimony regarding the two central issues in the case: the missing firearm, and the discrepancies between the witnesses’ statements. Simply put, nothing in the record suggests that defendant‘s lack of access to the statement transcripts left him unaware of the prosecutor‘s theory or the central disputes in the case.
Defendant argues that a full transcript would have left him better able to respond to the government‘s contention that he hid the gun, and he points to two moments from the second trial as examples of his claimed disadvantage. Our review of the record persuades us, however, that the withholding of the full transcript from the first trial did not prejudice the defense at either moment. First, defendant points to his attempts to compel the presence at trial of Officer Ramirez, who had handled the gun-sniffing dog at the scene. Prior to trial, defendant attempted to compel the presence of Officer Ramirez at trial to help establish that there was never any gun at the scene. The officer was on vacation, however, and the trial court declined to continue the case until his return. Defendant argues that he would have been able to persuade the trial court to continue the case if he had
Second, defendant points to his cross-examination of Officer Azarte, who supervised the witnesses outside the apartment. Defendant argues that he would have more effectively cross-examined Officer Azarte regarding the missing gun had he possessed a full transcript, but once again it is difficult to see how the defense was prejudiced. As defendant‘s argument for a continuance proves, he was aware before trial сommenced that the existence of the gun would be an important issue. Officer Azarte‘s direct testimony only further underscored this point, as he testified that the responding officers searched for the gun for “between twenty [or] thirty minutes” without finding it. In fact, defendant cross-examined Officer Azarte at length regarding the abilities of gun-sniffing dogs, which proves that defendant did not need the transcripts of the statements from the previous trial to understand the salience of this issue. There is simply no indication that the missing transcript portions left him unable to develop through Officer Azarte his theory about the existenсe of a gun.
So we are convinced — beyond a reasonable doubt — that defendant‘s lack of access to a transcript of opening statements and closing arguments from his first trial did not contribute to the verdict. (Aranda, supra, 55 Cal.4th at p. 367.)
A defendant facing retrial is presumptively entitled to a full transcript of the previous trial — including opening and closing statements. The Court of Appeal‘s conclusion to the contrary ignores that transcripts of counsel‘s statements can be critical to an indigent defendant‘s ability to mount a defense similar to that available to a wealthy defendant. What а defendant is not entitled to receive, however, is automatic reversal for the partial denial of the right to a previous trial transcript. Instead, when — as happened here — defendant is denied only a portion of the transcript, the harmless error rule applies. Because we find the error harmless in this case, we affirm the judgment of the Court of Appeal.
CUÉLLAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.