Sixth Amendment Right to an Attorney and Confrontation

Legal Update

 

March, 2021

 Robert C. Phillips

Deputy District Attorney (Ret.)

 

Contents:  This Outline contains Sixth Amendment law under five distinct categories:

 

Right to Counsel

Right to a Jury Trial

Right to Compulsory Process

Right to a Speedy Trial

Right to Confrontation

 

Sixth Amendment Right to Counsel:

 

The Sixth Amendment provides in pertinent part:  “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence. (sic)”

 

Purpose:

 

The right to counsel is a critical means by which a defendant is assured a fair trial.  (Mickens v. Taylor (2002) 535 U.S. 162, 166 [152 L. Ed. 2nd 291; 122 S. Ct. 1237]: “This right has been accorded, we have said, ‘not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.’” quoting United States v. Cronic (1984) 466 U.S. 648, 658 [80 L. Ed.2nd 657, 104 S.Ct. 2039].)

 

General Rules:

 

“If the accused . . . is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.”  (Johnson v. Zerbst (1938) 304 U.S. 458, 468 [82 L.Ed. 1461, 1468].)

 

If a defendant cannot afford an attorney, he is entitled to the appointment of an attorney at state expense in any case where prison is a potential sentence.  (Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2nd 799].)

 

But see Justice Clarence Thomas’ dissent in Garza v. Idaho (Feb. 27, 2019) __ U.S. __, __ [139 S.Ct. 738; 203 L.Ed.2nd 77].), where he argues that it is wrong to interpret the Sixth Amendment to require the state to provide free counsel in all felonies, as required by Gideon v. Wainwright, supra, or even in death penalty cases, as required by Powell v. Alabama (1932) 287 U.S. 45 [53 S.Ct. 55; 77 L.Ed. 158].)

 

“The essence of this right . . . is the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.”  (Michigan v. Harvey (1990) 494 U.S. 344, 348 [108 L.Ed.2nd 293, 301].)

 

A trial court’s order directing a defendant not to consult his attorney during an overnight recess, called while the defendant was on the witness stand, violated his Sixth Amendment right to the assistance of counsel.  A showing of prejudice is not required.  (Geders v. United States (1976) 425 U.S. 80 [47 L.Ed.2nd 592].)

 

However, a defendant does not have a constitutional right to consult with his attorney during a brief (i.e., 15 minute) recess between his direct and cross-examination.  At the trial court’s discretion, a judge may forbid defense counsel from consulting with his client during such a brief recess in the proceedings.  (Perry v. Leeke (1989) 488 U.S. 272, 278-285 [102 L.Ed.2nd 624].)

 

 [15] “The distinction rests . . . on the fact that when a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying.  He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel’s advice. . . . (I)t is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a nondefendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult  [635] with third parties, including his or her lawyer.”  (Id., at pp. 281-282.)

 

The constitutional right to counsel is designed to assist the accused in coping with “the intricacies of substantive and procedural law. . . . The right to counsel exists to protect the accused during the trial-type confrontations with the prosecutor.”  (United States v. Gouveia (1984) 467 U.S. 180, 189-190 [81 L.Ed.2nd 146, 155].)

 

Where the trial court on the day set for sentencing, on defendant’s motion, relieved counsel from further representation, appointing new counsel, but where new counsel was not yet present in court, it was a Sixth Amendment violation and reversible error for the court to proceed with the scheduled victim and witness’ allocution even though the just-relieved attorney remained (but was advised that “he did not have to do anything”).  (United States v. Yamashiro (9th Cir. 2015) 788 F.3rd 1231, 1234-1236.)

 

When a defendant does not require appointed counsel, and he is able to retain his own attorney, he is constitutionally entitled to have the attorney of his own choice.  (United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [165 L.Ed.2nd 409]; People v. Woodruff (2018) 5 Cal.5th 697, 728.)

                          

“While a defendant has a constitutional right to competent representation, he also has the right to counsel of his choice so that he may defend himself in “‘whatever manner he deems best.’” (Ibid., quoting Smith v. Superior Court (1968) 68 Cal.2nd 547, 599.)

 

“The erroneous deprivation of a defendant's right to counsel of his choice results in automatic reversal.” (People v. Woodruff, supra; citing United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150; People v. Ramirez (2006) 39 Cal.4th 398, 422.)

 

See also P.C. § 987, which provides that if a defendant appears for arraignment without counsel, the court shall inform the defendant of his or her right to counsel and shall ask the defendant whether he or she desires the assistance of counsel.  

 

The court is required to appoint the public defender if available.  If not, an attorney on contract with the county must be appointed if available.  Only then may private counsel not on contract with the county be appointed.  In the interest of justice, a court may depart from that portion of the procedure requiring appointment of a county-contracted attorney after making a finding of good cause and stating the reasons therefore on the record.  (P.C. § 987.2)

 

The finding of good cause is a matter of the trial court’s discretion, taking into account such factors as whether the request was timely, agreement of appointed counsel, defendant’s preference, and a prior relationship with the attorney requested establishing trust and confidence.  (Gressett v. Superior Court of Contra Costa Cuonty (2010) 185 Cal.App.4th 114, 118-123; citing Harris v. Superior Court (1977) 19 Cal.3rd 786, 799.)

 

One’s right to select his own counsel is limited to retained, but not appointed, counsel.  (People v. Mungia (2008) 44 Cal.4th 1101, 1122.)

 

With respect to defendant's rights under the federal Constitution, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. (People v. Suff (2014) 58 Cal.4th 1013, 1040.)

 

The public defender is required by statute to determine whom to represent.  (Gov’t. Code § 27706(a))  When a minor is determined to be indigent and no conflict of interest is found, the Public Defender is to be appointed to represent him.  The Juvenile Court abuses its discretion if it relieves the Public Defender in favor of private counsel, even though such counsel represented the minor in prior cases, absent a showing that the minor didn’t meet these requirements or that the Public Defender was otherwise unavailable.  (Joshua P. v. Superior Court (2014) 226 Cal.App.4th 957, 963-967.)

 

And see P.C. § 859, providing similar requirements upon the filing of a complaint.

 

However, a trial court also has the discretion in certain circumstances to replace appointed counsel with counsel of defendant’s choice.   (See Harris v. Superior Court (1977) 19 Cal.3d 786.)

 

Second Counsel:

 

In capital  [126]  cases, courts have the statutory discretion to appoint a second defense attorney at public expense.  But unlike the constitutional right to counsel, the statutory right to appointed second counsel is qualified. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1180-1181; citing People v. Roldan (2005) 35 Cal.4th 646, 686; and P.C. § 987(d).  See also Keenan v. Superior Court (1982) 31 Cal.3rd 424.)

 

“The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.”  (People v. Lancaster (2007) 41 Cal.4th 50, 71; see also People v. Carrasco (2014) 59 Cal.4th 924, 955.)

 

“In ruling on an application for second  [54] counsel, the trial court must be guided by the need to provide a capital defendant with a full and complete defense. [Citation.] . . . The initial burden is on the defendant to present a specific factual showing of ‘genuine need’ for the appointment of second counsel. [Citation.] We review the decision whether to grant a request to appoint second counsel under section 987 for abuse of discretion. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 432.)

 

“The abuse of discretion standard is used in many other contexts and reflects the trial court's superior ability to consider and weigh the myriad factors that are relevant to the decision at hand. A trial court will not be found to have abused its discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.’ [Citation.]” (People v. Roldan, supra, at p. 688.)

 

Per P.C. § 859(d), the appointment of second counsel is conditioned on the first attorney also having been appointed, as opposed to retained.  But even so, the Court found no abuse of discretion in denying counsel his request for a second attorney where he failed to meet his burden of proof requiring him to present a specific factual showing as to why the appointment of a second attorney was necessary to his defense against the capital charges.   (People v. Carrasco (2014) 59 Cal.4th 924, 954-956.)

 

A criminal defendant does not have a right both to be represented by counsel and to participate in the presentation of his or her own case.  Such an arrangement is generally undesirable.   If a criminal defendant chooses professional representation, he or she waives tactical control.  Counsel is at all times in charge of the case and bears the responsibility for providing constitutionally effective assistance.  Upon a substantial showing, and entirely subject to counsel’s consent, the court may nonetheless permit the accused a limited role as co-counsel.  Even so, professional counsel retains complete control over the extent and nature of defendant’s participation, and of all tactical and procedural decisions.  None of the hybrid forms of representation, whether labeled “co-counsel,” “advisory counsel,” or “standby counsel,” is in any sense constitutionally guaranteed.   (People v. D’Arcy (2010) 48 Cal.4th 257, 281-282.)

 

“Our decisions have long emphasized that ‘[t]he appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.’ (Citations)” (People v. Brooks (2017) 3 Cal.5th 1, 33.)

 

The Court further noted that the recommendation in the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) that “two qualified trial attorneys should be assigned to represent the defendant” in death penalty cases (ABA Guidelines, guideline 2.1.), is nothing but that; i.e., a “recommendation,” and not binding on the courts.   The appointment of a second attorney to represent a capital defendant is a decision left to the trial court’s discretion, based on a proper showing by the defendant that an additional attorney is necessary.  (Id., at p. 34.)

 

In federal court, a defendant does not have the absolute right to appointment of more than one attorney in a capital case, but where the prosecution is not seeking the death penalty.  (United States v. Wells (9th Cir. 2017) 877 F.3rd 1099, 1110-1112.)

 

“(Penal Code § 987(d)) provides that in a capital case, a trial court ‘may appoint an additional attorney as a co-counsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed. … The court shall appoint a second attorney when it is convinced by the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation. If the request is denied, the court shall state on the record its reasons for denial of the request.’ ‘The initial burden … is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.’ (People v. Lucky (1988) 45 Cal.3rd 259, 279 . . . .) ‘The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.’ (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22 . . . .) We review a decision denying the appointment of second counsel for abuse of discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 278 . . . .)”  (People v. Woodruff (2018) 5 Cal.5th 697, 734-736.)

 

Counsel held to be not ineffective for not requesting co-counsel.  (Id., at pp. 736-737.)

 

The term “counsel” in the operative portion of P.C. § 1018 includes “advisory counsel.” Thus, a pro se defendant was properly permitted to plead guilty to capital murder and to admit special circumstance allegations after advisory counsel reviewed all of the evidence with him and eventually concluded that the plea was an intelligent tactic to try to avoid a death sentence.  (People v. Miracle (2018) 6 Cal.5th 318.)

 

A defendant may not both represent himself and be represented by counsel. However, trial courts retain the discretion to permit the sharing of responsibilities between a defendant and a defense attorney when the interests of justice support such an arrangement. Although a self-represented defendant is responsible for his defense, the court is not foreclosed from permitting a greater role for counsel assisting a Faretta defendant, so long as defendant’s right to present his case in his own way is not compromised. The courts have recognized several forms of hybrid representation, including advisory counsel, in which the attorney actively assists the defendant in preparing the defense case by performing tasks and providing advice pursuant to the defendant's requests, but does not participate on behalf of the defense in court proceedings. When a trial court assigns responsibilities to advisory counsel, the defendant is entitled to expect professionally competent assistance within the narrow scope of advisory counsel’s proper role. These principles reflect that when an attorney is assigned responsibilities as advisory counsel, he or she performs as the defendant's counsel for those purposes.  (Id., at pp. 338-339.)

 

Based on Cal. Const., art. I, § 15, the California Supreme Court held that a pretrial misdemeanor prosecution appeal of a suppression order qualifies as a critical stage of the prosecution at which an indigent criminal defendant has a right to appointed counsel as a matter of state constitutional law.  (Gardner v. Appellate Division of the Superior Court (People) (2019) 6 Cal.5th 998; noting that the trial court had held, per Morris v. Superior Court (2017) 17 Cal.App.5th 636, that the U.S. Constitution, Sixth Amendment, does not require the assistance of counsel under these circumstances, but declining to rule on this issue in this case.)

 

In a misdemeanor case in which the People appealed from a suppression order, the appellate court concluded that the trial court—whether sitting as the criminal division or as the appellate division—had no authority to appoint the public defender to represent defendant under these circumstances. Because defendant had a right to counsel, the appellate division would have to appoint someone other than the public defender to represent her. The appellate court left it up to the appellate division to determine how best to do so.  (Gardner v. Appellate Division of the Superior Court (2019) 41 Cal.App.5th 1139.)

 

A trial court has discretion to appoint advisory counsel. The appointment of advisory counsel is a discretionary choice that must be guided based on the individualized circumstances of each case and each defendant. Factors for the court to consider include the defendant’s education, familiarity with the criminal justice system, and demonstrated legal abilities; the defendant’s reasons for seeking advisory counsel, including evidence of a manipulative purpose; the seriousness of the charges; and the complexity of the issues. An appellate court reviews the decision for abuse of discretion and will only set it aside if it is arbitrary, capricious, or whimsical.  A court necessarily abuses its discretion when it fails to exercise its discretion at all. A discretion which can be exercised in one way only, or which is shackled by rigid rules regarding its exercise, is no discretion at all.  In this case, despite telling defendant; “That's not the way it's done in this courthouse,” the trial court also told defendant that he was aware of his discretion when he said; “I know I still have the authority to appoint counsel in your case, but I'm going to deny that request. I believe that you have made a choice to represent yourself.”  Defendant was therefore lawfully denied the assistance of advisory counsel.  (People v. Choi (2021) 59 Cal.App.5th 753, 766-769.) 

 

Appointed Counsel in a Civil Case:

 

A trial court has the discretionary authority to appoint counsel for an indigent prisoner pursuing civil medical malpractice claims against defendants. In this case, the trial court did not recognize its discretionary authority and, as a result, committed legal error in concluding it was without the authority to appoint counsel.  On appeal from that issue, it was not objectively reasonable to infer the prisoner intended to give up his right to access to the courts, or that he had the knowledge required to establish a waiver. Consequently, the doctrine of waiver did not preclude an appellate court from considering the prisoner’s right of access to the courts as the basis for the appointment of counsel. There is a reasonable possibility that a result more favorable to the prisoner would have been reached in the absence of the failure to exercise discretionary authority. Therefore, the error was not harmless.  (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453.) 

 

An indigent parent in juvenile dependency proceedings has the right to appointed counsel by statute, pursuant to W&I § 317.

 

“‘[I]ndigent parents and guardians have statutory rights to appointed counsel at any hearing where out-of-home placement of the child is at issue. (§ 317, subd. (b); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659 . . . .)’ (In re Kayla W. (2017) 16 Cal.App.5th 409, 416 . . . .) This division recently reviewed the statutory basis for a parent’s right to counsel in dependency proceedings in In re J.P. (2017) . . . 15 Cal.App.5th 789. ‘The juvenile court is statutorily required to appoint counsel for the parent of a child who is in an out-of-home placement (or as to whom the petitioning children and family services agency is recommending an out-of-home placement) if the parent “is presently financially unable to afford and cannot for that reason employ counsel … unless the court finds that the parent … has made a knowing and intelligent waiver of counsel as provided in this section.” (§ 317, subd. (b).) [¶] Once appointed, counsel “shall represent the parent … at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent … unless relieved by the court upon the substitution of other counsel or for cause. …” (§ 317, subd. (d).)” (In re J.P., supra, at p. 796.) ‘There is nothing vague or ambiguous about the legislative command—in the absence of a waiver, the juvenile court must appoint an attorney to represent an indigent parent at the detention hearing and at all subsequent proceedings, and the attorney shall continue to represent the parent unless relieved by the court upon the substitution of other counsel or for cause.’ (In re Tanya H. (1993) 17 Cal.App.4th 825, 829 [21 Cal. Rptr. 2d 503].’” [⁋]  “So long as an indigent parent or guardian appears or communicates to the court a request for legal representation, counsel should be appointed. (In re Ebony W. (1996) 47 Cal.App.4th 1643, 1646–1648 . . . [no duty to appoint counsel where mother never appeared or manifested any desire to participate in proceedings]; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2019) § 2.61[1].)”  (In re A.J. (2020) 44 Cal.App.5th 651, 668.)

 

Appointed Counsel at a Senate Bill 1437/P.C. § 1170.95 Resentencing Hearing:

 

Nearly two decades after defendant’s no contest plea to second degree murder as an aider and abettor, and his 15-years-to-life sentence, the Legislature enacted Senate Bill No. 1437.  Senate Bill No. 1437 altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted Penal Code § 1170.95(c), for eligible defendants to petition for resentencing. Defendant filed a petition for relief under that statute alleging he pleaded no contest to murder “in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine.” He also asked that counsel be appointed for him, which was summarily denied by the trial court.  On appeal, it was held that under Pen. Code § 1170.95(c), when a defendant files a facially sufficient petition requesting counsel, the trial court must appoint counsel and give the parties an opportunity to submit briefings before denying the petition.  The trial court’s error in summarily denying such a petition without appointing counsel was not harmless because defendant’s conviction for participating in the 1994 killing of a pregnant woman was based on a plea where a particular factual basis was never established. Given the lack of clarity as to the respective roles of defendant and his accomplice in the killing, the determination that defendant could still be convicted of murder after Senate Bill No. 1437 necessarily required a fact-finding hearing.  (People v. Cooper (2020) 54 Cal.App.5th 106.)

 

Although Pen. Code § 1170.95 was violated because the judge who ruled on defendant’s section 1170.95 petition for resentencing failed to appoint him counsel after he filed a facially sufficient petition, and who was not the sentencing judge.  However, the errors were harmless because a trial court’s failure to appoint counsel after a petitioner files a facially sufficient petition for relief is not prejudicial error when records in the court’s own file—in defendant’s case, the jury instructions—demonstrate that the petitioner is ineligible for relief as a matter of law, and because prejudicial error is not established simply because a judge other than the sentencing judge considers the defendant’s petition.  (People v. Daniel (2020) 57 Cal.App.5th 666.)

 

The California Supreme Court ruled that the trial court erred when it considered the record of conviction without appointing counsel and summarily denied defendant’s resentencing petition because the statutory language and legislative intent of Pen. Code § 1170.95, make clear that petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient resentencing petition, and that only after the appointment of counsel and the opportunity for briefing may the trial court consider the record of conviction to determine whether the petitioner makes a prima facie showing that he or she is entitled to relief.  (People v. Lewis) (July 26, 2021) __ Cal.5th __ [2021 Cal. LEXIS 5258].)

 

Right to Counsel for a Sexually Violent Predator:

 

Although Wel. & Inst. Code § 6608(a) provides in part; “The person petitioning for conditional release under this subdivision shall be entitled to assistance of counsel in all hearings under this section,” such a person is not entitled to counsel until there is a hearing. Thus, a person is not entitled to the assistance of counsel to prepare a petition, and a person whose petition is denied without a hearing is not entitled to counsel. This serves the purpose of frivolousness review, which is to avoid unnecessary administrative burden.  (People v McCloud (Mar. 26, 2021) __ Cal.App.5th __, __ [2021 Cal.App. LEXIS 310]; rejecting the argument that denying him a right to the assistance of counsel under these circumstances violated his due process rights.)

 

Motion for Withdrawal of Counsel:

 

“The determination whether to grant or deny a motion by an attorney to withdraw is within the sound discretion of the trial court and will be reversed on appeal only on a clear showing of abuse of discretion.”  (People v. Sanchez (1995) 12 Cal.4th 1, 37.)

 

The fact that defendant’s counsel suffered an adverse ruling by the trial court, including a finding by the court that counsel had “sandbagged” the prosecution and counsel for the co-defendant, resulting in the sanction of disallowing the testimony of a defense expert witness, did not establish a conflict of interest sufficient to allow defense counsel to withdraw his representation of the defendant.  (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1234.)

 

It was not an abuse of discretion to deny defense counsel’s motion (where he had been retained by defendant’s family) to withdraw, and then have him appointed to represent defendant (thus making the county, as opposed to the defendant, liable for the costs of representation).  (People v. Carrasco (2014) 59 Cal.4th 924, 956.)

 

Federal Immigration Proceedings:

The right to counsel in immigration proceedings is rooted in the Due Process Clause of the Fifth Amendment and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101, et seq.   (See Biwot v. Gonzales (9th Cir. 2005) 403 F.3rd 1094, 1098.)

Sections 1362 and 1229a(b)(4)(A) sets forth the scope and contours of this right, providing that the alien “shall have the privilege of being represented (at no expense to the Government) by such counsel . . . as [the alien] shall choose.”  (See also 8 C.F.R. § 1240.10(a)(1)-(2).)

An immigration judge has a duty to inform an alien of his right to counsel, and to ensure that any decision to waive that right be knowing and voluntary.  (See, e.g., Montes-Lopez v. Holder (9th Cir. 2012) 694 F.3rd 1085, 1088; Baltazar-Alcazar v. INS (9th Cir. 2004) 386 F.3rd 940, 945; Lin v. Ashcroft (9th Cir. 2004 377 F.3rd 1014, 1027; United States v. Ahumada-Aguilar (9th Cir. 2002) 295 F.3rd 943, 947.) 

However, it has also been that held aliens are not entitled to have counsel appointed at government expense. (United States v. Gasca-Kraft (9th Cir. 1075) 522 F.2nd 149, 152, overruled on other grounds by United States v. Mendoza-Lopez (1987) 481 U.S. 828, 834 fn.9 [107 S. Ct. 2148; 95 L. Ed. 2nd 772].)

This rule applies to alien minors as well.  (C.J.L.G. v. Sessions (9th Cir. 2018) 880 F.3rd 1122.)

Indian Tribes’ Right to Tribal Sovereignty:

 

Defendant’s Indian tribal court prior convictions for domestic assault were sufficient to convict defendant of the federal felony offense of domestic assault in Indian country by an habitual offender (18 U.S.C. §117(a)), even though the defendant had no right to the assistance of counsel in the tribal court based on his limited terms of imprisonment (i.e., less than a year), since the prior convictions were valid under tribal law and remained valid when invoked by the prosecution to convict and sentence the defendant as a habitual offender in the subsequent, current, proceeding.  Invoking the prior tribal court convictions did not constitute a denial of due process since the tribal court accorded defendant specific procedural safeguards, and proceedings in compliance with tribal civil rights sufficiently ensured reliability of the prior tribal court convictions.  (United States v. Bryant (June 13, 2016) __ U.S. __ [136 S.Ct. 1954; 195 L.Ed.2nd 317].)

 

Exceptions:

 

During a College or University Disciplinary Hearing:

 

A student, accused of violating a college or university’s disciplinary code does not have a constitutional right to the assistance of counsel at subsequent school-conducted hearings concerning those violations.  (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1082-1084; citing Perlman v. Shasta Joint Jr. College District Board of Trustees (1970) 9 Cal.App.3rd 873, 879; Charles S. v. Board of Education (1971) 20 Cal.App.34d 83, 90; Flaim v. Medical College of Ohio (6th Cir. 2005) 418 F.3rd 629, 636; Osteen v. Henley (7th Cir. 1993) 13 F.3rd 221, 225-226.)

 

A Mental Patient’s Motion to Regain the Right to Possess Firearms:

 

Any person described in Wel. & Inst. Code § 8103 (f)(1), who has requested a hearing from the Superior Court of his or her county of residence for an order that he or she may own, possess, control, receive, or purchase a firearm for five years after having been temporarily committed to a mental facility for evaluation pursuant to W&I § 5150, is not contitutionally entitled to the assistance of an attorney at such a hearing. (People v. Mary H. (2016) 5 Cal.App.5th 246, 263-264.)

 

At an Illegal Alien’s Administrative Removal from the Country under 8 U.S.C. § 1228(b):

 

Assuming that an alleged illegal alien has the right to counsel at an administrative hearing for removal from the country, per 8 U.S.C. § 1228(b) (an issue not decided), he must later show that he was prejudiced by not having counsel at such a hearing; i.e., that having counsel would have resulted in a finding other than automatic deportation.  (Gomez-Velazco v. Sessions (9th Cir. 2018) 879 F.3rd 989.)

 

Petitioner non-citizen who was subject to expedited removal under 8 U.S.C § 1228 was improperly denied a right to counsel in his reasonable fear proceeding before an immigration judge because petitioner had a statutory right to counsel under § 1228 and he did not waive that right.  Petitioner was entitled to a new hearing before an immigration judge in which his right to counsel will be honored.  (Zuniga v. Barr (9th Cir. 2019) 934 F.3rd 1083.) 

 

Early Parole Hearings Pursuant to Proposition 57:

 

 

Prison inmates challenged regulations implemented by the CDCR under the authority of Prop. 57, which granted early parole to “nonviolent” offenders.  The inmates demanded legal counsel, in-person hearings, and multi‑member panels.  The Fourth District Court of Appeal rejected these challenges.  The inmates were entitled to a “parole consideration” only.  Per the Court; “[W]e decline to infer through sheer speculation that the voters who passed Proposition 57 intended to adopt the broad and complex swathe of procedural requirements governing parole consideration for indeterminately-sentenced felons.”  The Court held that due process is not offended if these additional procedural safeguards are not employed.  Court also held that the written criteria for parole suitability determinations are not unconstitutionally vague.  (In re Kavanaugh (Feb. 25, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 162].)

 

Right to Control the Defense and Trial Tactics:

 

A defense attorney’s decision to admit to one of the charged offenses as a tactic to convince a jury not to convict on other (and presumably more serious) offenses may be argued to be tantamount to a plea of guilty to the admitted offense.  (See McCoy v. Louisiana (May 14, 2018) __ U.S.__ [200 L.Ed.2nd 821; 138 S. Ct. 1500]; see also People v. Farwell (2018) 5 Cal.5th 295; and People v. Cain (1995) 10 Cal.4th 1, 39; disapproved on other grounds.)

 

The Sixth Amendment rights of defendant, who was charged with three murders, were violated because even though he vociferously insisted that he did not engage in the charged acts and objected to any admission of guilt, the state trial court permitted counsel at the guilt and sentencing phases of the capital trial to tell the jury that defendant was guilty of committing the charged murders. Counsel could not admit his client’s guilt of a charged crime over the client’s intransigent objection to that admission, and violation of a defendant’s Sixth Amendment secured autonomy constituted structural error, warranting a new trial because the admission blocked the defendant's right to make fundamental choices about his own defense.  (McCoy v. Louisiana, supra.)

 

However, a defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.  An exception to this general rule is that defense counsel’s traditional authority  [49] to control the conduct of the case does not include the authority to withhold the presentation of any defense at the guilt phase if the defendant openly and unequivocally expresses his desire to present a defense and if there exists some credible evidence to support it. Counsel, however, is not obligated to present a defense that lacks “credible evidentiary support.”  (People v. D’Arcy (2010) 48 Cal.4th 257, 286.)

 

Where there was no stipulation admitting the elements of the charged offense (e.g., a hit and run) as an evidentiary matter, and the jury was instructed that the prosecution had to prove guilt on all counts beyond a reasonable doubt and that statements by counsel were not evidence, and thus the prosecution was still required to present “competent, admissible evidence establishing the essential elements” of each charge, it was held that defense counsel’s concession that defendant did in fact commit a hit in run was not tantamount to a plea of guilty.  (People v. Lopez (2019) 31 Cal.App.5th 55, reversing its earlier decision on this issue as announced at 2018 Cal.App. LEXIS 974 (Oct. 26, 2018).)

 

In a first degree murder trial, defendant’s absolute Sixth Amendment right to maintain his innocence was violated when his attorney conceded his guilt of voluntary manslaughter during closing argument, knowing that defendant did not agree with the strategy. It did not matter that defendant did not consistently assert his right to maintain innocence or object to counsel’s concession until after he was convicted.  (People v. Eddy (2019) 33 Cal.App.5th 472.)

 

The federal district trial court committed reversible error by permitting defense counsel to present a defense of insanity against defendant’s clear rejection to that defense, in violation of his Sixth Amendment rights, even though his bizarre behavior properly led to the district court’s revocation of his pro se status.  (United States v. Read (9th Cir. 2019) 918 F.3rd 712, 719-721.)

 

In two separate trials, defendant objected to his attorney admitting that he was driving the car in the attempted murder of a police officer, where the defendant was alleged to have purposely driven the car at the officer, seriously injuring him, where counsel, in admitting that defendant was the driver of the car, chose to argue only that the he lacked the intent to injure the officer.  In a separate case of possessing illegal firearms, counsel admitted the possession of the firearms over defendant’s objection, choosing instead to argue that defendant did not know the prohibited nature of those firearms.  Upon conviction in both cases, the Appellate Court reversed, ruling that counsel’s trial decisions in admitting certain facts could not be written off as mere strategic tactical decisions, and violated McCoy v. Louisiana, ruling that “it was structural error for counsel to take a factual position at odds with Flores’s insistence that he did not commit the criminal acts alleged by the prosecution.”  Per the Court: “(C)ases in which a defendant insists on maintaining his innocence of the alleged acts—despite counsel’s advice to admit the acts but deny the necessary mental state—amount to intractable disagreements about the fundamental objective of the defendant's representation. (Citation.)  Under McCoy, criminal defense lawyers must allow their clients to dictate the fundamental objective at trial, and thus must not concede the actus reus of a charged crime over their client’s objection.”  (People v. Flores (2019) 34 Cal.App.5th 270.)

 

Defendant was convicted of voluntary manslaughter for killing his girlfriend and sentenced to prison for 27 years.  He raised various claims on appeal, and in the published portion of the opinion, the Court rejected defendant’s claim that his conviction must be overturned under McCoy due to his counsel’s implicit concession during closing argument that defendant killed the victim. Per the Court: “Although defendant denied guilt during police interrogations and expressed a general desire to review discovery and help his lawyer ‘fight’ the prosecution’s evidence, nothing in the record indicates that he ever made it clear to his counsel (or the court) that the objective of his defense was to maintain innocence, or that he voiced ‘intransigent objection’—or any opposition—to his lawyer’s defense strategy.”  (People v. Franks (2019) 35 Cal.App.5th 883, 889-891.)

 

When a defendant elects to be represented by counsel, he has no right to control the attorney’s strategic and tactical decisions regarding the defense, including requests for jury instructions. However, among the core of fundamental questions over which a represented defendant retains control is the decision whether or not to present a defense at the penalty phase of a capital trial, and the choice not to do so is not a denial of the right to counsel or a reliable penalty determination. The required reliability is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment’s reliability requirements. Nor is a defendant deprived of his Sixth Amendment right to counsel by virtue of counsel’s acquiescence in the defendant's own decision that no defense shall be presented on his behalf. That decision is the defendant’s to make.  (People v. Amezcua & Flores (2019) 6 Cal.5th 886, 920-926.)

 

The case law has distinguished between the different purviews of counsel and client. Trial management is controlled by counsel. It encompasses such functions as determining what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Choice of the defense objective is the client's prerogative.  (Id., at p. 926.)

 

Defendant was convicted of multiple felonies stemming from a DV-fueled reckless evasion of police. Defendant challenged two of his convictions (V.C. § 2800.2 and P.C. § 273.5), alleging that his counsel improperly conceded his guilt in both opening and closing statements over his unarticulated objection. The Court disagreed and affirmed, distinguishing People v. Farwell, supra, in that counsel had not stipulated to each of the elements of the offense, rendering the convictions a mere formality. The People were still required to prove the charges. The Court also distinguished McCoy v. Louisiana, supra. Unlike McCoy, defendant never expressed during trial any objection to his counsel's strategy. Quoting McCoy:”[W]hen a defendant declines to participate in his defense, his counsel may pursue a strategy believed to be in his best interest.” (People v. Burns (2019) 38 Cal.App.5th 776, 780-785.)

 

Defendant contended that, under McCoy v. Louisiana, he was entitled to a new murder trial because his counsel conceded guilt when he insisted on maintaining his innocence.  The Appellate Court disagreed.  Because the record did not show that defendant, charged with first degree murder, consistently expressed a desire to assert innocence or objected in any manner to counsel’s strategy to concede that defendant had committed manslaughter before counsel so conceded in closing argument, defendant was not denied the right to the assistance of counsel under the Sixth Amendment and Cal. Const., art. I, § 15, and there was no basis in the record upon which to find any constitutional violation.  Although defendant suggested to counsel that the victim's death had been an accident, the case was not one in which an attorney ignored a request to argue innocence because defendant told counsel multiple stories about what had happened and the record indicated that counsel pursued a reasonable strategy in light of defendant's changing story.  (People v. Palmer (2020) 49 Cal.App.5th 268.)

 

For a Sixth Amendment violation to lie based on defense counsel’s decision to admit guilt, a defendant must make his intention to maintain innocence clear to counsel, and counsel must override that objective by conceding guilt. It’s not enough to deny guilt during interrogations or express a general desire to review discovery and help the lawyer fight the prosecution’s evidence. A defendant must show that he or she made it clear to counsel (or the court) that the objective of the defense was to maintain innocence, or that the defendant voiced intransigent objection—or any opposition—to the lawyer’s defense strategy.  In this case, defendant failed to show that his defense counsel violated his right to exclusive control of his defense. Even assuming counsel’s remark that defendant had driven while drunk and “made mistakes,” and her omission of comments defending him against three of the charges in closing argument constituted concessions of guilt, he failed to show he opposed the concessions.  (People v. Villa (2020) 55 Cal.App.5th 1042, 1054-1057; citing McCoy v. Louisiana (May 14, 2018) __ U.S.__ [200 L.Ed.2nd 821; 138 S. Ct. 1500].)

 

See “Advisory Counsel,” below.

 

Massiah Error (Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199; 12 L.Ed.2nd 246].):  Questioning a suspect after an arraignment where the suspect has requested the appointment of an attorney, when the questioning (or “deliberately eliciting” incriminating statements) is attempted without the presence (or consent) of the subject’s attorney, is a Sixth Amendment violation.  (See also Michigan v. Jackson (1986) 475 U.S. 625 [89 L.Ed.2nd 631]; Minnick v. Mississippi (1990) 498 U.S. 146 [112 L.Ed.2nd 489]; and People v. Fayed (2020) 9 Cal.5th 147, 159-164.)

 

Massiah involved an undercover officer soliciting incriminating information from an out-of-custody defendant after the defendant’s arraignment.  The Supreme Court has ruled, however, that had the officer first advised defendant of his Sixth Amendment right to counsel and obtained a waiver of that right (a procedure obviously not conducive to an undercover situation), there would have been no error in talking to the defendant without the presence of his attorney.  (See Montejo v. Louisiana (2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

Note:  The Supreme Court has indicated that there is a difference between an “interrogation,” as applies to a Fifth Amendment, self-incrimination situation, and “deliberately eliciting” incriminating statements, as applies to a Sixth Amendment, right-to-an-attorney-situation, giving the later a much broader application.  (Rhode Island v. Innis (1980) 446 U.S. 291, 300, fn. 4 [64 L.Ed.2nd 297, 307]; see also Fellers v. United States (2004) 540 U.S. 519, 524 [157 L.Ed.2d 1016].)

 

Asking defendant as he was being processed into prison questions about a threat that had been made against him, done for purposes of “jail security” and without any reason to believe they would prompt defendant to admit to having committed a double homicide, “fell far short of an intentional exploitation required for a Massiah violation.  (People v. Williams (2013) 56 Cal.4th 165, 188-189.)

 

Exception; Doctrine of Inevitable Discovery:

 

Evidence seized unlawfully will be held to be admissible in those instances where, but for an illegal interrogation, there is a “reasonable possibility” that the evidence would have been lawfully found by other means.   (Nix v. Williams (1984) 467 U.S. 431, 441 [81 L.Ed.2d 377, 104 S. Ct. 2501]; noting that this theory of admissibility applies to Sixth Amendment right to counsel issues as well as Fourth Amendment search violations. 

 

Interference With the Attorney-Client Relationship:  Significant violations of a defendant’s constitutional right to the assistance of counsel that cause the defendant substantial prejudice may be grounds to dismiss the case in its entirety.  (See below.)

 

Defendant was denied due process of law and effective aid of counsel where, after his arrest, he performed undercover work and testified in an unrelated case in exchange for being released from custody and with the promise that his cooperation would be made known to the court at sentencing. His attorney was kept in the dark about these arrangements.  The prosecutor’s investigators instructed defendant not to tell his attorney about his dealings, and falsely told him that his attorney was inadequate and had been disbarred.  Defendant did extensive undercover work under this arrangement, during which investigators  [62] gave him bugging equipment, expense money, and a weapon (notwithstanding a weapons-possession parole condition).  Defendant was also a material witness for the prosecution in a murder trial. As a result of that cooperation, he was beaten by four men, had a shotgun fired at him on another occasion, and was the subject of “[t]wo ‘contracts’ … on his life.”  The investigator also instructed defendant not to appear at his own trial and to give his attorney a false telephone number so that he could not reach his client.  Defendant became “so desperate [he] was driven to attempt suicide by hanging himself  [128]  while in custody on Christmas Eve 1974.” His substituted counsel ultimately made a motion to dismiss the proceeding, which was granted.   (People v. Moore (1976) 57 Cal.App.3rd 437; the Court finding that “the People [had]  [63] actively interfered with an attorney-client relationship. . . .”) 

 

Defendant, charged with two counts of selling cocaine, in communications through a deputy sheriff, complied with a prosecutor’s suggestion (at defendant’s request for leniency in exchange acting as an informant) that he fire his attorney and hire someone else who was “acceptable” without telling his initial attorney why.  But when the second attorney, upon being told that defendant would be used as an informant, declined to represent him, defendant then worked with law enforcement, providing significant information about other drug dealers, without any representation.  After the prosecutor reneged on his previous offer to show leniency in defendant’s still-pending case, defendant hired a third attorney who filed a motion to dismiss.  The trial court found that defendant’s relationship with his first attorney had been deliberately interfered with, but denied the motion because defendant had not been prejudice by the misconduct.   The Appellate Court, however, granted a writ of mandate compelling the court  [66] to dismiss the information.  After emphasizing the importance of a criminal defendant’s right to effective assistance of counsel at all stages of the proceedings, the court found that the government’s conduct “effectively short-circuited (defendant’s) right to be assisted by counsel at a critical stage of the proceedings. . . . [Citation.]”  The Court also found that defendant “was seriously prejudiced as a result of the improper governmental intrusion . . . .”  It was therefore found that “the government’s conduct . . . (was) outrageous in the extreme, and shocking to the conscience,” and therefore ordered the dismissal of the case.  (Boulas v. Superior Court (1986) 188 Cal.App.3rd 422.)

 

Where a prosecutor directed her investigator to station herself close to where defense counsel and defendant were to engage in conversations relative to an offer to plead guilty while in a holding area adjacent to the courtroom, so that the investigator could listen in on the conversation, the defendant later moved to dismiss based upon prosecutorial misconduct.  During an evidentiary hearing, both the prosecutor and investigator exercised the right to remain silent and asserted the privilege against self-incrimination.  Although the trial court denied the motion, the Court of Appeal issued a writ of mandate compelling the trial court to dismiss the proceeding.  The Court found that the actions of the prosecutor and investigator violated an array of the defendant’s federal and state constitutional rights, including his privilege against self-incrimination, right to counsel, right of privacy, and right to due process.  The Court also found that the misconduct and attendant violations of the defendant’s federal and state constitutional  [69] rights “[shocked its] conscience,” the eavesdropping of confidential attorney-client communications being “a ‘substantial threat of demonstrable prejudice’ as a matter of law,” and therefore dismissal was warranted.  (Morrow v. Superior Court (1994) 30 Cal.App.4th 1252.) 

 

Where a prosecutor purposely fabricated an addition to the Spanish-to-English translation of a transcript of defendant’s statements to police in a child molest prosecution, adding two lines that could be used as proof that defendant had penetrated his child victim, attempting to coerce a plea of guilty in exchange for not filing additional charges related to such a penetration, the Court found that dismissal of the case was appropriate as a Sixth Amendment interference with defendant’s right to counsel.  Per the Court: “‘(S)ignificant violations of the defendant’s constitutional right to counsel causing the defendant substantial prejudice’ can serve as appropriate grounds for dismissal.”  (People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 446-452: quoting People v. Uribe (2011) 199 Cal.App.4th 836, 866.) 

 

Questioning of a charged defendant by a social worker “dependency investigator” is not a violation of the Sixth Amendment because a dependency investigator is not law enforcement. (People v. Keo (2019) 40 Cal.App.5th 169, 185-187.) 

 

Where a former state correctional facility inmate sued a correctional facility officer under 42 U.S.C. § 1983, alleging that the officer[s screening of, and intermittent checking in on, his telephone conversations with his attorney, who was not representing the inmate in a criminal matter (but rather a civil matter), violated his Fourth Amendment rights (i.e., illegal wiretapping), the officer was entitled to qualified immunity because she did not violate any Fourth Amendment right that was clearly established at the time of the challenged conduct.  The claimed Fourth Amendment right was not clearly established at the time of the underlying conduct because there was no precedent that placed the right beyond debate, particularly as there was no U.S. Supreme Court or applicable circuit court of appeals case considering this issue that placed this Fourth Amendment question beyond debate at the time of the officer's challenged conduct.  (Evans v. Skolnik (9th Cir. May 18, 2021) __ F.3rd __ [2021 U.S. App. LEXIS 14728]; but declining to consider the merits of the plaintiff’s Fourth Amendment claims, leaving the core issue undecided.)

 

Note:  This case also comes under the title of “Witherow v. Baker,” using the names of the primary litigants.

 

“Offense-Specific:” One’s Sixth Amendment right to counsel is “offense-specific;” i.e., it applies only to the offense for which he or she is then charged.  (McNeil v. Wisconsin (1991) 501 U.S. 171 [115 L.Ed.2nd 158]; see also Maine v. Moulton (1985) 474 U.S. 159, 279-280, fn. 16 [88 L.Ed.2nd 481, 498-499]; People v. Plyler (1993) 18 Cal.App.4th 535, 545-548; Texas v. Cobb (2001) 532 U.S. 162 [149 L.Ed.2nd 321]; People v. Gonzales (2011) 52 Cal.4th 254, 284; People v. Cunningham (2015) 61 Cal.4th 609, 647-648; People v. Fayed (2020) 9 Cal.5th 147, 161-162.)

 

Rule:  Questioning on any other case not yet charged, is not precluded by the Sixth Amendment.  (United States v. Baez-Acuna (10th Cir. 1995) 54 F.3rd 634; People v. Carter (2003) 30 Cal.4th 1166, 1209-1210; a stabbing in the jail while awaiting trial on a capital case; (People v. Webb (1993) 6 Cal.4th 494, 526-528; the fact that the police had probable cause with which to charge defendant earlier is irrelevant.)

 

A pending state parole violation does not trigger defendant’s Sixth Amendment rights in federal court even though the parole violation and the later federal charges all stem from the same bank robbery.  (United States v. Mandley (9th Cir. 1974) 502 F.3rd 1103.)

 

Neither having an attorney for purposes of extradition nor the existence of an arrest warrant (absent the filing of a criminal complaint or indictment in court) triggers the suspect’s Sixth Amendment right to counsel.  (People v. Wheelock (2004) 117 Cal.App.4th 561, 565-569; United States v. Yousef (2nd Cir. 2003) 327 F.3rd 56, 142, fn. 66; DeSilva v. DiLeonardi (7th Cir. 1999) 181 F.3rd 865, 868-869; Chewning v. Rogerson (8th Cir. 1994) 29 F.3rd 418, 420; Judd v. Vose (1st Cir. 1987) 813 F.2nd 494, 497; Anderson v. Alameida (9th Cir. 2005) 397 F.3rd 1175..)

 

P.C. § 804, in making reference to a prosecution having been “commenced” when an arrest or bench warrant is issued, applies to the running of a “statute of limitations” and not the Sixth Amendment.  (People v. Wheelock, supra, at pp. 565-566.)

 

While charged in state court with murdering his wife, and after appointment of counsel, defendant was questioned by another inmate at a law enforcement officer’s instigation (i.e., acting as his agent). The defendant’s incriminating statements made to the inmate were held to be usable against him in federal court after the state charges were dismissed and defendant was indicted in federal court on several charges related to the same incident.  Because the Sixth Amendment is “offense specific,” the violation of defendant’s Sixth Amendment right to counsel during the state prosecution did not apply to the use of those same statements in federal court.  (United States v. Holness (4th Cir. Feb. 11, 2013) 706 F.3rd 579, __.)

 

Asking defendant to participate in a reenactment of a robbery/homicide for which he had already confessed was not precluded by the Sixth Amendment right to counsel in that defendant had not yet been formally charged and was being held only on a parole violation.  (People v. Cunningham (2015) 61 Cal.4th 609, 647-648.)

 

The “Closely Related,” “Inextricably Intertwined,” or “Inextricably Enmeshed” Doctrine:

 

Old Rule:   “(T)he Sixth Amendment right to counsel extends to interrogations on new charges where ‘the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.’  (United States v. Hines 963 F.2nd 255, 257 (9th Cir. 1992).”  (United States v. Doherty (6th Cir. 1997) 126 F.3rd 769, 776.)

 

This theory was the product of some lower courts’ interpretation of two U.S. Supreme Court decisions, Maine v. Moulton (1985) 474 U.S. 159 [88 L.Ed.2nd 481], where defendant had already been indicted for theft when interrogated and later charged with burglary, based upon the same circumstances; and Brewer v. Williams (1977) 430 U.S. 387 [51 L.Ed.2nd 424], where defendant was convicted of murder based upon statements obtained after his indictment for kidnapping of the same victim:  Both cases reversed.

 

See also United States v. Covarrubias (9th Cir. 1999) 179 F.3rd 1219:  Examining and comparing all of the facts and circumstances relating to the conduct involved, including the identity of the persons involved (including victims) and the timing, motive and location of the crimes, defendants’ Sixth Amendment rights were violated when defendants were questioned by I.N.S. concerning a federal transporting of illegal aliens charge after being arraigned in state court on a charge of kidnapping where one of the transported illegal aliens was the victim of the kidnapping.

 

New Rule:  There is no such thing as “closely related” “inextricably intertwined, or “inextricably enmeshed.”

 

The “inextricably intertwined” theory was first called into question in People v. Keller (2001) 87 Cal.App.4th 40.  Per the Third District Court of Appeal, absent a finding that officers questioned a charged suspect about the exact same facts and circumstances which serve as the basis for the charges already filed, McNeil v. Wisconsin (1991) 501 U.S 171 [115 L.Ed.2nd 158], holding that the Six Amendment is “offense-specific” (i.e., applies only to the charges actually filed in court), the Sixth Amendment will not prevent the use of the defendant’s responses in a separate trial on any newly filed, but different charges, even though they may be factually related.

 

The United States Supreme Court settled the issue altogether in Texas v. Cobb (2001) 532 U.S. 162 [121 S.Ct. 1335; 149 L.Ed.2nd 321], where it was held that there is no such theory as “closely related” or “inextricably intertwined.”

 

In Cobb, the High Court, in a 5-to-4 decision, found that there is no legal basis for an exception to the “offense-specific” rule of McNeil.  Rather, whether or not an uncharged offense falls under the protection of the Sixth Amendment right-to-an-attorney provisions because of the charging of another factually related offense is tested by the same standards as is used in determining the applicability of the Fifth Amendment “Double Jeopardy” clause. 

 

Blockburger v. United States (1932) 284 U.S. 299 [52 S.Ct. 180; 76 L.Ed. 306] provides the double jeopardy test:  I.e.; double jeopardy does not preclude separately prosecuting each case so long as each charge “requires proof of an addition fact which the other does not.”  (Id., at p. 304 [76 L.Ed. at p. 309].)  In other words, is one charge a “lesser included offense” of the other?”  If so, then, and only then, does arraigning a defendant on one charge trigger the Sixth Amendment protections as to both.

 

Cobb involved the questioning of a burglary suspect about the murder of the burglary victims when it was determined, after defendant was arraigned on the burglary charge, that he was also responsible for the disappearance of the residents of the house he burglarized.  Doing so did not violate the Sixth Amendment.

 

See also People v. Slayton (2001) 26 Cal.4th 1076, where questioning defendant about a residential burglary, after he had been arraigned on a charge of driving the burglary victim’s car taken in that same burglary, was held to be proper (although the charge of V.C. § 10851 [taking] had to be dismissed where he had already been arraigned on a charge of V.C.  § 10851 [driving] for the same vehicle).

 

Without yet having been charged in state court with the murder of his wife, defendant being held in federal custody on money laundering charges during which time an undercover police agent elicited incriminating statements from him about the murder and without the presence of counsel, and with the federal charges alleged by defendant to be merely a “sham” as evidenced by the fact that the federal charges were dismissed on the same day state murder charges were filed, was held to be insufficient to trigger defendant’s Sixth Amendment right to counsel on the murder prosecution.  (People v. Fayed (2020) 9 Cal.5th 147, 161-162; noting that the “closely related” to, or “inextricably intertwined” with, theory had been discredited by Texas v.  Cobb, supra., while also rejecting the argument (made in the Fifth Amendment, double jeopardy context; see Gamble v. United States (2019) __ U.S. __, ___[204 L. Ed. 2d 322, 139 S.Ct. 1960, 1964]) that an exception may apply where the prosecution under one entity (e.g., federal) serves as a “sham and a cover” for a successive state prosecution.)

 

The Fayed Court further rejected the argument that merely because state and federal prosecutors worked together, allowing state authorities to delay in filing murder charges as they investigated the case more thoroughly while defendant was held in federal custody, and because federal prosecutors used the pending state investigation in arguments for keeping defendant in federal custody, does not provide an exception to the rule that defendant’s Sixth Amendment rights did not kick in until actually charged in state court.  (People v. Fayed, supra, at p. 162.)

 

Problems:

 

Keeping the Offenses Separate:  The problem for the interrogator will often be to keep the questioned suspect from talking about the pending case protected by Massiah.  The interrogator's intent to discuss only the unprotected crimes must be made clear to the suspect and strictly adhered to throughout the interview.

 

Ethical Issues:  Prosecutors must also be wary of Rule 2-100 of the California Rules of Professional Conduct, which prohibits any communication, directly or indirectly, with a defendant on a pending charge without the consent of the defendant's attorney, except as “authorized by law.”  The application of this rule is subject to some conflict:

 

This rule is not implicated when an attorney represents the defendant on a separate, unrelated charge.  (People v. Maury (2003) 30 Cal.4th 342, 408; the Court erroneously referring to Rule 7-103, which is actually the former version of Rule 2-100;  People v. Gonzales (2011) 52 Cal.4th 254, 284-285.)

 

Whether or not Rule 2-100 applies to uncharged criminal suspects is still at issue.  (See United States v. Talao (9th Cir. 2000) 222 F.3rd 1133.)

 

The Supreme Court has ruled that a prosecutor’s ethical standards dealing with contacting represented defendants (e.g., The American Bar Association's Model Rules of Professional Conduct, Model Rule 4.2 (2008) [or, via the same argument, in California, the Rules of Professional Conduct, Rule 2-100]) are not applicable to police officers.  (Montejo v. Louisiana (May 26 2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

The California Attorney General is of the opinion that Rule 2-100 does not prohibit a prosecutor’s (or his investigator’s) contact with an uncharged defendant who has retained legal counsel.  This conclusion is based upon an analysis of subd. (c)(3) of Rule 2-100 which provides that “This rule shall not prohibit . . . communications otherwise authorized by law,” and prior case authority holding that prosecutors should not be inhibited in their duties by a rule prohibiting such contacts.  (75 Ops.Cal.Atty.Gen. 223 (1992))

 

The Ninth Circuit is of the same opinion, at least where there is no direct communication between the defendant and the prosecutor.  Also, the use of fake subpoenas, provided to defendant by an undercover agent, did not make the police the “alter-ego” of the prosecution.   (United States v. Carona (9th Cir. 2011) 660 F.3rd 360.) 

 

Also, Subd. (c)(1) of Rule 2-100 does not prohibit a party’s “(c)ommunication with a public officer.”  It is arguable that an elected district attorney comes within the “public officer” exception in a situation where a charged defendant contacts the District Attorney and request s to speak to him or her without the defense attorney’s knowledge.  (See People v. Hamilton (1989) 48 Cal.3rd 1142, 1155, fn. 5.)

 

Defendant’s statements to a fellow inmate and gang member who was wearing a wire which recorded their conversation, before defendant was charged, were admissible against him.  Although defendant had another case with an assigned lawyer, 2-100 does not apply to this situation. (People v. Gonzales (2011) 52 Cal.4th 254, 284-285; citing People v. Maury (2003) 30 Cal.4th 342, 408-409.)

 

When Attaches:  A subject's Sixth Amendment right to counsel attaches at the filing of a “formal charge, preliminary hearing, indictment, information, or arraignment” and continues even if released from custody so long as that case against him exists (i.e., through the completion of post-conviction appeal).  (See Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199; 12 L.Ed.2nd 246]; People v. DePriest (2007) 42 Cal.4th l, 33; People v. Fayed (2020) 9 Cal.5th 147, 161.)

 

Rule:  “(T)he Sixth Amendment right to counsel attaches only when adversary judicial proceedings have been initiated against the defendant.”  (United States v. Gouveia (1984) 467 U.S. 180, 187-188 [81 L.Ed.2nd 146, 153-154]; Kirby v. Illinois (1972) 406 U.S. 682, 689 [32 L.Ed.2nd 411, 417]; Brewer v. Williams (1977) 430 U.S. 387, 398 [51 L.Ed.2nd 424, 436]; Fellers v. United States (2004) 540 U.S. 519 [157 L.Ed.2nd 1016].)

 

A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.  Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.  (Rothgery v. Gillespie (2008) 554 U.S. 191 [171 L.Ed.2nd 366]; “a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”)

 

A criminal suspect’s Sixth Amendment right to counsel is not implicated until that point where he has been formally charged in court; i.e., “after the first formal charging proceeding.”  (Italics added; People v. Woods (2004) 120 Cal.App.4th 929, 939-941.)

 

As to whether the filing of a criminal “complaint” is sufficient to trigger one’s Sixth Amendment right to counsel, see discussion, “Filing of a Complaint,” below.

 

The U.S. Supreme Court has recently ruled, however, that if an officer first advises a defendant of his Sixth Amendment right to counsel and obtains a waiver of that right, there is no error in talking to the defendant without the presence of his attorney, even after his arraignment.  (See Montejo v. Louisiana (2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

Rights Applicable to All “Critical Stages:” After a defendant’s Sixth Amendment right to counsel attaches, he or she has a right to the advice of counsel at all “critical stages” of the proceedings, defined as “any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused right to a fair trial.”  (Holloway v. Arkansas (1978) 435 U.S. 475 [55 L.Ed.2nd 426]; United States v. Wade (1967) 388 U.S. 218, 226 [18 L.Ed.2nd 1149, 1157].)

 

A criminal defendant is entitled to the assistance of counsel at all “critical stages” of a prosecution; i.e., “where substantial rights of a criminal accused may be affected.”  (Mempa v. Rhay (1967) 389 U.S. 128 [19 L.Ed.2nd 336].)

 

A “critical stage” as one that “held significant consequences for the accused.”  (Bell v. Cone (2002) 535 U.S. 685, 696 [152 L.Ed.2nd 914].)

 

This is normally from defendant’s initial court appearance and arraignment through the completion of his first appeal.  (See United States v. Wade, supra.)

 

A court may presume that a defendant has suffered unconstitutional prejudice if he “is denied counsel at a critical stage of his trial.” (United States v. Cronic (1984) 466 U.S. 648, 659 [80 L.Ed.2nd 674]; rejecting the defendant’s claim that his counsel’s lack of experience and short time for preparation warranted a presumption of prejudice.)

 

‘“‘A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043.’ [Citation.] ‘Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.”’ [Citation.] ‘Due process guarantees the right to be present at any “stage that is critical to [the] outcome” and where the defendant’s “presence would contribute to the fairness of the procedure.”’ [Citation.] ‘“The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]” [Citation.] Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant's personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]’ [Citation.] ‘Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.’”’ (People v. Suarez (2020) 10 Cal.5th 116, 145-146, quoting People v. Blacksher (2011) 52 Cal.4th 769, 798–799.)

 

In Suarez, no Sixth Amendment/confrontation error was found when the wife and mother (and rape victim) of defendant’s homicide victims blurted out at the preliminary hearing, but after the court went out of session and defendant’s interpreter was no longer in the court room; “damn you” three times; “desgraciado” twice; “I hope you burn in hell”; and “I cannot take this any longer,” as well as “I hate you.”  (pp. 143-147.)

 

The Court further found that the use of an uncertified interpreter also did not constitute a Sixth Amendment absent a showing of prejudice.  “Improper procedures in the use of an interpreter do not rise to the level of a constitutional violation unless they result in prejudice demonstrating defendant was denied his right to a fair trial.” (Id., at p. 144; quoting People v. Superior Court (Almaraz) (2001) 89 Cal.App.4th 1353, 1360.)

 

A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow him or her to participate at a critical stage and enhance the fairness of the proceeding. It does not extend to in camera discussions on matters bearing no reasonable, substantial relation to the defense of the charge. While ex parte proceedings are generally disfavored, the trial court retains discretion to conduct in camera, ex parte proceedings to protect an overriding interest that favors confidentiality. The same standard for requiring the defendant's personal presence applies under California law, and to prevail on such a claim under federal or state law the defendant bears the burden of showing that his or her absence prejudiced his or her case or denied him or her a fair trial.  (People v. Flinner (2020) 10 Cal.5th 686, 710.)

 

In this case, the ex parte proceedings at issue were occasioned by the revelations of a jailhouse informant that while in jail, defendant had been engaging in investigative activities aimed at disrupting his upcoming trial, including obtaining personal information about the prosecutor and trial judge. The trial court acted within its discretion in excluding defendant, and initially his attorneys, from these proceedings until defendant had been placed in a more secure housing unit where his communication with other inmates could be controlled. Most importantly, as noted by the Court, defendant failed to demonstrate that his absence from the hearings on his housing and telephone privileges resulted in any actual prejudice to his defense. The ex parte hearings did not concern the conduct of the trial, but only pretrial security measures. And as observed above, despite the inconvenience caused by defendant’s housing in Vista (located in the North County area) and the discomfort defense counsel felt about temporarily concealing the informant’s disclosure from defendant, the record gives no indication the defense team was ultimately prevented from effectively preparing for trial.  (Id., at pp. 709-710.)

 

The “critical stages” of a criminal prosecution typically extend, therefore, from arraignment (and perhaps even before arraignment; see below) through the completion of the first appeal.  (Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2nd 811].)  Between these two events, a criminal defendant has been held to be entitled to an attorney at:

 

• Post-Charging live lineup.  (Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2nd 1178].)

 

• Custodial Interrogation.  (Montejo v. Louisiana (2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

• Prior to filing of a juvenile petition where the minor waives a substantial right (statute of limitations), without consultation with an attorney.  (In re Elijah C. (2016) 248 Cal.App.4th 958.)

 

• Arraignment and plea.  (Moore v. Michigan (1957) 355 U.S. 155 [2 L.Ed.2nd 167].)

 

• Pre-trial plea negotiations.  (Missouri v. Frye (Mar. 21, 2012) __ U.S. __ [132 S. Ct. 1399; 182 L. Ed. 2nd 379]; Lafler v. Cooper (Mar. 21, 2012) __ U.S. __ [132 S. Ct. 1376; 182 L.Ed.2nd 398].)

 

• Preliminary Examination.  (Coleman v. Alabama (1970) 399 U.S. 1 [26 L.Ed.2nd 387].)

 

• Juvenile Court Proceedings.  (In re Gault (1967) 387 U.S. 1 [18 L.Ed.2nd 527].)

 

• Probation Revocation Proceedings.  (Gagnon v. Scarpelli (1973) 411 U.S. 778 [36 L.Ed.2nd 656]; People v. Bauer (2012) 212 Cal.App.4th 150.)

 

• A Parole Revocation Hearing.  (Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2nd 484].)

 

• Trial:  A criminal defendant is entitled to counsel at any criminal trial where an accused is actually deprived of liberty.  (Argersinger v. Hamlin (1972) 407 U.S. 25 [32 L.Ed.2nd 530].)  However, even though incarceration is an option, if none is imposed, there is no constitutional right to the assistance of an attorney.  (Scott v. Illinois (1979) 440 U.S. 367 [59 L.Ed.2nd 383].)

 

Also, letting defendant testify in the narrative when counsel knows defendant is going to perjure herself, without doing anything to help advance defendant’s perjury, does not deprive defendant of the assistance of counsel at a critical stage. (People v. Hayes (2018) 27 Cal.App.5th 340; ordered depublished.)

 

• Voir dire:  “Voir dire of prospective jurors is ‘a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present.’ (Gomez v. United States (1989) 490 U.S. 858, 873 [104 L.Ed.2nd 923, 109 S.Ct. 2237].) A capital defendant may validly waive this right to be present under federal and state constitutional law. (People v. Jackson (1996) 13 Cal.4th 1164, 1210 . . . .) The waiver must be made personally; it cannot be made through counsel. (Taylor v. Illinois (1988) 484 U.S. 400, 418, fn. 24 [98 L.Ed.2nd 798, 108 S.Ct. 646].)”  (People v. Wall (2017) 3 Cal.5th 1048, 1059.)   

 

• Removal of a juror, at least where the facts do not establish a sufficient basis for removal.  (People v. Young (2017) 17 Cal.App.5th 451, 467-468.)

 

• Closing arguments.  (People v. Noel (2005) 128 Cal.App.4th 1391, 1383.)

 

• A post-verdict motion for new trial.  (Rodgers v. Marshall (9th Cir. 2012) 678 F.3rd 1149.)

 

• Sentencing.  (People v. Robertson (1989) 48 Cal.3rd 18, 60; P.C. § 997(b)(1); Mempa v. Rhay (1967) 389 U.S. 128, 134 [19 L.Ed.2nd 336]; People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Parrott (2017) 10 Cal.App.5th 485, 496-501.)

 

• A Re-Sentencing Hearing.  (People v. Cutting (2019) 42 Cal.App.5th 344.)

 

• Appeal.  (Douglas v. California, supra.  See also Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [95 L.Ed.2nd 539]; “the right to appointed counsel extends to the first appeal of right, and no further.”)

 

However, it has been held that the Sixth Amendment right to counsel does not apply to appellate proceedings, but rather requires that one’s right to counsel at that stage must be founded on a Fourteenth Amendment “due process” and “equal protection” argument.  (Martinez v. Court of Appeal (2000) 528 U.S. 152, 160-161 [120 S.Ct. 684; 145 L.Ed.2nd 597]; citing Douglas v. California, supra.)

 

And see Morris v. Superior Court (2017) 17 Cal.App.5th 636; citing Gov’t. Code § 27706(a) and California Rules of Court, rule 8.851(a)(2), where it was held that only a convicted defendant is constitutionally (under the Sixth Amendment) entitled to the assistance of counsel on appeal.

 

The Fourth District Court of Appeal (Div. 2)  concluded that petitioner was entitled to appointed counsel on appeal pursuant to Cal. Rules of Court, rule 8.851(a)(1)(B). Petitioner had previously established her indigency in the trial court and was appointed counsel at that time, and therefore was entitled to the appointment of counsel in the appellate division.  The Court was not persuaded that petitioner’s alleged failure to use the correct forms created a burden so great that the appellate division needed to deny petitioner’s request with prejudice.  It was not for the appellate court to decide if petitioner’s appeal in the superior court’s appellate division was untimely. The possibility that the State could prevail on a motion to dismiss petitioner’s appeal on the ground the appeal was untimely did not mean petitioner should be denied counsel.  (Wolf v. Appellate Division of the Superior Court (2019) 38 Cal.App.5th 699.)

 

Defendant was convicted of misdemeanor battery on an officer and resisting arrest and granted probation.  On appeal, she petitioned the Superior Court for appointed counsel, but was denied.  The Court of Appeal directed that defendant be given appointed counsel.  Cal. Rules of Court, rule 8.851(a)(1) demands the appointment of counsel on appeal if the defendant “is subject to incarceration” and was represented in the trial court by appointed counsel or establishes indigency.  (In this case, defendant had appointed counsel at trial.)  The Court rejected the Superior Court's argument that, by being granted probation, Rule 8.851(a)(1) didn't apply to her.  “The plain language of [rule 8.851(a)(3)] states that if incarceration may be ordered upon a violation of probation, then a defendant is considered 'subject to incarceration' within the meaning of the rule.”  (Webster v. Superior Court (San Bernardino) (2020) 51 Cal.App.5th 576.)

 

• Appeal from a misdemeanor pre-trail suppression ruling:  Based on Cal. Const., art. I, § 15, the California Supreme Court held that a pretrial misdemeanor prosecution appeal of a suppression order qualifies as a critical stage of the prosecution at which an indigent criminal defendant has a right to appointed counsel as a matter of state constitutional law.  (Gardner v. Appellate Division of the Superior Court (People) (2019) 6 Cal.5th 998; noting that the trial court had held, per Morris v. Superior Court, supra, that the U.S. Constitution, Sixth Amendment, does not require the assistance of counsel under these circumstances, but declining to rule on this issue in this case.)

 

• Appeal from a restitution order.  (Harris v. Superior Court (2017) 14 Cal.App.5th 142; Defendant’s request for the appointment of counsel to represent him in his appeal of a restitution order in connection with a misdemeanor conviction was improperly denied because the restitution order, which was over three times as much as the statutory threshold for fines of $500, was a significant consequence of his conviction and encompassed by the phrase “significant adverse consequences,” under California Rules Court, Rule 8.851(a)(1)(A).

 

• Resentencing, at least where the trial court changes the defendant’s sentence to his detriment.  (People v. Sanchez (2016) 245 Cal.App.4th 1409.)

 

But maybe not where the resentencing doesn’t change the time to be served.  (See In re Ralph (1946) 27 Cal.2nd 866, 867.)

 

• Resentencing pursuant to P.C. § 1170.18(a) (reduction of listed felonies to misdemeanors, pursuant to Proposition 47), as a “critical stage,” requires the presence of counsel.  (People v. Rouse (2016) 245 Cal.App.4th 292, 296-300.)

 

                          Certain events are not considered to be “Critical Stages:”

 

Consent to Search:  Requesting a consent to search is not a “critical stage” requiring the assistance of counsel.  (United States v. Kon YuLeung (2nd Cir. 1990) 910 F.2nd 33, 38-40, consent valid despite having been indicted; United States v. Hidalgo (11th Cir. 1993) 7 F.3rd 1566, 1570.)

 

But see Tidwell v. Superior Court (1971) 17 Cal.App.3rd 780, 789, where it was ruled that obtaining a consent search from a charged juvenile was a Sixth Amendment violation.

 

Preindictment Lineup:  A preindictment lineup is not a “critical stage” requiring the presence of defense counsel.  (Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed. 2nd 411].)

 

California law still requires counsel at a preindictment/pre-arraignment lineup (Raven v. Deukmejian (1990) 52 Cal.3rd 336.), but does not exclude evidence of identification obtained at the lineup even when conducted in violation of this rule.  (People v. Johnson (1992) 3 Cal.4th 1183, 1222.)

 

Booking Questions:  Questioning a person to obtain routine biographical information at the subject’s booking does not involve an attempt to elicit incriminating information, and therefore does not constitute a Sixth Amendment violation even though done without his attorney being present.  (United States v. Godinez (6th Cir. 1997) 114 F.3rd 583, 589.)

 

Collection of Evidence:  Defendant is not entitled to the presence of counsel during the collection of a urine sample after an arrest for driving under the influence.  (United States v. Edmo (9th Cir. 1998) 140 F.3rd 1289, 1293.)

 

Sex Registration:  Defendant registering as a sex registrant (per P.C. § 290(a)) at a police station is not entitled to the assistance of his attorney in that the process is not the equivalent to a custodial interrogation, and is not a critical stage requiring the assistance of an attorney.  (People v. Sanchez (2003) 105 Cal.App.4th 1240, 1245-1246.)

 

During Investigation:  After defendant had received a “target letter” (telling him he was the target of a criminal investigation), after depositions were taken from material witnesses, and during the time when defendant had retained counsel, but prior to being indicted, is not a critical stage providing defendant with a Sixth Amendment right-to-counsel protection.  (United States v. Hayes (9th Cir. 2000) 231 F.3rd 663.)

 

“(T)he right to counsel of a person who has not so requested does not arise when he is ‘under investigation,’ but rather the right attaches when the process has shifted from being one of investigation to one of accusation [Citations.]”  (In re Brindle (1979) 91 Cal.App.3rd 660.)

 

An extradition proceeding does not trigger one’s Sixth Amendment protections.  (Anderson v. Alameida (9th Cir. 2005) 397 F.3rd 1175; People v. Wheelock (2004) 117 Cal.App.4th 561, 565-569.)

 

A pre-trail status conference merely confirming the trial date is not a “critical stage” requiring competent counsel.  (United States v. Benford (9th Cir. 2009) 574 F.3rd 1228, 1231-1233.)

 

A court hearing where the court grants the prosecution’s motion to collect a DNA sample from the defendant, where the defendant fails to show any prejudice.  (McNeal v. Adams (9th Cir. 2010) 623 F.3rd 1283.)

 

During pre-trial forensic testing:  “[S]ystematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like … [involve] differences which preclude such stages being characterized [157]  as critical stages at which the accused has the right to the presence of his counsel.”  (People v. Lucas (2014) 60 Cal.4th 153, 247-248.)

 

During removal of a juror, at least where the facts do in fact establish a sufficient basis for removal.  (People v. Young (2017) 17 Cal.App.5th 451, 467.)

 

During the re-reading of testimony before the jury:  “We have held that ‘[t]he reading back of testimony ordinarily is not an event that bears a substantial relation to  [512]  the defendant's opportunity to defend,’” absent a showing of prejudice.  (People v. Lucas, supra, at pp. 299-300; citing People v. Horton (1995) 11 Cal.4th 1068, 1121.) 

 

It was also held in Lucas that counsel has discretion to consent to a reading of testimony outside the presence of the court, counsel, and defendant.  (Id, at p. 300.)

 

On a People’s appeal to the Appellate Department of the Superior Court where the defendant is the respondent in a contested motion to suppress, and has not been convicted.  (Morris v. Superior Court (2017) 17 Cal.App.5th 636; citing Gov’t. Code § 27706(a) and California Rules of Court, rule 8.851(a)(2); only a convicted defendant is constitutionally entitled to the assistance of counsel on appeal.)

 

But see Gardner v. Appellate Division of the Superior Court (People) (2019) 6 Cal.5th 998, where the California Supreme Court, while declining to decide the correctness of Morris v. Superior Court, supra, held that even if the Sixth Amendment does not require the assistance of counsel under these circumstances, under Cal. Const., art. I, § 15, an indigent criminal defendant has a right to appointed counsel as a matter of state constitutional law.

 

During a post-judgment collateral challenge to one’s sentence (seeking equitable relief due to her good behavior in prison) does not create any right to relief, but merely invites a court’s “equitable jurisdiction.”  Also, the trial court’s summary denial, standing alone, is not an abuse of discretion.  (People v. Frazier (2020) 55 Cal.App.5th 858.)

 

             When the Sixth Amendment Has Not Attached (Additional):

 

Preparing to arrest defendant while search warrants are being executed at his home and businesses does not trigger defendant’s Sixth Amendment right to counsel.  (People v. Woods (2004) 120 Cal.App.4th 929, 939-941.)

 

The Sixth Amendment is not implicated merely because an informant is being used to pump the defendant for information while, unbeknownst to the defendant, the scene is surrounded by law enforcement officers waiting to arrest him and while search warrants are being executed at the defendant’s residence and businesses.  The Court noted that a criminal suspect’s Sixth Amendment right to counsel is not implicated until that point where he has been formally charged in court; i.e., “after the first formal charging proceeding.”  (Ibid.)

 

Arraigning a defendant in an Indian tribal court does not trigger the defendant’s Sixth Amendment right to an attorney when later prosecuted in a federal district court.  (United States v. Charley (9th Cir. 2005) 396 F.3rd 1074, 1082-1083.)

 

Because the “Bill of Rights,” including the Sixth Amendment, does not apply to Indian tribes, “since the Indian tribes are ‘distinct, independent political communities, retaining their original rights’ [Citation],” a tribal court arraignment does not trigger the defendant’s Sixth Amendment protections.  (United States v. Doherty (6th Cir. 1997) 126 F.3rd 769, 777-783; defendant questioned by federal investigators after his arraignment in tribal court.)

 

Civil proceedings in Juvenile Court to determine the placement of a child, where the minor was suspected of molesting a child and was appointed an attorney, does not shield him from questioning by criminal investigators.  The Sixth Amendment right to an attorney only attached after being charged with the offense in a criminal court.  (People v. Chutan (1999) 72 Cal.App.4th 1276.)

 

Neither having an attorney for purposes of extradition nor the existence of an arrest warrant, absent the filing of a case, triggers the suspect’s Sixth Amendment right to counsel.  (People v. Wheelock (2004) 117 Cal.App.4th 561, 565-569; United States v. Yousef (2nd Cir. 2003) 327 F.3rd 56, 142, fn. 66; DeSilva v. DiLeonardi (7th Cir. 1999) 181 F.3rd 865, 868-869; Chewning v. Rogerson (8th Cir. 1994) 29 F.3rd 418, 420; Judd v. Vose (1st Cir. 1987) 813 F.2nd 494, 497; Anderson v. Alameida (9th Cir. 2005) 397 F.3rd 1175.)

 

P.C. § 804, in making reference to a prosecution being commenced when an arrest or bench warrant is issued, applies to the running of a “statute of limitations” and not the Sixth Amendment.  (People v. Wheelock, supra, at pp. 565-566.)

 

Note:  The existence of an arrest warrant, however, may mean that a complaint has been filed with the court.  See below for a discussion as to whether the filing of a complaint triggers a defendant’s Sixth Amendment trial rights.

 

A convicted defendant filing for Habeas Corpus relief in federal court in federal capital cases does not have a constitutional right to the assistance   of counsel.  (Martel v. Clair (Mar. 5, 2012) __ U.S. __ [132 S.Ct. 1276; 182 L.Ed.2nd 135].) 

 

However, the right to appointment of counsel is provided by statute; see 18 U.S.C. § 3599(a)(1), (a)(2), (e).)

 

The fact that an officer deliberately delays making an arrest until after a “non-custodial” interrogation can be completed is irrelevant.  The suspect has no right to an earlier arrest so as to trigger his Sixth Amendment right to counsel.  “There is no constitutional right to be arrested.”   (See Hoffa v. United States (1966) 385 U.S. 293, 319-310 [17 L.Ed.2nd 374, 386]; and People v. Webb (1993) 6 Cal.4th 494, 527.)

 

Exceptions: A couple of federal cases seem to be out of step with the above rules:

 

A sealed, secret indictment, unknown to the defendant, when defendant had already retained counsel, was held to be sufficient to trigger defendant's Sixth Amendment rights.  (United States v. Arnold (3rd Cir. 1997) 106 F.3rd 37, 40.)

 

See also United States v. Harrison (9th Cir. 2000) 213 F.3rd 1206; a case where the Ninth Circuit Court of Appeal determined that an uncharged criminal suspect’s Sixth Amendment rights were violated when he was questioned after:

 

The defendant retained counsel on an ongoing basis to assist with a pending criminal investigation;

 

The government knew, or should have known, that the defendant had an ongoing legal representation relating to the subject of that investigation; and

 

The eventual indictment brought charges precisely anticipated by the scope of the pre-indictment investigation.

 

Filing of a “Complaint:” Most of the appellate authority, above, only talks about the initiation of criminal proceedings by “formal charge, preliminary hearing, indictment, information, or arraignment.”  (See Kirby v. Illinois (1972) 406 U.S. 682, 689 [32 L.Ed.2d 411, 417], above.)  The filing of a “complaint” in state court is typically not mentioned.  An issue may arise as to whether the simple filing of a complaint, such as when necessary to obtain an arrest warrant but without the defendant making a court appearance, comes within the “formal charge” provision.

 

There has for some time been state authority to the effect that filing a complaint does in fact constitute the initiation of criminal proceedings against the defendant, triggering the protections of the Sixth Amendment.  (People v. Engert (1987) 193 Cal.App.3rd 1518.)

 

See also People v. Lebell (1979) 89 Cal.App.3rd 772:  Surreptitiously interrogating a criminal suspect who had been charged by complaint, but had not been informed of this fact, without advising him of his right to an attorney, is a Sixth Amendment violation.

 

And see People v. Henderson (1990) 225 Cal.App.3rd 1129, where the Court did not contest the validity of the rule in Engert and Lebell, but merely held that the defendant’s statements were admissible in that defendant, knowing that a complaint had been filed, waived her right to the assistance of counsel and was not subjected to any “trickery of deceptive means . . . by the police.”

 

And see People v. Wader (1993) 5 Cal.4th 610, 653-654, where it was held, without analyzing the issue, that the filing of the complaint had triggered defendant’s Sixth Amendment right to counsel, but that because he had not yet “invoked” such a right, law enforcement was not precluded from initiating an interrogation.

 

And see People v. Frye (1998) 18 Cal.4th 894, 987, where it was assumed, without arguing the issue, that the filing of a complaint triggered the defendant’s Sixth Amendment right to counsel.

 

Federal authority has held to the contrary, specifically holding that the filing of a complaint does not trigger the Sixth Amendment.  (United States v. Duvall (2nd Cir. 1976) 537 F.2nd 15, 22; United States v. Pace (9th Cir. 1986) 833 F.2nd 1307, 1312; United States v. Langley (11th Cir. 1988) 848 F.2nd 152, 153.)

 

However, in these federal cases, it is noted that the “principal function of a (federal) complaint ‘is as a basis for an application for an arrest warrant’” (See United States v. Pace, supra; and United States v. Duvall, supra.), and, arguably, not necessarily the formal initiation of a criminal case as occurs under California law.  (See P.C. § 949)

 

“(E)very (federal) circuit that has considered the issue has concluded that a federal complaint does not qualify as such, primarily because of its limited roll as the precursor to an arrest warrant (as opposed to a ‘formal charge’). (Citations, including United States v. Pace, supra., omitted)” United States v. Boskic (1st Cir. 2008) 545 F.3rd 69, 83, referring to Federal Rules of Criminal Procedure, Rules 3 & 4, noting that a “federal complaint” is merely a statement of probable cause filed by a law enforcement officer, without the necessary participation of a prosecutor, as a legal prerequisite to the issuance of an arrest warrant.)

 

And see Anderson v. Alameida (9th Cir. 2005) 397 F.3rd 1175, where it was held that a California state complaint, filed by a police officer for the purpose of obtaining an arrest warrant, did not trigger the defendant’s Sixth Amendment rights.

 

The issue was recently met head-on in People v. Viray (2005) 134 Cal.App.4th 1186, where the Sixth District Court of Appeal found that the filing of a complaint does in fact trigger one’s Sixth Amendment right to counsel.

 

Note:   A possible distinction between Viray and the federal decisions, including Anderson v. Alameida, although not discussed in either case, is that in Viray, the complaint was filed by a prosecutor and intended to be the initiation of the criminal prosecution of the defendant pursuant to P.C. § 806.  In Anderson, the complaint was apparently filed by a law enforcement officer for the sole purpose of obtaining an arrest warrant, as authorized by P.C. § 813.  Viray and Anderson can be reconciled if it is assumed that the two procedures were intended to set up different uses of a complaint.

 

It is also arguable that Rothgery v. Gillespie (2008) 554 U.S. 191 [171 L.Ed.2nd 366], holding that; “a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel,” has overruled, by implication, Viray.

 

But see Patterson v. Illinois (1988) 487 U.S. 285 [101 L.Ed.2nd 261], noting that the filing of an indictment triggered defendant’s Sixth Amendment right to counsel.  Assuming Patterson is still good law (and there’s no reason for assuming that it is not), then Viray is also still good law, and Rothgery only applies to one way to trigger a defendant’s Sixth Amendment rights without intended to exclude others.

 

Waiver of Sixth Amendment Rights:  A charged criminal defendant may “waive” his right to counsel, so long as such a waiver is made knowingly, voluntarily and intelligently.  (Johnson v. Zerbst (1938) 304 U.S. 1458, 464 [82 L.Ed.1461, 1466]; Patterson v. Illinois (1988) 487 U.S. 285, 292, fn. 4 [101 L.Ed.2nd 261, 272]; Coughlan v. United States (9th Cir. 1968) 391 F.2nd 371.)

 

“In order to invoke the right of self-representation successfully, a defendant's waiver of counsel must be ‘timely, not for the purposes of delay, unequivocal, and knowing and intelligent.’  (Cites omitted; McCormick v. Adams (9th Cir. 2010) 621 F.3rd 970, 976.)

 

“If instigated by an accused specifically waiving the right to counsel, interrogation out of counsel’s presence may be permissible.”  (People v. Manson (1976) 61 Cal.App.3rd 102, 164-165.)

 

Burden of Proof:  It is incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.”  (Johnson v. Zerbst, supra; Brewer v. Williams (1977) 430 U.S. 387, 404 [51 L.Ed.2nd 424, 439].)

 

It is the state’s burden to prove a voluntary, knowing, and intelligent relinquishment of the defendant’s Sixth Amendment right to counsel.  (Patterson v. Illinois (1998) 487 U.S. 285, 293 [101 L.Ed.2nd 261, 272].)

 

“This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.”  (Brewer v. Williams, supra, at p. 404 [51 L.Ed.2nd at p. 440]; citing Schneckloth v. Bustamonte (1972) 412 U.S. 218, 238-240 [36 L.Ed.2nd 854, 869-870].)

 

In Court:  A criminal defendant has a constitutional right to waive the assistance of counsel and represent himself, so long as he is sufficiently mentally competent to understand what it is he is giving up.  (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2nd 562].)

 

“(W)hen a defendant waives his right to counsel, a defendant must do so ‘knowingly and intelligently.’” (People v. Parrott (2017) 10 Cal.App.5th 485, 496; citing Faretta, supra, at p. 835.)

 

“Generally, ‘[a] trial court must grant a defendant’s request for self-representation if three conditions are met:’”

 

• The defendant must be mentally competent, and must make his request knowingly and intelligently, having been appraised of the dangers of self-representation.

 

• Defendant must make his request unequivocally.

 

To be mentally competent for purpose of invoking his right to waive counsel, a defendant must have;

 

• “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and

 

• “a rational as well as factual understanding of the proceedings against him.”  (People v. Wycoff (Aug. 23, 2021) __ Cal.5th __, __ [2021 Cal. LEXIS 5998]; quoting Dusky v. United States (1960) 362 U.S. 402, at p. 402 [4 L.Ed.2nd 824; 80 S.Ct. 788]; see also P.C. § 1367(a).)

 

As to the logic behind the first of these two factors, the Wycoff Court noted only that “a defendant who is represented and is considering whether to waive counsel needs to consult with counsel in order to understand and weigh the pros and cons of that decision.”  (Id, at p. __.)

 

Defendant must also make his request within a reasonable time before trial.

 

(People v. Tena (2007) 156 Cal.App.4th 598, 604-605; quoting People v. Welch (1999) 20 Cal.4th 701, 729; People v. Stanley (2006) 39 Cal.4th 913, 931-932; People v. Jackson (2009) 45 Cal.4th 662, 689.)

 

A “Faretta Admonishment and Waiver:”

 

In order for a “Faretta waiver” to be “knowing and intelligent,” the trial court must insure that he understands:

 

• The nature of the charges against him;

 

• The possible penalties;

 

• The dangers and disadvantages of self-representation; and

 

• The defendant’s inability to rely upon the trial court to give personal instruction on courtroom procedure or to provide the assistance that otherwise would have been rendered by counsel.

 

(United States v. Erskine (9th Cir. 2004) 355 F.3rd 1161, 1167; People v. Sullivan (2007) 151 Cal.App.4th 524, 545; People v. Barnum (2003) 29 Cal.4th 1210, 1214-1215.); McCormick v. Adams (9th Cir. 2010) 621 F.3rd 970, 977.)

 

Defendant should also be told that:

 

• Self-representation is almost always unwise and that the defense he conducts might be to his detriment;

 

• He will have to follow the same rules that govern attorneys;

 

• The prosecution will be represented by experienced, professional counsel who will have a significant advantage over him in terms of skill, training, education, experience, and ability;

 

• The count may terminate his right to represent himself if he engages in disruptive conduct; and

 

He will lose the right to appeal his case on the grounds of ineffective assistance of counsel. 

 

(People v. Phillips (2006) 135 Cal.App.4th 422, 428; noting that the above list is not necessarily exhaustive. 

 

See also People v. Sullivan, supra, at p. 546; and Cook v. Ryan (9th Cir. 2012) 688 F.3rd 598.)

 

The potential fine:  In ruling upon the defendant’s motion to represent himself, the trial court neglected to inform defendant of the statutory potential fine of $250,000.  On appeal, in upholding defendant’s conviction, the appellate court ruled that:  “While the better practice would be to inform the accused, on the record, of the maximum sentence, including any maximum monetary fine that could be imposed on a conviction, defendant does not cite, and we have not found, any case specifically concluding that an advisement on this point is a constitutional minimum in every case.”  (People v. Bush (2017) 7 Cal.App.5th 457, 468-479.)

 

A defendant who chooses to represent himself in a felony case must be advised by the court of his right to the assistance of counsel on at least two separate occasions:

 

• When first brought before a magistrate and advised of the filing of the complaint.  (P.C. § 859)

 

• After the preliminary examination when the defendant is arraigned in superior court on the information.  (P.C. § 987)

 

“Trial” vs. “Structural” Error:

 

“The types of constitutional violations that may occur during a criminal proceeding, either at trial or sentencing, are divided into two categories. (Arizona v. Fulminante (1991) 499 U.S. 279, 307–310 [113 L. Ed. 2d 302, 111 S. Ct. 1246].) The first category consists of “‘“trial error,”’” which “‘may . . .  be quantitatively assessed in the context of other evidence presented’” and is subject to harmless-error analysis. (Id. at pp. 307–308.) The second consists of “‘structural defect[s],’” which “‘affect[] the framework within which the trial proceeds,’” and require automatic reversal. (Id. at p. 310.) Typically, there is a “‘strong presumption’” that any error will typically fall into the trial error category. (Rose v. Clark (1986) 478 U.S. 570, 579 [92 L. Ed. 2d 460, 106 S. Ct. 3101].)”  (People v. Parrott (2017) 10 Cal.App.5th 485, 496-501; an inadequate advisal at sentencing held to be harmless beyond a reasonable doubt; a “trial error.”)

 

Case Law:

 

A defendant must understand his constitutional right to have a lawyer perform certain core functions, and the possible consequences of mishandling these core functions and the lawyer’s superior ability to handle them. (United States v. Gerritsen (9th Cir. 2009) 571 F.3rd 1001; such understanding shown where the record indicated that defendant had represented himself in at least six jury trials in state court and a civil trial in federal court.)

 

There is no requirement that the defendant be advised of the factors that are unique to a death penalty case.  “The trial court is not required to ensure that the defendant is aware of legal concepts such as the various burdens of proof, the rules of evidence, or the fact that the pursuit of one avenue of defense might foreclose another. . . .”  (People v. Riggs (2008) 44 Cal.4th 248, 274-278.)

 

At footnote 10, pg. 277, the Riggs Court notes that “the defendant’s technical legal knowledge is irrelevant to the court’s assessment of the defendant’s knowing exercise of the right to defend himself,” quoting from People v. Windham (1977) 19 Cal.3rd 121, 128.

 

A defendant who represents herself cannot later complain on appeal that an issue was not properly raised at the trial court level, and thus has waived that issue, even if she had counsel at one point who had the opportunity to raise the issue and should have, so long as she also had the opportunity to raise it herself while representing herself.  (People v. Polk (2010) 190 Cal.App.4th 1183, 1195-1196; i.e., an inadequate advisal of her Miranda rights which, because not raised at the trial level, allowed for the admission of incriminating statements that should have been suppressed.)

 

See also Cook v. Ryan (9th Cir. 2012) 688 F.3rd 598.

 

Where defendant was asked why he wanted to represent himself at the penalty phase of his death penalty case, and he responded that: “It's a belief. I've had it from day one. I've always wanted to represent myself. That's basically it. It's simple. You know, I'm happy with my lawyers but it's a belief that I had. And I told them from day one that if it comes to a penalty phase time, I would like to represent myself. That's basically it.”, it was held that no more on that topic was legally required.  (People v. William (2013) 56 Cal.4th165, 194.)

 

The trial court did not have to provide the defendant with a breakdown of the full range of sentencing options. The trial court need only notify the defendant of the maximum penalty he was facing.  And here, in notifying the defendant that he faced life in prison as a penalty for the crimes and enhancements charged, the court adequately notified the defendant of the possible penalty he faced if convicted.  Accordingly, there was no Sixth Amendment violation.  In so holding, however, the court did warn that the advisement should be more specific in the case of a plea, but where the trial outcome cannot be predicted, the advisement here was adequate.  (People v. Jackio (2015) 236 Cal.App.4th 445, 450-456.)

 

It is an undecided issue whether a defendant who lawfully represents himself in his first trial, is entitled to a new Faretta hearing and advisal upon remand and before his second trial. “‘If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court’s decision cannot be contrary to or an unreasonable application of clearly established federal law.’ Brewer v. Hall, 378 F.3rd 952, 955 (9th Cir. 2004). Therefore, the Washington Supreme Court’s decision denying review of Rishor’s waiver of counsel claim was not contrary to, or an unreasonable application of, clearly established federal law as established by the United States Supreme Court. The district court erred in concluding otherwise.”  (Rishor v. Ferguson (9th Cir. May 6, 2016) 822 F.3rd 482, 495-498; habeas relief denied.)

 

Failure of the court to advise a pro per. defendant of his right to the assistance of a lawyer is error (People v. Sohrab (1997) 59 Cal.App.4th 89, 95-102.), but does not necessarily require reversal of a subsequent conviction.  (People v. Crayton (2002) 28 Cal.4th 346.)

 

However, an improper denial of a request to represent one’s self is “not amenable to harmless error analysis.  The right is either respected or denied; its deprivation cannot be harmless.”   (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [79 L.Ed.2nd 122].)

 

Making a motion to substitute counsel (i.e., a “Marsden motion.” People v. Marsden (1970) 2 Cal.3rd 118.) does not, by itself, encompass a motion to represent oneself as well.  Failure to separate the two and specifically move to represent oneself waives the issue.   (Robinson v. Kramer (9th Cir. 2009) 588 F.3rd 1212.)

 

A court’s promise that the issue would be revisited “at any time” should the defendant change his mind was not sufficient to show that his waiver of counsel was not intelligently made when the record was clear that he was determined to represent himself even before the court made this statement.  (McCormick v. Adams (9th Cir. 2010) 621 F.3rd 970.)

 

Defendant represented himself as he proceeded to trial on charges that he made criminal threats.  He was removed from the courtroom for disruptive conduct prior to opening statements, and missed the direct examination of the victim.  He participated in the remainder of trial, and was found guilty.  Defendant appealed, alleging his Sixth Amendment right to counsel was violated.  The Court of Appeal agreed and reversed:  “[T]he denial of counsel during the testimony of a key witness is a per se Sixth Amendment violation that requires reversal without analysis for prejudice or harmless error.”  The Court further noted that:  “[T]o the extent a self-represented defendant chooses to engage in disruptive conduct during trial, the court retains discretion to terminate self-representation and appoint substitute counsel.”  That was not done in this case.  (People v. Ramos (2016) 5 Cal.App.5th 897.)

 

Defendant was convicted of aggravated arson and related offenses for his act of burning down a church.  He represented himself at trial, did not make an opening statement or closing argument, did not cross-examine most witnesses, and did not testify or present any defense evidence.  Defendant appealed arguing that the trial court erred in finding him competent to represent himself and stand trial.  The Court of Appeal agreed and reversed:  “[T]he Constitution permits states to deny self-representation to gray-area defendants who may be mentally competent to stand trial,”  “[t]he trial court erred in failing to recognize it was within its discretion to conduct an inquiry regarding defendant’s mental competency to represent himself and, if necessary, to deny defendant’s Faretta request,” and “the trial court erred in granting [defendant’s] Faretta request because the trial court was unaware it had discretion . . . to determine whether defendant was competent to waive his right to counsel.”  The matter was remanded to the trial court to attempt to assess defendant’s competence to represent himself and to stand trial at the time of trial, and to take appropriate action as a result of the findings or inability to make such findings.  (People v. Shiga (2016) 6 Cal.App.5th 22, 31-35, 36-42.)

 

In a P.C. § 245 assault trial where the pro per defendant, who had a well-documented history of violence, was required to wear leg shackles and one handcuff, the trial court was found to have properly balanced safety concerns with defendant’s rights to self-representation, a fair trial, and due process, because it was the least intrusive means of restraint.  To minimize any prejudice, defendant was allowed to keep one hand free for note-taking and to dress in civilian clothes.  The prosecutor was required to remain seated.  Matters not appropriate for the jury to hear were addressed when the jury was not present rather than at sidebar.  The handcuffs and shackles were covered with matte black tape.  Counsels’ table was fitted with a black opaque cloth drape.  Also, the jury was instructed that the restraints were not evidence and that they should not speculate about the reasons for them.  (People v. Billie (2017) 10 Cal.App.5th 434.)

 

Charged and convicted of domestic violence felonies and sentenced to prison, defendant, who represented himself, appealed arguing that the master calendar court, well before trial, failed to adequately advise him of the dangers and disadvantages of self-representation.  The Court agreed.  Per the Court: “The (master calendar) court’s inquiry consisted of asking whether (defendant) initialed and signed the form (which he did) and whether he had any questions (he did not).  The court did not ascertain on the record that defendant read and understood the written Faretta form.”  (People v. Ruffin (2017) 12 Cal.App.5th 536: The master calendar judge also failed to inquire about ambiguities in defendant’s responses regarding his understanding of the nature of the charges against him.  And nothing in the record—i.e., the oral proceedings or the written Faretta form—advised defendant of the penal consequences of conviction.)

 

In a murder case, it was held that defendant’s request for self-representation was not knowing, intelligent, and voluntary.  The record indicates that defendant’s request to represent himself was made in passing anger or frustration about the need to continue the trial and that he immediately expressed ambivalence about self-representation.  Nothing in the record shows that he was advised of the penal consequences of conviction; up to 27 years to life in state prison.  Defendant’s Faretta waiver was held to be invalid because the master calendar court’s inquiry failed to adequately demonstrate that he understood the dangers and disadvantages of representing himself.  Given defendant’s reluctance to represent himself at trial, it could not be said, beyond a reasonable doubt, that had he been properly advised of the dangers and disadvantages of self-representation he would have chosen to represent himself.  (People v. Ruffin (2017) 12 Cal.App.5th 536.)

 

In a capital murder case, where defendant demonstrated his capability to undertake the basic tasks necessary to represent himself, and that the trial court had no reason to doubt defendant’s skill and ability to do so, the trial court did not err in granting defendant’s motion to represent himself. Defendant was cooperative, respectful, and articulate during courtroom proceedings. He filed motions citing relevant legal authority that he applied to the specific facts at hand, made organized and internally consistent arguments, and was able to effectively communicate his arguments to the trial court in written and oral form. Defendant demonstrated the ability to understand courtroom proceedings and apply rules of procedure. During the pretrial and trial proceedings, defendant moved for and won a motion to change venue, challenged two jurors for cause after engaging in voir dire, exercised a peremptory challenge, gave opening and closing statements, and cross-examined witnesses. There is ample evidence throughout the record that defendant was capable of undertaking the types of basic trial tasks the high court identified as relevant to the competence inquiry.  (People v. Mickel (2016) 2 Cal.5th 181, 204-209.)

 

P.C. § 686.1, which requires defendants in capital cases to be represented by counsel during all stages of the preliminary and trial proceedings, does not apply where a defendant knowing and intelligently waives his right to counsel, nor does it require the trial court to sua sponte revoke defendant’s self-representation when a capital case moves into the penalty phase.  (Id., at pp. 209-210.)

 

The trial court also did not err by failing to renew defendant’s Faretta waiver after the People formally noticed the court that they were going to seek the death penalty, per P.C. § 190.3, in that defendant was fully aware that the death penalty would be sought before waiving his right to counsel.  (Id., at pp. 210-213.)

 

The federal district court was held to have erred in denying defendant’s writ of habeas corpus because the defendant’s sentence was obtained in violation of his Sixth Amendment rights under Faretta v. California where he unequivocally requested to represent himself rather than be represented by a public defender.  His unsuccessful attempt to hire private counsel did not render his request to be equivocal.  Defendant’s failure to object again after the trial court violated Faretta did not constitute acquiescence in the appointment of a public defender, nor did it cure the Faretta violation.  The request to represent himself, even if it was considered a new request, was timely as it was made weeks before trial.  Also, because defendant was prejudiced by his appellate counsel’s failure to raise his Faretta claim, the defendant was denied his Fourteenth Amendment right to the effective assistance of appellate counsel.  (Tamplin v. Muniz (9th Cir. 2018) 894 F.3rd 1076.)

 

Where defendant made her request on the second day of the prosecution’s case-in-chief and approximately two years after lead counsel were appointed to represent her, even after taking into account other relevant factors, defendant’s request to represent herself was held to be untimely.  (People v. Buenrostro (2018) 6 Cal.5th 367, 425-426.)

 

“(T)imeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made. An analysis based on these considerations is in accord with the purpose of the timeliness requirement, which is ‘to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.’”  (Id., at p. 426; quoting People v. Lynch (2010) 50 Cal.4th 693, at p. 724.)

 

The district court did not clearly err in finding defendant’s waiver of counsel valid because the record showed that the waiver was unequivocal and that defendant knowingly and intelligently waived his right to counsel.  Defendant’s request for new standby counsel did not entitle him to a new Faretta colloquy.  The district court did not err by granting defendant the right to represent himself because the fact that he presented an unorthodox and ultimately unsuccessful defense did not warrant finding that he was not competent to represent himself as he gave an opening statement, testified, examined and cross-examined witnesses, presented arguments in support of his defense, delivered a closing argument of significant length, understood his right to challenge the jury instructions and waived that right.  (United States v. Audette (9th Cir. 2019) 923 F.3rd 1227.)

 

Defendant, who was convicted of throwing her dog off of a parking garage, causing the dog to fall seven stories to its death, was granted a new trial because the judge who she cursed as an “idiot” failed to allow her to be her own attorney.  The trial court did not find that defendant suffered from severe mental illness rendering her incapable of carrying out the basic tasks of presenting a defense; i.e., that she was not mentally competent to represent herself. While the record established that defendant was unlikely to be effective in conducting her own defense, Faretta v. California nevertheless required defendant be allowed to represent herself at trial, and the trial court’s error was reversible per se.  Because the record contained nothing indicating self-representation would have delayed the trial, the trial court’s ruling could not be upheld on the alternate grounds that it was untimely.  (People v. Best (2020) 49 Cal.App.5th 747.)

 

During a multi-defendant gang murder conspiracy trial, one of the defense attorneys (for co-defendant Nicholas Hoskins) became critically ill, requiring his withdrawal. Hoskins opted to represent himself for the trial’s remainder.  The Appellate Court, in upholding defendants’ convictions, noted that counsel’s illness presented a legal necessity sufficient to satiate double jeopardy.  However, the client’s decision to represent himself eliminated the need for a mistrial.  Based on an extensive and carefully crafted record, the Court further held that the Hoskins’ decision wasn't involuntary, untimely, or equivocal.  (People v. Ware et al. (2020) 52 Cal.App.5th 919; ordered unpublished at 2020 Cal.App. Unpub LEXIS 4633].)

 

Closing Argument:

 

“The constitutional right to assistance of counsel includes the right for defense counsel to ‘make a closing summation to the jury.’”  (United States v. Bell (9th Cir. 2014) 770 F.3rd 1253, 1257; quoting Herring v. New York (1975) 422 U.S. 853, 858 [45 L.Ed.2nd 593],)  

 

A defendant may waive his right to present a closing argument. Where a bench trial is short and uncomplicated, so long as defense counsel had a meaningful opportunity to present a closing argument, foregoing closing argument was held to be a reasonable strategy.  Defendant implicitly waived his right to give a closing argument in such a circumstance.  (United States v. Richter (9th Cir. 2015) 782 F.3rd 498, 502-504.)

 

It was not a Sixth Amendment violation for the trial court to fail to advise defendant, representing himself, that he had a right to present a closing argument.  Defendant was not precluded from making a closing argument since he had a meaningful opportunity to do so, but chose to remain silent. Nothing in the case law gives a self-represented defendant the right to be individually and affirmatively advised of the right to present a closing argument.   (United States v. Bell, supra, at pp. 1257-1258.)

 

At Sentencing:

 

The court’s failure to adequately advise defendant of his rights upon the defendant’s request to proceed with sentencing in the absence of his attorney and to represent himself was held to be a “trial error,” as opposed to a “structural error,” and did not require an automatic reversal.  As such, the error was held to be harmless beyond a reasonable doubt.  (People v. Parrott (2017) 10 Cal.App.5th 485, 496-501.)

 

The Trial Court’s Misstatements:

 

It is the defendant’s burden to show that he was not properly advised and that his waiver was not “knowingly and intelligent.”  (People v. Sullivan (2007) 151 Cal.App.4th 524, 546-552; noting that where the record is not available, defendant has failed to meet his burden.)

 

A trial court’s misstatements, regardless of their origin, may result in an invalid waiver of the right to counsel. (See People v. Goodwillie (2007) 147 Cal.App.4th 695, 734-735; United States v. Erskine (9th Cir. 2004) 355 F.3rd 1161, 1165-1167.) 

 

However, where the record as a whole demonstrates that a defendant’s waiver was knowing, intelligent and voluntary, and that he understood the disadvantages of self-representation, including the risks and complexities of the particular case, despite the trial court’s misstatements concerning the potential penal consequences of an assault conviction for purposes of the three strikes law, the resulting waiver of counsel was still good.  By the time defendant elected to represent himself, four days after the court misstated the potential consequences, defendant had repeatedly been informed of the correct information; i.e., that he was charged with committing an assault with a deadly weapon which was, without dispute, a strike offense, rather than assault with force likely to produce great bodily injury. Also, the trial court’s misstatements pertained to a collateral subject, and there was no evidence that defendant’s decision to represent himself was in any way related to the earlier misinformation.  (People v. Fox (2014) 224 Cal. App. 4th 424, 433-438.)

 

Revocation of the Right to Represent Oneself:

 

A defendant’s right to represent himself, however, may be forfeited through his own misconduct, unless the misconduct is unrelated to and independent of the underlying prosecution and thus presents no danger of impairing the integrity of the trial.  (Ferrel v. Superior Court (1978) 20 Cal.3rd 888; abusing his pro. per. status by using his legal runner for gambling purposes, and by damaging a jail telephone, insufficient cause to revoke defendant’s pro. per. status.)

 

Demonstrating his inability to follow the court’s rules by being disruptive and refusing to comply with the court’s orders is sufficient cause to deny a defendant his right to represent himself.  (People v. Watts (2009) 173 Cal.App.4th 621.)

 

One form of serious and obstructionist misconduct is witness intimidation, which, by its very nature, compromises the fact-finding process and constitutes a quintessential “subversion of the core concept of a trial.”  (United States v. Dougherty (D.C. Cir. 1972) 473 F.2nd 1113, 1125.)

 

A defendant’s forfeiture of his right to represent himself may result from activities outside the courtroom.  “Ultimately, the effect, not the location, of the misconduct and its impact on the core integrity of the trial will determine whether termination is warranted.”  People v. Carson (2005) 35 Cal.4th 1, 9.)

 

Factors to consider include:

 

• The availability and suitability of alternative sanctions;

 

• Whether the defendant has been warned that particular misconduct will result in termination of in propria persona status;

 

• Whether the defendant has “intentionally sought to disrupt and delay his trial.”  (Id., at p. 10.)

 

(See also People v. Doss (2014) 230 Cal.App.4th 46, 55-56.)
 

A trial judge has the discretion to terminate a defendant’s pro per status when the defendant deliberately engages in obstructionist misconduct. Although a defendant’s right to self-representation may not be terminated merely for forceful advocacy, termination of that right is proper where “the record can only be read as an attempt to abuse the dignity of the courtroom and impugn the integrity of just about everyone involved in the case. This should not be tolerated.”  (People v. Peyton (2014) 229 Cal.App.4th 1063, 1081.)

 

A judge may not revoke a defendant’s pro per status using the same legal standard used by the Sheriff when revoking his jail pro per privileges.  After defendant lost his jail pro per privileges (e.g., phone use) due to continued violence while in custody, the court granted the People’s motion to revoke defendant’s in court pro per status. The Appellate Court ruled that to do this was error.  A court may revoke a defendant’s pro per status when he deliberately engages in serious and obstructionist misconduct (inside or outside the courtroom) that threatens the integrity of the trial.  But the trial judge may not revoke a defendant’s pro per status solely by relying on a finding that defendant had abused his jail pro per privileges.  (People v. Doss (2014) 230 Cal.App.4th 46, 54-57.)

 

Also, the trial court failed to adequately consider “the availability and suitability of alternative sanctions” short of revoking defendant’s pro per status.  (Id, at p. 57; citing People v. Carson (2005) 35 Cal.4th 1, 10.)

 

It was also noted that proceedings “to consider termination of (a) defendant’s Faretta rights . . . should not be the subject of a ‘motion’ by the People” because “prosecutors (should) not . . . overstep their proper role” by “advocat(ing) for a particular result” instead of merely “serv(ing) as an adjunct of the court in discharging its duty to control the orderliness and integrity of the proceedings.” (Id., at p. 50, fn. 5; citing People v. Carson, supra, at p. 11, fn. 1.)

 

Also, on remand for a new hearing as to whether defendant’s pro per status was properly revoked, should it be found that defendant is entitled to a new trial, the Court advised the trial court that it was not precluded from considering incidents subsequent to the prior hearing and trial in its decision as to whether defendant is entitled to represent himself in the new trial.  (Id., at p. 58.)

 

In a split (2-to-1) decision out of the Second District Court of Appeal, it was held that the trial court judge properly exercised his discretion in revoking defendant’s constitutional right of self-representation where the defendant attempted to intimidate a witness. Defendant asked his sister to dissuade the victim from testifying against him. Defendant’s attempt to alter evidence at trial struck at the heart of the truth-seeking function of the superior court.  The trial court held two adversary hearings, allowed defendant to be heard, and made an express factual finding that defendant violated the salient rules and attempted to dissuade a witness from testifying.  (People v. Torres (2020) 47 Cal.App.5th 984, 988-990.)

 

Defendant’s convictions for obstruction of justice and interstate travel in aid of extortion were reversed because the district court’s termination of defendant's right to represent himself violated the Sixth Amendment where defendant’s single question about whether the BLM agent was under criminal investigation appeared no more disruptive or obstructive than questions sometimes asked by counsel.  Defendant was not defiant nor did he engage in blatantly outrageous conduct.  The facts did not support the trial court’s decision to terminate his right to represent himself.  (United States v. Engel (9th Cir. 2020 [968 F.3rd 1046.)

 

In a capital murder case, the trial court erroneously terminated defendant’s right to self-representation where the record failed to contain factual support for the trial court’s finding that defendant had been dilatory.  There was no evidence to demonstrate defendant’s discovery requests were made in bad faith or intended to cause delay, and the trial court did not otherwise make clear how defendant’s behavior threatened to compromise its ability to conduct a fair trial.  Although defendant’s subsequent threats to the trial court and his assault on counsel were inappropriate, this misconduct, no matter how serious, could not shore up an unsupported ruling that had already taken place.  The erroneous denial of defendant’s pro per status was reversible per se.  (People v. Becerra (2016) 63 Cal.4th 511.)

 

A waiver of one’s request to represent himself may be found where defendant has abandoned the request, as determined by his subsequent conduct.  (People v. Stanley (2006) 39 Cal.4th 913, 929; People v. Tena (2007) 156 Cal.App.4th 598, 609-612.)

 

In order to invoke his right to represent himself, defendant must make an unequivocal assertion of that right (People v. Tena, supra, at pp. 607-609.) within a reasonable time prior to the commencement of trial.  (People v. Bradford (1997) 15 Cal.4th 1229, 1365; Moon v. Superior Court (2005) 134 Cal.App.4th 1521; People v. Jackson (2009) 45 Cal.4th 662, 690.)

 

Defendant’s request to relieve his attorney and to represent himself two weeks before trial, where granting it would necessarily delay the trial and disrupt the proceedings, and when there are elderly witnesses, was properly denied.  (People v. Lynch (2010) 50 Cal.4th 693, 711-728.)

 

“The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words.  Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion.  A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.”  (People v. Marshall (1997) 15 Cal.4th 1, 23.)

 

Asking to represent himself after being frustrated by a court commissioner’s refusal to order defendant’s public defender to subpoena certain witnesses for preliminary examination, and then later a judge’s denial of his motion to have his attorney replaced by a new attorney, where the issue was thereafter abandoned, held to be “impulsive reactions” to not getting his way as opposed to an unequivocal desire to represent himself.  (People v. Tena, supra.)  

 

Faretta motion made after a preliminary examination was underway was timely because defendant specifically did not want a continuance and indicated that he was ready to proceed without any delays.  (Moon v. Superior Court, supra, at p. 1531.)

 

A defendant does not have an absolute constitutional right to reappointment of counsel mid-trial after his intelligent and knowing waiver of his right to counsel.  (John-Charles v. California (9th Cir. 2011) 646 F.3rd 1243, 1248-1251.)

 

Where defendant’s request to represent himself came at the end of the second day of trial, after the government had presented six witnesses and rested its case-in-chief, the motion was found to be untimely. It was not err in denying his untimely motion to proceed in pro se.  Also, defendant failed to make an unequivocal request. Defendant himself never stated that he wished to represent himself—only his counsel suggested that.  And, in context, even his counsel appeared to be indicating merely defendant’s frustration with him on the issue of who would testify for the defense.  Defendant himself never mentioned a desire to represent himself. When the judge asked defendant the next day whether he was prepared to have counsel do the closing argument, defendant said yes. In these circumstances, the district court could not have been reasonably certain that the defendant wished to represent himself.  (United States v. Carpenter (9th Cir. 2012) 680 F.3rd 1101, 1102-1104.)

 

Issues that are not proper reasons for denying a defendant’s motion to represent himself:

 

A defendant’s ability to effectively represent himself is not a proper consideration under Faretta.  (People v. Welch (1999) 20 Cal.4th 701, 733.)

 

A defendant’s technical legal knowledge is also not a reason to deny his right to represent himself.  (People v. Dunkle (2005) 36 Cal.4th 861, 908.)

 

Defendant having been a “slow learner” in school, and having a limited education, therefore, is not cause to deny a Faretta motion.  (People v. Doolin (2009) 45 Cal.4th 390, 454.)

 

A jailed defendant may still represent himself in a murder trial even though disciplinary restrictions would hinder his trial preparation.   (People v. Butler (2009) 47 Cal.4th 814; death row inmate on trial in this case for stabbing to death another inmate.)

 

Defendant represented himself as he proceeded to trial on charges that he made criminal threats.  He was removed from the courtroom for disruptive conduct prior to opening statements, and missed the direct examination of the victim.  He participated in the remainder of trial, and was found guilty.  Defendant appealed, alleging his Sixth Amendment right to counsel was violated.  The Court of Appeal agreed and reversed:  “[T]he denial of counsel during the testimony of a key witness is a per se Sixth Amendment violation that requires reversal without analysis for prejudice or harmless error.”  The Court further noted that:  “[T]o the extent a self-represented defendant chooses to engage in disruptive conduct during trial, the court retains discretion to terminate self-representation and appoint substitute counsel.”  That was not done in this case.  (People v. Ramos (2016) 5 Cal.App.5th 897.)

 

However: “The Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from sever mental illness to the point where they are not competent to conduct trail proceedings by themselves.”  (Indiana v. Edwards (2008) 554 U.S. 164, 178 [128 S. Ct. 2379; 171 L.Ed.2nd 345].)

 

A state, however, may constitutionally allow a “gray-area” defendant to waive his right to counsel and represent himself, if it chooses to do so.  (Id., at p. 173; citing Godinez v. Moran (1993) 509 U.S. 398-399 [113 S.Ct. 2680; 125 L.Ed.2nd 321] where the issue was whether defendant was sufficiently competent to plead guilty.)

 

The Court further determined that the standards for determining a defendant’s competence to stand trial were the same as his competency to represent himself.  (Id., at p. 398. See also People v. Wycoff (Aug. 23, 2021) __ Cal.5th __, __-__ [2021 Cal. LEXIS 5998].)

 

“Edwards does not compel a trial court to deny a defendant the exercise of his or her right to self-representation; it simply permits a trial court to require representation for a defendant who lacks mental competency to conduct trial proceedings.”  (United States v. Ferguson (9th Cir. 2009) 560 F.3rd 1060, 1070, fn. 6.)

 

Where the record reflects the trial court’s recognition that defendant’s competence to stand trial was not the test for determining whether defendant had the mental capacity to represent himself, allowing him to do so was not an abuse of discretion.  (United States v. Thompson (9th Cir. 2009) 587 F.3rd 1165, 1171-1173.)

 

California courts may deny self-representation when the United States Constitution permits such denial.  California courts have discretion to deny self-representation to those defendants who, although competent to stand trial, may not represent themselves because to refuse to recognize such discretion would be inconsistent with California’s own law.  Because California law provided no statutory or constitutional right of self-representation, such denial also does not violate a state right. The Supreme Court here determined that the trial court acted within its discretion in revoking defendant’s self-representation status.  The trial judge, who had permitted defendant to represent himself for several months, revoked defendant’s self-representation status following a very careful and thorough discussion. The trial judge had previously appointed three mental health experts to evaluate defendant’s competence to stand trial and had heard their testimony at the trial competency hearing. The record supported the trial court’s conclusion that defendant, although competent to stand trial, was not competent to conduct trial proceedings by himself.  (People v. Johnson (2012) 53 Cal.4th 519.)

 

A trial court did not abuse its discretion in denying defendant’s motion to represent himself where the Court clearly believed that defendant, due to mental illness, and even though capable of standing trial, was not capable of carrying out the basic tasks required to present a defense; i.e., tasks such as organizing a defense, making motions, and questioning witnesses.  There was no evidence that the motion was denied for reasons of efficiency or merely to level the playing field.  The Court obtained expert evaluation which it relied upon, as well as considering defense counsel’s concerns.  (People v. Gardner (2014) 231 Cal.App.4th 945, 953-960.)

 

A voluntary waiver of the right to counsel is considered to have been “knowing and intelligent” despite later claims of mental health problems which were not apparent to the trial court when defendant invoked his right to self-representation.  (People v. Miranda (2015) 236 Cal.App.4th 978, 984-989.)

 

A defendant who asks to represent himself, or who asks for an attorney after already being granted the right to represent himself, such request being made mid-trial, may be granted that right by the court in exercising its discretion.   The factors for the court to consider include, but are not limited to:

 

• Defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation.
• The reasons set forth for the request.
• The length and stage of the trial proceedings.
• Disruption or delay which reasonably might be expected to ensure from the granting of such a motion, and
• The likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.

 

(People v. Elliott (1977) 70 Cal.App.3rd 984; People v. Windham (1977) 19 Cal.3rd 121; People v. Lawley (2002) 27 Cal.4th 102.)

 

But a request for reappointment of an attorney mid-trial may be denied in the trial court’s discretion as untimely, and causing a “significant disruption” already set to begin with a jury selected.  (People v. Lawrence (2009) 46 Cal.4th 186, 191-196.)

 

E.g.  In People v. Lawrence, supra, it was held by the appellate court to be an abuse of discretion for the trial court to refuse to allow defendant to have a court-appointed attorney when, during and then again after jury selection, defendant asked for an attorney while indicating to the court that voir dire made him realize that he couldn’t competently represent himself.  This is despite the fact that he had properly waived counsel just before jury selection and no attorney (including his previously retained attorney) was available to help him at that time without causing a two-week delay in the trial.  The California Supreme Court reversed the court of appeal finding the trial court’s denial of defendant’s request for reappointment of an attorney was not an abuse of discretion under the circumstances.

 

In a death penalty case, the guilt and the penalty phase are considered to be one trial.  Therefore, a motion to represent oneself between phases is considered to be untimely, and subject to the discretion of the court.  (People v. Mayfield (1997) 14 Cal.4th 668, 810.)

 

The same rule is true for a motion to represent oneself for sentencing, after the verdict in the penalty phase.  (People v. Doolin (2009) 45 Cal.4th 390, 455.)

 

Asking for a continuance, when it implicates a defendant’s Sixth Amendment right to counsel, requires the court to balance several factors in determining whether denial of a continuance was “fair and reasonable:”

 

• Whether the continuance would inconvenience witnesses, the court, counsel, or the parties;

 

• Whether other continuances have been granted;

 

• Whether legitimate reasons exist for the delay;

 

• Whether the delay is the defendant’s fault; and

 

• Whether a denial would prejudice the defendant.

 

(United States v. Thompson (9th Cir. 2009) 587 F.3rd 1165, 1173-1175; citing United States v. Studley (9th Cir. 1986) 783 F.2nd 934, 938.)

 

In Thompson, denial of a motion to reappoint counsel and for a continuance was properly denied where 3½ years had passed since the initial pretrial conference, trial was scheduled for the next day, and defendant had already been granted 12 or 13 prior continuances.  Defendant’s conduct was determined to be “clearly dilatory.”

 

However, denying defendant’s one-day continuance upon the granting of his right to represent himself during jury selection, where there were a number of previous denials of defendant’s Faretta motions, was held to be an abuse of discretion, and error.  (People v. Espinoza (2015) 233 Cal.App.4th 914, 934-935.)

 

“While it is now settled that a trial court may deny a request for self-representation made on the very eve of trial, on the ground that granting the motion would involve a continuance for preparation, the very rationale of that doctrine requires that, if the trial court, in its discretion, determines to grant the request for self-representation it must then grant a reasonable continuance for preparation by the defendant.” (Id., at p. 935; quoting People v. Fulton (1979) 92 Cal.App.3rd 972, 976.)

 

After defendant indicated a desire to represent himself, responding to the court’s warnings that the trial was to begin the next day and that he might not be ready to represent himself that early, defendant agreed that the court “had a point.”  The court never conducted further hearings into how much time defendant would need, if any, to be prepared, nor provided any specific reasons for denying defendant’s motion to represent himself.  Failure to do so, while failing to honor defendant’s request to represent himself, was error.  (United States v. Farias (9th Cir. 2010) 618 F.3rd 1049, 1051-1055.)

 

A defendant is entitled to represent himself at sentencing, and even re-sentencing after the case is remanded by an appellate court for resentencing.  But because this proceeding is not likely to be “structural” (as it might be at trial), an inappropriate denial of this right may be held to be non-prejudicial.  (United States v. Maness (9th Cir. 2009) 566 F.3rd 894.)

 

After a valid waiver of counsel at trial, a defendant’s request for reappointment of counsel for purposes of a post-verdict motion for new trial should be granted.  Defendant’s Sixth Amendment right to counsel was violated when the trial court denied his timely request for representation for a new trial motion based on the notion that once waived, the right to counsel cannot be reasserted.  (Rodgers v. Marshall (9th Cir. 2012) 678 F.3rd 1149.)

 

Defendant represented himself before trial, the county jail providing him with access through a paging system and trained legal research assistants to a comprehensive list of legal materials.  The trial court denied his request for escorted access to the county law library, allowing the reappointment of a deputy public defender instead.  The Court found this decision not to violate his right to self-representation under the Sixth Amendment.  Defendant was not denied reasonable access to the services necessary to present his defense, and was provided ample research assistance and resources.  (People v. James (2011) 202 Cal.App.4th 323, 334-339.)

 

The United States Supreme Court has determined that California’s rule that whether or not to allow a defendant, post-trial, to have an attorney re-appointed after defendant has earlier elected to represent himself, is a matter of discretion for the trial court judge to decide, is not contrary to clearly established federal law as established by the U.S. Supreme Court.  (Marshall v. Rodgers (2013) 569 U.S. 58 [133 S.Ct. 1446; 185 L.Ed.2nd 540].)

 

A defendant will not be allowed to argue on appeal that the trial court’s admonishment concerning the disadvantages of representing himself were inadequate when he purposely interfered with the trial court’s attempts to do so with repeated and frivolous objections during the admonishment.  (People v. Weber (2013) 217 Cal.App.4th 1041, 1047-1060.)

 

Defendant, on habeas corpus from a state conviction and death sentence, was entitled to habeas relief under pre-AEDPA (Antiterrorism and Effective Death Penalty Act of 1996) law because two of his Faretta requests for self-representation, despite being made on the day his trial was set to begin, were “timely,” pursuant to Fritz v. Spalding (9th Cir. 1982) 682 F.2nd 782, in that they were made before the jury was empaneled. The trial court’s rejection of defendant’s requests was contrary to established Sixth Amendment law in the Ninth Circuit applicable at that time (i.e., 1983).  (Burton v. Davis (9th Cir. 2016) 816 F.3rd 1132.)

 

Fritz v. Spalding required evidence that the request was made for purposes of delay.

 

The Supreme Court reversed defendant’s conviction and death sentence finding that the trial court erred in terminating defendant’s self-representation, finding that the trial court’s ruling that defendant had been “dilatory” and had been “stalling,” was not supported by the record.  A trial court may terminate the propria persona status of a defendant who engages in “‘deliberate dilatory or obstructive behavior’” that ‘“threatens to subvert ‘the core concept of a trial’ [citation] or to compromise the court's ability to conduct a fair trial,” (Citing People v. Carson (2005) 35 Cal.4th 1, 10), but added that “[t]ermination of the right of self-representation is a severe sanction and must not be imposed lightly”  (People v. Becerra (2016) 63 Cal.4th 511.)

 

At a Subsequent Resentencing:

 

Where defendant was resentenced under Proposition 47 while represented by appointed counsel, having had his felony convictions reduced to misdemeanors, defendant failed to show that the trial court deprived him of his Sixth Amendment right to represent himself in that his claim was based upon the unsupported assumption that he was still entitled to represent himself.  He should have instead reasserted his Faretta rights.  (People v. Fedalizo (2016) 246 Cal.App.4th 98, 103-109.)

 

Advisory Counsel:  Once the court has determined that a defendant’s waiver of his right to counsel is knowing and intelligent, it may appoint standby or “advisory” counsel to assist the pro per defendant without infringing on his right to self-representation.  (United States v. Moreland (9th Cir. 2007) 509 F.3rd 1201; 1208-1209; citing McKaskle v. Wiggins (1984) 465 U.S. 168, 176-177 [79 L.Ed.2nd 122]; People v. Mattson (1954) 51 Cal.2d 777, 797.)

 

A defendant who waives his right to counsel, however, does not have a right to advisory counsel.  (United States v. Salemo (9th Cir. 1996) 81 F.3rd 1453, 1460; United States v. Kienenberger (9th Cir. 1994) 13 F.3rd 1354-1356.)

 

The role of standby counsel is vague and undefined, and the defendant must retain control over his case.  (McKaskle v. Wiggins, supra, at pp. 177-178; United States v. Moreland, supra.)

 

A criminal defendant does not have a right both to be represented by counsel and to participate in the presentation of his or her own case.  Such an arrangement is generally undesirable.   If a criminal defendant chooses professional representation, he or she waives tactical control.  Counsel is at all times in charge of the case and bears the responsibility for providing constitutionally effective assistance.  Upon a substantial showing, and entirely subject to counsel’s consent, the court may nonetheless permit the accused a limited role as co-counsel.  Even so, professional counsel retains complete control over the extent and nature of defendant’s participation, and of all tactical and procedural decisions.  None of the hybrid forms of representation, whether labeled “co-counsel,” “advisory counsel,” or “standby counsel,” is in any sense constitutionally guaranteed.   (People v. D’Arcy (2010) 48 Cal.4th 257, 281-282.)

 

“(A) defendant who elects to represent himself has no constitutional right to advisory counsel or any other form of hybrid representation. . . . The decision to grant or deny a request for advisory counsel is discretionary and will not be set aside absent a showing the ruling is arbitrary, capricious, or whimsical.” (People v. Debouver  (2016) 1 Cal.App.5th 972, 976.)

 

“(Penal Code § 987(d)) provides that in a capital case, a trial court ‘may appoint an additional attorney as a cocounsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed. … The court shall appoint a second attorney when it is convinced by the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation. If the request is denied, the court shall state on the record its reasons for denial of the request.’ ‘The initial burden … is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.’ (People v. Lucky (1988) 45 Cal.3rd 259, 279 . . . .) ‘The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.’ (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22 . . . .) We review a decision denying the appointment of second counsel for abuse of discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 278 . . . .)”  (People v. Woodruff (2018) 5 Cal.5th 697, 734-736.)

 

Counsel held to be not ineffective for not requesting co-counsel.  (Id., at pp. 736-737.)

 

Factors for the trial court to consider in determining this issue include:

 

• Defendant’s demonstrated legal abilities;
• His reasons for seeking the appointment of advisory counsel, including evidence of any manipulative purpose;
• The seriousness of the charges;
• The complexity of the issues; and
• Defendant’s education and familiarity with the justice system.  (Ibid.)

 

The trial court did not err in denying defendant’s requests for the appointment of co-counsel.  Defendant, who represented himself during the pretrial stages of the proceedings but eventually chose to have an attorney represent him for part of the guilt phase of the trial, failed to make any compelling showing that the appointment of co-counsel instead of advisory counsel was justified. (People v. Moore (2011) 51 Cal.4th 1104, 1119-1123.)

 

Defendant also had complained that his access to a law library was restricted and his phone access had been limited.  This is due to discovery of a “shank” found in his cell.  The shank was fashioned from a metal rod taken from a typewriter in the library.  “(A) defendant who is  representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’ ”  Although the general rule is that the federal and state constitutional provisions concerning the assistance of counsel for criminal defendants include the right to access reasonably necessary defense services, this privilege for a pro per defendant may be restricted “for cause,” depending upon the circumstances.  The Court found that despite the restrictions, defendant had been provided with reasonable resources to present a defense.   (Id., at pp. 1124-1127.)

 

The trial court erred in allowing defendant to represent himself during his mental competency proceedings following the trial court’s second declaration of doubt, as required under P.C. § 1368(a).  Defendant is entitled to a reversal despite the fact that it is error based upon a statutory violation, specifically declining to decide whether it is also a constitutional violation.  The appointment of advisory counsel for the competency proceedings did not satisfy the statutory requirement of § 1368.  The error constituted a reversible miscarriage of justice.  (People v. Lightsey (2012) 54 Cal.4th 668, 691-710.)

 

Note that the constitutional guarantee of due process forbids a court from trying or convicting a criminal defendant who is mentally incompetent to stand trial. (People v. Mickel (2016) 2 Cal.5th 181, 194; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15.) 

 

P.C. § 1367, incorporating the applicable constitutional standard, specifies that a person is incompetent to stand trial “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Id., subd. (a); see Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2nd 824, 80 S.Ct. 788]; competence requires “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’” and “‘a rational as well as factual understanding of the proceedings against him”.)

 

See also People v. Wycoff (Aug. 23, 2021) __ Cal.5th __, __-__ [2021 Cal. LEXIS 5998].

 

Mental competency issues can arise prior to trial, or even mid-trial.  For instance, evidence that a defendant, previously committed to a mental hospital until found to be mentally competent to stand trial, is no longer taking the medication and is again exhibiting signs of incompetence will generally establish a change in circumstances sufficient to call for additional, formal investigation before trial may proceed.  (People v. Rodas (2018) 6 Cal.5th 219.)

 

“In Pate v. Robinson, . . . ,  the high court made clear that when substantial evidence of incompetence otherwise exists, a competency hearing is required even though the defendant may display ‘mental alertness and understanding’ in his colloquies with the trial judge. (Id., at pp. 233-233; citing Pate v. Robinson (1966) 383 U.S. 375, 385 [15 L. Ed.2nd 815; 86 S.Ct. 836].)

 

See People v. Lewis and Oliver (2006) 39 Cal.4th 970, at p. 1047:  “Evidence is not substantial enough to mandate a mental competence hearing unless it raises a reasonable doubt on the issue.  We have said that this standard is satisfied if at least one expert who is competent to render such an opinion, and who has had a sufficient opportunity to conduct an examination, testifies under oath with particularity that, because of mental illness, the accused is incapable of understanding the proceedings or assisting in his defense.”

 

“Once ‘substantial evidence’ of mental incompetence appears, ‘a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testimony of prosecution witnesses or the court's own observations of the accused—may be to the contrary.’”  (People v. Wycoff (Aug. 23, 2021) __ Cal.5th __, __-__ [2021 Cal. LEXIS 5998], quoting People v. Pennington (1967) 66 Cal.2d 508, 518.)

 

In Wycoff, the trial court had an uncontroverted experienced mental health professional’s opinion that defendant was mentally incompetent to stand trial, verses observations of the defendant in court where he appeared to be totally aware of the nature of the proceedings.  Failure to order a psychiatric examination, as required by P.C. §§ 1367 through 1369 was held to be reversible error.

 

The fact that defendant’s mental issues did not, in the doctor’s opinion, make him incompetent to stand trial in all respects, was held to be irrelevant.  It was sufficient that the doctor found that “defendant's ‘self-importance and prideful independence’ and also ‘his grandiosity,’ stating, ‘on this ground, (the doctor found) him incompetent to stand trial,’ and that defendant's ‘paranoid mental state’ caused him to ‘minimiz[e] the precariousness of his predicament,’” all impairing his ability to communicate and work with, his attorneys, was held to be sufficient to create a doubt as to his competence to stand trial, triggering the P.C. §§ 1367 through 1369 requirements.  (Id., at p. __.)

 

Defendant’s waiver of her right to counsel under the Sixth Amendment was proper because the district court’s Faretta colloquy was sufficient and defendant’s waiver was voluntary, knowing, and intelligent in the circumstances.  During trial, defendant’s right to self-representation was not violated, despite allowing her co-defendant to conduct her direct and re-direct examination, because she presented her case in her own way and ultimately retained control over it.  (United States v. French (9th Cir. 2014) 748 F.3rd 922, 928-934.)

 

Preemptive Denial of a Defendant’s Right to Self-Representation:

 

When defense counsel failed to appear in court, the trial court advised the defendant that he “must be represented by attorneys that are senior trial attorneys. And you have got to have people here to represent you. You cannot represent yourself in this matter.”  When the defendant asked to say something in response, the trial judge prevented him from doing so without attorneys present.  Later, after defendant suggested that he would prefer to represent himself rather than receive new counsel, the trial judge flatly stated that he was “not going to let him proceed pro. per. … Not in a death penalty murder trial.”  The trial court proceeded to appoint new counsel, and the defendant did not renew his Faretta motion.  On this record, the California Supreme Court held that “the trial court's response was not only legally erroneous but also unequivocal, and foreclosed any realistic possibility defendant would perceive self-representation as an available option.”  (People v. Dent (2003) 30 Cal.4th 213.)

 

However, merely warning a defendant that he will not be allowed to vacillate back and forth on his decision whether to represent himself, at least where this tactic necessitates delays, and noting that in light of “the court’s protracted grappling with the logistics of providing defendant with discovery materials and access to legal resources, as well as the court’s concern with his repeated alternation between self-representation and the services of counsel,” has been held not to be a “preemptive denial” of his right to represent himself under Faretta.  (People v. Gomez (2018) 6 Cal.5th 243, 268-272; citing People v. Lancaster (2007) 41 Cal.4th 50, 60-70.)

 

Other Waiver Issues:  A charged criminal defendant may also waive his right to counsel, at least to a limited extent, by raising certain issues during trial that trigger a prosecution expert’s right to administer certain tests to the accused for the purpose of determining the validity of the issue raised by defendant.  For instance:

 

Pleading “not guilty by reason of insanity” carries with it a court obligation to appoint two psychiatrists or licensed psychologists with a doctoral degree in psychology for the purpose of interviewing and evaluating the defendant’s mental state, thus waiving the defendant’s Sixth Amendment right to the extent necessary to permit a proper examination of that condition.  (Centeno v. Superior Court [Los Angeles] (2004) 117 Cal.App.4th 30; P.C. § 1027)

 

Similarly, a capital case defendant who claims mental retardation, done for the purpose of avoiding the death penalty (See Atkins v. Virginia (2002) 536 U.S. 304 [153 L.Ed.2nd 335].), may be tested by a prosecution-selected expert for the purpose of rebutting such an allegation.  (Centeno v. Superior Court [Los Angeles], supra; P.C. § 1376.)

 

The expert’s testimony, however, is admissible only for the purpose of litigating these issues in rebuttal to the defendant’s presentation of evidence attempting to prove a mental defense or mental retardation.  (People v. Danis, supra; Centeno v. Superior Court [Los Angeles], supra; P.C. § 1376(b)(1))

 

But, note that cases allowing for a prosecution psychiatric expert to interview and evaluate a charged criminal defendant when the defendant raises an issue as to a possible mental defect or disease in mitigation to charged offenses (e.g., People v. Danis (1973) 31 Cal.App.3rd 782.) were overruled in Verdin v. Superior Court (2008) 43 Cal.4th 1096, where it was held that passage of Proposition 115 in 1990, enacting article I, section 30, subdivision (c) of the California Constitution, and P.C. § 1054 et seq., established the exclusive means of providing discovery (except where provided for in other statutes).

 

Non-Criminal Hearings:  A defendant does not have a Faretta right to represent himself in proceedings other than criminal prosecutions.  For example:

 

Criminal appeals.  (Martinez v. Court of Appeal (2000) 528 U.S. 152, 154 [145 L.Ed.2nd 597].)

 

Mentally Disordered Offender proceedings.  (P.C. §§ 2970, 2972)  (People v. Williams (2003) 110 Cal.App.4th 1577, 1585; although the court found a statutory right to represent himself; see also People v. Hannibal  (2006) 143 Cal.App.4th 1087, 1092-1093; and People v. Wrentmore (2011) 196 Cal.App.4th 921, 928.)

 

Complaining on appeal that the trial court should not have granted him the right to represent himself at an MDO extension hearing, defendant will not be granted relief absent a showing that there was “a reasonable probability” that having an attorney would have made any difference.  (People v. Wrentmore, supra, at pp. 929-931.)

 

Appointment of Counsel for the Parent in Juvenile dependency proceedings.  (In re Angel W. (2001) 93 Cal.App.4th 1074, 1080, although the court found a statutory right in W&I § 317(b))

 

Subd. (b) reads as follows:  “When it appears to the court that a parent or guardian of the child (in a dependency proceeding) is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent or guardian, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.”  (Italics added)

 

See In re A.J. (2020) 44 Cal.App.5th 651, 668., where the Court says:  “There is nothing vague or ambiguous about the legislative command—in the absence of a waiver, the juvenile court must appoint an attorney to represent an indigent parent at the detention hearing and at all subsequent proceedings, and the attorney shall continue to represent the parent unless relieved by the court upon the substitution of other counsel or for cause.” (Italics in original; quoting In re Tanya H. (1993) 17 Cal.App.4th 825, 829.)

 

Conservatorship proceedings.  (Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 435.)

 

Proceedings under the Sexually Violent Predators Act (i.e., W&I §§ 6600 et seq.) (People v. Fraser (2006) 138 Cal.App.4th 1430.)

 

“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.  [Citation.]  A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”  (People v Fierro (1991) 1 Cal.4th 173, 204.) 

 

The decision whether to grant a motion to relieve a complaining defendant’s attorney is within the discretion of the trail court.  An abuse of discretion will not be found unless the failure to remove appointed counsel and appoint a replacement would “substantially impair” the defendant’s right to effective assistance of counsel.  (People v. Roldan (2005) 35 Cal.4th 646, 681; People v. Abilez (2007) 41 Cal.4th 472, 487-488.)

 

Once a defendant has an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge.  The court does not abuse its discretion in denying a Marsden motion “‘unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.’” Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when “the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (People v. Clark (2011) 52 Cal.App.4th 856, 912-914.)

 

                          Out of Court:

 

Suspect Initiates the Questioning:  As when the suspect has previously invoked and later seeks to waive his or her Fifth Amendment rights, a charged criminal suspect may also validly choose to waive his or her Sixth Amendment rights and initiate questioning with law enforcement.  (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [68 L.Ed.2nd 378, 385-386]; Oregon v. Bradshaw (1983) 462 U.S. 1039 [77 L.Ed.2nd 405]; Wyrick v. Fields (1982) 459 U.S. 42 [74 L.Ed.2nd 214]; see also People v. McClary (1977) 20 Cal.3rd 218, 226; Patterson v. Illinois (1988) 487 U.S. 285 [101 L.Ed.2nd 261].)

 

“(N)othing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney.”  (Michigan v. Harvey (1990) 494 U.S. 344, 352 [108 L.Ed.2nd 293, 303].)

 

Police Officer Initiates the Questioning:  The U.S. Supreme Court has recently ruled that if an officer first advises a defendant of his Sixth Amendment right to counsel and obtains a waiver of that right, there is no error in the officer initiating the contact and talking to the defendant without the presence of his attorney, even after his arraignment.  (Montejo v. Louisiana (2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

Even where a defendant has already been appointed counsel on a pending case, he or she may validly choose to talk to law enforcement without the assistance of his or her attorney.  (People v. Stephens (1990) 218 Cal.App.3rd 575, 583-586.)

 

The Court also noted the lack of any requirement that the defendant’s attorney be notified prior to complying with defendant’s request to talk to law enforcement.  (Id., at p. 583.)

 

See also; People v. Arauz (1970) 5 Cal.App.3rd 523, 530-531:  Defendant, who had had an attorney appointed for him at a juvenile hearing, insisted on talking to his parole officer despite warnings that he should talk to his lawyer first:  No violation.

 

And see Adams v. Aiken (4th Cir. 1992) 965 F.2nd 1306, 1315-1316; citing Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2nd 222] as its authority:  Four days after arrest, and after appointment and consultation with counsel, defendant, against his lawyer’s advice, provided a written confession to the police.  Defendant’s written, signed confession, obtained with his attorney’s presence and participation (although contrary to his attorney’s advice), overcame any prior uncoerced Fifth Amendment self-incrimination and Sixth Amendment right to counsel violations.

 

A charged criminal defendant (after preliminary examination) who erroneously believed that he was no longer represented by a retained attorney because he had run out of money, validly waived his Sixth Amendment rights by contacting the police investigator and sought an interview, at least where he was advised of his Miranda rights including the right to appointed counsel if he could not afford one.  (People v. Sultana (1988) 204 Cal.App.3rd 511, 518-521.)

 

It was noted, at page 521, that the police were under no obligation to notify his retained attorney of his client’s wish to talk.

 

And it was also noted, at page 521, that the result would be different had the police improperly induced defendant to believe that his privately retained attorney was no longer working for him.

 

Courts Critical of Contacts Without Attorney:  Even when the defendant chooses of his or her own accord to participate in direct communications without the assistance of his/her attorney, California courts have been extremely critical of such activities, particularly when done by (or, arguably, authorized by) the prosecutor.  (See People v. Manson (1976) 61 Cal.App.3rd 102, 164-165.) 

 

Courts tend to attach greater importance to a defendant’s Sixth Amendment right to an attorney, with correspondingly harsher sanctions when a violation occurs, up to and including outright dismissal of a criminal case.  (See People v. Moore (1976) 57 Cal.App.3d 437.)

 

Again, prosecutors must be wary of Rule 2-100 of the California Rules of Professional Conduct (see also Rule 4.2 of the ABA Model Rules of Professional Conduct), which prohibits any communication, directly or indirectly, with a defendant on a pending charge without the consent of the defendant's attorney, except as authorized by law.  (United States v. Lopez (9th Cir. 1993) 4 F.3rd 1455; Triple A Machine Shop v. State of California (1989) 213 Cal.App.3rd 131; see above.)

 

Massiah-Error Statements Used as Substantive Evidence:  The United States Supreme Court has yet to decide whether a Miranda advisal and waiver is sufficient to purge the taint of a prior Sixth Amendment, Massiah rule violation (i.e., where a charged criminal defendant is surreptitiously questioned while out of custody), thus making the post-Miranda statements admissible as substantive evidence of guilt.  (See Fellers v. United States (2004) 540 U.S. 519, 525 [157 L.Ed.2nd 1016]; issue remanded to the Eight Circuit Court of Appeal for consideration of this issue.)

 

Un-Mirandized statements made to the prosecution’s psychiatrist are admissible when used solely for purposes of impeachment whether obtained in violation of the defendant’s Fifth Amendment, or Sixth Amendment, protections.  (Petrocelli v. Baker (9th Cir. 2017) 869 F.3rd 710, 724.)

 

Massiah Error Statements Used for Impeachment:  A defendant’s statements taken in violation of his Sixth Amendment, Massiah rights are admissible for purposes of impeachment  (Kansas v. Ventris (2009) 556 U.S. 586, 593-594 [173 L.Ed.2nd 801]; People v. Brown (1996) 42 Cal.App.4th 461, 471-473; United States v. McManaman (10th Cir. 1979) 606 F.2nd 919; United States v. Ortega (9th Cir. 2000) 203 F.3rd 675, 681; United States v. Martin (Ill. 1997) 974 F.Supp. 677.)

 

Relevance at Trial:  A prosecutor’s reference at trial to a defendant having retained and consulted with an attorney, where relevant to impeachment, or when the defense has “opened the door,” is not improper.  (United States v. Ross (9th Cir. 1977) 123 F.3rd 1181, 1187; see also Geders v. United States (1976) 425 U.S. 80, 89-90 [47 L.Ed.2nd 592, 600]; asking whether defendant reviewed testimony with a lawyer (i.e., was “coached”) is proper impeachment.)

 

Test on Appeal:  “Massiah error” is subject to the “harmless error” doctrine on appeal.  (Moore v. Illinois (1977) 434 U.S. 220, 232 [54 L.Ed.2nd 424, 436]; Milton v. Wainwright (1972) 407 U.S. 371 [33 L.Ed.2nd 1]; People v. Brown, supra, at p. 474.)

 

Although there is a split of authority, the majority rule seems to be that a defendant is not required to have testified in order to preserve this issue for appeal.  (United States v. Chischilly (9th Cir. 1994) 30 F.3rd 1144, 1150-1151; People v. Brown, supra, at pp. 468-471.)

 

Right to Substitution of Counsel: A “Marsden Motion:”

 

Rule:  A defendant has the right to seek substitute counsel if the defendant can show that continued representation by present counsel would substantially impair or deny his or her right to effective assistance of counsel.  (People v. Marsden (1970) 2 Cal.3rd 118, 123; People v. Cole (2004) 33 Cal.4th 1158, 1190; People v. Knight (2015) 239 Cal.App.4th 1.)

 

The trial court must appoint new counsel when failure to do so would substantially impair the defendant’s right to assistance of counsel.  (People v. Sanchez (2011) 53 Cal.4th 80, 89-90; People v. Knight, supra, at p. 6.)

 

It is error for the trial court to advise defendant that he will waive his Fifth Amendment right to remain silent if he discusses the circumstances of the charged offense in a post-conviction, pre-sentencing “Marsden hearing.”  Statements made in a Marsden hearing are subject to use immunity in that the statements may not be used in further related proceedings except for the purpose of impeachment and rebuttal in such proceedings.  (People v. Knight, supra, at p. 5.)

 

When a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of the contention and to relate specific instances of the attorney's inadequate performance. But the trial court has no sua sponte duty to inquire whether the defendant’s desire to substitute another attorney is based on inadequate representation or an irreconcilable conflict. So when a defendant asks for new counsel, a trial court’s duty to undertake the Marsden inquiry arises only when the defendant asserts directly or by implication that counsel's performance has been so inadequate as to deny him or her of the constitutional right to effective counsel.  (People v. Johnson (2018) 6 Cal.5th 541, 572-575.)

 

Defendant also failed to show that his counsel had a conflict of interest sufficient to require appointment of a new attorney.  (Id., at pp. 578-580.)

 

Appointed Counsel:  A trial court has the discretion to permit a defendant to discharge his appointed counsel and to substitute another attorney during the trial.  (People v. Marsden (1970) 2 Cal.3rd 118, 123.)

 

When a defendant asks that his appointed counsel be discharged and that new counsel be appointed, the trial court must provide the defendant with an opportunity to explain to the court the reasons for the request.  “(A) judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of counsel.”  (Id., at p. 124.)

 

“(T)he trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.  A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (Citations omitted; People v. Streeter (2012) 54 Cal.4th 205, 230; defendant’s Marsden motion denied.)

 

In determining whether a denial of a Marsden Motion violates one’s Sixth Amendment right to counsel requires a consideration of three factors:

 

• Timeliness of the motion;
• Adequacy of the court’s inquiry into the defendant’s complaint; and
• Whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.

 

(People v. Abilez (2007) 41 Cal.4th 472, 490-491.)

 

“A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”  (Citations omitted; People v. Memro (1995) 11 Cal.4th 786 857; People v. Jackson (2009) 45 Cal.4th 662, 682; People v. Taylor (2010) 48 Cal.4th 574, 599.)

 

The decision whether to substitute counsel is a discretionary call for the trial court.  An appellate court will not find an abuse of discretion unless the trial court’s failure to substitute counsel would “substantially impair” defendant’s right to effective assistance of counsel.  (People v. Gutierrez (2009) 45 Cal.4th 789, 803-804; People v. Taylor, supra; People v. Streeter, supra.)

 

“Tactical disagreements between the defendant and his attorney do not by themselves constitute an “‘irreconcilable conflict.’”  The attorney is the one who has the authority to “make all but a few fundamental decisions for the defendant.”  (People v. Welch (1999) 20 Cal.4th 701, 728-729; People v. Nakahara (2003) 30 Cal.4th 705, 719; People v. Jackson, supra, at p. 688; People v. Myles (2012) 53 Cal.4th 1181, 1202-1208; People v. Streeter, supra.)

 

Requesting a new trial based upon a defendant’s claim of ineffective assistance of counsel does not trigger the court’s duty to conduct a Marsden hearing if the defendant’s desire for substitute counsel is not made clear.  (People v. Richardson (2009) 171 Cal.App.4th 479, 484-485.)

 

Even if a competency hearing (per P.C. § 1368) is pending, a Marsden hearing must be held.  The court “may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance ‘would be substantially impaired’ if his request were ignored.”   (People v. Taylor, supra, at pp. 600-601; citing People v. Stankewitz (1990) 51 Cal.3rd 72, 88; see also People v. Solorzano (2005) 126 Cal.App.4th 1063, 1069-1071.)

 

However, denial of a request to conduct a Marsden hearing due solely to the pendency of a competency hearing is not prejudicial where the Marsden hearing is later held before competency is determined.  (People v. Taylor, supra, at p. 601; People v. Govea (2009) 175 Cal.App.4th 57.)

 

Lunging at the defense attorney and referring to her by a vulgar, sexist term, does not necessarily establish that the attorney-client relationship has been irretrievably damaged, and does not require the substitution of counsel.  (People v. Taylor, supra, at p. 600.)

 

Defendant indicated to the trial court a desire to withdraw his plea of guilty to a charge of cultivation of marijuana. Without holding a Marsden hearing or asking defendant to explain his reasons, the trial court appointed conflict counsel for the sole purpose of looking into a plea withdrawal. The Appellate Court held that a trial court was obligated to conduct a Marsden hearing on whether to discharge defendant’s trial counsel for all purposes and appoint new counsel when a criminal defendant clearly indicates after conviction a desire to withdraw the plea on the ground of ineffective assistance by current counsel and to obtain a substitute attorney.  When such a request was made at any time during criminal proceedings, the trial court was obligated to give the defendant an opportunity to state any grounds for dissatisfaction with current counsel. Upon a showing that the right to counsel had been substantially impaired, substitute counsel had to be appointed as attorney of record for all purposes. The Appellate Court specifically disapproved the procedure of appointing a substitute or conflict attorney solely to evaluate whether a criminal defendant had a legal ground for plea withdrawal on the basis of the current counsel’s incompetence.  (People v. Sanchez (2011) 53 Cal.4th 80.)

 

A defendant’s federal statutory right to the assistance of counsel during post-conviction Habeas Corpus proceedings in federal capital cases (18 U.S.C. § 3599(a)(1), (a)(2), (e).) also provides for the substitution of counsel upon a defendant’s request.  (18 U.S.C. § 3599(e))  The standard used in determining the need to replace counsel is “in the interest of justice.”  (Martel v. Clair (Mar. 5, 2012) __ U.S. __ [132 S.Ct. 1276; 182 L.Ed.2nd 135].) 

 

In this case, however, the Court found that reappointment of counsel for defendant was not necessary in that by the time defendant’s request was made, present counsel had already accomplished everything that needed to be done prior to the court’s decision on the issue.  (Id., at p. __.)

 

Where defense counsel and the prosecutor stipulated to submit the matter on the two doctors’ reports, and defendant was subsequently committed to a mental institution, defendant’s due process rights under the Fourteenth Amendment; i.e., to be heard, to confrontation, to cross-examine witnesses, and to an attorney, were not violated. There was no evidence that defendant asserted in the trial court that she was competent or that she wanted another attorney to advocate that position. The trial court was not required sua sponte to appoint a second attorney to assist defendant in asserting that she was competent to stand trial.  (People v. Salter (2012) 210 Cal.App.4th 769, 774-777.)

 

The trial court’s failure to conduct a Marsden motion in response to defendant’s written request, where the court apparently forgot about it, was not error when defendant failed to remind the court at some point prior to the trial of the matter, at least where defendant had numerous opportunities to do so.  (People v. Jones (2012) 210 Cal.App.4th 355, 359-362.)

 

Defendant contended that the trial court erred in failing to conduct a hearing on his Marsden motion for substitution of counsel. Defendant raised the Marsden issue by filing a handwritten motion. However, he never again brought the matter to the trial court's attention despite having been present in court a dozen times before his trial began. The trial court's failure to conduct a hearing on the motion appears to have been the inadvertent result of repeated continuances. The general rule of forfeiture by abandonment was not limited to the context of a motion for new trial and that general rule applied fully to the facts of the case. Defendant had the duty of bringing his motion to the trial court's attention at a time when the oversight could have been rectified. Defendant's failure to raise the issue before the matter proceeded to trial constituted abandonment of his claim.

 

In light of the potential prejudice resulting from the trial judge’s exposure to information about the defendant’s relationship with his public defender, it was not unreasonable for the trial judge, who had other matters he had to hear, to transfer defendant’s Marsden motion to another judge for resolution.  The trial court fulfilled its obligation under Marsden to give defendant an opportunity to state any grounds for dissatisfaction with his appointed attorney.  That being the case, it did not matter that defendant’s Marsden hearing was conducted by a judge other than his trial judge.  Because defendant received a full and fair judicial hearing on his motion, his Marsden rights were adequately protected.  Under the circumstances presented in this case, it was entirely permissible and probably wise for the trial judge to transfer defendant’s Marsden motion to another judge for adjudication.  (People v. Jackson (2017) 8 Cal.App.5th 1310.)

 

Defendant’s two letters to the trial court triggered his right to a Marsden hearing because he clearly indicated in them that he sought the discharge of the public defenders who were representing him and their replacement by another court-appointed counsel.  Defendant’s request in his first letter became moot when, through no action of the trial court itself, the attorneys about whom defendant complained in that letter were replaced by another court-appointed counsel.  However, the trial court erred by failing to hold a Marsden hearing in response to defendant’s request in his second letter for the discharge of the replacement court-appointed counsel and the substitution of another counsel.  The trial court’s error was not harmless because of the potential that defendant could demonstrate inadequate representation or an irreconcilable conflict at a Marsden hearing.  (People v. Armijo  (Apr. 19, 2017) 10 Cal.App.5th 1171, 1178-1184.)

 

The federal district court was held to have abused its discretion by denying defendant’s requests to substitute counsel without conducting an adequate inquiry.  The result was a “constructive denial” of counsel—a violation of the Sixth Amendment—which required the Appellate Court to vacate defendant’s guilty plea.  The Ninth Circuit Court of Appeal found that, under the circumstances, there was a substantial risk that defendant had agreed that she was satisfied with her attorney’s performance (despite numerous previous complaints about his performance) because the magistrate judge pressured her into accepting the plea deal and she knew she had to make that statement in order for the court to accept her plea.  Under these circumstances, the Court found that the trial court’s denial of her motion to substitute counsel was an abuse of discretion, requiring reversal.  (United States v. Velazquez (9th Cir. 2017) 855 F.3rd 1021, 1033-1039.)

 

The trial court was held not to be required to substitute counsel, despite counsel’s ineffectiveness for failing to timely file for a new trial, without defendant asking the court to do so, at least where defendant was aware of the grounds for requesting a Marsden motion.   (People v. Lucero (2017) 18 Cal.App.5th 532.)

 

Defendant’s attorney telling jail deputies that his client was hearing voices, in an ethical attempt to obtain mental health services for his client, did not create a situation where it was an abuse of discretion for the trial court to deny defendant’s Marsden motion. (People v. Rices (2017) 4 Cal.5th 49, 65.)

 

Defendant’s special circumstance murder conviction was reversed because he was denied his right to substitute retained counsel for his appointed counsel.  Any limitation on a defendant’s right to counsel must be “carefully circumscribed” to situations where defendant was “unjustifiably dilatory,” where a trial-time substitution is “arbitrary,” or where a delay would “significantly inconvenience the court or the parties.”  (Citing People v. Courts (1985) 37 Cal.3rd 784, 790-794.)  Defendant was not “dilatory” where he had been attempting to replace his counsel for a month, he secured counsel about a week before trial, and he promptly informed the trial court and the People.  That the matter was two years old wasn't unusual for a case of this seriousness and complexity, nor was the delay a product of gamesmanship.  Counsel's need for a four month continuance was reasonable.  Though delay would cause inconvenience to the prosecution’s witnesses, there was no showing that a witness would be rendered unavailable.  Such error being structural, a reversal is automatic.  (People v. Williams (Mar. 4, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 184]; finding that “trial court erred in permitting expedience to take precedence over Williams’s right to be represented by counsel of his choice under the circumstances of this case.” (pg. __))

 

Retained Counsel:

 

The rules under Marsden apply primarily to appointed counsel.  When the attorney sought to be relieved is retained, then the controlling authority is People v. Ortiz (1990) 51 Cal.3rd 975. 

 

A nonindigent criminal defendant has a due process and Sixth Amendment right to retained counsel of his choice, and he can discharge retained counsel at any time with or without cause. (People v. Verdugo (2010) 50 Cal.4th 263, 310-311; People v. Lara (2001) 86 Cal.App.4th 139, 152; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1411-1413; People v. Woodruff (2018) 5 Cal.5th 697, 728.) 

 

“[T]he right to counsel of choice reflects not only a defendant’s choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain.” (People v. Ortiz, supra, at p. 983.)

 

“‘The right to discharge retained counsel is not absolute, however . . .’  (Citation) The court must ‘balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.’ (Citation)  A defendant who seeks to discharge retained counsel in a timely manner ordinarily must be permitted to do so. (Citations.)  ‘However, a defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial.’  (People v. Dowdell, supra, at p. 1411; citing People v. Blake (1980) 105 Cal.App.3rd 619, 623-624.) 

 

In Dowdell, defendant’s motion to replace his retained counsel was properly denied as being untimely; made mid-trial. 

 

“(T)hough it is clear that a defendant has no absolute right to be represented by a particular attorney, still the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney. (People v. Crovedi (1966) 65 Cal.2nd 199, 207 . . . .) The erroneous deprivation of a defendant's right to counsel of his choice results in automatic reversal.”  (People v. Woodruff (2018) 5 Cal.5th 697, 728; citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150; People v. Ramirez (2006) 39 Cal.4th 398, 422.)

 

An indigent criminal defendant need not establish a conflict with his retained attorney amounting to the constructive denial of counsel as a prerequisite to substituting appointed counsel for his retained attorney.  (United States v. Rivera-Corona (9th Cir. 2010) 618 F.3rd 976.)

 

(1) A defendant enjoys a right to discharge his retained counsel for any reason “unless a contrary result is compelled by ‘purposes inherent in the fair, efficient and orderly administration of justice.’”  

 

(2) If the court allows a defendant to discharge his retained counsel, and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act, per 18 U.S.C. § 3006A.  (Id., at p. 979.)

 

Defendant was denied his Sixth Amendment right to discharge his retained lawyer “for any reason, or no reason,” as well as his Criminal Justice Act (18 U.S.C. § 3006A) right to have counsel appointed in that lawyer’s place, requiring reversal of his child pornography-related convictions.  Defendant met the financial requirements for an appointed counsel and there was insufficient reason related to the fair, efficient, and orderly administration of justice for the trial court’s denial of his motion to discharge his retained counsel.  (United States v. Brown (9th Cir. 2015) 785 F.3rd 1337.)

 

The trial court acted within its discretion in denying defendant’s request to relieve his retained counsel in that aside from the fact that it was not clear that defendant was making a Marsden motion (saying that he’s not sure that new counsel would do any better), but also came during the penalty phase of defendant’s trial with no substitute counsel available to take over without interrupting the trial.  (People v. O'Malley (2016) 62 Cal.4th 944, 1002-1007.)

 

Defendant’s motion to discharge her retained counsel should not have been denied as untimely because the request was not untimely as a matter of law.  Specifically, the case was already almost two years old, both parties had already successfully requested continuances of the trial, it was not clear at the time of the request whether the trial could proceed, the prosecutor did not object, and the trial court did not indicate it believed defendant had improper motives for requesting substitution or her counsel.  The trial court failed in inquire whether justice would be unjustifiably delayed by granting the motion.  Under Cal. Const., art I, § 15, defendant did not have to demonstrate a conflict.  (People v. Lopez (2018) 22 Cal.App.5th 40.)

 

Conflict of Interest:

 

“The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.” (People v. Cox (2003) 30 Cal.4th 916, 948.) 

“The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest. [Citations.] While the classic example of a conflict in criminal litigation is a lawyer’s dual representation of codefendants, the constitutional principle is not narrowly confined to instances of this type. [Citation.] A conflict may also arise when an attorney’s loyalty to, or efforts on behalf of, a client are threatened by the attorney’s own interests. [Citation.] [¶] Under the federal Constitution, prejudice is presumed when counsel suffers from an actual conflict of interest. [Citation.] This presumption arises, however, only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. [Citations.] An actual conflict of interest means a conflict that affected counsel’s performance-as opposed to a mere theoretical division of loyalties. [Citation.] Under the federal precedents, which we have also applied to claims of conflict of interest under the California Constitution, a defendant is required to show that counsel performed deficiently and a reasonable probability exists that, but for counsel’s deficiencies, the result of the proceeding would have been different.  (Internal quotation marks deleted; People v. O'Malley (2016) 62 Cal.4th 944, 1001; quoting People v. Gonzalez and Soliz (2011) 52 Cal.4th 254, 309-310; alleged threats to defense counsel’s wife made by defendant’s wife, with no participation by defendant himself, and where there was no evidence that defense counsel had “pulled his punches” as a result, was insufficient to constitute a conflict of interest.)

“Conflicts of interests may arise in various factual settings. Broadly, they ‘embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened  [180] by his responsibilities to another client or a third person or by his own interests.’” (Italics omitted; People v. Doolin (2009) 45 Cal.4th 390, 432, 459.)  

 

A trial court has inherent authority to “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc. § 128(a)(5))

 

This power “authorizes a trial court … to discharge an attorney who has a conflict of interest.” (People v. Noriega (2010) 48 Cal.4th 517, 524.)  (Noriega).

 

Generally, a trial court's decision to disqualify an attorney is subject to review for an abuse of discretion. (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) 

 

On the People’s motion, it was found not to be an abuse of discretion to relieve the entire public defender’s office in a death penalty case in light of the extraordinary number of witnesses and deputy public defenders relevant to the disqualification motion, the trial court’s finding that the potential conflict of interest was “staggering,” and the early stage in the proceedings at which disqualification was sought.  It was also not an abuse of discretion in not appointing separate counsel to cross-examine the numerous witnesses who had previously been represented by that office.  It was also concluded that the trial court did not abuse its discretion in rejecting defendant’s offer to waive the conflict.  (People v. Suff (2014) 58 Cal.4th 1013, 1036-1041.)

 

Note also that because this was on the People’s motion, and because as such, privileged information was not likely to be revealed, the prosecutor was entitled to participate in the proceedings.  (Id., at p. 1040.)

 

Defendant was denied the effective assistance of a conflict-free counsel where his attorney had been arrested and faced pending felony charges by the same entity that was prosecuting defendant.  The attorney faced the same prosecuting agency, and potentially the same prosecution witness at defendant’s preliminary hearing that he would soon face at his own preliminary hearing.  This was held to be an “actual conflict,” as opposed to merely a “potential conflict” of interest, thus requiring dismissal without an affirmative showing of prejudice.  (Harris v. Superior Court (2014) 225 Cal.App.4th 1129.)

 

The petitioner’s motion to substitute habeas counsel was improperly denied where his appointed attorneys had missed the filing deadline for filing his first habeas petition.  His best argument for an equitable tolling of the missed limitations period was the attorneys’ own failure to satisfy the statute of limitations.  Thus, the attorneys had a significant conflict of interest that entitled petitioner to new counsel under 18 U.S.C. § 3599(e).  (Christeson v. Roper (Jan. 20, 2015) __ U.S. __ [135 S. Ct. 891, 893-896; 190 L.Ed.2nd 763].)

 

In a prosecution arising from defendant’s sex crimes committed against a child, defendant established the deficient performance prong of an ineffective assistance of counsel claim, which arose of the prosecutor’s threats to the defense investigator and defense attorney with groundless prosecutions; “a conflict the trial court did little to try to remedy and that defense counsel could have done more to address.”  As a result, defense counsel withdrew his investigator (who it was alleged was unlicensed) as a witness.  (The allegation was later determined to be untrue.) Although the resulting conflict was real, unconflicted counsel would have done more for defendant, instead “pulling his punches.”  However, defendant failed to show that he was prejudiced thereby.  Although prejudice was possible, it was not “reasonably probable.”  (People v. Almanza (2015) 233 Cal.App.4th 990, 998-1010.)

 

The fact that defendant’s counsel suffered an adverse ruling by the trial court, including a finding by the court that counsel had “sandbagged” the prosecution and counsel for the co-defendant, resulting in the sanction of disallowing the testimony of a defense expert witness, did not establish a conflict of interest sufficient to allow defense counsel to withdraw his representation of the defendant.  (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1234.)

 

The fact that defendant’s mother paid for his appellate counsel and controlled what issues were to be raised, and that appellate counsel had not been paid to file for a petition for rehearing, were insufficient to constitute a conflict of interest.  First, there was no evidence that the 19-year-old defendant had sought to make the decision on what issues would be raised.  Also, if defendant could not afford to pay his retained appellate counsel, he could have sought free representation, but did not. (People v. Lucas (2014) 60 Cal.4th 153, 306-307.)

 

A defendant’s absence from an in camera court hearing, when such presence was waived, does not create or exacerbate a conflict of interest with his defense counsel or require that defendant be advised by other counsel.  Also, defense counsel’s mistake in giving a defense expert a report containing defense counsel’s work product create grounds for a claim of constitutionally deficient assistance or that he should have been present and/or advised by non-conflicted counsel about whether he should challenge the performance of his attorney.  (People v. Lucas, supra, at pp. 323-324.)

 

“‘(T)o obtain reversal of a criminal verdict, the defendant must demonstrate that (1) counsel labored under an actual conflict of interest that adversely affected counsel’s performance, and (2) absent counsel’s deficiencies arising from the conflict, it is reasonably probable the result of the proceeding would have been different. (Mickens v. Taylor (2002) 535 U.S. 162, 166 [152 L. Ed. 2nd 291; 122 S. Ct. 1237] . . . ; (People v.) Doolin ((2009) 45 Cal.4th 390) . . . 417–418, 421; see Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L. Ed. 2d 674, 104 S. Ct. 2052].)’ (People v. Mai (2013) 57 Cal.4th 986, 1009–1010 . . . .)”  (People v. Rices (2017) 4 Cal.5th 49, 65.)

 

A fee arrangement with the court does not necessarily, by itself, create a conflict of interest for appointed counsel. “‘[W]e assume attorneys are not so unethical as to neglect their clients' interests to advance their own. Any such obvious malfeasance is clearly the exception not the rule.” . . .  The mere existence of the fixed fee agreement does not entitle defendant to relief.”  (Rices, at p. 66, quoting People v. Doolin, supra, at pp. 416-417.)

 

The fact that a defense attorney might have access to information that potentially would require him to testify—a situation that occurs in almost all trials, does not by itself create a conflict of interest that requires the attorney to withdraw from representing his client.  (Rices, at pp. 66-68.)

 

Defendant’s argument in a death penalty case that his lawyer’s loyalty was divided between his interests and the lawyer’s personal interest in currying favor with the judge was not supported by any evidence. Specifically, defendant argued that because his counsel was “intending to retire” after this trial, his overriding concern would have been to go out with a clear record. To accomplish this task, defendant asserted that counsel “would be unlikely to do anything at (defendant’s) trial which could cause Judge Spinetta to cast him in an unfavorable light with regard to the state bar.”  Defendant also argues that “(defense counsel’s) overriding concern would have been in controlling and limiting the damage already done to his relationship with the trial judge, not in vigorously defending his client.”  The Court ruled that; “(a)lthough some of (defense counsel’s) choices in the case may at least arguably appear consistent with the goal of remaining in the judge’s good graces, alternative—and legally permissible—rationales are also consistent with (defense counsel’s) behavior.”  (People v. Perez (Mar. 1, 2018) 4 Cal.4th 421, 437.)

 

“A defendant’s Sixth Amendment guarantee to effective assistance of counsel includes the right to counsel free from conflicts of interest. (Wood v. Georgia (1981) 450 U.S. 261, 271 [67 L.Ed.2nd 220, 101 S.Ct. 1097]; People v. Doolin (2009) 45 Cal.4th 390, 411 . . . ..) ‘Conflicts of interest broadly embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client . . . .’ (People v. Bonin (1989) 47 Cal.3rd 808, 835 . . . .], citing ABA Model Rules Prof. Conduct, rule 1.7 and com. thereto.) ‘Conflicts may also arise in situations in which an attorney represents a defendant in a criminal matter and currently has or formerly had an attorney-client relationship with a person who is a witness in that matter.” (People v. Bonin, supra, 47 Cal.3rd at p. 835.)”  (People v. Woodruff (2018) 5 Cal.5th 697, 739; finding that even if there was a conflict (not deciding this issue), the record did not show that defense counsel was ineffective (i.e. “pulled his punches”) due to any possible conflict.  (Id., at pp. 739-740.)

 

The district court erred by granting petitioner habeas relief on his claim that his Sixth Amendment right to be represented by conflict-free counsel was violated based on the fee arrangement between petitioner’s mother and the attorney because there was no evidence that an actual conflict adversely affected the attorney’s representation of petitioner, as the trial strategy, based on petitioner’s alibi, was sound, and the second attorney, who was not conflicted, was part of the decision-making process.  (Noguera v. Davis (July 20, 2021) __ F.3rd __, __ [2021 U.S. App. LEXIS 21409].)

 

Forfeiture of Right to an Attorney:  It is also possible for a charged criminal defendant to “forfeit” his right to counsel by engaging in “dilatory tactics,” abuse directed towards his attorney, or other misconduct, although, in some circumstances, a forfeiture may be appropriate only after having been warned by the court.  (United States v. Goldberg (3rd Cir. 1995) 67 F.3rd 1092, 1099-1101; Gilchrist v. O’Keefe (2nd Cir. 2001) 260 F.3rd 87.)

 

“(A)n accused may forfeit his right to counsel by a course of serious misconduct towards counsel that illustrates that lesser measures to control defendant are insufficient to protect counsel and appointment of successor counsel is futile.”  (King v. Superior Court (2003) 107 Cal.App.4th 929.)

 

However, a defendant is entitled to “due process,” such as a hearing and an opportunity to be heard on the issue.  (Ibid.)

 

The hearing, however, may not be necessary in all circumstances, such as when the defendant has physically assaulted his attorney in open court.  (United States v. Leggett (3rd Cir. 1998) 162 F.3rd 237.)

 

             The “Jackson Rule:” Law Enforcement Initiated Questioning: 

 

Until May, 2009, it was a constitutional rule that statements obtained from a criminal suspect through a police-initiated interrogation after the defendant’s Sixth Amendment rights have been triggered by a “formal charge, preliminary hearing, indictment, information, or arraignment” (see above), were presumed to be invalid.  (Michigan v. Jackson (1986) 475 U.S. 625 [89 L.Ed.2nd 631]; see also Fellers v. United States (2004) 540 U.S. 519 [157 L.Ed.2nd 1016].)   

 

Known as the “Jackson Rule,” an important exception involved the situation where a defendant had been formally charged by the filing of a formal charge, preliminary hearing, indictment, information or an arraignment, but had not yet been to court to formally request the appointment of counsel.  In such a case, so long as the defendant has been advised of his right to the assistance of an attorney and a waiver of that right obtained, law enforcement could initiate contact and question the charged criminal defendant.  (Patterson v. Illinois (1988) 487 U.S. 285 [101 L.Ed.2nd 261].)

 

Jackson, however, was specifically overruled in Montejo v. Louisiana (2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

In Montejo, it was held that an in-custody defendant may be contacted by law enforcement and, after a “voluntary, knowing, and intelligent” waiver of his Fifth (Miranda) and Sixth (right to counsel) Amendment rights, questioned, even if he has already been arraigned and even if, at arraignment, he has asserted his right to the assistance of counsel.

 

The Montejo Court held that the protections provided by the Miranda, Edwards, and Minnick cases (below) are sufficient and that the rule of Jackson is superfluous and unnecessary.

 

• Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2nd 694]; requiring an admonishment of rights, including to the assistance of an attorney, and a free, voluntary and knowing waiver.

 

• Edwards v. Arizona (1981) 451 U.S. 477, 483 [68 L.Ed.2nd 378, 386]; providing that an in-custody suspect who has invoked his Miranda right to counsel may not be contacted again unless such contact is initiated by the defendant or he is released from custody.

 

• Minnick v. Mississippi (1990) 498 U.S. 146 [112 L.Ed.2nd 489]; providing that an in-custody suspect who has invoked his Miranda right to counsel may not be contacted again unless his attorney is present.

 

In Montejo, it was also noted that neither Jackson nor Edwards is necessary to protect an out-of-custody defendant because he “is in control, and need only shut his door or walk away to avoid police badgering.”  Similarly, other “non-interrogative interactions with the State” (e.g., police lineups) do not involve the “inherently compelling pressures” that typically necessitate the need for a rule protecting a defendant from police badgering.  An out-of-custody charged criminal defendant, therefore, may also be contacted and, upon advisal of his Sixth Amendment right to counsel and a wavier, may also be questioned out of the presence of his attorney.  (Montejo v. Louisiana, supra, at pp. 2090-2091.)

 

Admonishment of Rights:  A Miranda-style admonishment and waiver has been held “as a general matter” to be enough to waive one’s Sixth Amendment right to counsel when questioning a charged criminal suspect.

 

Rule:   “The standard for waiver of the Fifth and Sixth Amendment rights to counsel is the same:  the waiver must be (1) voluntary, and (2) a knowing and intelligent relinquishment of a known right or privilege.”  (United States v. Karr (9th Cir. 1984) 742 F.2nd 493, 495-496; citing Edwards v. Arizona (1981) 451 U.S. 477, 482 [68 L.Ed.2nd 378, 385, Fifth Amendment; and Brewer v. Williams (1977) 430 U.S. 387, 404 [51 L.Ed.2nd 424, 439-440], Sixth Amendment; Montejo v. Louisiana (2009) 556 U.S. 778 [173 L.Ed.2nd 955].)

 

There is no basis for finding the suspect’s Sixth Amendment right to counsel to be more important, or deserves greater protection, than his Fifth Amendment right to counsel.  (Patterson v. Illinois (1988) 487 U.S. 285, 297-298 [101 L.Ed.2nd 261].)

There are not a lot of examples yet on what must be said in the form of an admonishment.  Probably, merely telling him that a complaint has been filed before admonishing him, and then giving him a standard Miranda admonishment and waiver, would be enough: 

If the subject knows that an accusatory pleading has been filed against him, a standard Miranda admonishment and wavier has been held to be sufficient.  (Patterson v. Illinois (1988) 487 U.S. 285 [101 L.Ed.2nd 261].)

 

“As a general matter ... an accused who is admonished with the warnings prescribed by this Court in Miranda . . . has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.”  (Montejo v. Louisiana (2009) 556 U.S. 778, 798-799 [173 L.Ed.2nd 955; citing Patterson, supra, at 296.)

California authority has held that if the subject does not know that an accusatory pleading has been filed against him, then he should be informed of this fact so that he knows what he is waving.  (People v. Engert (1987) 193 Cal.App.3rd 1518.) 

 

At least one court has held that a person who wishes to discuss his or her case with law enforcement without the assistance of, or knowledge of, his or her attorney, should be given “a clear and explicit explanation of the Sixth Amendment rights defendant is giving up.”  (United States v. Mohabir (2nd Cir. 1980) 624 F.2nd 1140, 1150-1153; requiring that his rights be explained by a neutral judicial officer, with an explanation of the significance and seriousness of the charges and the defendant’s position.)

 

The U.S. Supreme Court has specifically rejected Mohabir.  (Patterson v. Illinois, supra, at p. 295.)  Other courts have taken a more lenient view as well, requiring only that the subject receive a full Miranda admonishment, including the standard reference to his right to counsel, and be told that there are formal judicial proceedings pending against him.  (United States v. Karr , supra, at p. 496; explaining that Mohabir is a minority position, and describing the many less stringent opinions by other federal circuit courts.)

 

The U.S. Supreme Court has held that; “As a general matter, . . . an accused who is admonished with the warnings prescribed by this Court in Miranda, . . . has been sufficiently appraised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.  [fn. Omitted]”  (Patterson v. Illinois, supra, at pp. 295-296 [101 L.Ed.2d at p. 275]; Michigan v. Harvey (1990) 494 U.S. 244, 349 [108 L.Ed.2nd 293, 301].)

 

There has been some Supreme Court dissent from this rule, noting that waivers of the Sixth Amendment right to counsel should be measured by a stricter standard.  (Fields v. Wyrick (1983) 464 U.S. 1020, 1022 [78 L.Ed.2nd 728, 729]; Justice Marshall’s dissent from the Court’s denial of certiorari.)

Note:  Absent more defining case law, we are certainly on firmer ground if he is also specifically told that charges have been filed against him and that by waiving his Miranda rights he is also waiving his Sixth Amendment right to the assistance of counsel.

 

Important:  For those cases decided under the rule of Michigan v. Jackson, it is important to note that the rule was but a “prophylactic rule” intended to protect one’s Sixth Amendment rights and was not, when violated, a Sixth Amendment violation in itself.  Statements obtained in violation of Jackson, therefore, at least if otherwise voluntarily obtained, are admissible for impeachment purposes should the defendant testify contrary to his statements to the police.  (Michigan v. Harvey (1990) 494 U.S. 344, 353 [108 L.Ed.2nd 293, 304].)

 

             Use of Undercover Agents and Other Informants:

 

Rule:  The use of informants is recognized as a vital part of society’s defensive arsenal.  (See McCray v. Illinois (1967) 386 U.S. 300 [18 L.Ed.2nd 62; 87 S.Ct. 1056]; United States v. Dennis (2nd Cir. 1950) 183 F.2nd 201, 224.)  However, intentionally creating a situation likely to induce an in-custody defendant, represented by counsel appointed at his arraignment, to make incriminating statements by having an undercover agent engage defendant in conversation, is a Sixth Amendment violation.  (United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2nd 115].)

 

“Knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.”  (Maine v. Moulton (1985) 474 U.S. 159, 176 [88 L.Ed.2nd 481, 496].)

 

The intention to generate incriminating statements from the accused will likely be presumed.  “Even if the (government) agent’s statement that he did not intend that (the undercover agent) would take affirmative steps to secure incriminating information is accepted (in fact, the undercover agent was specifically instructed not to do so), he (the government agent) must have known that such propinquity likely would lead to that result.”  (United States v. Henry, supra, at p. 271 [65 L.Ed.2nd at p. 122].)

 

Even without questioning the defendant, an informant who “stimulates” conversation with the defendant for the purpose of attempting to elicit incriminating statements, as opposed to acting as a “mere listening post,” is violating the defendant’s Sixth Amendment rights.  (Kuhlmann v. Wilson (1986) 477 U.S. 436, 458-459 [91 L.Ed.2nd 364], analyzing the rule of Henry.)

 

The Court in Henry found significant three factors in determining whether the government had “deliberately elicited” statements from the accused:

 

• The informant was acting under instructions from the government and was paid for his actions;

 

• The informant was ostensibly no more than a fellow inmate, causing the defendant to trust him and thus be more likely to make incriminating statements; and

 

• The defendant was in custody and under indictment.  (Ibid.)

 

The Court also in Henry noted that the defendant’s status as a jail inmate made him “particularly susceptible to the ploys of undercover Government agents, . . . (who appeared to be) sharing a common plight,”  (Id., at p. 274 [65 L.Ed.2nd at p. 124].) differentiating an in-custody situation from the situation when the defendant is not in-custody, and not yet charged, as described in Hoffa v. United States (1966) 385 U.S. 392 [17 L.Ed.2nd 374].  (Id., at p. 272.)

 

“Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.”  (People v. Dement (2011) 53 Cal.4th 1, 33-34; People v. Hartsch (2010) 49 Cal.4th 472, 490-492; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 67; and People v. Williams (1988) 44 Cal.3d 1127, 1141.)

 

Similarly, a co-principle, working at the request of the police and who purposely “stimulates” conversation with the defendant about the charged offenses, even when the defendant knew the co-principle was supplying information to the police, is a Sixth Amendment Massiah violation.  (In re Neely (1993) 6 Cal.4th 901, 909-920.)

 

But see  Bey v. Morton (3rd Cir. 1997) 124 F.3rd 524, where a corrections officer, assigned to watch death row inmates, engaged defendant, whose appeal was pending, in various conversations about the details of two homicides during which defendant confessed to both.  After reversal of defendant’s conviction, the officer was allowed to testify as to defendant’s statements over a Sixth Amendment objection.  Reason:  The officer, “while a state actor, was not a state actor deliberately engaged in trying to secure information from the defendant for use in connection with the prosecution that was the subject matter of counsel’s representation.”

 

Note, however, footnote 7, Id., at p. 531, where the Court notes that the result might be different under circumstances where inculpatory statements should be foreseen.

 

A prosecutor (and, inferably, a police officer) doing anything to facilitate an informant’s visit with a charged defendant, to obtain the defendant’s statements, will raise Sixth Amendment issues, even when it is the informant’s idea.  (Franklin v. Duncan (9th Cir. 1995) 70 F.3rd 75, adopting factual and legal conclusions of the trial court’s decision at 884 F.Supp. 1435.)

 

Purposely returning a jail inmate to the defendant’s cell, knowing that the inmate is desirous of obtaining a favorable plea bargain in exchange for obtaining incriminating statements from a cellmate (i.e., the defendant), makes the inmate a state agent.  Whether or not, however, the defendant’s Sixth Amendment rights are violated depends upon what the inmate does to obtain such incriminating statements.  (Randolph v. California (9th Cir. 2004) 380 F.3rd 1133.)

 

Putting a potential co-suspect into a charged defendant’s jail cell to see what the two of them will talk about, at least where the co-suspect knows nothing about the investigator’s plan, is not a Sixth Amendment violation.  (People v. Hartsch (2010) 49 Cal.4th 472.)

 

Defendant’s statements to a fellow inmate and gang member who was wearing a wire which recorded their conversation, before defendant was charged, were admissible against him.  Massiah is inapplicable to the situation.  Use of a police agent under the circumstances is proper.  Defendant’s statements were voluntary and free of compulsion.  (People v. Gonzales (2011) 52 Cal.4th 254, 284.)

 

But, a general jail policy of rewarding inmates for providing information useful to law enforcement does not create an agency relationship between an inmate who volunteers information pursuant to such a policy and the police.  “(S)ome specific action (on the part of the informant) ‘designed deliberately to elicit incriminating remarks’ is required. (People v. Williams (1988) 44 Cal.3rd 1127, 1141.)

 

And the simple act of putting a suspect into a cell next to a jailhouse informant who then purposely initiates an incriminating conversation with the suspect, is not improper in itself.  (People v. Quiroz (Apr. 3, 2013) 215 Cal.App.4th 65, __.)

 

Note:  The Court doesn’t discuss it, but it is assumed that the suspect in this case had not yet been arraigned and appointed an attorney. 

 

Defendant’s incriminating statements made to an informant put into his holding cell, and who dressed and acted like an inmate, were held to be admissible. The Court rejected defendant’s arguments that (1) he should have been Mirandized before the undercover officer questioned him about a shooting, and (2) his statements were involuntary because his will was overcome by an “older gang member” to whom defendant was obligated to “show respect to, gain respect from, and gain protection from.”  (People v. Rodriguez (2019) 40 Cal.App.5th 194, 197-199.)

 

Defendant’s Sixth Amendment right to counsel was violated when deputies placed an undercover officer in the defendant’s jail cell to elicit incriminating statements after a complaint was filed against him.  (People v. Fultz (Sep. 27, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 794].)

 

Without Questioning:  Using an undercover agent or informant who merely acts as a “listening post,” without encouraging the defendant to talk about his offense, is not a Massiah violation.  (People v. Hovey (1988) 44 Cal.3rd 543, 559-561; United States v. Birbal (2nd Cir. 1997) 113 F.3rd 342, 345-346.)

 

The Sixth Amendment is not violated when an informant does nothing to encourage the defendant to talk about his case.  The

Sixth Amendment does not protect a talkative defendant from volunteering incriminating statements.  (Kuhlmann v. Wilson (1986) 477 U.S. 436, 456-461 [91 L.Ed.2nd 364, 382-385]; see also People v. Howard (1988) 44 Cal.3rd 375, 401.)

 

Surreptitiously recording a conversation between defendant and a fellow prisoner after defendant had invoked his right to have counsel present during interrogation is not a Massiah violation, even if the prisoner is intentionally placed there to see what they might say, so long as the prisoner is not a police agent.  (People v. Lucero (1987) 190 Cal.App.3rd 1065, 1067-1069.)

 

But; “The right to counsel may also be violated when a cooperating defendant participates with noncooperating defendants and their attorneys in joint strategy sessions.”  (United States v. Miller (2nd Cir. 1997) 116 F.3rd 641, 665.)

 

Exception:  “Where the presence of the government’s agent or informant at the defense conference is either unintentional or justified by the necessity of protecting the informant’s identity, there can be no violation of the Sixth Amendment without some communication of valuable information derived from the intrusion to the government . . .”  (United States v. Ginsberg (2nd Cir. 1985) 758 F.2nd 823, 833.)

 

In such an instance, a Massiah claim will fail unless it is shown that the government benefited from the cooperating defendant’s attendance.  (United States v. Miller, supra.)

                                                                

                          Non-Law Enforcement Acting on their Own: 

 

Another inmate acting on his own, without encouragement from law enforcement, questioning a suspect, is not a Sixth Amendment violation even though he takes his information to the police after the fact.  (People v. Valasquez (1987) 192 Cal.App.3rd 319, 329; People v. Williams (1997) 16 Cal.4th 153, 203-205.)

 

The defendant has the burden of “demonstrat(ing) that . . . the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.”  (In re Neely (1993) 6 Cal.4th 901, 915.)

 

“If an informant ‘acts on his own initiative,’ even if he interrogates the accused, ‘the government may not be said to have deliberately elicited the statements.’ [Citation]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1247.)

 

An informant who has agreed to provide the government with “any and all information in his possession relating directly or indirectly to any and all criminal activities or other matters of which he has knowledge” is not a government agent for purposes of obtaining what he can elicit from a particular defendant not specifically contemplated when the agreement was made.  (United States v. Birbal (2nd  Cir. 1997) 113 F.3rd 342, 345-346: “The Sixth Amendment rights of a talkative inmate are not violated when a jailmate acts in an entrepreneurial way to seek information of potential value, without having been deputized by the government to question that defendant.”)

 

But, an agreement between the police and an informant need not be explicit, “but may be inferred from the circumstances through evidence that the parties behaved as though there were an agreement between them, following a particular course of conduct over a period of time.  [Citation]”  (In re Neely, supra.)

 

But see also People v. Fairbank, supra, at pp. 1247-1249; contacts with law enforcement where nothing was done to encourage the informant to talk to defendant did not establish even an implicit agreement.

 

Defendant’s phone calls to his wife from jail, recorded by the wife at the suggestion of law enforcement, does not violate Massiah, at least where the wife did not actively attempt to elicit incriminating responses.  (People v. Wojtokowski  (1985) 167 Cal.App.3rd 1077, 1081.)

 

Information volunteered by defendant to another inmate was admissible.  The fact that the officers then sent the informant back telling him to “remember anything further (defendant) might tell (him), with no promises of reward, was held not to be a violation of Massiah or Henry.  (Brooks v. Kincheloe (9th Cir. 1988) 848 F.2nd 940.)

 

Defendant’s girlfriend, who was supplied a tape recorder by law enforcement with which to record telephone conversations with defendant concerning threats he made to her and her children, even without instructions to avoid discussions about the murder prosecution that was already underway, resulting in the girlfriend, on her own initiative, interrogating defendant about the charged murder, was not a Sixth Amendment violation given the lack of law enforcement encouragement to do what she did.  (People v. Martin (2002) 98 Cal.App.4th 408.)

 

And, just knowing that an inmate has been used as an informant in the past, putting her into a cell with the defendant without any instructions or stated intentions for her to collect information from the defendant, does not necessarily result in a Massiah violation.  The informant, collecting incriminating statements on her own, may lawfully pass this onto police.  (People v. Coffman (2004) 34 Cal.4th 1, 67-68.)

 

A jailhouse informant providing unsolicited information (i.e., incriminating notes written by defendant) to law enforcement is not a Massiah violation.  (Fairbank v. Ayers (9th Cir. 2011) 632 F.3rd 612, 622-623, as amended at 650 F.3rd 1243.)

 

Also, where defendant’s cellmate volunteers to law enforcement incriminating statements made by defendant, without any instruction by law enforcement to do any more than merely listen to, and report, what the co-defendant says about his crime, is not a Massiah error.  (People v. Almeda et al. (2018) 19 Cal.App.5th 346, 358-361, referring to Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199; 12 L.Ed.2nd 246]; discussing with a charged criminal suspect a murder the suspect committed, when the suspect is already represented by counsel.)

 

An inmate informing, through his own attorney, law enforcement of defendant’s confession was shown by the evidence to be motivated by the inmate’s concern that defendant was mentally ill in some way, and that he would continue to commit murders if not convicted of the murder he had confessed to the inmate, was found not to be acting as a police agent.  Defendant’s incriminatory statements made to the inmate were upheld as admissible evidence.  (People v. Johnsen (2021) 10 Cal.5th 1116, 1149-1154.)

 

Uncharged Crimes:  Questioning a defendant, accomplished through an undercover police agent, concerning crimes for which defendant had not yet been charged, is not a Sixth Amendment violation.  (Hoffa v. United States (1966) 385 U.S. 293 [17 L.Ed.2nd 374].)

 

Being represented by counsel on one case does not preclude using an undercover government agent to elicit incriminating statements relating to some new, uncharged crime.  However, the resulting statements are inadmissible in the trial for the already-pending charges.  (In re Wilson (1992) 3 Cal.4th 945, 954; government agent posing as a “hit man” being solicited by defendant to murder a witness to the pending charges.)

 

While charged in state court with murdering his wife, and after appointment of counsel, defendant was questioned by another inmate at a law enforcement officer’s instigation (i.e., acting as his agent). The defendant’s incriminating statements made to the inmate were held to be usable against him in federal court after the state charges were dismissed and defendant was indicted in federal court on several charges related to the same incident.  Because the Sixth Amendment is “offense specific,” the violation of defendant’s Sixth Amendment right to counsel during the state prosecution did not apply to the use of those same statements in federal court.  (United States v. Holness (4th Cir. Feb. 11, 2013) 706 F.3rd 579, __.)

 

Right to Competent Counsel (Ineffective Assistance or Incompetency of Counsel):

 

Ineffective Assistance of Counsel:  The Sixth Amendment right to counsel requires that defendant’s counsel be competent.  It is the defendant’s burden to show that his attorney failed to act in a manner to be expected of reasonable competent attorneys acting as diligent advocates.  (People v. Pope (1979) 23 Cal.3rd 412, 425.)

 

“Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are “so serious” that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.  (Maryland v. Kulbicki (Oct. 5, 2015) __ U.S. __ [136 S.Ct. 2; 193 L.Ed.2nd 1]; citing Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2nd 674].) 

 

“In assessing claims of ineffective assistance of trial  [44] counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.]”  (People v. Brown (2014) 59 Cal.4th 86, 109.)

 

“The standards for ineffective assistance of counsel claims are well established. ‘We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.’ [Citation.] To establish a meritorious claim of ineffective assistance, defendant ‘must establish either: (1) As a result of counsel’s performance, the prosecution’s case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations] or (2) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. [Citations.]’”  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations]  Further, “‘When . . .  the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. . . .  Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’ [Citation.]”  (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1554-1555.)

 

When the claim of ineffective assistance of counsel is based on an act or omission not amounting to withdrawal of a defense, he must prove that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of his counsel’s failings.  (People v. Fosselman (1983) 33 Cal.3rd 572, 584.)

 

“In order to prevail, the defendant must show both that counsel’s representation fell below an objective standard of reasonableness [Citation], and that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Citation]” (Kimmelman v. Morrison (1986) 477 U.S. 365, 375 [91 L.Ed.2nd 305].)

 

“The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”  (People v. Torres (2018) 25 Cal.App.5th 162, 171; quoting Kimmelman v. Morrison, supra, at p. 374.)

 

The Sixth Amendment right to effective assistance of counsel, applicable to the states through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing phase of a trial.  (Murray v. Schriro (9th Cir. 2014) 745 F.3rd 984, 1009-1014.)

 

A claim of ineffective assistance of counsel is most often heard post-conviction, in a collateral appeal.  However, when it is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding. This decision whether to consider the issue at that time, or to leave it for after judgment in a collateral appeal, is best left to the discretion of the district court.  (United States v. Steele (9th Cir. 2013) 733 F.3rd 894, 897-899.)

 

The California Supreme Court has ruled that the American Bar Association (ABA) guidelines for what an attorney is qualified to do, do not establish the standards for effective representation. (People v. Williams (2013) 56 Cal.4th 630, 692; see also People v. Rices (2017) 4 Cal.5th 49, 63.)

 

A court may first determine that if counsel provided ineffective assistance of counsel, assuming for the sake of argument that he or she did, whether the defendant suffered any prejudice by counsel’s alleged incompetence.  If not, then it is unnecessary to determine whether or not counsel actually provided ineffective assistance.  (In re M.D. (2014) 231 Cal.App.4th 993, 1002-1004; finding that defense counsel’s failure to present sufficient evidence as to who had the burden of proof in a human trafficking case—whether the minor victim was protected by E.C. § 1161, excluding evidence of her prostitution activities if she was a victim—did not prejudice defendant.)

 

Counsel was held to be ineffective for failing to examine the defendant’s prior-conviction file  [16] for mitigating evidence.  (Rompilla v. Beard (2005) 545 U.S. 374, 380-389 [125 S.Ct. 2456; 162 L.Ed.2nd 360]; see also Vega v. Ryan (9th Cir. 2014) 757 F.3rd 960, 965-974.) 

 

The Court in Rompilla cites (at p. 387) the American Bar Association Standards for Criminal Justice in circulation at the time of defendant’s trial: 

 

“It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.” (1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)

 

Standards:   To prevail on an ineffective assistance of counsel claim, a petitioner must establish both (1) that counsel’s performance was deficient and (2) that he was prejudiced by the deficiency.  (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L. Ed. 2nd 674]; People v. Waidla (2000) 22 Cal.4th 690, 718; James v. Ryan (9th Cir.2012) 679 F.3rd 780; People v. Loza (2012) 207 Cal. App. 4th 332; People v. Jacobs (2013) 220 Cal.App.4th  67, 75; Murray v. Schriro, supra; People v. Lucas (2014) 60 Cal.4th 153, 305; People v. Camel (2017) 8 Cal.App.5th 989, 999-1000; People v. Rices (2017) 4 Cal.5th 49, 64; People v. Torres (2018) 25 Cal.App.5th 162, 171.)

 

When a “structural error” (i.e., a constitutional violation) is the issue, an objection that is made at trial with the issue raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show deficient performance and that the attorney’s error “prejudiced the defense.”  (Weaver v. Massachusetts (June 22, 2017) __ U.S. __ [137 S.Ct. 1899; 198 L.Ed.2nd 420]; defense counsel’s failure to object to the trial court’s closure of the courtroom to the public, including defendant’s mother and her minister, during jury selection; a Sixth Amendment violation. 

 

“On direct appeal, if the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ we must reject the claim ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ (People v. Wilson (1992) 3 Cal.4th 926, 936 . . . .) Where a defendant claims ineffective assistance based on counsel’s failure to litigate a Fourth Amendment claim, Strickland’s performance prong requires her to show that it was objectively unreasonable—‘that is, contrary to prevailing professional norms’—to forgo the motion. (Kimmelman v. Morrison (1986) 477 U.S. 365, 385 [91 L.Ed.2nd 305, 106 S.Ct. 2574] (Kimmelman); see also People v. Lopez (2008) 42 Cal.4th 960, 966 . . . . [the defendant bears the burden of showing counsel’s performance “fell below an objective standard of reasonableness [¶] . . .  under prevailing professional norms”].)  Examining the Fourth Amendment claim’s merit has a role to play here. For example, ‘[c]ounsel is not ineffective for failing to make frivolous or futile motions.’ (People v. Thompson (2010) 49 Cal.4th 79, 122 . . . .) The prejudice prong of Strickland then requires the defendant to ‘prove that [the] Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.’ (Kimmelman, at p. 375; accord, People v. Coddington (2000) 23 Cal.4th 529, 652 . . . ; People v. Wharton (1991) 53 Cal.3rd 522, 576 . . .)”  (People v. Caro (2019) 7 Cal.5th 463, 488-489.)

 

“There are no rigid rules for judging attorney performance, but the American Bar Association (“ABA”) standards serve as guides for determining what is reasonable under prevailing professional norms.”  (Mann v. Ryan (9th Cir. 2014) 774 F.3rd 1203, 1210.)

 

A defendant is entitled to an evidentiary hearing on the issue if his allegations, if proved to be true, would establish a right to relief.  (Silva v. Woodford (9th Cir. 2002) 279 F.3rd 825, 833.)

 

However, a trial court’s refusal to grant such a hearing is not error where the defendant fails to show that he was prejudiced by not getting a hearing.  (Ben-Sholom v. Ayers (9th Cir. 2012) 674 F.3rd 1095, 1099-1103; lack of psychiatric testimony not prejudicial in face of extensive evidence of defendant’s sanity.)

 

Defendant must show that his attorney was both deficient in his representation and that such deficiency was prejudicial.  (Leavitt v. Arave (9th Cir. 2012) 682 F.3rd 1138, 1140.)

 

“Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  (Strickland v. Washington, supra, at p. 689.)

 

To establish deficient performance, a defendant must show that “counsel's representation fell below an objective standard of reasonableness.”  (Id, at p. 688.)

 

The test for prejudice in a capital case is “whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”  (Id, at p. 695.)

 

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground. A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error. An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state post-conviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default.  (Coleman v. Thompson (1991) 501 U.S. 722, [111 S.Ct. 2546, 115 L.Ed.2nd 640].)

 

However, although under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default would not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review, there was no counsel or counsel in that proceeding was ineffective.  (Martinez v. Ryan (Mar. 20, 2012) 566 U.S. 1 [132 S.Ct. 1309; 182 L.Ed.2nd 272]; see also Clabourne v. Ryan (9th Cir. 2014) 745 F.3rd 362, 375-383.)

 

This rule, however, does not provide a defendant who chooses to represent himself with relief, claiming he was ineffective.  (Cook v. Ryan (9th Cir. 2012) 688 F.3rd 598.)

 

The U.S. Supreme Court, however, has declined to extend this rule of excusing procedural default of ineffective assistance of trial counsel, as described in Martinez, to claims of ineffective assistance of appellate counsel.  (Davila v. Davis (June 26, 2017) __ U.S. __ [137 S.Ct. 2058; 198 L.Ed.2nd 603].)

 

Defendant’s claim of ineffective assistance of appellate counsel was not viable in light of the United States Supreme Court's decision in Davila v. Davis, supra, which held that the holding in Martinez, supra, that a successful claim of post-conviction ineffective assistance of counsel could excuse a procedurally defaulted claim of ineffective assistance of trial counsel, did not extend to procedurally defaulted claims of ineffective assistance of appellate counsel.  (Hurles v. Ryan (9th Cir. 2019) 914 F.3rd 1236.)

 

A habeas petitioner (i.e, “defendant”) could not satisfy the prejudice requirement for an ineffective assistance of trial counsel claim merely by showing that trial counsel’s failure to object to a jury instruction deprived him of a more favorable standard of review on direct appeal, as Strickland required a showing that the result of the proceeding would have been different.  The record in this case left no room for a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Defendant, therefore, failed to demonstrate a substantial “ineffective assistance of counsel” claim.  Defendant’s procedural default of that claim was not excused under Martinez v. Ryan. The jury heard overwhelming evidence that defendant intended to kill the victim.  (Dickinson v. Shinn (June 22, 2021) __ F.3rd __ [2021 U.S.App. LEXIS 18516].)

 

Where a state procedural framework, by reason of its design and operation, make it highly unlikely in a typical case that a defendant will be able to obtain a meaningful opportunity to raise an ineffective assistance of counsel claim on direct appeal, a procedural default will not bar a federal habeas court from hearing a substantial ineffective assistance claim if, in the initial-review collateral proceedings, there was no counsel or counsel in that proceeding was ineffective.  (Trevino v. Thaler (May 28, 2013) __ U.S. __ [133 S.Ct. 1911, 185 L.Ed.2nd 1044; criticizing Texas’ lack of sufficient procedures for establishing an adequate record.)

 

Defendant, convicted of murder and sentenced to death, was entitled to have his appeal remanded to the district court for rehearing after the district court determined that his claims of ineffective assistance of trial counsel was procedurally defaulted because the U.S. Supreme Court created an exception in Martinez v. Ryan, supra, after the district court’s decision that a state Post-Conviction-Relief counsel’s ineffective assistance in failing to raise trial counsel’s ineffective assistance claims might establish cause for a prisoner’s procedural default, and the district court had to determine in the first instance whether there was cause to excuse the procedural default.   (Detrich v. Ryan (9th Cir. 2013) 740 F.3rd 1237, 1242-1248.)

 

To establish cause and prejudice sufficient to excuse the procedural default, Martinez and Detrich require that defendant make two showings:  First, to establish “cause,” he must establish that his counsel in the state post-conviction proceeding was ineffective under the standards of Strickland.  Strickland, supra, at pp. 687 and 694, in turn, requires him to establish that both (a) post-conviction counsel’s performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.  Second, to establish “prejudice,” he must establish that his “underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.”  Clabourne v. Ryan, supra, at p. 377.)

 

“To prove prejudice, appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Orloff (2016) 2 Cal.App.5th 947, 954-956; defense counsel’s failure to present certain evidence held not to show ineffective assistance of counsel where the evidence of defendant’s guilt was “overwhelming.”)

 

“As for the second prong—prejudice—‘defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland, supra, 466 U.S. at p. 694.) ‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (Id. at p. 697.)  (People v. Camel (2017) 8 Cal.App.5th 989, 999-1000; counsel’s failure to present evidence of defendant’s standing to challenge the search of a vehicle was not prejudicial where the search was lawful under the terms of a search warrant.)

 

In order to establish prejudice in the context of a motion to reopen based on ineffective assistance of counsel, it is not necessary for a petitioner to make out a prima facie case of eligibility for the ultimate relief sought.  A petitioner need only show that his counsel’s deficient performance “may have affected the outcome of the proceedings” by showing “plausible” grounds for relief.  (Flores v. Barr (9th Cir. 2019) 930 F.3rd 1082, 1087.)

 

Burden of Proof:

 

It is the defendant’s burden on appeal to show by a preponderance of the evidence that he or she was denied effective assistance of counsel and is entitled to relief. (People v. Ledesma (1987) 43 Cal.3rd 171, 218; People v. Torres (2018) 25 Cal.App.5th 162, 171.)

“Where a claim of ineffective assistance is premised on a failure to seek suppression of evidence obtained in violation of the Constitution, the defendant must demonstrate the suppression motion was meritorious and there is a reasonable probability the verdict would have been different had defendant prevailed on the motion. (Kimmelman, supra, 477 U.S. at p. 375.) ‘In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel's deficiencies, the result would have been more favorable to the defendant.’ (People v. Frye (1998) 18 Cal.4th 894, 979 . . . , overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22. . . .) ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (People v. Williams (1997) 16 Cal.4th 153, 215, . . .)”  (People v. Torres, supra.)

Procedure on Appeal:

On Direct Appeal:

 

“On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Torres (2018) 25 Cal.App.5th 162, 171.)

 

When Via a Writ of Habeas Corpus; i.e., Indirect Appeal:

 

On indirect appeal, via a Writ of Habeas Corpus, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the power of federal courts to grant writs of habeas corpus based on claims that were “adjudicated on the merits” by a state court. (28 U. S. C. §2254(d)). When a state court has applied clearly established federal law to reasonably determined facts in the process of adjudicating a claim on the merits, a federal habeas court may not disturb the state court’s decision unless its error lies “beyond any possibility for fairminded disagreement.” Harrington v. Richter (211) 562 U. S. 86, 103 [131 S.Ct. 770; 178 L.Ed.2nd 624].)

 

Despite this rule as set out in Harrington v. Richter, supra, the Ninth Circuit Court of Appeal reversed a district court’s denial of relief on defendant’s claim that he was denied his Sixth Amendment right to effective assistance of counsel due to his attorneys’ inadequate mitigation investigation in preparation for his penalty phase hearing. The Court held that in failing to begin the penalty-phase investigation promptly after they were appointed, defendant’s attorneys’ representation fell below an objective standard of reasonableness.  The conclusion of the Arizona state post-conviction-relief (PCR) court that defendant’s attorneys provided constitutionally adequate performance was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. The Court concluded that but for counsel’s deficient performance, there is a reasonable probability defendant’s sentence would have been less than death, and that the state PCR court was unreasonable in concluding otherwise.  (Kayer v. Ryan (9th Cir. 2019) 923 F.3rd 692, 713-725; certiorari granted.)

 

The U.S. Supreme Court reversed the Ninth Circuit’s decision in Kayer v. Ryan, supra, however, ruling that the Ninth Circuit erred in ordering issuance of a writ of habeas corpus despite ample room for reasonable disagreement about the prisoner’s ineffective-assistance-of-counsel claim. In so doing, the Court of Appeals clearly violated this Court’s AEDPA jurisprudence.  Per the Court, the Ninth Circuit resolved this case in a manner fundamentally inconsistent with AEDPA. Most striking, the panel essentially evaluated the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court's decision was unreasonable. A state court heard the prisoner’s evidence and concluded that he failed to show prejudice. The Ninth Circuit exceeded its authority in rejecting that determination which was not so obviously wrong as to be “beyond any possibility for fairminded disagreement.”  (Shinn v. Kayer (Dec. 14, 2020) __ U.S. ___ [208 L.Ed.2nd 353; 141 S.Ct. 517].)

 

At the Pre-Trial Stage; Examples:

 

In a 2011 murder prosecution arising from a 1992 shooting, counsel was rendered ineffective under the Sixth Amendment and California Constitution, art. 1, § 15, by failing to move to dismiss the case based on pre-charging delay because, by the time of trial, an eyewitness who had exonerated defendant could not be found.  It was reasonably probable that a motion to dismiss would have been granted under the Fifth Amendment Due Process Clause because the state’s justification (i.e., lack of investigative resources) was outweighed by the prejudice from losing the potential “blockbuster” witness.  The prejudice had added significance because of the weakness of the prosecution’s case. Defendant’s right to a fair trial can be accommodated by retrying the case and allowing the jury to hear the exculpatory statements that the witness had made to the police after the shooting.  (People v. Booth (2016) 3 Cal.App.5th 1284.)

 

The Court rejected defendant’s claim that his guilty plea was unknowing and involuntary in that trial counsel was ineffective in failing to advise him that his family would have likely opposed concurrent sentences.  The Court found the advice provided by trial counsel as to the guilty plea was constitutionally adequate and that the plea was knowing and voluntary as a result.  Defendant acknowledged that the trial court would make the final decision on this issue and failed to prove that he wouldn’t have pled guilty despite counsel’s advice.  Also, the decisions trial counsel made were strategic ones that cannot form the basis of a claim for ineffective assistance of counsel.  (Sexton v. Cozner (9th Cir. 2012) 679 F.3rd 1150; amended at 2012 U.S. App. LEXIS 10112; dismissal of petition for habeas corpus was affirmed.)

 

Where defendant withdrew his plea of guilty to a manslaughter charge, only to be later convicted of second degree murder, counsel was not incompetent in advising defendant where defendant claimed to be innocent and where he was scheduled, as a condition of the manslaughter plea bargain, to testify against a co-defendant where he would be admitting his participation in a murder.  The lower court (the Sixth Circuit Court of Appeal), in being reversed on this issue, ignored the strong presumption of effectiveness.  Although the attorney’s conduct was far from exemplary, it was not ineffective.  (Burt v. Titlow (2013) 571 U.S. 12 [134 S.Ct. 10; 187 L.Ed.2nd 348].)

 

Defendant was deprived of the effective assistance of counsel under the Sixth Amendment and Cal. Const. art. I, § 15, when he was represented at a preliminary hearing and arraignment by an attorney who had been placed on inactive status due to his failure to pay bar dues, had been disciplined for failing to perform legal services competently, and failed to inform the trial court and his client of his suspension.  However, the information did not have to be set aside under P.C. § 995 in that there was no prejudice.  Although defendant raised the issue of his counsel’s incompetence soon after its discovery, the rule allowing relief without prejudice did not apply because he failed to apply for an extraordinary writ based on that rule and was then tried while represented by different counsel as to whom there was no contention of incompetence.  (People v. Anderson (2015) 234 Cal.App.4th 1411, 1416-1421.)

 

Making a warrantless entry into defendant’s residence and bedroom where the officer believed that defendant may be concealing a victim inside was held to be reasonable.  Although defense counsel was legally ineffective for not having made a motion to suppress the weapons and ammunition found therein (“There was at least a chance that such a motion would have succeeded.”), the state habeas courts were not unreasonable in denying the writ in that although the officer inarticulately referred to the entry as a “protective sweep,” the “emergency aid doctrine” arguably allowed for the warrantless entry.   (Mahrt v. Beard (9th Cir. 2017 849 F.3rd 1164, 1171-1172.)

 

The district court did not err in determining that the assistance provided by defendant’s counsel was constitutionally deficient because he failed to perform an adequate pretrial investigation into whether the victim's injuries were sustained during the time she was alone with defendant.  Defendant demonstrated prejudice due to counsel’s failures.  With respect to the failure to seek medical assistance count, counsel’s failures only affected the jury’s determination that defendant had acted intentionally or knowingly, but not his underlying guilt on the lesser included offense of reckless misconduct.  (Jones v. Shinn (9th Cir. 2019) 943 F.3rd 1211.)

 

The decision whether to call certain witnesses is a matter of trial tactics and strategy which a reviewing court generally may not second guess and not a proper basis for an ineffective assistance of counsel claim.  (People v. Anderson (2020) 54 Cal.App.5th 612, 617-620.)

 

In a prosecution for making criminal threats in violation of Pen. Code § 422, defense counsel’s performance was held to be deficient because he failed to investigate, before defendant entered a guilty plea, either defendant’s mental health or the facts and circumstances of the charged offense (which could have supported defenses to the charge), despite having been told of defendant’s prior mental problems and having his own immediate doubts whether defendant was competent to stand trial. Defendant was prejudiced, given the evidence that his mental illness prevented him from possessing the intentionality necessary to convict him of making a criminal threat and that the victims were familiar with his frequent unconventional behavior and aware it had never resulted in violence, which would have diminished their fear for their own safety.  (People v. O’Hearn (2020) 57 Cal.App.5th 280.)

 

In a federal money laundering case, even if defendant’s lawyer conducted an inadequate legal analysis and failed to properly explain to defendant the term “proceeds,” defendant failed to show that he had ben prejudiced under Strickland because he had not shown that the lawyer thereby overlooked a viable defense to the charges, and that he wouldn’t have plead guilty even if counsel had been clearer in his explanation.  (United States v. Silveira (9th Cir. May 13, 2021) __ F.3rd __ [2021 U.S. App. LEXIS 14174].)

 

The trial court did not abuse its discretion when it denied defendant's motion to withdraw his no contest plea to a charge of lewd conduct by a caretaker upon a dependent person, Pen. Code, § 288(c)(2), based on ineffective assistance of counsel. Even assuming, arguendo, that consent could have been asserted as a defense to the charge, the evidence was far from substantially conclusive on the issue. A reasonable attorney could have concluded that the jury would not have believed one of the victims consented to the lewd act or had the capacity to do so. A reasonable attorney could have also concluded that defendant was a caretaker. The record showed that defendant, who was working as a licensed physical therapist, wore “medical scrubs” and his work badge and that both victims believed that defendant's visit had been sanctioned by his employer.  (People v. Montoya (Sept. 16, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 762].)

 

Immigration Consequences Pre-Plea Advisals, per P.C. § 1473.7(a):

 

After defendant discovered that he faced deportation as a result of a plea of guilty in a child molest case, he moved in the state court where he had been convicted and sought to vacate his guilty plea under recently enacted P.C. § 1473.7 on the grounds his trial counsel provided ineffective assistance of counsel by not advising him of the immigration consequences of his plea.  Defendant’s motion was denied.  The Court of Appeal affirmed, holding that defendant failed to establish either deficient performance or prejudice.  Specifically, the Court held that it was the United States Supreme Court’s decision in Padilla v. Kentucky (2010) 559 U.S. 356 (130 S.Ct. 1473; 176 L.Ed.2nd 284].), that established an affirmative obligation for defense attorneys to advise noncitizen clients regarding the immigration consequences of a guilty plea.  Because defendant’s case was final before Padilla was decided, his trial counsel did not have an affirmative obligation to advise him regarding immigration consequences.  (People v. Landaverde (2018) 20 Cal.App.5th 287.)

P.C. § 1473.7(a) provided at the time:  “A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:  (1) The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.”

Defendant (a lawful permanent resident from Lagos, Nigeria) pled guilty in 1989 to possession for sale of cocaine.  Nearly 30 years later, he filed a motion to vacate his plea under P.C. § 1473.7 (see above).   In support of his motion, defendant included a declaration from his previous defense counsel who stated that, having failed to properly investigate the issue, he incorrectly told defendant he would not face any immigration consequences.   The Court of Appeal reversed the trial court’s denial of defendant’s motion, concluding that the declarations from defendant and his defense counsel established relief under 1473.7.  The court also held that the denial of a motion under 1473.7 is reviewed de novo.  (People v. Ogunmowo (2018) 23 Cal.App.5th 67.)

Defendant pled guilty in 2005 to possessing marijuana for sale.  He brought a non-statutory motion seven years later to set aside his conviction based on his counsel’s alleged ineffectiveness for not explaining the immigration consequences of his guilty plea.  The Court held that defendant’s motion was properly denied for having failed to pursue any of the remedies provided by law within the statutory time limits.  Even if the trial court had jurisdiction to hear defendant's motion,  the result would be the same because defendant failed to make a prima facie showing he would be entitled to relief as a result of prior counsel’s conduct.  Per the Court, it strained credulity for defendant to assert he would not have pled guilty had he been advised he would not be eligible for discretionary waiver from deportation when the only advisement he received about immigration consequences was that he would be deported.  (People v. Shokur (2012) 205 Cal.App.4th 1398.)

 

Eleven years after pleading no contest in a felony drug case, defendant argued that his counsel was ineffective for failing to advise him of the immigration consequences of the plea, under P.C. § 1473.7 (motion to vacate conviction or sentence by person no longer imprisoned or restrained), or to attempt to negotiate an immigration-neutral disposition.  Finding that defendant failed to demonstrate deficient performance under Strickland, the appellate court affirmed.  Per the Court:  “Counsel advised him in writing to assume that the plea ‘will’ have deportation consequences, and [defendant] does not identify any alternate immigration-neutral disposition that counsel could have negotiated on his behalf.”  (People v. Olvera (2018) 24 Cal.App.5th 1112.)

 

P.C. § 1473.7(a) provides: “A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:  (1) The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.”

 

The evidence supported defendant’s motion under P.C. § 1473.7, to vacate his conviction following a no contest plea to possession of marijuana for sale because it showed that counsel advised defendant only that the conviction could subject him to deportation, not that deportation would be mandatory under P.C. § 1473.7.  As clarified by amendment, defendant did not have to show that the representation fell below an objective standard of reasonableness under prevailing professional norms. As to prejudice, the evidence that defendant would not have entered the plea included that he had lived in the U.S. since he was two years old and that his spouse and children were U.S. citizens. (People v. Camacho (2019) 32 Cal.App.5th 998.)

 

As amended effective 1/1/2019, P.C. § 1473.7(a)(1) provides in relevant part: “A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence … [¶] … [that] is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (Italics added; Id, at p. 1006.)

 

Defendant pleaded guilty in 2015 to possession of methamphetamine for sales (H&S § 11378).  After being released from jail, she was taken into immigration custody.  She thereafter filed a habeas petition alleging incompetence of counsel for failing to advise her of the immigration consequences of her guilty plea.  The petition was denied, defendant appealed, and the Court of Appeal reversed:  “The record both shows her appointed trial counsel failed to advise her before she entered her guilty plea that her plea would subject her to mandatory deportation, and contains evidence, including contemporaneous objective evidence, she would not have entered her guilty plea had she been so advised.”  (In re Hernandez (2019) 33 Cal.App.5th 530.)

 

Defendant’s 2003 guilty plea to possession of methamphetamine for sale was properly vacated under P.C. § 1473.7 because the record supported findings that counsel failed to advise him of the immigration consequences and that if properly advised, he would not have pled guilty, given that he came to the U.S. from Mexico when he was five or six, had never returned to Mexico, and his entire family lived in the U.S.  A plausible chance of an acquittal if defendant had proceeded to trial was not necessary to show prejudice.  The fact that there existed no published California case at the time of defendant’s plea of guilty is not relevant where a court holds that a criminal defense attorney had a duty to discuss the immigration consequences arising out of a plea deal.  Here, counsel had a duty to advise defendant of the immigration consequences of his plea because the record showed that in 2003, in the Fontana courthouse in San Bernardino County, criminal defense attorneys had the practice of advising non-citizen defendants consistent with the standard immigration advisal of the change of plea form.  (People v. Novoa (2019) 34 Cal.App.5th 564, 577-592.)

 

The Court further ruled that the doctrine of “laches” did not apply.  In order for the People to prove laches, it is necessary to demonstrate the existence of three elements; (1) that the defendant delayed in asserting a right or claim, (2) that the delay was not reasonable or excusable, and (3) that the People were prejudiced.  In this case, defendant filed his motion within 5 months of the enactment of P.C. § 1473.7.  It was not argued that 5 months was unreasonable.  Therefore, the People failed to show that the first two elements of laches applied to this case.  (Id., at p. 593.)

 

Defendant, a citizen of Jordan, had been living in the United States for 30 years.  In 2001, he pleaded guilty to various drug-related offenses and was sentenced to prison for 6 years.  In 2018, facing deportation proceedings, defendant filed a motion to vacate his guilty plea (P.C. § 1473.7) asserting neither his attorney nor the court advised him of the immigration consequences of his plea.  The motion was summarily denied without a hearing, his personal presence, nor his attorney’s presence.  Defendant appealed and the Court reversed:  “Because neither defendant nor an attorney on his behalf was present, the trial court did not satisfy the requirements of section 1473.7, subdivision (d), by holding a hearing at which the moving party was present or his presence was waived for good cause.  The matter must therefore be remanded to the trial court for a hearing consistent with the provisions of section 1473.7.”  In addition, despite recent amendments to the statute, the Court also held the statute provides “the right to appointed counsel where an indigent moving party has set forth factual allegations stating a prima facie case for entitlement to relief under the statute.”  (People v. Fryhaat (2019) 35 Cal.App.5th 969.)

 

To establish prejudicial error under P.C. § 1473.7, a defendant need only show by a preponderance of the evidence that he or she did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea and that, had the defendant understood the consequences, it is reasonably probable he or she would have instead attempted to defend against the charges.  “(E)ffective January 2019, the Legislature clarified: ‘A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.’ (§ 1473.7, subd. (a)(1), as amended by Stats. 2018, ch. 825, § 2.)”  (pp. 861-862)  Defendant here made the showing required to vacate his 1994 guilty pleas to three drug crimes because the evidence substantiated his claim that he would not have pled guilty had he understood the immigration ramifications. There were lingering questions about the strength of the underlying evidence, and at the time of the plea, he had been living in the U.S. for eight years, since he was 14 years old, and his wife, infant son, mother, and siblings lived in the U.S.  (People v. Mejia (2019) 36 Cal.App.5th 859.)

 

Defendant appealed a refusal to vacate a conviction pursuant to PC §§ 1473.7 and 1016.5, owing to adverse immigration consequences. She claimed that her attorney failed to do research and advise her of the potential deportation consequences of pleading guilty to cultivation of marijuana. The Court, however, noted that a recent amendment to PC § 1473.7 eliminated “incompetence of counsel” as a predicate to the section’s applicability. However, the Court found that the attorney was not ineffective in that he warned her of a “risk of deportation,” and tried to negotiate a better plea.  Per the Court: “[W]e are unwilling to require counsel to state deportation will be certain because it may not be accurate advice, even in cases where an offense qualifies for mandatory deportation under federal law.” Considering all of the circumstances, including the case strength, a declaration from a DDA that he wouldn’t have considered a lesser plea, the potential of a state prison sentence, and the defendant having signed a plea form acknowledging that deportation “could result,” the court properly denied defendant’s motion.  (People v. Chen (2019) 36 Cal.App.5th 1052.)

 

Defendant appealed the denial of his P.C. § 1473.7 motion to vacate his plea because he allegedly failed to understand the immigration consequences. The trial court denied his motion—without defendant or his attorney present—believing it was untimely. (See P.C. § 1473.7(b)) Defendant having been convicted in 2005, the trial court stated that he should have filed his motion in “2005, 2006, 2007.” The Appellate Court reversed as an abuse of discretion, noting that P.C. § 1473.7 did not become effective until January 1, 2017, and defendant filed his motion in July of that year.  Moreover, defendant's right to counsel was violated when the motion was denied without the presence of his counsel. (See P.C. § 1473.7(d)).  (People v. Rodriquez (2019) 38 Cal.App.5th 971.)

 

Defendant's 2019 motion under Pen. Code, § 1473.7, to vacate her 1991 drug conviction, based on counsel’s failure to advise her of the mandatory immigration consequence of her plea, was not barred by collateral estoppel, despite a 2017 motion to vacate, because the 2019 law provided a different standard for challenging and prevailing based on immigration advisement errors. The new law gave defendant an expanded right to show that her first counsel erred in the 1991 advisement and that her second counsel erred in basing the 2017 motion on the inapplicable general immigration advisement standard in Pen. Code, § 1016.5, regardless of whether either counsel provided ineffective assistance.  The words “may have” in a Pen. Code, § 1016.5 immigration advisement, are not an adequate immigration advisement for defendants charged with a serious controlled substance offenses. Defendants must be advised that they “will” be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal.  (People v. Ruiz (2020) 49 Cal.App.5th 1061.)

 

In a guilty plea to a charge of illegal reentry into the United States, the district court committed plain error by failing to establish that the defendant's plea was voluntary under Fed. Rules of Crim. Pro. 11(b)(2) because the magistrate judge did not engage in direct inquiries regarding force, threats, or promises, nor did he address defendant’s competence to enter the plea. Also, defendant showed a reasonable probability that the district court’s omissions could have affected his decision to continue in his guilty plea as he had little schooling and a history of mental health disorders, including post-traumatic stress disorder, depression, and anxiety. Defendant also had a long history of substance abuse, and he was exclusively a Spanish speaker.  (United States v. Fuentes-Galvez (9th Cir. 2020) 969 F.3rd 912.)

 

Defendant's Pen. Code § 1473.7 motion to vacate his 20-year-old plea to a domestic violence felony (PC § 273.5) was denied. The advisement of immigration consequences required by Pen. Code, § 1016.5 was satisfied by the admonition on defendant's plea bargain form, because defendant explicitly acknowledged that he understood he would be subject to deportation, exclusion from admission to the United States, or denial of naturalization.  For purposes of a claim under Pen. Code, § 1473.7, defendant did not show that he was not adequately advised of the immigration consequences of his guilty plea and that he would not have taken the plea if he had known of eventually being deported and barred from lawful permanent status. His declaration contained the only direct evidence, and he pointed to no contemporaneous evidence in the record to independently corroborate his attestation.  (People v. Bravo (2020) 58 Cal.App.5th 1161.)

 

Despite defendant having been advised in a plea form that she “will” be subject to adverse immigration consequences and acknowledging on the record that she “will” suffer such consequences, the Appellate Court found that the trial court erred by refusing to vacate her pleas.  (Pen. Code § 1473.7(a).)  Defendant had already unsuccessfully pursued a similar habeas corpus petition (based on an old standard requiring ineffectiveness of counsel), wherein her counsel disclosed that she also privately discussed the immigration consequences with defendant.  Applying People v. Mejia (2019) 36 Cal.App.5th 859, the Court declared that defendant is entitled to relief based on her most‑recent averment that she subjectively misunderstood, as well as her present counsel’s representation that she would not have recommended the plea.  (People v. Eun Sung Jung (2020) 59 Cal.App.5th 842.)

 

The Appellate Court ruled that defendant must be allowed to withdraw his plea (Pen. Code § 1473.7) due to an adverse immigration consequence he was not aware of, where he first engaged in an immigration-neutral plea that envisioned probation, but where he was eventually sentenced in absentia to a deportable prison term after failing to appear at sentencing.  Defendant claimed that his defense counsel never informed him “that being sentenced in absentia to 16 months (in) prison would lead to deportation.”  Defense counsel’s obligation to advise defendant of a plea’s consequence does not end at the time of the plea.  “Had (his attorney) explained the modified sentence (he) faced and its attendant immigration consequence before sentence was imposed, (he) could have made an informed decision to revoke the plea.” (People v. Rodriguez (2021) 60 Cal.App.5th 995.)

 

In 2018, petitioner filed a motion to vacate his 2002 conviction under a recently enacted statute offering relief to those who had already served their sentences. (Pen. Code, § 1473.7.) A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant's ability to meaningfully understand the actual or potential immigration consequences of a plea. (§ 1473.7(a)(1),& (e)(1).) The Court of Appeal concluded that while counsel had failed to offer petitioner competent advice about immigration consequences in 2002, petitioner had failed to demonstrate any prejudice from the error. (See People v. Vivar (2019) 43 Cal.App.5th 216, 225–231.) Based on an independent review of the record, the California Supreme Court disagreed, finding that petitioner had in fact demonstrated a reasonable probability that if he had been properly advised by counsel about the immigration consequences of his plea, he wouldn't have plead guilty to an offense subjecting him to mandatory deportation.   (People v. Vivar (2021) 11 Cal.5th 510.)

 

Defense counsel’s alleged failure to advise defendant of the immigration consequences of a guilty plea to a drug crime did not entitle defendant to vacation of the conviction under Pen. Code § 1473.7, because defendant pled guilty before the United States Supreme Court issued a decision requiring such advice, which could not be applied retroactively, and defendant’s trial counsel thus had no affirmative duty to give unsolicited advice on immigration consequences and was not ineffective for failing to do so.  Defendant showed no prejudice from any failure to pursue a plea to an alternative, immigration-neutral offense because no evidence in the record indicated that a different plea would have been considered or accepted.  Also, although defendant testified to not understanding the consequences of the plea, the trial court expressly found defendant not credible.  (People v. Castillo (June 1, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 458].)

 

At the Trial Stage; Examples:

 

The court held that defendant failed to meet his burden of showing he was prejudiced by trial counsel’s alleged failure to present at the penalty phase of a capital case mitigating evidence of childhood sexual abuse by his mother because he had not shown that further investigation by counsel would have revealed evidence of the abuse.  Petitioner never told his trial counsel of being sexually abused by his mother, and his first and only mention of such abuse occurred 17 years after his arrest for the murder of his wife. Petitioner was also not prejudiced by trial counsel’s alleged failure to present at the penalty phase mitigating evidence of his family history. The mitigating evidence petitioner presented at the reference hearing of his dysfunctional family might have elicited some jury sympathy for him at the penalty phase, but he showed no causal connection between his family environment and his cold-blooded and calculated decision to brutally murder his wife a few months after they were married, for the sole purpose of obtaining her money and possessions. There was no reasonable probability that, but for trial counsel's alleged failings, the result of the penalty phase would have been different.  (In re Crew (2011) 52 Cal.4th 126.)

 

Defendant’s argument that his lawyer should have had an expert testify that the surviving victim was using a.380 caliber Mac-12 handgun whose modifications made it prone to jamming was rejected by the Court. Specifically, defendant contended that the state court’s rejection of this ineffective assistance of counsel argument was an “unreasonable application” of Strickland v. Washington. Because the state court could reasonably have come to the same conclusion as the three judge panel—which found no reasonable probability that the jury would have changed its verdict had they heard additional testimony stating that the Mac-12 could possibly malfunction in some manner—its rejection of defendant’s argument was not an unreasonable application of Strickland.  (Richter v. Harrington (9th Cir. 2011) 643 F.3rd 1238.)

 

Overruling prior precedent, the California Supreme Court determined in People v. Trujillo (2006) 40 Cal.4th 165, that a defendant’s post-plea admission to a probation officer regarding a prior criminal action is not part of that action’s “record of conviction,” and that the statement cannot be admitted to establish that the prior conviction qualified as a strike.  Defendant complained that such an admission in his post-plea probation report, made prior to the Supreme Court’s decision on this issue, were used against him, qualifying his current conviction as a strike.  In a writ of habeas corpus, defendant challenged the competency of his attorney for not having raised this issue.  The Court here, however, held that it was not incompetence of counsel not to have predicted this change in the law.  (In re Richardson (2011) 196 Cal.App.4th 647, 657-660.)

 

The federal district court did not err in rejecting the defendant’s claim that his attorneys were ineffective for failing to investigate and present mitigating evidence of his brain damage, mental illness, substance abuse, childhood abuse and neglect, and redeeming characteristics.  Defense counsel provided the defense expert with the information necessary to form an expert opinion, the expert investigated the potential defense, and defense counsel made a strategic decision to not place the prisoner’s mental state in play to avoid the introduction of aggravating evidence. The defendant’s ineffective assistance claim that stemmed from trial counsel’s presentation of allegedly aggravating and prejudicial evidence failed because the defense expert’s testimony was generally favorable to the prisoner, and any negative inferences were based on a trial strategy of gaining credibility with the jury.  (Fairbank v. Ayers (9th Cir. 2011) 632 F.3rd 612, 617-622, as amended at 650 F.3rd 1243.)

 

Defendant’s counsel was found to be deficient when his performance fell far below prevailing professional norms applicable to capital defense counsel in 1982 because counsel failed to conduct even the most basic investigation of the defendant’s social history, failed to investigate the defendant’s mental health, and failed to investigate the defendant’s history of drug abuse. Counsel’s deficient investigation and failure to prepare a mitigation case adversely affected the penalty phase trial. His complete failure to investigate and present mitigating evidence of defendant’s troubled childhood, his mental illness, and his history of chronic drug abuse prejudiced defendant because it prevented the sentencing judge from learning that the he had the kind of troubled history that was relevant to assessing a defendant’s moral culpability. There was a reasonable probability that a sentencing court confronted with the powerful mitigating evidence developed by the prisoner’s habeas counsel would not have returned a death sentence.  (James v. Ryan (9th Cir. 2012) 679 F.3rd 780.)

 

Where the trial court prohibited defendant’s attorney from discussing a witness’s sealed declaration with defendant or any other person, the California Supreme Court held that this was error, denying defendant of his right to the effective assistance of counsel.  However, the Court also held that defendant could obtain relief on his right to counsel claim only by establishing that the trial court’s order affected the reliability of the trial process.  In other words, defendant had to show that his right to a fair trial had been prejudiced in that the result of the trial would have been different but for the error.  (People v. Hernandez (2012) 53 Cal.4th 1095.)

 

Where there is a “reasonable probability” of the jury reaching a different result, a defense counsel’s failure to investigate and locate potential witnesses to support defendant’s argument of third party culpability, qualified as incompetency.  In this case, with the prosecution’s case being based largely on circumstantial evidence, it was close enough where defendant’s counsel’s incompetence was prejudicial, entitling defendant to a new trial.  (Thomas v. Chappell (9th Cir. 2012) 678 F.3rd 1086.)

 

Defendant wife’s trial counsel rendered ineffective assistance by failing to object to the trial court’s instructions to the jury concerning the intent element of aiding and abetting and to the trial court’s response to the jury’s questions on that issue. The error was not harmless because the jury’s questions indicated that if it had been properly instructed, it might have considered a verdict other than first-degree murder for defendant wife.  (People v. Loza (2012) 207 Cal.App.4th 332.)

 

Where available expert neuropsychological evidence that counsel failed to obtain and present would have provided a powerful explanation of the crime, there was a reasonable probability that petitioner would have received a sentence less than death if counsel had provided adequate representation.  Failure of defense counsel to investigate and present such evidence is incompetence of counsel.  (Detrich v. Ryan (9th Cir. 2012) 677 F.3rd 958, 972-979.)

 

Defendant must show that his attorney was both deficient in his representation and that such deficiency was prejudicial.  In this case, it was held that even if one of the prosecutors’ actions deviated from propriety, it was not enough to make any difference in the result. Therefore, even if trial counsel was ineffective in failing to challenge the prosecutors’ actions, no prejudice resulted from such ineffectiveness.   (Leavitt v. Arave (9th Cir. 2012) 682 F.3rd 1138, 1140-1141.)

 

The Ninth Circuit upheld the district court’s conclusion that significant emotional damage followed defendant from his troubled childhood.  Defendant was prejudiced by his counsel’s failure to investigate or present any of the available mitigating evidence that could have been presented with little or no risk of further aggravating the negative information the jury already knew about the defendant.  Given the attorney’s paltry penalty phase presentation and the jury’s apparent difficulty in reaching a verdict, the district court correctly found counsel’s failures prejudiced defendant.  (Stankewitz v. Wong (9th Cir. 2012) 698 F.3rd 1163, 1169-1173.)

 

Defendant and his wife (co-defendant) were tried together for murder.  Codefendant’s trial counsel rendered ineffective assistance by failing to object to the trial court's instructions to the jury concerning the intent element of aiding and abetting and to the trial court's response to the jury’s questions on that issue.  The error was not harmless because the jury’s questions indicated that if it had been properly instructed, it might have considered a verdict other than first-degree murder for codefendant.  (People v. Loza (2012) 207 Cal.App.4th 332, 350-357.)

 

Defense counsel telling a jury in opening statement that he expects a witness to testify, and that, “I'm counting on him to tell the truth and corroborate” the defendant’s alibi, when that witness fails to come to court and testify and no explanation is offered to excuse his absence, is not a promise that such a witness would in fact testify.  In such circumstances, the defense counsel’s comments to the jury do not constitute the ineffective assistance of counsel.  (Saesee v. Mcdonald (9th Cir. 2013) 725 F.3rd 1045, 1047-1049.)

 

Defendant’s proposed mitigating factors held to be insufficient to overcome the single aggravating factor of a murder being “especially heinous and depraved,” where defendant purposely burned the victim to death in retaliation for not giving him money and beer.  Defense counsel’s alleged incompetence is not shown where the alleged omissions were either cumulative to what was already presented in evidence, unsubstantiated by the evidence, or speculative.  (Schurz v. Ryan (9th Cir. 2013) 730 F.3rd 812, 814-816.)

 

Defense counsel’s failure to object to the testimony of a witness who refused to take an oath to tell the truth, per E.C. § 710, but who was allowed to testify anyway, denying any knowledge of the crime when such a denial was inconsistent with prior statements made to an investigator, and where those prior statements were then admitted into evidence as a prior inconsistent statement, constituted incompetence of counsel.  (Griffin v. Harrington (9th Cir. 2013) 727 F.3rd 940.)

 

Had defense counsel made a timely objection to the witness’s testimony, the trial court should have prevented him from testifying at all.  (In re Heather H. (1988) 200 Cal.App.3rd 91, 95-96.)

 

The state court’s denial of defendant’s habeas petition, claiming that his attorney provided ineffective assistance by failing to have defendant testify as a guilt-phase witness, was not an objectively unreasonable application of Strictland in that counsel could have reasonably concluded that defendant’s testimony would have harmed the defense by alienating defendant in the jury’s eyes.  (Gulbrandson v. Ryan (9th Cir. 2013) 738 F.3rd 976, 989.)

 

Defense counsel was also not ineffective by failing to recall an expert witness at sentencing to testify about defendant’s state of mind at the time of the murder in that such evidence would have been cumulative.  (Id., at pp. 989-992.)

 

A defendant’s decision to testify is personal and must be honored even when the defendant is represented by counsel and counsel does not want to call the defendant as a witness. (People v. Debouver (2016) 1 Cal.App.5th 972, 977; citing People v. Lucas (1995) 12 Cal.4th 415, 444.) 

 

Defendant’s counsel’s failure to review his client’s file and, as a result, failed to call as a witness a priest to whom the victim had recanted her allegations of her step-father’s sexual abuse, rendered defendant ineffective assistance of counsel under Strictland, at least where the jury struggled with the verdict and it is reasonably probable there would have been a different result had the jury heard from the priest.  Even though defendant himself knew beforehand of this evidence, counsel had a duty to investigate the information.  (Vega v. Ryan (9th Cir. 2014) 757 F.3rd 960, 965-974.)

 

A reversal of a judgment is unwarranted where the record on appeal is devoid of evidence that the unjustified use of shackles or a stun belt had any adverse effect.  For instance, while restraints have the potential to bias jurors against the defendant, their use may be harmless when there is no indication the jurors saw the restraints.  Likewise, while restraints can impair a defendant’s ability to testify effectively, their use may be harmless when the defendant chose not to testify at trial, and there is nothing in the record suggesting a nexus between that decision and the forced wearing of the restraint.  Finally, while shackles and stun belts certainly have the potential to impair an accused’s ability to communicate with counsel or participate in the defense, the erroneous imposition of those restraints may be harmless where the record does not reveal that any such impairment occurred, as is the case here.  (People v. Jackson (2014) 58 Cal. 4th 724, 738-748.)

 

A Sixth Amendment ineffective assistance claim was remanded to the trial court for further proceedings because if defendant’s half-brother had testified about family sexual abuse at sentencing phase of capital trial, there was a reasonable probability that at least one juror would have struck a different balance between life and death.  The half-brother’s availability for testimony was unclear.  (Wharton v. Chappell (9th Cir. 2014) 765 F.3d 953, 967-974.)

 

Defendant’s counsel was not shown to be ineffective for failing to assert defenses of diminished capacity and involuntary intoxication since the defendant was insistent on his innocence and in all probability would have rejected any defense which required him to admit his guilt.   (Woods v. Sinclair (9th Cir. 2014) 764 F.3rd 1109, 1131-1132.)

 

In a case where defendant was convicted of sexually abusing his stepdaughter, defendant argued that his trial counsel was ineffective by failing to review defendant’s file and, as a result, failed to call as a witness a Catholic priest to whom the victim had recanted her allegations.  Trial counsel had a clear duty to investigate even if the defendant did not divulge relevant information.  Defendant’s Sixth Amendment right to effective counsel was violated by counsel’s failure to present this exonerating evidence where the jury had struggled to reach a verdict.  But for counsel’s errors, the result of the proceeding would have been different.  (Vega v. Ryan (9th Cir. 2014) 757 F.3rd 960, 965-974; citing Rompilla v. Beard (2005) 545 U.S. 374, 387-289 [125 S.Ct. 2456; 162 L.Ed.2nd 360].)  

 

Defense counsel’s “unwise” admission in opening statement that defendant was present at the scene of a rape and murder, where the prosecution had determined not to introduce such evidence, but where other evidence (e.g., defendant’s DNA and an eyewitness) clearly established defendant’s presence, was harmless, and not grounds for a reversal based upon an incompetence of counsel argument.   (People v. Banks (2014) 59 Cal.4th 1113, 1168-1170.)

 

A defendant’s absence from an in camera court hearing, when such presence was waived, does not create or exacerbate a conflict of interest with his defense counsel or require that defendant be advised by other counsel.  Also, defense counsel’s mistake in giving a defense expert a report containing defense counsel’s work product create grounds for a claim of constitutionally deficient assistance or that he should have been present and/or advised by non-conflicted counsel about whether he should challenge the performance of his attorney.  (People v. Lucas (2014) 60 Cal.4th 153, 323-324.)

 

In federal Writ of Habeas Corpus proceedings, it was held that it was not contrary to, nor an unreasonable application of, the Strickland standard for the state court to determine that defendant’s trial counsel was not ineffective when he failed to explicitly preserve the issue of “observation evidence” (i.e., “testimony from those who observed what (defendant) did and heard what he said; this category would also include testimony that an expert witness might give about (defendant’s) tendency to think in a certain way and his behavioral characteristics.” Pg. 721.) bearing on insanity (i.e., that which might be relevant to the element of “mens rea”), or by failing to request a reevaluation of defendant’s competency to stand trial.  Even if defendant could show that the trial court did not consider observation evidence, he could not show that he was prejudiced because it was not proved that there was a substantial, and not just conceivable, likelihood of a different result even if the trial court had considered such evidence.  (Clark v. Arnold (9th Cir. 2014) 769 F.3rd 711, 726-730.)

 

Defense counsel’s failure to request the pattern “claim of right” jury instruction (i.e., CALCRIM No. 1863), where the evidence presented at trial in a grand theft prosecution supported such a claim, and was in fact at the heart of defendant’s defense, violated his Sixth Amendment to effective representation, and was prejudicial under the circumstances.  Because the “claim of right” defense served only to negate the mental state required for grand theft, the trial court had no duty to instruct on it sua sponte.  (People v. Hussain (2014) 231 Cal.App.4th 261, 268-272.)

 

CALCRIM No. 1863 provides in pertinent part:  “If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/ [or] robbery) [¶] The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it.”

 

A defendant is prejudiced where “counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” (Citing United States v. Cronic (1984) 466 U.S. 648, 659, fn. 25 [80 L.Ed.2nd 674].)  However, defense counsel’s ten-minute absence during testimony concerning a co-defendant’s actions that did not affect defendant’s case may not have been prejudicial.  (Woods v. Donald (Mar. 30, 2015) __ U.S.__ [135 S.Ct. 1372; 191 L.Ed.2nd 464]; declining to decide the issue, finding only that a state court’s holding that this was not ineffective assistance of counsel was not contrary to federal authority.)

 

Defendant was held to be entitled to habeas corpus relief on his Sixth Amendment ineffective assistance of counsel claim because his attorney failed to put on a mental health mitigation defense at the penalty phase of his trial, while presenting a weak guilt phase alibi defense, cumulatively establishing that the Strickland prejudice standard was met as to the jury’s decision to sentence defendant to death.  (Bemore v. Chappell (9th Cir. 2015) 788 F.3rd 1151, 1162-1169.)

 

Defendant gang member was held to be entitled to habeas corpus relief where his trial attorney failed to object to the prosecutor’s closing argument, where the prosecutor, several times, used a fabricated (based upon what the prosecutor argued was a “reasonable inference” as the defendant shot the victim) account of the victim’s last moments, with the defendant “shout(ing)” at the victim that he was “scrap” (a derogatory, insulting term) and a “wetback.”  Trial “counsel neither objected to the fictional, inflammatory statements in the closing argument nor asked the trial court to issue a curative instruction.”  Failure to do so was held to constitute ineffective assistance of counsel, and grounds for the granting of habeas relief.  (Zapata v. Vasquez (9th Cir. 2015) 788 F.3rd 1106, 1112-1123.)

 

Defendant’s petition for a Writ of Habeas Corpus was property granted after he was convicted of two misdemeanors and one felony, receiving a life sentence without the possibility of parole under Washington’s three-strike law, as he counsel was ineffective for not seeking a jury instruction on a lesser included offense for the felony in that had the jury returned a verdict for the lesser included offense, defendant would have avoided the three-strikes punishment.  The Washington Supreme Court’s conclusion that there was no prejudice because the facts supported the jury’s verdict on the felony was unreasonable for purposes of the Anti-Terrorism and Effective Death Penalty Act.  (Crace v. Herzog (9th Cir. 2015) 798 F.3rd 840, 846-853.)

 

Counsel was not ineffective for failing to attempt to discredit “Comparative Bullet Lead Analysis” (CBLA) evidence since that mode of ballistics analysis was uncontroversial and widely accepted at the time of defendant’s trial for murder.  His counsel was not required to search for an obscure report questioning the methodology or to predict the subsequent demise of CBLA.    (Maryland v. Kulbicki (Oct. 5, 2015) __ U.S. __ [136 S.Ct. 2; 193 L.Ed.2nd 1].)

 

A claim of ineffective assistance of counsel lacked merit because tactical reasons supported defense counsel’s decision not to request a voluntary intoxication instruction under P.C. § 29.4(b), regarding specific intent under P.C. § 288(a), which would have been inconsistent with the primary defense theory that defendant had not committed the charged sex crimes and that the accusations were untrue.  (People v. Olivas (2015) 248 Cal.App.4th 758, 769-772.)

 

In a trial that was largely a he-said, she-said case, with no physical evidence linking the defendant to an alleged child molest, counsel was held to be incompetent where he failed to investigate and present evidence that the victim had a motive to falsely implicate the defendant.  No competent lawyer would have declined to interview a witness who claimed to have heard the victim recant her accusations.  Counsel’s failure to interview the witness and have her testify could not be excused as strategic.  (Cannedy v. Adams (9th Cir. 2013) 706 F.3rd 1148, 1155-1166.)

 

In a state prosecution where defense counsel failed to follow up on the trial court’s granting of his motion to conduct a “sleep study,” as recommended by a board certified physician at Stanford’s Sleep Disorders Clinic, where defendant’s defense at trial was that he hit his ex-girlfriend’s sleeping son with a hammer only because he was sleep-walking at the time, the trial court found that defense counsel was ineffective, but that due to other evidence of guilt, the error was non-prejudicial.  This holding was upheld on appeal.  However, the Ninth Circuit granted defendant’s habeas corpus writ, ruling that the state court decision in denying relief was an unreasonable determination of the facts and an unreasonable application of clearly established law.  Defendant was prejudiced in that counsel’s error left the defense with serious weaknesses, constituting “an extreme malfunction of justice.”  (Liao v. Junious (9th Cir. 2016) 817 F.3rd 678.)

 

On appeal from denial of defendant’s 28 U.S.C. § 2254 habeas petition, the Ninth Circuit Court of Appeal rejected defendant’s argument that his defense team was ineffective under the Sixth Amendment because his lawyers failed to present evidence that would have called into question the credibility of key prosecution witnesses.  Per the Ninth Circuit, the California Supreme Court reasonably deferred to defense counsel’s tactical choices regarding exclusion of gang affiliation evidence.  Counsel’s decision not to reopen the defense case after another witness changed his testimony did not constitute ineffective assistance.  And the California court reasonably rejected defendant’s failure to investigate claim.  (Ayala v. Chappell (9th Cir. 2016) 829 F.3rd 1081, 1096-1097.)

 

During closing argument, the prosecution repeatedly commented on the defense’s failure to explain key incriminating evidence or use competent evidence to support its exculpatory theories. Instead of objecting, defense counsel rebutted the comments by giving non-incriminating explanations of the evidence and reminding the jury the prosecution bore the burden of proof.  Absent a showing of prosecutorial error, defendant’s argument that his counsel’s tactics were legally ineffective fails.  Defense counsel’s decision to rebut the prosecutor’s statements as improper comments on defendant’s failure to testify directly, rather than to object at trial or on appeal, was adequate.  Counsel’s strategy did not undermine the reliability of defendant’s conviction for the murders of two teenage boys, committed when he was 15 years old. (Demirdjian v. Gipson (9th Cir. 2016) 832 F.3rd 1060, 1066-1067.)

 

Defense counsel was held not to have rendered ineffective assistance at a second trial by failing to subpoena two police officers who had testified at the first trial when he reasonably expected, based upon the usual professional courtesy, that the prosecutor would call the officers witnesses.  Defense counsel could reasonably rely on the custom of not needing to serve a second subpoena and could expect the prosecutor to call the officers as witnesses.  The record supported counsel’s assertion that reliance on the prosecutor’s subpoenas was customary because counsel did not subpoena the officer in the first trial but relied on the prosecutor’s subpoenas to call the officers as defense witnesses, which showed that there were in fact professional courtesies in place concerning officer subpoenas and counsel was not on notice that the subpoena courtesy would not be observed in the second trial.  (People v. Angel (2017) 9 Cal.App.5th 1107, 1111-1114.)

 

Defendant was not entitled to habeas relief based upon a claim of ineffective assistance of counsel during voir dire in that counsel had no reason to believe that a prospective juror was withholding information that she had been sexually assaulted during a home invasion.  Also, defendant failed to establish that counsel was ineffective for failing to further investigate or present additional witnesses in that one potential witness’s testimony would have added little to what the jury already knew and another potential witness’s testimony could have been more harmful than helpful.  Also, counsel was not deficient for failing to present a defense that defendant was incapable of premeditation in that such a defense would have been inconsistent with the theory that defendant did not participate in the charged murders and would have had no effect on the felony murder charge.  (Greenway v. Ryan (9th Cir. 2017) 856 F.3rd 676.)

 

Petitioner inmate, who was convicted of felony murder for her role in a robbery that occurred when she was 14 years old, was entitled to habeas corpus relief because her trial counsel provided constitutionally ineffective assistance.  The state court’s finding that trial counsel’s refusal to investigate psychological testimony was a reasonable strategic decision was contrary to, or an unreasonable application of, clearly established U.S. Supreme Court law. Trial counsel had a duty to investigate since the inmate’s mental condition was an essential factor in deciding whether she had the required mental state for the crime.  Given the exculpatory potential of the psychological evidence, the failure to investigate prejudiced the inmate because there was a reasonable probability that the jury would have reached a different result if adequate representation had been afforded.  (Weeden v. Johnson (9th Cir. 2017) 854 F.3rd 1063.)

 

Defense counsel’s failure to object to defendant’s admission to possessing a baton was not incompetence of counsel because the state court’s determination that the counsel could have had strategic reasons for not objecting to admission of defendant’s statements was not an unreasonable application of Strickland, which mandates a strong presumption that counsel acted for tactical reasons rather than through sheer neglect. (Robertson v. Pichon (9th Cir. 2017) 849 F.3rd 1173, 1188.)

 

Defendant, a parolee, failed to establish that his trial attorney provided ineffective assistance by failing to raise a Sanchez objection to case-specific hearsay expert testimony offered at his MDO (Mentally Disordered Offender) hearing because although Sanchez applies to MDO proceedings to the extent it clarifies the admissibility of expert testimony under the Evidence Code, the defendant failed to show counsel could have had no legitimate tactical reason for declining to make a Sanchez objection, and failed to demonstrate the requisite prejudice.  (People v. Bona (2017) 15 Cal.App.5th 511, 519-523.) 

 

The federal district court erred in denying defendant habeas relief with respect to this convictions of burglar and robbery and murder with the use of a deadly weapon because the state court unreasonably applied clearly established U.S. Supreme Court precedent in denying defendant’s Brady and ineffective assistance of counsel claims.  In this case, the state court unreasonably applied Strickland’s deficiency standard in concluding that counsel’s failure to investigate was a reasonable strategy.  The state court’s conclusion that a deficient performance did not prejudice defendant was also objectively unreasonable.  (Browning v. Baker (2017) 871 F.3rd 942, 969-974.)

 

A “Brady” allegation refers to the landmark U.S. Supreme Court decision of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2nd 215; 83 S.Ct. 1194], where it was held that the prosecution’s failure to provide the defense with potentially exculpatory evidence, relevant to guilt or sentencing, is reversible error.

 

Telling a court-appointed psychiatrist that; “I’d sort of like to know what my lawyer wants me to do,” was held not to be an unambiguous invocation of the right to counsel.  His attorney, therefore, was not ineffective for having failed to object to his subsequent statements.  (Petrocelli v. Baker (9th Cir. 2017) 869 F.3rd 710, 721-724.)

 

Even if there had been an objection to the admission of ankle monitoring evidence, the evidence would have been admitted into evidence in that the use of such technology satisfies the Kelly/Frye (See People v. Kelly (1976) 17 Cal.3rd 24, and Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) requirements of being generally accepted as reliable in the scientific community.    (People v. Buell (2017) 16 Cal.App.5th 682, 690-691.)

 

In order to demonstrate that defendant’s counsel’s racist views prejudiced him, the defendant (now inmate) must show that either he knew of those views during a critical phase of the proceedings, leading to a complete breakdown in communication, or that counsel’s racism otherwise adversely affected his performance as counsel.  Defendant failed to prove either element in this case.  (Ellis v. Harrison (2018) 891 F.3rd 1160; decision vacated for a rehearing en banc.)

 

Failure to challenge the admissibility of defendant’s confession, made under circumstances where he should have been advised of his Miranda rights in that contrary to the prosecution’s argument, defendant was legally in custody at the time, was found by the Appellate Court to be ineffective assistance of counsel, and prejudicial.  (People v. Torres (2018) 25 Cal.App.5th 162, 182.)

 

Where defense counsel has a client who he suspects will commit perjury in testifying, the correct (ethical) procedure to use is to allow the defendant to testify in the narrative, without doing anything to help advance his or her perjury.  Defense counsel is not ineffective for using this procedure.  It has therefore been held that defendant was not denied counsel at a critical stage of the proceeding when defense counsel refused to elicit testimony from defendant or her other witnesses because they were not credible.  “Trial counsel did not know defendant was going to commit perjury, but suspected it and gave reasons for that suspicion.  Those reasons, defendant’s sudden and dramatic change in her narrative of events and counsel’s difficulty in finding the supporting witnesses she claimed to have, support that suspicion and the trial court’s deference to it.  Allowing defendant to testify in narrative form and informing her of that decision did not deprive her of the right to counsel.”  (People v. Hayes (2018) 27 Cal.App.5th 340; ordered depublished.)

 

In a case involving the defendant’s resistance to the repossession of a car, the three defendants were found guilty of felony vandalism.  In claiming incompetence of counsel, defendants were held to have failed to meet their burden of showing ineffective assistance of counsel on any of the grounds raised.  E.g.:  Trial counsel was not ineffective for failing to raise Cal. U. Com. Code, § 9609, as a defense at trial.  Section 9609  provide that, “[a]fter default, a secured party may … [¶] … [t]ake possession of the collateral … [¶] … [¶] … [w]ithout judicial process, if it proceeds without breach of the peace.”  In that this section does not provide a defense to felony vandalism, counsel was not incompetent for failing to argue otherwise.  Counsel was also not incompetent for failing to clarify the vandalism jury instruction in that there was evidence that counsel’s decisions on that issue were for tactical reasons.  Counsel was also not incompetent for failing to introduce the phone records of one of the defendants absent evidence why defendant could not have provided his attorney with the records, and what significance it might have been even if he had done so.  (People v. Bonilla (2018) 29 Cal.App.5th 649, 653-654.)

 

On the issue of “prejudice,” the Court also noted that “(i)f ‘it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.’” (Id., at p. 654, quoting Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2nd 674, 699; 104 S.Ct. 2052].)

 

The trial court erred by allowing the prosecution to amend the first strike prior allegation after the jury had been discharged.  Defendant could not be understood as agreeing that he already knew what the prosecution would seek to charge him with later.  Although the trial court’s error was not preserved for appeal, defense counsel rendered ineffective assistance by failing to object to the amendment of the first strike.  There could be no satisfactory explanation for defense counsel’s failure to object thus requiring that the first strike had to be stricken.  (People v. VaVoie (2018) 29 Cal.App.5th 875.)

 

The People’s expert witness introduced inadmissible statistical evidence on false allegations that went beyond the permissible scope of child sexual abuse accommodation syndrome evidence and deprived defendant of his right to a fair trial because the jury had to decide between the credibility of the child victim’s testimony and defendant’s, but the evidence improperly suggested defendant was guilty based on statistical probabilities that were irrelevant to his case.  Defendant’s trial counsel provided ineffective assistance by not objecting to the statistical evidence, as there was no justification for counsel's failure to object, and his performance was prejudicial to defendant's case.  Defendant’s defense was also prejudicially undermined by his counsel's question that invited a police detective to give the opinion that the victim was credible.  (People v. Julian (2019) 34 Cal.App.5th 878.)

 

Defendant’s claim that his trial counsel provided ineffective assistance by failing to conduct a reasonable investigation and therefore not rebutting the State’s serology and pathology evidence was rejected because it could not be said that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  “(Defendant) did not prove any likelihood of a different outcome because he had done nothing to rebut the other ‘sufficient conventional circumstantial evidence pointing to [his] guilt.’”  (Panah v. Chappell (9th Cir. 2019) 935 F.3rd 657, 667-670.)

 

Defendant’s lawyer, a “virulent racist” who believed in the inferiority of racial minorities and allowed his repugnant views to infect his professional life, is presumed to have failed to provide reasonably competent representation to defendant, who is African American.  Per the majority opinion in an en banc decision:  “(A) lawyer’s racial bias against racial minorities is so extreme and deep-rooted that it would be impossible for him to fairly represent a non-white defendant. Where there is clear and convincing evidence of such bias we must presume that counsel’s racism prejudiced the result. To hold otherwise...would reduce a sacred right to worse than a sham.”  (Italics added; Ellis v. Harrison (9th Cir. 2020) 947 F.3rd 555.)

 

Retained counsel’s inexperience (i.e., admitted to the bar two years before her representation of defendant) and resignation from the bar (“with charges pending”) during trial, by itself, does not show that she was legally ineffective in her representation of defendant.  (People v. Hoyt (2020) 8 Cal.5th 892, 955-962; motion for new trial denied.)

 

Defendant was convicted of sexual assault by restraint, after nearly being acquitted (1-11) in a first trial.  In that first trial, counsel presented evidence that one of the victim's contentions—that defendant locked her in his car with an electrical lock system—was false because that system was broken.  The second trial involved the same door lock evidence, but without any express testimony that defendant was driving his own car.  The prosecutor commented in closing argument that defendant might have been driving another car, “despite having knowledge to the contrary” (as noted by the Fourth District Court of Appeal in a split, two-to-one decision.  The majority of the Court found that defense counsel acted incompetently.  Combined with the prosecutor’s opportunism, “inviting the jurors to draw a false inference,” the Court found the error prejudicial.  A dissent was very troubled by the implications of this opinion, both for defense attorneys and prosecutors.  “Is the prosecutor in a third trial bound to consider the evidence, arguments, and how the jury voted, not only from the defendant’s first trial as the majority has done in this appeal, but also from this second trial, when he was convicted ... ?”  “[I]s the prosecutor . . .  now required to introduce such evidence [of the car’s identity]?”  Based on an entirely different interpretation of the record, moreover, the dissent refuted the conclusion that counsel was ineffective.  By gauging prejudice not on that flowing from counsel’s “error”—but by also incorporating someone else’s reaction to it—the majority was essentially reformulating Strickland v. Washington.  (People v. Zaheer (2020) 54 Cal.App.5th 326.)

 

Defendant's attorney failed to investigate the victim’s time of death, prejudicially resulting in a murder conviction.  “Long repeatedly insisted she arrived home around 2:00 a.m., placing her outside the window of opportunity to murder [the victim], clean herself up, and dispose of the evidence.”  “Time of death was not only a central issue to investigate; it was also a viable issue for investigation in light of the lividity and rigidity observations . . . .”  Having failed to investigate and present evidence on this important issue warrants the granting of defendant’s habeas corpus petition.  (In re Long (2020) 10 Cal.5th 764.)

 

Prejudicially ineffective assistance of counsel under Sixth Amendment, and Cal. Const., art. I, § 15, deprived defendant of a fair trial because defense counsel failed to object to inadmissible evidence in a child molest case, which included expert testimony on defendant’s mental states contrary to Pen. Code, § 29, evidence of defendant's prior sex crimes that was unduly prejudicial under Evid. Code, § 352, and thus should not have been admitted under Evid. Code, § 1108(a).  (People v. Clotfelter (2021) 65 Cal.App.5th 30, 54-55.)

 

Under U.S. Const., 6th Amend., and Cal. Const., art. I, § 15, counsel provided ineffective assistance because he failed to introduce evidence of the identity of a third party whose DNA was under the victim’s fingernails, even though it was admissible. Counsel’s stated reasons appeared to be based on his own misconceptions, and the deficient representation was prejudicial. The DNA from under the fingernails was the only DNA other than defendant’s and supported a conspiracy theory, but there was no evidence of any connection between defendant and the third party.  (People v. Smothers (2021) 66 Cal.App.5th 829, 860-869.)

                          

At the Post-Trial Stage; Examples:

 

Failure to argue at sentencing for the minimum term does not show that defendant’s counsel was incompetent where the court would not have lowered the sentence even if he had.  (People v. Jacobs (2013) 220 Cal.App.4th  67, 75-77.)

 

Upon being sentenced on a conviction for assault with a firearm, the trial court assessed restitution to compensate the victim for economic loses, including future lost wages.  On appeal, defendant argued his attorney’s legal ineffectiveness for not having sought a discount of the portion of the award to account for its present-day value; i.e., a “time-value discount.”  The Appellate Court affirmed, ruling that there could be satisfactory explanations for counsel’s failure to argue for a time-value discount:  E.g.: The evidentiary burdens involved; because the amount was relatively low and might have been higher with the increased scrutiny; or because its application to the future disability benefits would have reduced the offset defendant received for them.  Therefore, because it was possible counsel had a rational tactical ground for not seeking a time-value discount, defendant’s claim of ineffective assistance of counsel failed.   (People v. Arce (2014) 226 Cal.App.4th 924, 932.)

 

The Court (First District) disagreed with the Fourth Appellate District which decided in People v. Pangan (2013) 213 Cal.App.4th 574, at page 584, that a silent record on this issue is insufficient to excuse defense counsel’s failure to seek a time-value discount.  Per the Arce Court; “(W)e do not believe that a record’s silence on the possible consequences of raising an issue establishes that negative consequences were impossible.”  (Id., at p. 932.)

 

Defendant was convicted of committing lewd or lascivious acts on a child (P.C. § 288(a)) and for contacting a minor with the intent to commit a sexual offense (P.C. § 288.3(a)).  He raised various claims on appeal, including that his counsel was constitutionally ineffective for failing to object to the sexual offender fines (P.C. § 290.3) imposed by the trial court.  The Court affirmed, and in the published portion of the opinion rejected the ineffectiveness claim:  “We cannot say that, on the record before us, there is no satisfactory explanation for defense counsel’s failure to object to the sexual offender fines” and “the probation officer’s conclusion that [defendant] would have an ability to pay also significantly weakens [his] claim of prejudice.”  Nevertheless, the Court “encourage[d] trial courts to inquire into a defendant’s financial circumstances when imposing a sexual offender fine, even in the absence of a request by the defendant.”  (People v. Acosta (2018) 28 Cal.App.5th 701.)

 

At Federal Deportation Hearings; Examples:

 

Defense counsel erroneously conceded defendant’s removability from the country based upon his conviction for possession of marijuana with the intent to deliver, pursuant to Missouri Revised Statutes § 195.211, without challenging the Immigration Judge’s ruling regarding the classification of his conviction as an aggravated felony.  Counsel’s failed to do the minimal research it would have taken to acquire an understanding of immigration law that, had he done so, would have revealed that defendant’s conviction was not an aggravated felony requiring removal from the country.  Counsel’s failure in this regard constituted a Fifth Amendment due process violation.  (United States v. Lopez-Chavez (9th Cir. 2014) 757 F.3rd 1033, 1038-1044.)

 

A lawyer’s advice to his illegal alien client that he should await the expected granting of a petition for an I-130 visa, which is a petition for an alien relative that was filed by his wife who is a lawful U.S. citizen, and while doing so, waiving appeal on an Immigration Judge’s denial of a cancellation of removal, was bad advice in that the alien was not legally eligible for a I-130 visa.  The advice could not be classified as a “tactical decision” under these circumstances, but rather constitutes deficient performance, prejudicing the alien’s efforts to remain in the United States.  To cause the alien to completely forfeit the right to appeal because of a totally mistaken view on the availability of other relief is an abdication of counsel’s duty.  (Salazar-Gonzalez v. Lynch (9th Cir. 2015) 798 F.3rd 917.)

 

Defendant’s motion to vacate based on immigration consequences from a 2019 guilty plea should have been granted where defense counsel knew defendant was permanent resident, was unaware of immigration consequences for the charges, and held outdated understanding of immigration law.  This was even though plea form and trial court advisal informed defendant he would face consequences as these generic advisals are not a substitute for counsel’s independent evaluation of the circumstances.  (People v. Lopez (2021) 66 Cal.App.5th 561.)

 

The Court noted at pg. 564 that: “Since 2016, criminal defense attorneys in California have had a statutory duty to ‘provide accurate and affirmative advice’ about potentially adverse immigration consequences of any plea agreement. (Pen. Code, § 1016.3, subd. (a).)  (fn. omitted.) Further, when consistent with the defendant’s goals and relevant professional standards, defense attorneys have a duty to ‘defend against those consequences.’” 

  

At the Closing Argument State; Examples:

 

In arguing that defense counsel was ineffective for failing to object to alleged improper prosecution argument, by addressing the jurors individually rather than as a body (see People v. Wein (1958) 50 Cal.2nd 383, 395.), the California Supreme Court has noted that “[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations]. The merits of such claims are more appropriately resolved, not on the basis of the appellate record, but rather by way of a petition for writ of habeas corpus.”  (People v. Johnson (2016) 62 Cal.4th 600, 652-653; declining to decide the issue of incompetence, referring the matter to the filing of a writ of habeas corpus, but while noting also that trial counsel’s strategy considerations for not objecting were apparent on the record. 

 

At the Sentencing Stage; Examples:

 

Defendant, who was 16 years old at the time of his crimes, was convicted as an adult of two counts of premeditated attempted murder (P.C. §§ 664, 187), each with a personal use of a firearm enhancement (P.C. § 12022.53(c) & (d)).  Sentenced to five years in prison, plus (for the enhancements) 64 years to life, he was not eligible for parole under this sentence until he was 88 years old, which was outside his natural life expectancy.  Defense counsel’s failure to challenge this sentence as, in effect, a life sentence in violation of the Eight Amendment as “cruel and unusual punishment” when imposed upon a minor, per Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2nd 825], and People v. Caballero (2012) 55 Cal.4th 262, was held to constitute incompetence of counsel.   (People v. Speight (2014) 227 Cal.App.4th 1229, 1246-1249.)

 

Where it was alleged that counsel failed to fully investigate the defendant inmate’s medical history, it was shown that counsel did arrange for a psychiatric evaluation of the defendant.  Based upon the resulting report, counsel was fully justified in choosing not to pursue any additional information on the subject.  After reviewing the omitted evidence, the Court found the state court’s conclusions that the defendant was not prejudiced by counsel’s omission of mental health evidence at a “Romero hearing,” challenging his “three strike” enhancement, to be reasonable.  (Daire v. Lattimore (9th Cir. Mar. 19, 2015) 780 F.3rd 1215, 1220-1222.)

 

A “Romero hearing” refers to a challenge to a “three strikes” sentence and a sentencing court’s discretionary power to dismiss one or more strikes in the interest of justice, per P.C. § 1385.  (People v. Superior Court [Romero] (1996) 13 Cal.4th 497.)

 

Defense counsel’s arguments during sentencing, focusing on other mitigating factors including defendant’s depression and intoxication, rather than his drug addiction, was done as a matter of strategy, attempting to paint him as a “normal person.”  As such, incompetence of counsel was not established.  But even if it was incompetent to make the arguments made, there was no prejudice.  It could not be said that post-conviction counsel performed his duties so incompetently as to be outside the wide range of professionally competent assistance.  (Miles v. Ryan (9th Cir. 2012) 691 F.3rd 1127, 1137-1139.)

 

At the Plea Bargaining Stage; Examples:  The right to competent counsel has recently been extended to the pre-trial, plea bargaining stage:

 

After being charged with driving with a revoked license, the prosecutor sent defendant’s counsel two plea bargain offers.  Defendant’s counsel did not advise him of the offers, which expired.  Prior to the preliminary hearing, defendant was again arrested for driving with a revoked license.  He pleaded guilty without an agreement.  On review, the Supreme Court reaffirmed that the Sixth Amendment right to effective assistance applied to the entry of a guilty plea. The Court further held that defense counsel had a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that might be favorable to an accused.  When counsel allowed the offer to expire without advising defendant or allowing him to consider it, counsel did not render constitutionally effective assistance.  However, under Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L. Ed. 2nd 674], defendant had to show prejudice from the ineffective assistance.  The Court concluded that the state appellate court erred by not requiring defendant to show not only a reasonable probability that he would have accepted the lapsed plea, but also a reasonable probability that the prosecution would have adhered to the plea and that the trial court would have accepted it.  (Missouri v. Frye (Mar. 2012) 566 U.S. 134 [132 S.Ct. 1399; 182 L.Ed.2nd 379].)

 

Defendant, a state prison inmate, had rejected a pre-trial plea bargain and was convicted at trial of all offenses, receiving a much greater sentence than offered in the plea bargain. Upon the grant of a writ of certiorari, petitioner prison warden appealed the judgment of the U.S. Court of Appeals for the Sixth Circuit which upheld a grant of a writ of habeas corpus based on ineffective assistance of counsel.  It was conceded that the defendant’s counsel was deficient in providing erroneous legal advice concerning the plea bargain, but the warden contended that the inmate suffered no prejudice because defendant was properly convicted after a fair trial. The U.S. Supreme Court held that the defendant’s fair trial did not preclude prejudice from counsel’s ineffective assistance. The right to effective assistance of counsel was not solely to ensure a fair trial, and there was no indication that the fair trial cured counsel’s error. Further, the defendant suffered prejudice rather than a windfall based on the likelihood that the outcome would have been different, since defendant sought relief based on a failure to meet a valid legal standard rather than application of an incorrect legal principle. Also, a lack of prejudice could not be based on the reliability of the trial since the reliability of the pretrial bargaining, which caused defendant to lose the benefits of the bargain, was the concern at issue.  However, the appropriate remedy for counsel’s error was to re-offer the plea bargain and conduct further proceedings in state court, rather than directing that the plea bargain be enforced.  (Lafler v. Cooper (2012) 566 U.S. 156 [132 S.Ct. 1376; 182 L.Ed.2nd 398].)

 

The “ineffective assistance of counsel” rules apply equally to a defendant’s change of plea to guilty.  Defense counsel’s failure to anticipate that his offenses would be grouped for purposes of sentencing, and the failure to advise defendant to move to withdraw his agreement to plead guilty, was prejudicial and constitutionally deficient.  (United States v. Manzo (9th Cir. 2012) 675 F.3rd 1204, 1209-1213.)

 

Where defense counsel failed to advise defendant that his plea agreement subjected him to an illegal sentence, it is insufficient to merely return defendant back to the position he was in prior to sentencing.  Because counsel in this case provided ineffective assistance during the entire plea bargaining process, the remedy had to account for that period as well.  The habeas remedy should have put the inmate back in the position he would have been in if the Sixth Amendment violation had never occurred.  Thus, he was entitled to be returned to that pre-plea stage and proceed under the correctly-calculated sentencing range, which may have resulted in more favorable offers.  Assuming the negotiations would have progressed in a similar fashion with competent counsel was mere speculation.  (Johnson v. Uribe (9th Cir. 2012) 682 F.3rd 1238, 1243-1246.)

 

A defense attorney’s failure to advise his client to accept an offer of life without parole in exchange for the prosecutor not seeking the death penalty, where the record fails to show how much counsel knew about the case, how counsel advised defendant, or what defendant's response was, does not establish that counsel failed to render competent advice.  (People v. Grimes (2015) 60 Cal.4th 729, 773.)

 

Defendant received ineffective assistance of counsel when her trial counsel failed to advise her that her guilty plea to attempted transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(2)(A), rendered her removal from the country a virtual certainty.  Statements in a plea agreement and the plea colloquy were irrelevant to whether counsel provided ineffective assistance, nor did counsel’s post-plea statements that defendant faced a high likelihood or removal satisfy his duty to accurately advise defendant before she pled guilty.  Defendant was prejudiced by her counsel’s deficient performance in that she showed a reasonable probability that she could and would have negotiated a different plea agreement not requiring her removal had counsel provided adequate advice, or that she would have gone to trial.  (United States v. Rodriguez-Vega (9th Cir. 2015) 797 F.3rd 781, 786-792.)

 

When a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”  Therefore, in a case where whether defendant would be subject to deportation was the “determinative factor” in deciding whether to plead guilty, and defendant’s counsel erroneously advised him that he would not, he should have been allowed to withdraw his plea and go to trial.  (Lee v. United States (June 23, 2017) __ U.S. __ [137 S.Ct. 1958; 198 L.Ed.2nd 476].)

 

For purposes of a post-conviction motion to withdraw a plea under P.C § 1016.5 (Required Advisements to Alien Upon Plea), the evidence supported a finding that defendant was sufficiently advised of the precise immigration consequences of his no contest plea to conspiracy and cultivation of marijuana, even though the term “aggravated felony” was not used, because he was advised that the charge to which he pled would lead to his deportation and would bar him from reentry if he left the United States.  It was pure speculation that counsel could have negotiated an “immigration safe” plea bargain.  Counsel was not ineffective in this regard.  Despite defendant’s claims to the contrary, there was substantial evidence that the plea agreement offered a better resolution than he was likely to achieve after trial.  (People v. Tapia (2018) 26 Cal.App.5th 942.)

 

Defendant pled guilty to possession of methamphetamine for sale (H&S § 11378) in 2012 and was granted probation. In 2013, the court denied his motion to withdraw his plea alleging he had not been properly advised of immigration consequences.  In 2014, he violated probation and was sentenced to jail.  In January of 2017, he filed a motion to withdraw his plea under P.C. § 1473.7, again alleging mis-advisement of immigration consequences.  The motion was denied, defendant appealed, and the Court reversed:  “[T]he trial court erred in denying defendant’s section 1473.7 motion to vacate his conviction.  Defendant met his burden of establishing by a preponderance of the evidence (1) that trial counsel’s performance was deficient in misadvising defendant about the immigration consequences of his guilty plea, and (2) that counsel’s incorrect advice prejudiced defendant in that there is a reasonable probability that defendant would not have pled guilty if properly advised.”  (People v. Espinoza (2018) 27 Cal.App.5th 908.)

 

At the Appeal Stage; Examples:

 

“(A) lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. See Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969); cf. Peguero v. United States, 526 U.S. 23, 28, 143 L. Ed. 2d 18, 119 S. Ct. 961 (1999) (‘When counsel fails to file a requested appeal, a defendant is entitled to [a new] appeal without showing that his appeal [****15]  would likely have had merit’). This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently. See Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983) (accused has ultimate authority to make fundamental decision whether to take an appeal)”  (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477 [120 S.Ct. 1029; 145 L. Ed.2nd 985]; reversing the lower court’s ruling that defense counsel was ineffective for failing to file a notice of appeal without respondent’s consent, and ruling instead that the record was insufficient to support a conclusion that counsel was ineffective when based on a circumstance-specific reasonableness inquiry.

 

The presumption of prejudice recognized in Roe v. Flores-Ortega, supra, applied regardless of whether a defendant had signed an appeal waiver. This ruling followed squarely from Flores-Ortega and from the fact that even the broadest appeal waiver did not deprive a defendant of all appellate claims. Accordingly, where an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice was presumed with no further showing from the defendant of the merits of his underlying claims.  (Garza v. Idaho (Feb. 27, 2019) __ U.S. __ [139 S.Ct. 738; 203 L.Ed.2nd 77].)

 

But see Justice Clarence Thomas’ dissent, at pp. __-__, arguing that the Court is wrong in interpreting the Sixth Amendment to create a right to “effective counsel.” 

 

Whether or not a defendant’s attorney purposely ignored the defendant’s express request to file an appeal, even if the defendant signed an appeal waiver, is an issue that must be decided by the trial court.  (See United States v. Fabian-Baltazar (9th Cir. 2019) 931 F.3rd 1216.)

 

Claims of ineffective assistance of appellate counsel are evaluated according to the standard set forth in Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L. Ed. 2nd 674].)  A defendant must show that appellate counsel’s representation fell below an objective standard of reasonableness, and that, but for counsel’s errors, a reasonable probability exists that he would have prevailed on appeal.  (Hurles v. Ryan (9th Cir. 2014) 752 F.3rd 768.)

 

In Hurles v. Ryan, it was held that defendant did not show that a procedural default should be excused as to his claim that trial counsel failed to locate a witness, as the nature of the witness’s testimony was speculative.  Defendant was entitled to remand to reconsider procedural fault as to an ineffective assistance of counsel claim based on appellate counsel's failure to challenge the state trial court’s denial of neurological testing to support his insanity defense.  Appellate counsel did not provide ineffective assistance by failing to argue that the trial court did not weigh the mitigating evidence at the death penalty phase cumulatively.  An evidentiary hearing was needed as to the defendant’s claim that the trial judge should have recused herself in light of the judge’s participation in a special action proceeding.

 

Upon rehearing after this case was remanded, it was held that defendant’s claim of ineffective assistance of appellate counsel was not viable in light of the United States Supreme Court's decision in Davila v. Davis, supra, which held that the holding in Martinez, supra, that a successful claim of post-conviction ineffective assistance of counsel could excuse a procedurally defaulted claim of ineffective assistance of trial counsel, did not extend to procedurally defaulted claims of ineffective assistance of appellate counsel.  (Hurles v. Ryan (9th Cir. 2019) 914 F.3rd 1236.)

 

Appellate counsel’s failure to file a timely federal Habeas Corpus petition after (1) dismissing defendant’s own pro se petition, then (2) ensuring defendant that a new one, properly alleging the exhaustion of all state proceedings, would be filed, and then (3) misleading defendant for some six years, telling him that his habeas proceedings were moving forward when in fact nothing had been filed, constituted “egregious professional misconduct,” entitling defendant to the “equitable tolling of the statute,” allowing for the filing of a habeas petition well beyond the expiration of the one-year limit.  (Luna v. Kernan (9th Cir. 2015) 784 F.3rd 649; noting that mere “run-of-the-mill” mistakes, or “garden variety negligence,” by counsel doesn’t allow for the same “equitable tolling” relief.)

 

The federal district court was held to have abused its discretion in finding that the defendant was not abandoned by his appellate counsel, and therefore not entitled to relief under Fed. Rule of Civil Procedure 60(b)(6).  The proper inquiry was whether extraordinary circumstances prevented the defendant from taking timely action to prevent or correct an erroneous judgment, and counsel was grossly negligent in his representation of defendant at the time the district court had ordered defendant to show cause why his habeas petition should not have been dismissed as untimely, in that defense counsel had virtually abandoned his client.   (Brooks v. Yates (9th Cir. 2016) 818 F.3rd 532, 534-535.)

 

The California Supreme Court in Garcia v. Superior Court (1997) 14 Cal.4th 953 determined that a criminal defendant could not move to strike a prior conviction, alleged as an enhancement in a pending proceeding, on the basis of ineffective assistance of counsel in the earlier case.  Defendant, charged with two alcohol-related driving offenses within 10 years of a prior felony driving under the influence (DUI) conviction, argued that V.C. § 41403 permits him to move to strike his earlier felony conviction despite Garcia.  The Court here disagreed, ruling that V.C. § 41403 does not independently authorize such challenges, but simply sets forth the procedural rules to be used for those challenges that are otherwise authorized.  (People v. Bechtol  (2017) 10 Cal.App.5th 950.)

 

“Section 41403 sets forth detailed procedural rules for ‘any proceedings to have a judgment of conviction of a violation of Section 14601,14601.1, 14601.2, 23152, or 23153, or Section 23103 as specified in Section 23103.5, which was entered in a separate proceeding, declared invalid on constitutional grounds . . . .’ (§ 41403, subd. (a).) First, ‘the defendant shall state in writing and with specificity wherein the defendant was deprived of the defendant’s constitutional rights, which statement shall be filed with the clerk of the court and a copy served on the court that rendered that judgment and on the prosecuting attorney in the present proceedings at least five court days prior to the hearing thereon.’ (Ibid.) A hearing shall be held ‘outside of the presence of the jury.’ (§ 41403, subd. (b).) The statute then sets forth in detail the burdens of production and proof: ‘The prosecution shall initially have the burden of producing evidence of the separate conviction sufficient to justify a finding that the defendant has suffered that separate conviction’; ‘the defendant then has the burden of proof by a preponderance of the evidence that the defendant’s constitutional rights were infringed in the separate proceeding at issue’; “[i]f the defendant bears this burden successfully, the prosecution shall have the right to produce evidence in rebuttal’; and the court ‘shall strike from the accusatory pleading any separate conviction found to be constitutionally invalid.’ (§ 41403, subd. (b)(1)–(4).)”  (Id., at pp. 953-953.)

 

Failure to raise a valid Faretta issue (i.e., Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2nd 562].) on appeal prejudiced defendant, denying him his Fourteenth Amendment right to the effective assistance of appellate counsel.  (Tamplin v. Muniz (9th Cir. 2018) 894 F.3rd 1076, 1090.)

 

Death Penalty Cases:

 

Defense counsel was not incompetent at trial in a death penalty case for not having retained a neuropsychologist to investigate the possibility that defendant had neuropsychological deficits.  Defendant failed to show that counsel could have obtained a codefendant’s fingerprints at the time of defendant’s trial, and that an alibi witness would not have talked to a defense investigator and thus could not have been used by the defense at trial.  Although an alibi defense could have been presented at defendant’s trial regarding crimes for which the codefendant, but not defendant, was charged, the testimony by these alibi witnesses was not credible.  Furthermore, had their testimony been presented, it would have contradicted the guilt phase testimony of defendant and his mother.  None of the evidence presented by defendant at the post-trial hearing regarding his childhood was so weighty that it was likely to affect the jury’s determination that the brutal murders committed by defendant and his confederates, when combined with defendant’s prior history of robbery and aggravated assault, warranted the death penalty.  (In re Champion (2014) 58 Cal. 4th 965, 974-1011.)

 

In Mann v. Ryan (9th Cir. 2014) 774 F.3rd 1203, defendant, sentenced to death in state court for two murders:

 

1. Was not entitled to habeas relief on his guilt phase claim of ineffective assistance of counsel in that counsel’s decision not to call defendant as a witness was a strategic decision, coming within the wide range of reasonable professional assistance deemed constitutionally adequate.  (pp. 1210-1212.)

 

2. Was not entitled to habeas relief on his guilt phase claim of ineffective assistance of counsel where defendant failed to establish that counsel made a specific promise to the jury that defendant would testify.  (pp. 1212-1214.)

 

3. But did, provide deficient representation under the Sixth Amendment during the sentencing phase of the trial because he failed to expeditiously conduct a reasonable investigation of defendant’s background and potential sources of mitigation.  (pp. 1214-1223.)

 

“The governing legal standard for assessing the prejudice from counsel’s errors during the sentencing phase of a capital case is ‘whether there is a reasonable probability that, absent the errors, the sentence—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’”  (Id., at p. 1214; quoting Strickland v. Washington (1984) 466 U.S. 668, 695 [80 L. Ed. 2nd 674].)  

 

It is not ineffective assistance of counsel for defendant’s attorney to acquiesce in defendant’s preference for the death penalty by agreeing to defendant’s request not to present any evidence in mitigation at the penalty phase of a capital trial.  (People v. Brown (2014) 59 Cal.4th 86, 107-116; citing Schriro v. Landrigan (2007) 550 U.S. 465 [167 L.Ed.2nd 836], and disapproving People v. Deere (1985) 41 Cal.3rd 353.)   

 

Also, a preference for the death penalty does not necessarily bring into question a defendant’s mental competence.   (People v. Brown, supra, at pp. 114-115.)

 

A defense attorney’s failure to advise his client to accept an offer of life without parole in exchange for the prosecutor not seeking the death penalty, where the record fails to show how much counsel knew about the case, how counsel advised defendant, or what defendant's response was, does not establish that counsel failed to render competent advice.  (People v. Grimes (2015) 60 Cal.4th 729, 773.)

 

In a death penalty case, the state trial court did not act unreasonably in rejecting defendant’s claim that his shackling on the first day of voir dire for the sentencing phase of his trial violated his due process rights because even if he could show a violation of due process, he could not show prejudice due to the limited duration of his shackling and the violent nature of his crime.  Therefore, defense counsel was not ineffective for having failed to object to his shackling at that time.  Also, the state court was held to have reasonably rejected defendant’s argument that his trial counsel was ineffective for proceeding with a remorse-oriented strategy to the exclusion of a mental-health and brain-damage defense because such a decision was a reasonable strategic one.   (Elmore v. Sinclair (9th Cir. 2015) 799 F.3rd 1238, 1248-1251.)

 

Defendant failed to show prejudice at the guilt phase of his murder case, given the strength of the prosecution’s evidence, even though defense counsel failed to provide “high-quality” representation (e.g., failing to interview child and alibi witnesses).  At the penalty phase, however, where it was shown that defense counsel failed to investigate and present certain mitigating evidence relating to sexual abuse he defendant suffered while previously incarcerated (being repeatedly raped in prison and its detrimental effects on his mental health), as well as mental illness, neglect, and abuse he suffered during his childhood, and substance abuse, such ineffective assistance of counsel was prejudicial.  Additional mitigating evidence, which counsel also failed to present, strengthened that conclusion.  (Doe v. Ayers (9th Cir. 2015) 782 F.3rd 425, 430-446.)

 

In defendant’s death penalty case, none of his procedurally defaulted ineffective assistance of counsel claims satisfied both the substantially and deficient performance criteria, and therefore, the procedural default of the claims was not excused.  Additional details about defendant’s childhood sicknesses and injuries, or the vouchings of more remote acquaintances, would not have affected the balance of mitigating against aggravating circumstances, and therefore, there was no reasonable probability that had counsel presented the new evidence, separately or collectively, the sentencing jury would have concluded that the balance of aggravating and mitigating circumstanced did not warrant death.  (Runningeagle v. Ryan (9th Cir. 2016) 825 F.3rd 970, 978-991.)

 

To the extent the California Supreme Court found the Strickland prejudice prong was not met because substantial evidence remained to convict defendant under a different theory, it applied a standard contrary to clearly established federal law.  The standard of review applied by the California Supreme Court was significantly harsher than the clearly established test of Strickland.  Defendant was prejudiced by defense counsel’s deficient performance under the Sixth Amendment by not properly investigating and presenting evidence that the State’s key witness actually committed the murders.  Had the jury heard such evidence, there is a substantial probability they would have come to a different conclusion.  (Hardy v. Chappell (9th Cir. 2016) 832 F.3rd 1128, 1135-1144; see also denial of rehearing and dissenting opinion at 849 F.3rd 803 (2017).)

 

Also in a capital case, the fact that the defendant’s purpose in choosing to represent himself was to insure that he receive a sentence of death does not mean that his decision to do so is irrational.  “‘Given the importance which the decisions of both this court and the United States Supreme Court have attached to an accused’s ability to control his or her own destiny and to make fundamental decisions affecting trial of the action, and given this court’s recognition that it is not irrational to prefer the death penalty to life imprisonment without parole,’ we concluded that ‘it would be incongruous to hold that a trial court lacked power to grant a midtrial motion for self-representation in a capital case merely because the accused stated an intention to seek a death verdict.’”  (People v. Burgener (2016) 1 Cal.5th 461, 472, quoting People v. Bloom (1989) 48 Cal.3rd 1194, 1222-1223, and ruling that the fact that defendant’s purpose was to speed the hearing along and affirm the imposition of a death sentence did not affect his right to represent himself.)

 

Trial counsel failed to object to the court’s closure of death-qualification voir dire.  On appeal, defendant argued that such a failure constituted incompetence of counsel.  The Ninth Circuit ruled, however, that counsel’s failure to object to the closure of death-qualification voir dire could not overcome the presumption that, under the circumstances, the challenged failure to object might be considered sound trial strategy and thus did not constituted deficient performance.  (Visciotti v. Martel (9th Cir. 2016) 839 F.3rd 845, 856-862.)

 

See Gov’t. C. § 68665 (Effective 11/9/2016):  In establishing competency standards for the appointment of counsel in death penalty direct appeals and habeas corpus proceedings, the Judicial Council and the Supreme Court must consider the qualifications needed to achieve competent representation, the need to avoid unduly restricting the available pool of attorneys so as to provide timely appointment, and the standards needed to qualify for 28 U.S.C. §§  2261–2266: Special Habeas Corpus Procedures in Capital Cases.  It is specifically provided that “[e]xperience requirements shall not be limited to defense experience.”

 

The Supreme Court has also held that a defendant (a black male) in a capital murder case received ineffective assistance of counsel when his attorney called as an expert witness a psychologist who, as a part of his expert opinion as to the potential future dangerousness of the defendant, testified that black men are statistically more likely to be violent.  The Court ruled that it was inappropriate for a jury to consider race no matter how it was injected into the proceeding, rejecting the argument that it was invited error because defendant’s own attorney was the one who called the expert to testify.  The error was prejudicial.  (Buck v. Davis (Feb. 22, 2017) __ U.S. __ [137 S.Ct. 759; 197 L.Ed.2nd 1].)

 

Where the record on direct appeal fails to show why defense counsel failed to inform the trial court of the contents of a psychiatric report that might cast doubt as to defendant’s mental competence, defendant’s challenge to the effectiveness of his trial counsel could not appropriately be considered.  Such an issue should rather be litigated via a writ of habeas corpus.  (People v. Mickel (2016) 2 Cal.5th 181, 197-200.)

 

At the penalty phase of a death penalty case, defense counsel’s failure to object to the co-defendant testifying, during which he minimalized his degree of participation in a robbery/double homicide, was justified by various tactical reasons, and was thus not sufficient to show incompetence of counsel.  Defendant’s arguments that it was error to allow such testimony also lacked merit in that the co-defendant was a percipient witness to the crimes and was subject to defendant’s cross-examination.   (People v. Rices (2017) 4 Cal.5th 49, 80-82.)

 

Although the Court agreed that defense counsel was incompetent for failing to investigate possible mitigating evidence, it was held that the federal district court was wrong in granting defendant’s petition for writ of habeas corpus in that the state court’s finding that defendant was not prejudiced thereby was reasonable under the circumstances.  (Apelt v. Ryan (9th Cir. 2017) 878 F.3rd 800.)

 

Defendant’s counsel was held to have performed deficiently by failing to challenge evidence that defendant committed a murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors because there was no strategic reason for counsel not to have challenged the pecuniary gain factor.  Also, counsel failed to even take the first step of interviewing witness or requesting records.  There was a reasonable likelihood defendant would have received a different sentence if counsel had investigated and presented mitigating evidence because a finding that defendant acted solely out of love because his lover manipulated him would have been considerably more likely if the sentencer had learned of defendant’s background, metal health issue, and low intelligence.  The decision that counsel had performed reasonably was an unreasonable application of the Strickland standards.  (White v. Ryan (9th Cir. 2018) 895 F.3rd 641.)

 

The Sixth Amendment right to counsel guarantees a criminal defendant the right to choose his own counsel when he does not need appointed counsel.  While a defendant has a constitutional right to competent representation, he also has the right to counsel of his choice so that he may defend himself in whatever manner he deems best.  The fact that the trial court expressed concerns about defendant’s retained trial counsel’s preparedness, his experience, the fact that he had been suspended once before for incompetence, and his failure to file various pre-trial motions, did not mean that counsel was not sufficiently competent to represent defendant in a capital case.  (People v. Woodruff (2018) 5 Cal.5th 697, 724-734.)

 

Defendant was held to be entitled to habeas relief because counsel performed ineffectively by not properly investigating defendant’s background.  As a result, the trial court was not presented at the penalty phase of his capital case with substantial mitigation evidence regarding defendant’s education and incarceration, his diffuse brain damage, and his history of substance abuse, raising a probability that had the trial court been presented with the mitigation evidence in the first instance, the outcome would have been different in that the sentencing judge might have decided that petitioner should be spared death and be imprisoned for life.  (Washington v. Ryan (9th Cir. 2019) 922 F.3rd 419.)

 

The Ninth Circuit Court of Appeals affirmed the district court’s denial of a prisoner’s habeas corpus petition challenging his capital sentence, only considering the record before the California Supreme Court (including the trial court record), because the California Supreme Court did not unreasonably apply federal law or unreasonably determine facts in denying the prisoner’s ineffective assistance of counsel claim based on counsel’s failure to investigate and present in mitigation evidence of the mental impairments and abusive conduct of his mother. The California Supreme Court could also have reasonably determined that the prisoner was not prejudiced by counsel’s failure to investigate and present in mitigation evidence that he had suffered from mental impairments prior to and through the time of his crimes.  (Livaditis v. Davis (9th Cir 2019) 933 F.3rd 1026.)

 

The federal district court erred in denying petitioner habeas relief on his ineffective assistance of counsel claim because counsel rendered deficient performance by failing adequately to investigate petitioner’s good character and social history, and had no reasoned or tactical excuse for doing so.  Also, counsel rendered deficient performance by not investigating petitioner’s claim of self-defense in a jail homicide to counter the State’s use of it as aggravation evidence and had no reasonable or tactical excuse for not doing so.  (Avena v. Chappell (9th Cir. 2019) 932 F.3rd 1237.)

 

Defendant failed to show that his counsel was ineffective for failing to object to the court’s use of restraints (chains and a stun belt) given the level of violence demonstrated by defendant’s in-court outbursts and extreme difficulty deputies had in subduing him.  Counsel was also not shown to be ineffective for not having sought more clarifying instructions to the jury explaining why defendant was absent from the courtroom.  Lastly, counsel was not ineffective for not objecting to the prosecution’s use of defendant’s in-court violent behavior as an aggravating factor in that such evidence was admissible for that purpose.  (People v. Bell (2019) 7 Cal.5th 70, 125-127.)

Defendant’s conviction and death sentence was affirmed in part and reversed in part where it was held that the district court’s denial of defendant’s habeas corpus petition.  The Court explained that the district court—on remand for reconsideration of whether post-conviction counsel’s ineffectiveness constituted cause and prejudice under Martinez v. Ryan (2012) 566 U.S. 1, to overcome the procedural default of defendant’s claim of trial counsel’s ineffectiveness—erred by conducting a full merits review of the underlying ineffective assistance of counsel claim on an undeveloped record, rather than addressing whether the claim was “substantial.”  The Court further held that the underlying claim of ineffective assistance of trial counsel was substantial, thus constituting “prejudice” under Martinez, because trial counsel failed to present or pursue evidence of defendant’s intellectual disability, failed to provide relevant and potentially mitigating evidence to the psychologist who evaluated him, and subsequently relied on the psychologist’s report, despite possessing contrary facts. The Court further held that defendant established cause under Martinez because had post-conviction counsel raised the substantial claim of ineffective assistance of trial counsel, there is a reasonable probability that the result of the post-conviction proceedings would have been different.  The Court held that the district court erred in denying defendant an evidentiary development of his ineffective assistance of counsel claim, and that on remand he is entitled to evidentiary development to litigate the merits of his ineffective assistance of trial counsel claim. (Ramirez v. Ryan (9th Cir. 2019) 937 F.3rd 1230, 1243-1247.)

The district court properly granted petitioner habeas relief on his Sixth Amendment ineffective assistance of counsel claim because the state court unreasonably applied Strickland in concluding that defendant received constitutionally adequate representation when his attorneys failed to undertake a reasonable investigation at the penalty phase.  In so ruling, the Court held that defendant’s attorneys’ choices could not be rationalized as “strategic” or “tactical.”  Any reasonably competent attorney would have discovered and introduced substantial and compelling mitigating evidence that existed.  The state court’s conclusion that defendant suffered no prejudice from the omission of the substantial and compelling mitigating evidence that his attorneys should have introduced but did not was objectively unreasonable.  (Andrews v. Davis (9th Cir. 2019) 944 F.3rd 1092.)

Defendant was convicted of the first degree murder of a police officer and sentenced to death.  In a proceeding on defendant’s first petition for a writ of habeas corpus, the Supreme Court granted relief and vacated the judgment of death after finding that defendant’s trial counsel had defrauded defendant in order to induce defendant to retain him instead of the public defender, and then had gone on to commit serious errors during the trial’s penalty phase that undermined the reliability of the resulting death verdict. Defendant subsequently filed another petition for a writ of habeas corpus, raising 26 claims for relief, including a claim that he received ineffective assistance of counsel at the guilt phase of his original trial. Pursuant to the Supreme Court's order, the Los Angeles County Superior Court appointed a referee (Superior Court Judge Lance Ito) who held an evidentiary hearing and made findings of fact in a 75-page report.  The Supreme Court granted habeas corpus relief and vacated the judgment against defendant insofar as it rested on his conviction for first degree murder. The court held that defendant had established entitlement to habeas corpus relief on his claim that he was denied the effective assistance of counsel at the guilt phase of his trial. Defense counsel obtained appointment to represent defendant through fraud, counseled him to make damaging confessions to the prosecution without safeguards to ensure the confessions would not be used without a deal (while deceiving him as to whether such safeguards were in place), and failed to conduct a timely investigation into available testimony from eyewitnesses who would have exculpated defendant and peace officers who would have inculpated defendant's codefendant. Counsel turned in that performance in a case where the evidence at trial left open a nontrivial possibility that his client bore no responsibility for the death of the victim. There was no physical evidence linking defendant to the shooting, eyewitnesses' versions of the events and identification of the shooter or shooters varied greatly, and the star witness against defendant, his codefendant’s wife, had evident biases, was conceded by the prosecutor to be dishonest, and had originally tried to falsely implicate another man as the shooter until he turned up with an alibi. Moreover, given trial counsel’s manifest willingness to disregard fiduciary responsibilities, the court could not be entirely confident that even the other decisions challenged in the habeas corpus petition that might ordinarily fall within the very broad range of discretion it generally accorded counsel were uninfluenced by trial counsel’s readiness to place his own interests first and choose an easier, more personally beneficial path over the path that would best serve defendant. The court thus concluded that defense counsel’s multiple failings were, in combination, of sufficient gravity to overcome the strong presumption of reliability accorded final judgments and to undermine the court’s ability to place faith in the jury's determination that defendant shot the police officer. Defendant had demonstrated prejudice.  (In re Gay (2020) 8 Cal.5th 1059.)

Where substantial evidence of defendant’s difficult and violent childhood had already been submitted to the penalty phase jury, it was held by the Ninth Circuit Court of Appeal, in reviewing the district court’s denial of defendant’s writ of habeas corpus petition, that “the California Supreme Court could reasonably have concluded that the additional information provided in connection with petitioner's first state habeas petition would have been insufficient to establish a reasonable probability that at least one juror would be persuaded to sentence petitioner to life without parole instead of the death penalty.”  Further, incompetence of counsel was not shown where defendant’s confession was held to be admissible, that he was not denied his right to a speedy trial due to a delay in arraignment (he being on a parole hold), that the delayed arraignment did not create or influence his confession, that his confession was not coerced, that his mental condition at the time did not precipitate his confession, and that counsel’s trial performance overall did not violated the Strickland standard of competence.  (See Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052; 80 L.Ed.2nd 674].)  Defendant further argued that he suffered from an “organic brain disorder,” and defense counsel failed to investigate this potential mitigating evidence.  The Court  held, however, that trial counsel was not on notice that further examination of defendant with the specific goal to uncover organic brain injury was necessary.  Lastly, even if trial counsel was ineffective in certain aspects, such incompetence was not prejudicial, given the strength of the evidence against defendant.  (Benson v. Chappell (9th Cir. 2020) 958 F.3rd 801, 820-834.)

 

It was also held that counsel’s performance at the guilt phase was not incompetent, that he should have presented evidence of a previous reprimand of a prosecution psychiatric expert, or that the prosecution had committed a prejudicial Brady violation (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2nd 215; 83 S.Ct. 1194.) by not providing defense counsel with some irrelevant, or questionably prejudicial, documentation. pp. 834-840.)

 

Habeas petitioner in a capital case demonstrated that trial counsel’s performance was deficient where counsel performed almost no mitigation investigation.  Due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State’s aggravation case.  Also, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation.  Lastly, a remand was necessary to address the Strickland prejudice prong given the uncertainty as to whether the state court adequately conducted that weighty and record-intensive analysis in the first instance.  (Andrus v. Texas (June 15, 2020) __ U.S. __ [140 S.Ct. 1845; 207 L.Ed.2nd 335].)

 

Defendant seeking habeas relief under 28 U.S.C.S. § 1954, who was sentenced to death following the murder of his wife and stepdaughters, satisfied his burden of demonstrating a “substantial” argument that his second penalty-phase counsel’s performance was deficient because of his failure to pursue mental health mitigation evidence.  It was unreasonable for counsel to forgo a psychological evaluation merely because defendant, himself, had confidence in his own mental health and counsel assumed an assessment would be of little value.  However, in light of the extraordinarily brutal nature of the murders, defendant failed to show that reasonable jurists would debate whether the result of the proceeding would have been different if mitigation evidence had been pursued.  There was not a reasonable probability that expert declarations would have changed the outcome of the penalty phase.  (Smith v. Baker (9th Cir. 2020) 950 F.3rd 522.)

 

Where defendant argued that his trial counsel rendered deficient performance, having failed to investigate and present evidence that a street gang claimed credit for the murders and because he failed to call a gang expert to counter the prosecution’s expert, the Ninth Circuit Court of Appel upheld the denial of habeas relief  because there were reasonable grounds for the California Supreme Court to have concluded that the omitted testimony would not have altered the outcome where there was compelling evidence of defendant's guilt.  Specifically, defendant’s friends testified that he talked about killing his parents and told them about his parents’ life insurance policies, bragging of a windfall if his parents died. He also told a cousin on the night of his parents’ funeral that it was “time to party and get high.” Also, another witness saw defendant, after his parents' deaths, opening a safe in his parents’ bedroom that contained stacks of cash.  (Staten v. Davis (9th Cir. 2020) 962 F.3rd 487.)

 

Defendant argued in habeas corpus proceedings that his trial counsel rendered ineffective assistance in presenting his mitigation defense during the penalty phase of his capital murder case. The state post-conviction review court held that defendant failed to establish either deficient performance or prejudice under Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052; 80 L.Ed.2nd 674]. The Ninth Circuit concluded that, as to most of the challenged aspects of counsel’s representation, defendant did not demonstrate that the state post-conviction review court’s resolution of Strickland’s deficient-performance prong was objectively unreasonable.  As to the remaining aspects of the representation, the post-conviction review court reasonably determined that defendant did not demonstrate prejudice.  (Sansing v. Ryan (9th Cir. 2021) 997 F.3rd 1018, 1034-1039.)

 

Defendant further alleged that his waiver of the privilege against self-incrimination, made when he plead guilty, was not knowing and voluntary because he was unaware of the fact that his admission, made during the plea colloquy, that the victim was conscious when he raped her, could be used to prove cruelty.  Affirming the denial of relief as to this claim, the state post-conviction review court observed that the United States Supreme Court has not yet held that the trial court must affirmatively discuss during the plea colloquy the potential impact of a defendant's factual admissions may have on capital sentencing proceedings.  (Id., at pp. 1040-1041.)

 

Defendant in a capital case was properly denied habeas relief based on a Sixth Amendment ineffective assistance claim alleging that counsel failed to investigate and present evidence from a jailhouse informant because there was no reasonable probability of a different trial outcome. The informant’s account would still have provided evidence that the inmate aided and abetted the victims’ deaths and intended to kill them.  The state court could have reasonably concluded that counsel’s performance was not deficient when they did not seek neuropsychological testing at the penalty phase given that they possessed two expert reports that came to similar conclusions, neither of which was helpful to the defense.  (Sanchez v. Davis (9th Cir. 2021) 994 F.3rd 1129.)

 

The district court did not err by granting petitioner habeas relief on his claim that the attorneys failed to investigate and present mitigating evidence because rather than investigating and presenting background evidence that petitioner suffered severe emotional and physical abuse and had mental issues, they only looked for witnesses who could say good things about him.   (Noguera v. Davis (9th Cir. July 20, 2021) __ F.3rd __, __ [2021 U.S. App. LEXIS 21409].)

 

Following an analysis under 28 U.S.C.S. § 2254, the court found that the death row prisoner (i.e., defendant) was entitled to habeas relief and resentencing because he was denied the effective assistance of counsel at sentencing for crimes arising from a killing spree while under the influence of alcohol and crystal methamphetamine.  Defendant’s constitutional right to counsel was violated because of counsel’s failure to seek neuropsychological and neurological testing, such failure falling below prevailing professional norms.  Further, the defendant suffered prejudice because he demonstrated a “reasonable probability” that had such testing been conducted, and had the results been presented at sentencing, the result of the proceeding would have been different.  (Jones v. Ryan (9th Cir. June 28, 2021) __ F.3rd __ [2021 U.S.App. LEXIS 19115].)

 

An Alabama state court did not violate clearly established federal law when it rejected defendant’s claim that his attorneys should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability where he offered no testimony or other evidence from his attorneys.  It was unknown what information and considerations emerged as counsel developed their strategy.  So it was reasonable to conclude from the incomplete evidentiary record that habeas relief was not warranted based upon an ineffective assistance of counsel claim. It was clear from the context and the state court’s actual analysis that it did not apply a blanket rule that a prisoner would always lose if he failed to call and question his trial counsel.  Rather, the state court determined that under the facts of the instant case, relief was not merited.  (Dunn v. Reeves (July 2, 2021) __ U.S. __ [141 S.C. 2405; 210 L.Ed.2nd 812].)

Waiver of Competent Counsel:

When a defendant does not require appointed counsel, and he is able to retain his own attorney, he is constitutionally entitled to have the attorney of his own choice.  (United States v. Gonzalez-Lopez (2006) 548 U.S. 140 [165 L.Ed.2nd 409]; People v. Woodruff (2018) 5 Cal.5th 697, 728.)

                          

“While a defendant has a constitutional right to competent representation, he also has the right to counsel of his choice so that he may defend himself in “‘whatever manner he deems best.’” (Ibid., quoting Smith v. Superior Court (1968) 68 Cal.2nd 547, 599.)

 

“The erroneous deprivation of a defendant's right to counsel of his choice results in automatic reversal.” (People v. Woodruff, supra; citing United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150; People v. Ramirez (2006) 39 Cal.4th 398, 422.)

 

“‘[T]he right to counsel can be waived only if such waiver is knowing, intelligent and voluntary.’ (Citation) When posed with the claim that a defendant had ‘impliedly waived his right to effective assistance of counsel,’ we explained that, ‘The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.’ (Citation) On the question of when a defendant may demand deficient counsel, where the issue concerns a conflict, we explained that when ‘the danger of proceeding with chosen counsel has been disclosed generally to defendant, he may insist on retaining his attorney[] if he waives the conflict knowingly and intelligently for purposes of the criminal trial.’ (Citation.) If ‘an adequate waiver of defendant’s effective-assistance rights cannot be obtained on the record, the court must presume that he has not knowingly and intelligently chosen to proceed with retained counsel. [Citation.] The court may then protect the record and defendant’s right to effective assistance by requiring counsel's withdrawal.’ (Citation.)”  (People v. Woodruff, supra, at pp. 731-732.)

 

Client Abandonment:

 

Where defendant’s counsel failed to inform him that state post-conviction proceedings had ended, despite promising to do so, and despite defendant’s repeated efforts to obtain updates, resulting in the time in which to file a federal habeas petition expiring.  Counsel’s conduct constituted “abandonment.”  Such abandonment was an extraordinary circumstance excusing defendant’s failure to timely file his petition under 28 U.S.C. § 2244(d).  Thus, “equitable tolling” was warranted.  (Gibbs v. Legrand (9th Cir. 2014) 767 F.3rd 879, 884-893; petition for writ of certiorari filed Jan. 21, 2015.)

 

Statutory Right to Counsel Upon Arrest:

                       

Right to Access to an Attorney, per P.C. § 825(b):  Any attorney entitled to practice in the courts of record of California may, at the request of the prisoner or any relative of the prisoner, visit the prisoner. 

 

Any officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor, and “shall forfeit and pay to the party aggrieved the sum of $500, to be recovered by action in any court of competent jurisdiction.”  (Ibid.)

 

While the section does not specify when an attorney, at the request of the prisoner or a relative, should be allowed to see the prisoner, it is suggested the request be honored as soon as is practical.  The courts tend to be critical of any purposeful delay in allowing an in-custody suspect to consult with his attorney.  (See People v. Stroble (1951) 36 Cal.2nd 615, 625-626; “The conduct of the officers (refusing to allow defendant’s attorney access to him while officers obtained a confession) . . .  was patently illegal.”)

 

It was not an abuse of discretion for the trial court judge to order that confidential attorney-client contact visits be allowed at the county jail absent circumstances justifying a suspension of such visits in individual cases.  In this case, there was substantial evidence that the partitioned rooms limited or prevented an inmate from privately confiding facts that might incriminate or embarrass the inmate and create an impermissible chilling effect on the Sixth Amendment constitutional right to counsel.  There was also evidence that additional locks, cameras, and training could address the county’s security concerns.  Lastly, the record showed that the jail allowed ministers and teachers to meet with inmates in non-partitioned rooms, indicating that the jail’s restrictions for visits by counsel were an exaggerated response the county’s legitimate security concerns (County of Nevada v. Superior Court (2015) 236 Cal.App.4th 1001.)

 

 

However, see People v. Ledesma (1988) 204 Cal.App.3rd 682, 695-696, and fn. 8:  Violating P.C. § 825(b) is not a constitutional violation requiring the suppression of the defendant’s statements where the defendant had otherwise waived his rights under Miranda.

 

Monitoring Jail Legal Mail:

 

Although it is constitutionally permissible to monitor inmate mail coming into, and going out of, a jail facility, this does not include “legal mail” from, or to, an inmate’s attorney.   (Wolff v. McDonnell (1974) 418 U.S. 539, 576-577 [41 L.Ed.2nd 935]; People v. Dinkins (1966) 242 Cal.App.2nd 892, 903; People v. Jones (1971) 19 Cal.App.3rd 437, 449.)  

 

An inmate’s “legal mail” (i.e., correspondence with the prisoner’s attorney) may be opened and inspected so long as it is not read.  (Wolff v. McDonnell, supra; People v. Poe (1983) 145 Cal.App.3rd 574; People v. White (1984) 161 Cal.App.3rd 246.) 

 

Outgoing mail may be monitored, “to prevent any threats emanating from inmates.”  (People v. Jones, supra, see Cal. Code Regs, Title 15, § 3138(a))

 

“Officials . . . have every right to inspect an inmate’s outgoing legal mail for such suspicious features as maps of the prison yard, the times of guards’ shift changes, and the like.”  (Nordstrom v. Ryan (9th Cir. 2014) 762 F.3rd 903, 906.)

 

The sole exception is legal correspondence to the defendant’s attorney (Cal. Code Regs, tit. 15, § 3141(b), (c):  “An attorney at law listed with a state bar.”  (subd. (c)(6)), which may be inspected, but not read.  (Wolff v. McDonnell, supra; Nordstrom v. Ryan, supra.)

 

The marital communication privilege, however, does not protect defendant’s personal letters to his wife.  (United States v. Griffin (9th Cir. 2006) 440 F.3rd 1138.)

 

“Intra-jail mail” between inmates may also be read “to discover any threats that might be made to an inmate, ‘snitch jackets’ placed on other inmates, and to detect coordination of possible escape attempts between inmates in custody.”  (People v. McCaslin (1986) 178 Cal.App.3rd 1, 4.)

 

Prison authorities may enact and enforce rules restricting the receipt of magazines and other literature so long as such regulations “support the legitimate penological interests of reducing prohibited behaviors such as sexual aggression and gambling and maintaining respect for legitimate authority.”  (Bahrampour v. Lampert (9th Cir. 2004) 356 F.3rd 969.)

 

A prison inmate has a viable lawsuit under 42 U.S.C. § 1983 where he has alleged that prison officials have opened and read, as opposed to merely inspected for contraband, his legal mail address to his attorney, and, in seeking injuctive relief, he sufficieintly alleged the threatened repetition of his Sixth Amendment rights where he remains incarcerated and a corrections director personally informed him that prison officals were permitted to read his legal mail.  (Nordstrom v. Ryan (9th Cir. 2014) 762 F.3rd 903,908-912; citing Wolff v. McDonnell, supra, which upheld the right of jail officials to open and inspect, but not read, mail to an inmates attorney.) 

 

Under the theory of People v. Loyd (2002) 27 Cal.4th 997, it would seem that monitoring all non-legal mail, coming in and going out of a facility, would be constitutionally permissible even if the purpose is to look for incriminating evidence.

 

Note:   None of the above cases have required, or indicated the need for, a search warrant to monitor jail mail.

 

Relationship to the Fifth Amendment Right to Counsel:

 

Fifth Amendment Right to an Attorney:  Applies, typically, to that time period between (1) the taking of the suspect into custody and (2) the initiation of criminal proceedings.

 

Although not specifically mentioned in the Fifth Amendment, a criminal suspect’s right to the assistance of an attorney during a custodial interrogation prior to the filing of an accusatory pleading can be inferred due to the Supreme Court’s decision in Miranda v. Arizona (1966) 384 U.S. 436, 445 [16 L.Ed.2nd 694, 708].)

 

Arraignment and the Fifth Amendment:  Requesting an attorney at an arraignment, line-up or bail review, has been held to be an invocation of the offense-specific Sixth Amendment right to counsel, but not the non-offense-specific Fifth Amendment implied right to counsel.  (McNeil v. Wisconsin (1991) 501 U.S 171, 178-179 [115 L.Ed.2nd 158, 169]; People v. Lispier (1992) 4 Cal.App.4th 1317, 1324-1326; United States v. McKinley (7th Cir. 1996) 84 F.3rd 904; United States v. Doherty (6th Cir. 1997) 126 F.3rd 769, 774-775; United States v. Melgar (4th Cir. 1998) 139 F.3rd 1005, 1011.)

 

However, ignoring one’s Fifth Amendment, Miranda rights does not become an actual Fifth Amendment violation, triggering sanctions, until some use of the defendant’s resulting statements is made during the prosecution phase of the criminal case.  (Chavez v. Martinez (2003) 538 U.S. 760 [155 L.Ed.2nd 984].)

 

The current debate is whether the point in time where sanctions are appropriate is when the resulting statements are actually used at the criminal trial itself, or at some point in the prosecution before trial; e.g., when it has been relied upon to file formal charges against the declarant, to determine judicially that the prosecution may proceed, and/or to determine pretrial custody status.  The Ninth Circuit is of the opinion that the earlier stages are when the Fifth Amendment requires sanctions to be imposed.  (Stoot v. City of Everett (9th Cir. 2009) 582 F.3rd 910, 922-925.)

 

Legal Implications:  If, after a Miranda admonishment, a suspect invokes his Fifth Amendment “right to counsel” (as opposed to his Fifth Amendment “right against self-incrimination”), the officer must cease questioning (See Taylor v. Maddox (9th Cir. 2004) 366 F.3rd 992.) and may never (absent a lawful exception) come back and question him or her again about that case or any other case as long as he or she remains in custody.  (Edwards v. Arizona, (1981) 451 U.S. 477 [68 L.Ed.2d 378]; sometimes called the “Edwards Rule.”)

 

This is true even if the officer conducting the second interrogation is unaware of the prior invocation of the subject’s rights.  (Arizona v. Roberson (1988) 486 U.S. 675, 687 [100 L.Ed.2nd 704, 717].)

 

This is also true even though before the officer’s return, the in-custody defendant has had the opportunity to, or did in fact consult with an attorney.  (Minnick v. Mississippi (1990) 498 U.S. 146 [112 L.Ed.2nd 489].)

 

“Edwards v. Arizona added a second layer of protection to the Miranda rules, holding that ‘when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.  [Citation]’”  (Michigan v. Harvey (1990) 494 U.S. 344, 350 [108 L.Ed.2nd 293, 302].)

 

             Necessity for a clear, unambiguous, invocation:

 

The Fifth Amendment right to counsel can only be invoked by a clear, express, and unambiguous request for an attorney.  Any ambiguous attempts to ask for an attorney will be held to be legally ineffective.  (Davis v. United States (1994) 512 U.S. 452 [129 L.Ed.2nd 362].) 

 

“During an interrogation, moreover, an officer has no obligation to clarify the ambiguous statement by the accused.”  (United States v. Muhammad (7th Cir. 1997) 120 F.3rd 688, 698; citing Davis v. United States, supra, at p. 461 [129 L.Ed.2nd at p. 372].)

 

Compare:  Any ambiguity in an invocation of the “right to remain silent” may be decided in the defendant’s favor (People v. Green (1987) 189 Cal.App.3rd 685, 693.), although recent authority seems to hint that such an invocation must also be unambiguous in order to be legally effective.  (See People v. Stitely (2005) 35 Cal.4th 514, 534-536; and Arnold v. Runnels (9th Cir. 2005) 421 F.3rd 859, 870.)

 

“Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”  (Davis v. United States, supra.)

 

Examples:

 

Davis v. United States, supra, at p. 459 [129 L.Ed2nd at p. 371]; The defendant’s statement that; “Maybe I should talk to a lawyer,” was held to be ambiguous as an invocation and subject to clarification.

 

See also People v. Crittenden (1994) 9 Cal.4th 83, 129, for a summary of pre-Proposition 8 California cases where equivocal comments concerning the need for an attorney were held to be effective invocations.  However, the Supreme Court recognized in Crittenden that California now abides by the federal rule as announced in Davis.  (Id., at pp. 129-131; “Did you say I could have a lawyer?” held not to be an effective invocation.)

 

“I just thinkin’, maybe I shouldn’t say anything without a lawyer and then I thinkin’ ahh.”  No invocation.  Defendant did not clearly and unambiguously request an attorney.  (People v. Bestelmeyer (1985) 166 Cal.App.3rd 520, 528.)

 

“Do you think I need a lawyer?”  No invocation.  (Diaz v. Senkowski (2nd Cir. 1996) 76 F.3rd 61, 63.)

 

“I think I need a lawyer.”  No invocation.  (Burket v. Angelone (4th Cir. 2000) 208 F.3rd 172, 198.)

 

“I don’t know if I should without a lawyer,” together with defendant’s later comment, “Okay, that one,” held not to be an invocation when taking into consideration the circumstances (i.e., defendant’s later comment about “that one” held to be referring to a particular question, and not one of his enumerated rights) and his later actions.  (People v. Michaels (2002) 28 Cal.4th 486, 510.)

 

Clark v. Murphy (9th Cir. 2003) 317 F.3rd 1038:  Defendant’s statement; “I think I would like to talk to a lawyer,” held to be equivocal, and ineffective as an invocation.  Also, his later statement; “Should I be telling you or should I talk to a lawyer” was found to not even be close.

 

People v. Sapp (2003) 31 Cal.4th 240, 264-269:  “Maybe I should have an attorney:”  Too ambiguous, even though as to pre-Proposition 8 offenses (June 8, 1982), such a comment is legally effective, it is clearly not sufficient for any offenses occurring after that date.

 

Announcing, while being arrested, that she intended to call her lawyer was held not to be a clear and unequivocal invocation in People v. Nguyen (2005) 132 Cal.App.4th 350, 357-358.

 

Asking, “How long would it take for a lawyer to get here for me?” several times is not an invocation. (People v. Simons (2007) 155 Cal.App.4th 948, 953-959.)

 

“I think I probably should change my mind about the lawyer now” held to be an equivocal statement which, under the circumstances, an officer could reasonably believe that defendant was no more than thinking about changing his mind about his prior waiver.  (People v. Shamblin (2015) 236 Cal.App.4th 1, 29-38.)

 

Telling a court-appointed psychiatrist that; “I’d sort of like to know what my lawyer wants me to do,” was held not to be an unambiguous invocation of the right to counsel.  (Petrocelli v. Baker (9th Cir. 2017) 869 F.3rd 710, 721-724.)

 

After an initial (implied) waiver, defendant interjected into the conversation: “Then charge me sir. I, I can get a lawyer.”  When asked if he was asking for a lawyer, defendant responded: “Yeah, yeah. Do, do I, if anything . . .” When asked again if he wanted to talk to a lawyer, defendant said:  “Listen, listen. If you're gonna charge me, charge me. If not, let me go. Or, or call … immigration and say I'm here illegally. . . Okay, okay. You, you, but you read me my rights, but what I under arrest for?”  The Court held that defendant’s reference to getting a lawyer was objectively ambiguous because from the start of the interrogation, defendant responded to almost every statement and question posed by the detectives by saying, “yeah, yeah.”  (People v. Johnson (2019) 32 Cal.App.5th 26, 56-57.)

 

The following colloquy held not to be a clear and unequivocal invocation of defendant’s right to counsel: Defendant: “Can I ask you a question?” Detective: “Sure.” Defendant: “They’ll assign me a PD, right?” Detective: “Right.”  Defendant: “I can sit down and talk to my PD first, then talk with you all?”  Detective: “Yeah.”  Defendant: “Can I do that?”  Detective: “Yeah. I mean, that's one of your options and that’s why we’re here, you know.” Defendant: “That’s, I would, I would (unintelligible; defendant later claiming that he said he would “feel more comfortable” if he spoke to a public defender first,” (People v. Molano (2019) 7 Cal.5th 620, 658-660.)

 

Test:  Whether or not a defendant’s comments are an invocation depends upon how a “reasonable officer” would have understood what he said, under the circumstances.  (People v. Gonzalez (2005) 34 Cal.4th 1111, at pp. 1123-1124; citing Davis v. United States, supra.  See also People v. McMahon, supra, at p. 96.)

 

Issue:  Need for a prior waiver?:  In Davis v. United States, supra, the defendant had waived his Miranda rights and answered questions for a period of time before unsuccessfully attempting to invoke this right to an attorney. 

 

Some of the language in People v. Gonzalez (2005) 34 Cal.4th 1111, where the defendant had also waived his rights and answered some questions before raising the issue of his right to an attorney, could be interpreted as requiring a prior waiver before the rule of Davis is applicable. 

 

The California Supreme Court in People v. Stitely (2005) 35 Cal.4th 514, 534-536 (a “right to silence” case), although not discussing the issue, infers strongly that there is in fact a requirement for a prior waiver before an equivocal attempt at an invocation will be held to be legally insufficient. 

 

In People v. Nelson (2012) 53 Cal.4th 367, the California Supreme Court makes it very clear that the rule that an invocation of either the defendant’s right to remain silent or to the assistance of counsel must be clear and unequivocal to be legally effective applies only after a prior waiver and an alleged attempt to invoke mid-interrogation.

 

Compare:  A criminal defendant’s Sixth Amendment right to counsel automatically kicks in upon the initiation of criminal proceedings.  (See above.)

 

A Fifth Amendment right to counsel is “non-offense-specific.”

 

This means that it attaches to any and all crimes, whether or not charged, so long as he or she remains in custody.  (McNeil v. Wisconsin (1991) 501 U.S. 171 [115 L.Ed.2nd 158]; Arizona v. Roberson, supra.)

 

Query #1:  Is an in-custody defendant therefore perpetually immune from questioning for any new offenses committed while still in custody?  Probably not:

 

Answers to questions during an investigation of an in-custody defendant’s plan to kill a witness were obtained in violation of his Sixth Amendment (Massiah) rights as far as the pending case was concerned, but were held to be admissible in the separate prosecution of any, as of yet uncharged, new case.  (Maine v. Moulton (1985) 474 U.S. 159 [88 L.Ed.2nd 481].)

 

An in-custody defendant's statements to an undercover officer posing as a “hit man” about eliminating a witness were held to be inadmissible in the trial of the then pending charges only.  (In re Wilson (1992) 3 Cal.4th 945, 951-955; discussing the Massiah issue; and see Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199; 12 L.Ed.2nd 246]; see below.)

 

Query #2:  Is an in-custody defendant also therefore perpetually immune from questioning about all prior offenses committed before having been taken into custody, when defendant is serving an extended term?  For instance, is law enforcement precluded from questioning a “lifer” about a 10 or 15-year-old homicide?  Probably not:

 

See United States v. Green (D.C. App. 1991) 592 A.2nd 985, cert. granted, (1992) 504 U.S. 908; (1993) 507 U.S. 545 [123 L.Ed.2nd 260]; vacating order granting cert. Arguments heard, 52 Crim. L. Rev. (BNA) 3096-97 (Nov. 30, 1992); where the lower appellate court found that interviewing an in-custody juvenile about a separate, uncharged offense, five months after he invoked his right to an attorney on the prior, charged case, but before being sentenced, was a violation of the Edwards rule.  (The appeal was never resolved by the Supreme Court because the defendant was murdered before a decision could be reached.)

 

But also see Clark v. State (2001) 140 Md.App. 540, 584-600, in a detailed analysis of the issue, holding that after a defendant is convicted and sentenced, the inherent pressures of incarceration dissipate to the extent that the purposes behind the Edwards rule are no longer applicable.  Questioning on a prior, uncharged case, therefore, should be permissible.

 

The United States Supreme Court recently solved this dilemma in Maryland v. Shatzer (Feb. 24, 2010) 559 U.S.__ [130 S.Ct. 1213; 175 L.Ed.2nd 1045], where it was held that after a Miranda invocation of a suspect’s right to counsel, the interrogation may be reinitiated following a 14-day break in custody.   The defendant in this case was a prison inmate, serving time on a prior conviction.  Recognizing the uniqueness of this type of situation, the Court further held that retuning the defendant to the general prison population is such a break in custody.

 

Compare:  One’s Sixth Amendment “right to Counsel” is “offense-Specific,” meaning that it protects the defendant from being questioned only about offenses already charged.  (See above)

 

Where the suspect fails to specify which right (“right to counsel” vs. “right to remain silent”) following a Miranda advisal, he or she will be held to be invoking a right to silence only.  (People v. Lispier (1992) 4 Cal.App.4th 1317, 1322; see also People v. DeLeon (1994) 22 Cal.App.4th 1265, 1269-1272.)

 

Attorney's Attempts to Invoke Client's Fifth or Sixth Amendment Rights prior to Arraignment:

 

Note that the Sixth Amendment does not attach until the defendant has been charged in court (i.e., formal charge, indictment, information, arraignment, or the suspect's first appearance in court; see Michigan v. Jackson (1986) 475 U.S. 625, 633 [89 L.Ed.2nd 631, 640].), and therefore does not prevent police from questioning a suspect until that point, even when the attorney calls police beforehand and commands them not to question his or her client.  (See People v. Stephens (1990) 218 Cal.App.3rd 575, 585.)

 

The Sixth Amendment right is not applicable until defendant has been charged in court (i.e., arraigned).  (United States v. Gouveia (1984) 467 U.S. 180, 187-188 [81 L.Ed.2nd 146, 153-154].)

 

“(T)he suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel.  The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more that it is to protect a suspect from the consequences of his own candor.”  (Moran v. Burbine (1986) 475 U.S. 412, 430 [89 L.Ed.2nd 410, 427]; United States v. Harrison (9th Cir. 2000) 213 F.3rd 1206, 1212-1213.)

 

Attempts by defense counsel to invoke a criminal defendant’s Fifth or Sixth Amendment rights merely by filing a document in court purporting to do so are legally ineffective.  (United States v. Grimes (11th Cir. 1998) 142 F.3rd 1342, 1347-1348; Alston v. Redman (3rd Cir. 1994) 34 F.3rd 1237; United States v. Thompson (2nd Cir. 1994) 35 F.3rd 100; People v. Avila (1999) 75 Cal.App.4th 416; People v. Beltran (1999) 75 Cal.App.4th 425.)

 

This means that any attempts by an attorney to insulate his client from questioning during a police investigation, prior to indictment, by “warning” the police not to talk to his client has no legal effect.  (Moran v. Burbine, supra.)

 

But see United States v. Harrison (9th Cir. 2000) 213 F.3rd 1206; a case where the Ninth Circuit Court of Appeal determined that an uncharged criminal suspect’s Sixth Amendment rights were violated when defendant had retained counsel, the government knew that he had counsel for purposes of the pending investigation, and an eventual indictment brought charges precisely anticipated by the scope of the pre-indictment investigation.  A questionable decision in light of other case law.

 

Also, an attorney’s attempt to invoke his or her clients’ Fifth Amendment rights does not shield the defendant:

 

Only the defendant may invoke the protections of the Fifth Amendment, and then only at the time questioning is attempted.  (McNeil v. Wisconsin (1991) 501 U.S. 171, 182, fn. 3 [115 L.Ed.2nd 158, 171]; United States v. Wright (9th Cir. 1992) 962 F.2nd 953, 955; People v. Calderon (1997) 54 Cal.App.4th 766.) 

 

His or her attorney cannot do it for him.  (Moran v. Burbine, supra.)

 

Events occurring outside the presence of a suspect, such as an attempt by the suspect’s attorney to contact him, and entirely unknown to him, can have no bearing on the suspect’s capacity to comprehend and knowingly relinquish a constitutional right.  (Moran v. Burbine, supra, at p. 422 [89 L.Ed.2nd at p. 421].)

 

California’s prior contrary rule, under People v. Houston (1986) 42 Cal.3rd 595, was abrogated by Proposition 8.  (People v. Ledesma (1988) 204 Cal.App.3rd 682, 689.)

 

Note, however, that if the defendant in such a circumstance has been formally charged in court, such as by the filing of an indictment, then ignoring an attorney’s attempt to make contact with his client while an interrogation is proceeding would be a Sixth Amendment violation.  (Patterson v. Illinois (1988) 487 U.S. 285, 296 [101 L.Ed.2nd 261].)

 

There is no requirement that the police notify defendant’s retained attorney before beginning any questioning that is constitutionally allowable.  (People v. Duck Wong (1976) 18 Cal.3rd 178, 187; People v. Sultana (1988) 204 Cal.App.3rd 511, 521.)

 

Sixth Amendment Right to a Jury Trial:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, . . .”

 

Right to a Unanimous Jury Verdict:

 

The Sixth Amendment right to a jury trial, as incorporated against the States by way of the Fourteenth Amendment, required a unanimous verdict to convict a defendant of a serious offense.  At the time of the Sixth Amendment’s adoption, the right to trial by jury included a right to a unanimous verdict, and it was not the court’s role to reassess whether the right to a unanimous jury was important enough to retain.  (Ramos v. Louisiana (Apr. 20, 2020) __ U.S. __ [140 S.Ct. 1390; 206 L.Ed.2nd 583].)

 

This decision, however, has been held to not be retroactive, at least on federal collateral review.  (Edwards v. Vannoy (May 17, 2021) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __; 2021 U.S. LEXIS 2584]:  Consistent with a long line of retroactivity judicial precedents, the recently adopted Ramos jury-unanimity rule does not apply retroactively on federal collateral review. The Ramos rule was a new rule of criminal procedure as it renounced prior precedent and expressly required unanimous jury verdicts in state criminal trials. However, the rule did not fall within the watershed exception to apply retroactively because the arguments for retroactivity had already been squarely rejected in previous decisions that were momentous and consequential.

 

In a Death Penalty Case:

Defendant’s request for Habeas Corpus relief was predicated on the alleged denial of his Sixth Amendment right to trial by jury at the penalty phase of his trial, after pleading guilty of first degree murder. At the time of his trial, Arizona law mandated that the trial judge alone determine whether a sentence of death should be imposed following a conviction for first-degree murder. The United States Supreme Court declared that sentencing scheme unconstitutional in Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428; 153 L.Ed.2nd 556], after defendant’s trial. On remand of defendant’s case here, for further consideration in light of Ring, the Arizona Supreme Court ruled that the denial of defendant’s right to a jury trial during the penalty phase was harmless beyond a reasonable doubt—the standard for review of nonstructural constitutional errors under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824; 17 L.Ed.2nd 705].).  (Sansing v. Ryan (May 17, 2021) __ F.3rd __, __ [2021 U.S. App. LEXIS 14530].)

 

At a Parole Hearing:

 

Defendant did not have a federal constitutional right to have a jury determine, based on proof beyond a reasonable doubt, whether he violated his parole by failing to keep his GPS device charged. Pen. Code, § 3010.10's mandatory 180-day custody sanction did not violate defendant’s constitutional right to a jury trial. The reasoning of the plurality opinion in United States v. Haymond (2019) 588 U.S. ­­__ [204 L.Ed.2nd 897; 139 S.Ct. 2369].), which observed that a judge’s authority to issue a sentence derives from, and is limited by, the jury’s factual findings of criminal conduct, did not apply to defendant’s case. Defendant’s sentence did not subject him to any greater punishment than he had already received at the time he was sentenced to three years in prison for his commitment offense. The sentence did not present the concern, present in Haymond, of bypassing a defendant's constitutional jury trial right for a new offense.  (People v. Schaffer (2020) 53 Cal.App.5th 500.)

 

The Appellate Court disagreed with defendant’s contention that the U.S. Supreme Court’s decision in United States v. Haymond, supra, entitled him to have a jury determine whether he violated parole beyond a reasonable doubt. Pen. Code § 3000.08, subd. (h), states only that a parolee falling under it must be returned to prison; it does not expressly limit the length of commitment that an individual like defendant may have to ultimately serve. Under the majority view in Haymond, for constitutional purposes, the initial criminal conviction authorizes not only the maximum term of imprisonment for the crime but also authorizes the maximum term of supervised release or parole. Accordingly, defendant was not entitled to have a jury make findings using the beyond a reasonable doubt standard under Haymond, despite the possibility he faced a lengthy prison term for his parole violation.  (People v. Martin (2020) 58 Cal.App.5th 189.)

 

Extension of Commitment after an NGI Verdict:

 

In a case in which the People petitioned to extend defendant’s involuntary commitment after having been found not guilty by reason of insanity, the trial court prejudicially erred by deciding in defendant’s absence that he was incompetent to decide whether to waive his right to a jury trial, and by accepting his counsel’s waiver of that right. Defendant’s subsequent testimony at trial suggested that had he been present at the pre-trial hearing, he might well have been able to dispel any doubt about his capacity to understand the jury-waiver decision. The relevant question was not whether defendant then possessed the necessary knowledge to make an informed waiver decision, but whether he had the capacity to understand the decision, once informed of his right to make it. The Court held that it was not confident the violation of defendant’s right to be present at the pretrial hearing was harmless beyond a reasonable doubt.  (People v. Ford (2020) 56 Cal.App.5th 385.)

 

Note:  A criminal defendant found not guilty by reason of insanity may be committed to a state medical facility for a period equal to the maximum sentence the court could have been imposed for the underlying offense, per Pen. Code § 1026.5(a)(1).  Before this term expires, the prosecuting attorney may file a petition with the superior court seeking to extend the defendant's commitment by two years. (P.C. § 1026.5(b))

 

In a P.C. § 1170.95 Hearing for Resentencing:

 

In a case in which defendant appealed the trial court's denial of his petition for resentencing under Pen. Code, § 1170.95, the appellate court concluded the denial of defendant's request for a jury trial did not violate his rights under the Sixth and Fourteenth Amendments. The relief granted by Senate Bill No. 1437, in which § 1170.95 was included, is an “act of lenity” not subject to Sixth Amendment analysis. Because the authorization of retroactive relief in Senate Bill No. 1437 was an act of lenity, the Legislature was free to condition the availability of such relief on the convicted person prevailing at an evidentiary hearing conducted pursuant to the non-jury procedure set forth in § 1170.95. If it were necessary to conduct another jury trial, it is unlikely that the Legislature would have enacted the procedure in the first place.  (People v. James (2021) 63 Cal.App.5th 604.)

 

Note:  Pen. Code § 1170.95 provides for resentencing for a person convicted of felony murder or murder under a natural and probable consequences theory.)

 

It has been held that there is no error in the trial court admitting in a Penal Code section 1170.95 evidentiary hearing a parole comprehensive risk assessment and a transcript of a parole suitability hearing.  First, a review of legislative history showed the term “new or additional evidence” in the statute does not circumscribe the evidence to the original trial proceedings and its admitted or then existing admissible evidence.  Second, the limitation in People v. Trujillo (2006) 40 Cal.4th 165, 179, on considering a post-plea admission in a probation report to determine if the plea amounted to a strike, was not applicable as double jeopardy principles were not at stake but only eligibility for a legislative act of lenity. Third, the defendant was not entitled to a form of use immunity for participating in the parole process as the process at issue was an act of lenity—not a criminal trial—and the defendant was not compelled to file her petition, participate in her risk assessment interview, or testify at her parole hearing.  Lastly, even if erroneously admitted, any error was harmless since the balance of the evidence provided “strong circumstantial evidence that defendant acted alone” such that the case, resolved by a plea after a preliminary hearing, did not involve a theory of felony murder or the natural and probable consequences doctrine.  (People v. Myles (Sep. 29, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 812].)

 

Juror’s Refusal to Deliberate:

 

Defendant was convicted of child molestation.  During days of deliberations, jurors reported that a single holdout was “refus(ing) to deliberate.”  The trial court replaced the juror, prompting convictions several hours later.  The Appellate Court reversed.  Review of the removal of a juror is less deferential, in that the justification must be grounded in a “demonstrable reality.”  Here, the trial court was overly focused on the other jurors' opinions about whether the juror was deliberating, as opposed to the juror’s actual conduct.  The jurors’ commentaries “did not reveal that her conduct objectively evinced a refusal to speak with other jurors or consider their viewpoints and the evidence adduced at trial.”  “Simply because the other jurors were not satisfied with her opinion and the quality of her reasoning does not support a finding that she was refusing to deliberate.”  “(H)er refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors also does not amount to misconduct.”  Finally, the holdout’s “emotional distance” was not by itself evidence of a refusal to deliberate.  (People v. Barton (2020) 52 Cal.App.5th 415; criticizing the trial court for failing to “lead its own inquiry.”  The attorneys’ questions “shaped the inquiry and framed the trial court's ultimate decision.”  See People v. Cleveland (2001) 25 Cal.4th 466.) 

 

The People’s Right to a Jury Trial:

 

The People of the State of California have a constitutional right to trial by jury in criminal cases. (Cal. Const. art. I, § 16; see, e.g., People v. Washington (1969) 71 Cal.2nd 1061, 1086-1087; “(I)n this state the right to trial by jury in a criminal case may be waived only ‘by the consent of both parties, expressed in open court by the defendant and his counsel, . . .’ (Cal. Const. art. I, § 7)  

 

In a case where the Court of Appeal upheld a summary denial of defendant’s petition for relief under P.C. § 1170.95, the Attorney General argued that defendant receive a hearing because defendant essentially claimed that the court of appeal got the facts wrong.  (He directed a fellow gang member to stab a beaten, incapacitated victim, then taunted him as he died.)  Section 1170.95 was added to the Penal Code by Senate Bill No. 1437, which became effective on January 1, 2019.  If a defendant has previously been convicted of murder under the felony-murder rule or the natural and probable consequences doctrine and qualifies for relief under section 1170.95, the new statute permits the defendant to petition to vacate the conviction and obtain resentencing on any remaining counts. One of the criteria for relief is that the defendant could not presently be convicted of murder because of changes made by S.B. 1437. (P.C. § 1170.95(a)(3).) To obtain the evidentiary hearing such as defendant sought here, he must make a “prima facie showing” that he satisfies the statutory criteria. (Id., subd. (c).)  A concurring opinion expressed a frustration with the “hundreds, if not thousands, of these types of cases” wrought by SB 1437, noting how it may be interfering with the People’s right to a jury trial:  “In the guise of an ‘ameliorative’ retroactive resentencing statute, [the Legislature] may have interfered with the People’s constitutional right at the initial trial by voiding the jury verdict.  It again may have interfered with the constitutional right to jury trial by allowing a ‘retrial’ to the superior court, sitting without a jury.”  “[Though these issues are not presented here,] make no mistake, this issue lurks beneath the calm surface of a roiling constitutional sea.” (People v. Garcia (2020) 57 Cal.App.5th 100, 120-121.)

 

Sixth Amendment Right to Compulsory Process:

 

“The Compulsory Process Clause of the Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend VI.  The right to compulsory process encompasses ‘[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary.’ Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 18 L.Ed.2nd 1019 (1967). As ‘a fundamental element of due process of law,’ the right to compulsory process is incorporated against the states through the Due Process Clause of the Fourteenth Amendment. See id. at 19, 20.”  (Soo Park v. Thompson (9th Cir. 2017) 851 F.3rd 910, 919.)

 

The Supreme Court has established that the government violates due process when its conduct “effectively dr[ives a] witness off the stand.”  (Webb v. Texas (1972) 409 U.S. 95, 98 [93 S.Ct. 351, 34 L.Ed.2nd 330]; holding that the right to present a defense was violated when the trial judge singled out and admonished a defense witness about the risks of perjury in “unnecessarily strong terms"..”)

 

“(W)rongful conduct by prosecutors or law enforcement officers can also constitute ‘substantial government interference’ with a defense witness’s choice to testify. See, e.g., United States v. Vavages, 151 F.3rd 1185, 1189 (9th Cir. 1998) (‘[T]he conduct of prosecutors, like the conduct of judges, is unquestionably governed by Webb.’); United States v. Little, 753 F.2nd 1420, 1439-40 (9th Cir. 1984) (analyzing claim of defense witness intimidation by IRS agents); see also Ayala (v. Chappell (9th Cir. 2016) 829 F.3rd (1081,) at 1111 (explaining that allegations of witness intimidation by detective, taken as true, would amount to constitutional violation).”  (Soo Park v. Thompson, supra.)

 

“It is well established that ‘substantial government interference with a defense witness’s free and unhampered choice to testify amounts to a violation of due process.’”  (Ayala v. Chappell (9th Cir. 2016) 829 F.3rd 1081, 1111; quoting Earp v. Ornoski (9th Cir. 2005) 431 F.3rd 1158, 1170.)

 

However, “the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses,” but only “witnesses in his favor.”  (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867 [102 S.Ct. 3440; 73 L. Ed.2nd 1193].)

 

“Consequently, even where there may have been governmental misconduct, a criminal defendant cannot establish a violation of his compulsory process right unless he ‘make[s] some plausible showing’ of how the potential witness’s ‘testimony would have been both material and favorable to his defense.’”   (Soo Park v. Thompson, supra, quoting United States v. Valenzuela-Bernal, supra.)

 

A Sixth Amendment witness interference claim fails without showing of relevance and materiality.  (Cacoperdo v. Demosthenes (9th Cir. 1994) 37 F.3rd 504, 509.)

 

Although it is permissible for law enforcement to contact potential witnesses before trial for investigatory purposes, it is pushing the envelope when that witness is told that he or she has a right not to speak with representatives of the defense.  If not careful, such advice might be considered a substantial interference if it is proved that a potential witness was "threatened, coerced, manipulated, and/or intimidated.”  (Soo Park v. Thompson, supra, at pp. 920-921.)

 

Practice Tip:  In advising a potential witness of his or her right not to talk with defense investigators, it is best to also advise the witness that you are not telling them what to do, and that the choice is completely up to the witness.  It is also a good idea to tell the witness that if they choose to talk with a defense investigator, that having someone else present to witness what is said, or to use a tape recorder, is not a bad idea, insuring that what they say is not taken out of context.

 

Defendant was not deprived of the right to compulsory process under U.S. Const., 6th Amendment and Cal. Const. art. I, § 15, when a witness invoked the self-incrimination privilege under U.S. Const., 5th Amend., and Evid. Code, § 404, because the witness lacked credibility.  The privilege was properly granted to the witness because the witness could have been charged under Pen. Code § 32, as an accessory.  The prosecution did not engage in misconduct by not discussing a letter sent by the witness because no intent to mislead was shown.  (People v. Capers (2019) 7 Cal.5th 989.)

 

The Sixth Amendment Right to a Speedy Trial:

 

General Rule:

 

A delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. (People v. Nelson (2008) 43 Cal.4th 1242, 1250; quoting People v. Catlin (2001) 26 Cal.4th 81, 107; see also People v. Lazarus (2015) 238 Cal.App.4th 734, 754-760.)

 

Factors:

 

The United States Supreme Court has identified four factors to use to evaluated whether a criminal defendant’s due process rights to a speedy trial has been violated:  Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.  (Barker v. Wingo (1972) 407 U.S. 514, 530-533 [92 S.Ct. 2182; 33 L.Ed.2nd 101].)

 

The Issue of Prejudice:

 

It is the defendant’s burden to demonstrate prejudice arising from the delay. (People v. Nelson (2008) 43 Cal.4th 1242, 1250; People v. Catlin (2001) 26 Cal.4th 81, 107; People v. Lazarus (2015) 238 Cal.App.4th 734, at p. 754.)

 

Prejudice may be shown by loss of material witnesses due to lapse of time or loss of evidence because of fading memory attributable to the delay.  (People v. Catlin, supra; People v. Lazarus, supra.)

 

Once the defendant shows prejudice, it then becomes the prosecutions burden to offer justification for the delay.  The court will then balance the harm to the defendant against the justification for the delay.  People v. Nelson, supra; People v. Catlin, supra; People v. Lazarus, supra, at pp. 754-760.)  

 

A defendant seeking to dismiss a charge on a violation of his right to a Speedy Trial grounds must demonstrate prejudice arising from the delay.  The prosecution may then offer justification for the delay, with the court balancing the harm against the justification for delay.  Negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process.  However, whether the delay was negligent or purposeful is relevant to the balancing process.  Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice will suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice will be required.  In this case, defendant was not substantially prejudiced by the delay in bringing charges for the murder and rape of an eight-year-old child committed in 1979 and charged in 2002 after a cold hit revealed a DNA match in that no reason existed to believe that witnesses who had died would have supplied exonerating evidence.  Also, the investigative delay was justified in that defendant was not even a suspect until DNA connected him to the crimes.   (People v. Cordova (2015) 62 Cal.4th 104, 117-120.)

 

In a case in which defendant appealed the revocation of her post-release community supervision (PRCS), the appellate court rejected her contention that her procedural due process rights were violated because she was not arraigned in superior court within 10 days of her arrest or provided her Morrissey-complaint probable cause hearing.  P.C. § 3455(c) requires that the revocation hearing be held within a reasonable time after the filing of the revocation petition.  Defendant made no showing that she was prejudiced by the PRCS revocation procedures or that due process requires a court arraignment for a PRCS revocation.  The revocation hearing was conducted approximately 45 days after her arrest.  Nothing in the PRCS revocation procedures employed in this case violated the letter or spirit of Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2nd 484] (describing parole revocation proceedings) or People v. Vickers (1972) 8 Cal.3rd 451 (extending the Morrissey parole revocation requirements to probation revocations).   (People v. Byron (2016) 246 Cal.App.4th 1009.)

 

Defendants in two cases (Dickerson and Buggs) both filed a writ challenging their respective trial courts’ denial of due process dismissal motions for pre‑accusation delay. The rule is that when a defendant establishes actual prejudice with evidence, the burden shifts to the prosecution to justify the delay with evidence.  The court must then balance the relative strengths of those showings. In these cases, prosecutors attempted to justify the pre-filing delay by making bare assertions that “charging deputy district attorneys are, at times, overwhelmed by the workload.” However, there was absolutely no evidence submitted to the trial court in either case to support the prosecution’s contention. Further, the prosecutors gave no explanation about why these two cases were delayed many months. The trial courts were therefore directed to consider the motions anew, and require that “substantial, competent evidence support the alleged justification.”  (Dickerson v. Superior Court (2019) 40 Cal.App.5th Supp. 1.)

 

No speedy trial violation arose from trying defendant in 2018 for a 1983 murder, in part because the 33-year delay was justified by the development of technology to analyze DNA. In 2016, defendant’s DNA was matched to bloodstains on the victim’s nightgown and a sink, and the prosecution then proceeded promptly.  (People v. Smothers (2021) 66 Cal.App.5th 829, 855-860.)

 

The Issue of Due Process:

 

In determining whether the delay resulted in a violation of due process, the trial court engages in a delicate judgment, by balancing the public interest in favor of the prosecution against the rights of the defendant. (Penney v. Superior Court (1972) 28 Cal.App.3rd 941, 954.)

 

The court will consider the particular circumstances surrounding the decision not to prosecute, the length of the delay, and the reasons for the subsequent re-evaluation and prosecution.  (Ibid.)

 

In a case in which defendant was civilly committed as a sexually violent predator, his federal speedy trial and due process rights were not violated by the three-year total delay and one-year delay following his demand for trial, and the trial court did not abuse its discretion in granting the district attorney'\’s motion to continue the trial date by six weeks, in that the pretrial confinement he experienced was not enough to establish he was denied his federal speedy trial right when the other Barker factors were taken into account, and because although he had a significant liberty interest, he requested much of the delay while the record revealed one delay of six weeks attributable to the prosecution which had a strong interest in continuing to seek the commitment of an alleged sexually violent predator.  (People v. Bradley (2020) 51 Cal.App.5th 32.)

 

A 13-year failure to bring a Sexually Violent Predator Act (SVPA) petition (Welf. & Insti. Code §§ 6600 et seq.) to trial required a dismissal for lack of a speedy trial, a violation of petitioner’s due process rights.   The Court attributed very little delay to the prosecution, but rather blamed the public defender’s staffing reductions primarily for the delay.  The Court also criticized the trial court for not proactively protecting the petitioner’s speedy trial right, for not assigning more judicial resources to the SVPA backlog, and for not intervening in the public defender’s resource decision-making (to include the office’s removal, if necessary).  Even so, the petitioner’s speedy trial rights were violated, requiring dismissal of the petition.  (People v. DeCasas (2020) 54 Cal.App.5th 785.)

 

An alleged sexually violent predator (SVP) defendant’s due process right to a timely trial was violated where he repeatedly asserted his trial right, his confinement in a state hospital for 13 years while he awaited a trial on his SVP petition was oppressive, and blame for the delay had to be shared between a district attorney’s office that abdicated its responsibility for prosecuting the case, a public defender’s office that disregarded defendant’s repeated demands for trial, and a trial court that took no meaningful action to set deadlines or otherwise ensure that defendant’s right to a timely trial was protected, given that eight public defenders and six prosecutors cycled through the case, three trial dates were set and vacated, and more than 50 continuances were granted without a single objection raised by opposing counsel or a finding of good cause made by the court.  (In re Butler (2020) 55 Cal.App.5th 614.)

 

In a civil commitment case under the Sexually Violent Predators Act (SVPA), Welf. & Inst. Code, § 6600 et seq., defendant's due process right to a timely trial was not violated by an 11-year span between the filing of the petition and the retrial. Under Barker v. Wingo (1972) 407 U.S. 514, 530-533 [92 S.Ct. 2182; 33 L.Ed.2nd 101] (see above), the length of the delay weighed in defendant’s favor, the various continuances were almost entirely at the request of the defense, and defendant had not demonstrated that his ability to prepare his defense was adversely affected by the delays. Any risk of an erroneous deprivation of liberty was mitigated by the procedural safeguards required by the SVPA, and the state had a compelling interest in protecting society from the risk defendant posed.  (People v. Tran (Mar. 2, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 247].)

 

DNA Issues:

 

The advent of DNA has allowed for the filing of cases where the offense occurred prior to the availability of such evidence.  (See People v. Lazarus (2015) 238 Cal.App.4th 734, 758-759.)

 

However, the fact that DNA technology has existed since the 1980’s does not mean that a particular defendant can complain that his or her case was not filed immediately.  “A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. ‘. . .  [T]he difficulty in allocating scarce prosecutorial resources . . . [is] a valid justification for delay . . . .’ [Citation.] It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner.” (People v. Lazarus, supra, at p. 759; a 23-year delay; quoting People v. Nelson, supra, at 1256-1257; a 26-year delay.)

 

Coronavirus (COVID-19) Pandemic Issues:

 

The severity of the global COVID-19 pandemic and the impact it has had within the state independently supported the trial court’s finding of good cause to continue the last day for the start of defendant's trial by 90 days under Pen. Code, § 1382.  The Appellate Court rejected defendant’s contention that the 90-day continuance had violated his constitutional right to access the courts and to due process. Defendant had not been denied access to the courts, as reflected by the very consideration of his speedy trial motion. Defendant’s due process rights had not been violated due to his prolonged pretrial detention during the pandemic. The appellate court noted that defendant did not allege that the conditions of his confinement posed a particular health risk to him that would raise constitutional issues.  (Stanley v. Superior Court (2020) 50 Cal.App.5th 164.)

 

However, the First District Court of Appeal held that COVID-19’s effect on holding timely hearings will not be presumed.  In a writ petition challenging the failure to provide a timely preliminary hearing, brought pursuant to Pen. Code, § 871.6, the Court concluded that good cause to delay an in-custody defendant’s preliminary hearing had not been established.  In the absence of a particularized showing of a nexus between the COVID-19 pandemic and the superior court’s purported inability to conduct defendant’s preliminary hearing in a timely fashion, the superior court abused its discretion in finding no violation of Pen. Code, § 859b.  (Bullock v. Superior Court [People] (2020) 51 Cal.App.5th 134; also holding that although the superior court should have granted defendant’s writ petition seeking dismissal of the complaint, the writ petition was subject to dismissal based on the negotiated disposition and plea resolving the charges against defendant.)

 

A trial court erred in denying defendant’s motion to set aside an information under Pen. Code § 995, where it should not have continued the preliminary hearing beyond the sixtieth day from his arraignment without a personal waiver from him because Pen. Code § 859b’s 60-day rule was absolute, there was no good cause exception to the rule, and the statewide emergency orders issued in 2020 by the California Governor and the Chief Justice of California that extended certain court deadlines in response to the COVID-19 pandemic did not extend or address the 60-day rule.  (Lacayo v. Superior Court of the City and County of San Francisco (2020) 56 Cal.App.5th 396.)

 

The district court erred in denying the government’s request for a continuance of defendant’s trial under the federal Speedy Trial Act's ends of justice provision, 18 U.S.C.S. § 3161(h)(7)(A), and dismissing the charges against defendant with prejudice.  The district court committed clear error in finding that continuances under the ends of justice provision were appropriate only if holding a criminal jury trial would be impossible, and in failing to consider whether an ends of justice continuance would result in a miscarriage of justice.  The district court also failed to consider relevant non-statutory considerations, which, in light of the COVID-19 pandemic, facilitated the proper balancing of whether the ends of justice served by granting a continuance outweighed the best interest of the public and defendant in convening a speedy trial.  The 9th Circuit called the district court’s ruling “troubling,” clearly wrong on the law and an abuse of discretion as a judge, resulting “in a miscarriage of justice.” Defendant in this case had asked for trial delays eight times over three years and was granted them.  Defendant demanded a speedy trial only after jury trials were suspended. “By that time, the prosecution had been ready for trial for months and was wholly blameless for the Central District’s suspension of jury trials.” Per the Court:  “Surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health.” (United States v. Olsen (9th Cir. 2021) 995 F.3rd 683.)

 

See also United States v. Torres (9th Cir. May 20, 2021) __ F.3rd __, __ [2021 U.S. App. LEXIS 96229]; “To the extent defendant argues that time should not have been excluded under the ends of justice provision because it was technically possible to hold a trial, the argument fails because actual impossibility is not required under that provision. Furthermore, the fact that businesses were open and that other courthouses held trials does not establish that the ends of justice were not served by continuing defendant’s trial under the circumstances, nor does it establish that the general orders were arbitrary, unreasonable or unjust. In fact, the Ninth Circuit has already upheld the propriety of the general orders.”  (Citing United States v. Olsen, supra, at p. __.)

 

The Court also denied defendant’s concurrent motion to dismiss under the Sixth Amendment right to a speedy trial and to “due process,” noting that “(a)lthough the analyses under the Due Process Clause and the Speedy Trial Clause are not identical, they do overlap significantly.” (Citing Barker v. Wingo (1972) 407 U.S. 514, 530 [92 S.Ct. 2182; 33 L.Ed.2nd 101; under Sixth Amendment right to speedy trial, courts must consider (1) length of delay, (2) reason for delay, (3) defendant's assertion of speedy trial right; and (4) prejudice to defendant). “Thus, in light of its finding that the Speedy Trial Act has not been violated, the Ninth Circuit's finding that the Due Process Clause has not been violated, and consideration of the factors enumerated in Barker, 407 U.S. 514, the Court finds that the COVID-19—related delays in defendant's trial have not violated his Sixth Amendment right to a speedy trial.”  (United States v. Torres, supra, at p. __.)

Note:  The “general orders” mentioned above refers to  orders issued by the Chief Judge of the Central District of California in reaction to the COVID-19 pandemic which together have suspended jury trials in the Western Division of the District from March 13, 2020, through June 7, 2021. See C.D. Cal. General Order 20-02 (March 17, 2020); C.D. Cal. General Order 20-05 (April 13, 2020); C.D. Cal. Amended General Order 20-08 (May 28, 2020); C.D. Cal. General Order 20-09 (August 6, 2020); C.D. Cal. General Order 21-03 (March 19, 2021); C.D. Cal. General Order 21-07 (April 15, 2021). (This Court sits in the Western Division, located in Los Angeles, California.)  The general orders were entered upon unanimous or majority votes of the district judges of the Central District with the stated purpose “to protect public health” and “to reduce the size of public gatherings and reduce unnecessary travel,” consistent with the recommendations of public health authorities.  (See Blueprint for a Safer Economy, https://covid19.ca.gov/safer-economy/.)

Additional Case:

 

Whether the delay was negligent or purposeful is relevant to the balancing process.  Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.” (Nelson, supra, at p. 1256; People v. Lazarus (2015) 238 Cal.App.4th 734.)

 

In the weighing process, the seriousness of the crime must be given appropriate consideration.  The fact that the Legislature has decreed no statute of limitations for murder shows the importance that society places on governmental efforts to bring a murderer to the bar of justice.  (Penney v. Superior Court (1972) 28 Cal.App.3rd 941, at p. 954; People v. Lazarus, supra, at pp. 757- 758.)

 

The delay may be unreasonable if the prosecution delayed in filing charges when all the evidence was discovered years earlier (People v. Hartman (1985) 170 Cal.App.3rd 572, 581.), or where the reason for the delay was not investigative needs but the lack of interest of the responsible agencies in prosecuting the defendants on the basis of the evidence. (People v. Pellegrino (1978) 86 Cal.App.3d 776, 781.)

 

However, it is appropriate for the prosecution to wait to file charges until they have at least probable cause to believe an accused is guilty and they have sufficient evidence to obtain a conviction.  (People v. Lazarus, supra, at p. 758.)

 

Where defendant pleaded guilty to bail jumping after failing to appear in court on domestic assault charges, and was held for over 14 months before being sentenced to seven years in prison in large part due to institutional delay, he argued on appeal that the 14-month delay between conviction and sentencing violated his speedy trial right.  The Montana Supreme Court held that the Sixth Amendment’s Speedy Trial Clause did not apply to presentencing delay.  The United States Supreme Court affirmed:  “We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.”  (Betterman v. Montana (May 19, 2016) __ U.S. __ [136 S.Ct. 1609; 194 L.Ed.2nd 723].)

 

The Ninth Circuit declined to adopt a rule that the government had a valid reason to delay defendant’s federal prosecution when defendant was subject to concurrent state proceedings but instead adopted an ad hoc approach to evaluating delays caused by concurrent state proceedings, holding that a court had to consider the nature and circumstances of the delay in order to determine whether (and how much) it weighed against the government.  In defendant’s case, the length of delay (two years) favored dismissal and the delay was presumptively prejudicial.  Because the district court might have erred in balancing the government’s reasons for the delay, the case had to be remanded for the district court to reevaluate the issue using the U.S. Supreme Court’s balancing test under Barker v. Wingo (1972) 407 U.S. 514, 530-533 [92 S.Ct. 2182; 33 L.Ed.2nd 101].)  (United States v. Myers (9th Cir. 2019) 930 F.3rd 1113.)

 

The Sixth Amendment Right to Confrontation:

 

The right to confront one’s accusers, as guaranteed by the Sixth Amendment, is an element of federal “due process.”  (Snyder v. Massachusetts (1934) 291 U.S. 97, 106 [78 L.Ed. 674, 678]; Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2nd 923, 926]; Michigan v. Bryant (2011) 562 U.S. 344, 370, fn. 13 [131 S.Ct. 1143; 179 L.Ed.2nd 93].)

 

The Sixth Amendment provides in pertinent part:  “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  (See People v. Mendez (2019) 7 Cal.5th 680, 700.)

 

The Sixth Amendment, as an element of “due process,” applies equally to the states.  (Pointer v. Texas, supra.)

 

See Cal. Const., art. I, § 15.

 

See also P.C. 686:  “In a criminal action the defendant is entitled: . . . subd. 3 . . . to be confronted with the witnesses against him, in the presence of the court . . . (with listed exceptions).”

 

And see Crawford v. Washington (2004) 541 U.S. 36, 42-50 [124 S.Ct. 1354; 158 L.Ed.2nd 177] for a detailed and interesting description of the history behind the Right to Confrontation as it developed from the English Common Law through the years of the early American colonies. 

 

In Pointer v. Texas, supra, a robbery victim testified against defendant (who was not represented by counsel) and another codefendant at a preliminary examination.  Defendant did not cross-examine the victim.  At trial, the victim was out of state, so the preliminary examination transcript of the victim’s testimony was used over defendant’s objection.  This was held to be a Sixth Amendment confrontation violation.  The Court noted, however, that had defendant had an attorney who had an opportunity to cross-examine the victim, the result would have been different.

 

The Absent Witness:

Rule:  “Under both the federal and state Constitutions a criminal defendant is guaranteed the right to be confronted with the witnesses against him. (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S 400, 403–405 [13 L.Ed.2nd  923; 85 S.Ct. 1065] [confrontation clause is applicable to the states].) ‘If a witness is unavailable at trial and has given testimony at a previous court proceeding against the same defendant at which the defendant had the opportunity to cross-examine the witness, the previous testimony may be admitted at trial.’ (People v. Sánchez (2016) 63 Cal.4th 411, 440 . . .) Prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine and if the government has established the unavailability of the witness. (Crawford v. Washington (2004) 541 U.S. 36, 57, 59 [158 L.Ed.2nd 177; 124 S.Ct. 1354], citing Mattox v. United States (1895) 156 U.S. 237, 244 [39 L.Ed. 409; 15 S.Ct. 337].)”  (People v. Windfield (2019) 43 Cal.App.5th 809. 822-823.)

“In a criminal case, the prosecution bears the burden of showing that the witness is unavailable and that it made a “good-faith effort” (Barber v. Page (1968) 390 U.S. 719, 725 [20 L. Ed.2nd 255; 88 S. Ct. 1318]), or, in the alternative, exercised reasonable or due diligence to obtain the witness’s presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892 . . . .) In this state, the exception to the confrontation right for prior recorded testimony is codified in Evidence Code, section 1291, subdivision (a), which provides, in part, that former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the party against whom the former testimony is offered was a party to the action or proceeding and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”  (People v. Windfield, supra, at p. 823.)

“The Sixth Amendment confrontation clause does not bar hearsay statements of a witness who testifies at trial and is subject to cross-examination.”  People v. Silveria and Travis (2020) 10 Cal.5th 195, 281; quoting People v. Stevens (2007) 41 Cal.4th 182, 199.)

“Evidence Code section 240 governs unavailability of a witness. In part, that section provides that the term ‘unavailable as a witness,’ means ‘[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.’ (Evid. Code, § 240, subd. (a)(5).)”  (People v. Windfield, supra, at p. 823.)

The victim (Jane Doe) of a rape perpetrated by defendant refused to testify for a third time at defendant's retrial, having already testified at a prior trial and at defendant’s preliminary hearing.  The trial judge found Jane Doe to be unavailable and allowed her prior trial testimony to be read to the jury.  Upon defendant’s conviction, the Court upheld the trial court's finding that the victim was unavailable (per Evid. Code § 240) for purposes of admitting her prior testimony, and that a contempt finding was not a prerequisite to such a finding (citing People v. Smith (2003) 30 Cal.4th 581.).  The Court further held that Code of Civ. Pro. § 1219(b)—which prohibits the incarceration of sexual assault victims for a refusal to testify—did not violate defendant’s Sixth Amendment confrontation right, in that it “is a reasonable limit on the trial court’s contempt power enacted to spare victims of sexual assault from further victimization.”  (People v. Lawson (2020) 52 Cal.App.5th 1121.)

The denial of the state inmates’ petitions for writs of habeas corpus was affirmed by the Ninth Circuit Court of Appeals where the state court finding that the inmates’ confrontation rights were not violated was held not to be an unreasonable application of clearly established federal law.  As for the inmates’ claims that they were prevented from asking an informant—who invoked his Fifth Amendment right at trial—certain questions that at the preliminary they had the opportunity to ask, the California Court of Appeal determined that defense counsel were allowed to question him about a variety of topics related to his credibility and his possible motives to be untruthful. Even assuming the timing of the disclosures about the informant implicated the Confrontation Clause, the California Court of Appeal could reasonably conclude that the questioning based on those disclosures would not have materially enhanced the effectiveness of the cross-examination.  (Gibbs v. Covello (9th Cir. Apr. 28, 2021) __ F.3rd __ [2021 U.S. App. LEXIS 12624].)

It has been held that there is no error in the trial court admitting in a Penal Code section 1170.95 evidentiary resentencing hearing a parole comprehensive risk assessment and a transcript of a parole suitability hearing.  First, a review of legislative history showed the term “new or additional evidence” in the statute does not circumscribe the evidence to the original trial proceedings and its admitted or then existing admissible evidence.  Second, the limitation in People v. Trujillo (2006) 40 Cal.4th 165, 179, on considering a post-plea admission in a probation report to determine if the plea amounted to a strike, was not applicable as double jeopardy principles were not at stake but only eligibility for a legislative act of lenity. Third, the defendant was not entitled to a form of use immunity for participating in the parole process as the process at issue was an act of lenity—not a criminal trial—and the defendant was not compelled to file her petition, participate in her risk assessment interview, or testify at her parole hearing.  Lastly, even if erroneously admitted, any error was harmless since the balance of the evidence provided “strong circumstantial evidence that defendant acted alone” such that the case, resolved by a plea after a preliminary hearing, did not involve a theory of felony murder or the natural and probable consequences doctrine.  (People v. Myles (Sep. 29, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 812].)

Due Diligence; Defined:

“‘Due diligence’ is not capable of a mechanical definition, but “”connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.” [Citation.]’ (Cromer, supra, 24 Cal.4th at p. 904.) ‘Relevant considerations include “whether the search was timely began [citation], the importance of the witness’s testimony [citation], and whether leads were competently explored [citation].’ (Ibid.)” (People v. Windfield, supra, at p. 823.) see also dissenting opinion in People v. Torres (2020) 48 Cal.App.5th 746-758, citing People v. Fuiava (2012) 53 Cal.4th 622, 675.)

The Deported Witness:

The Fourth District Court of Appeal (Div. 3) held that the Confrontation Clause had been violated by the admission at trial of a shooting victim’s preliminary hearing testimony—the only direct evidence implicating defendant as the shooter—because the prosecution failed to meet its burden in showing the victim was unavailable to testify at trial.  After testifying at defendant’s preliminary examination, the victim was deported, making it necessary to use his preliminary hearing testimony at trial.  While there was no evidence of bad faith, the efforts of the prosecution to make the victim available for trial fell short of a prosecutor’s “due diligence” obligations.  For instance, the prosecution failed to pursue judicial remedies in attempting to secure the victim’s presence at trial and did not mention the victim's deportation until the first day of trial, months after he was deported. This deprived the defense of any meaningful opportunity to secure the victim's appearance, cross-examine him differently at the preliminary hearing, or memorialize his testimony on videotape. Other methods the prosecution could have utilized in attempting to secure the victim's attendance included subpoenaing him prior to his deportation, obtaining his assurance he would return, giving him contact information so he could stay in touch with authorities, and providing him with information and resources to facilitate his reentry to the United States to testify at trial.  None of this was done, requiring a reversal of defendant’s conviction.  (People v. Roldan (2012) 205 Cal.App.4th 969.)

The Second District Court of Appeal (Div. 8), in People v. Torres (2020) 48 Cal.App.5th 731, at pp. 740-744 followed Roldan, noting that the prosecution must follow four specific steps in order to establish “due diligence” in attempting to secure the attendance of a witness at trial:

1. Before the preliminary hearing, tell the defense about the deportation risk.

Note:  Preferably, “on the record,” or at least in writing.

2. Videotape the preliminary hearing testimony.

3. Try judicial remedies (e.g., having the witness held as a “material witness,” per P.C. § 1332).

4. Try other specific measures, such as:

Informal efforts to delay deportation.

Exploit informal contacts between state and federal officials.

Subpoena the witness who may be deported ahead of time.

Before deportation, give that witness written notice about the trial.

Impress upon witnesses that they are material witnesses and get their assurance they will return for trial.

Give these witnesses contact information so they can stay in touch with authorities here.

Provide witnesses with information and resources to facilitate their reentry to the United States to testify at trial.

Obtain (or make a record of attempts to obtain) reliable contact information about family in the United States and in the nation to which the witness will be deported. 

(Id., at p. __; citing Roldan, at p. 984.)

In Torres, the circumstances mirrored those as they occurred in Roldan, where the only witness to a stabbing in an attempted murder case was an illegal alien who had been deported before trial, but after testifying at the defendant’s preliminary examination.  Declared to be “unavailable” (Evid. Code § 240), that witness’ preliminary hearing testimony was read to the jury at trial (per Evid. Code § 1291).  No effort was made to follow the recommendations as outlined in Roldan, requiring the reversal of defendant’s conviction.  

While it was noted that the prosecution is not ordinarily required to keep periodic tabs on every material witness in a criminal case (See People v. Herrera (2010) 49 Cal.4th 613), the situation is different when the prosecution knows that witness deportation is likely.  (Id., at p. __, citing People v. Roldan, supra, at p. 980.)

Conditional Examinations, per P.C. §§ 1335 et seq:

 

The results of a “conditional examination” of a witness, per P.C. §§ 1335 et seq., are admissible at trial because the defendant has had the opportunity to cross-examine the witness, despite the fact that the facts known to defendant, which may have resulted in other questions being asked, changed after the examination, at least in the absence of any wrongful failure by the prosecution to provide timely discovery.  (People v. Jurado (2006) 38 Cal.4th 72, 115-116.)

 

The fact that the prosecution added a one-strike torture allegation (per P.C. § 206.61) after a conditional examination of the victim (per P.C. §§ 1335 et seq.) did not substantially alter the defense counsel’s interests and motives in questioning the victim at the conditional exam, at least where defendant was already charged with the substantive crime of torture, per P.C. § 206.  Defendant’s Sixth Amendment right of confrontation was not affected by the belated addition of the allegation.  (People v. McCoy  (2013) 215 Cal.App.4th 1510, 1519-1530.)

 

However, a trial court’s admission of an out-of-state witness’s conditional examination testimony was held to have violated the defendant’s Sixth Amendment confrontation rights where the People failed to show that they had exercised “due diligence” to procure the attendance of the witness who was one of defendant’s victims.  The prosecution made no effort to use the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (P.C. §§ 1334 et seq.), to compel her attendance after she was located and had expressed her reluctance to come to California to testify.  The prosecution could not simply assume that the victim’s vague work and school obligations would constitute an undue hardship.  The error in admitting the conditional examination testimony was not harmless beyond a reasonable doubt because the testimony was critical to the prosecution’s identity case and the additional incriminating evidence was not overwhelming.  (People v. Foy (2016) 245 Cal.App.4th 328, 338-351.)

 

Because the trial court fully considered all relevant factors in deciding to commit defendant’s 14-year-old sex crime victim as a material witness, and then to release her from P.C. § 1332 commitment (commitment of a material witness) and order a conditional examination, the court did not abuse its discretion.  There was ample evidence that the prosecution sought the conditional examination so that the victim could be returned to her home to receive necessary therapy, rather than housed in juvenile hall where necessary services were unavailable.  The trial court did not err in determining the victim was unavailable pursuant to Evid. Code § 240(a)(3); (unavailability of a witness because he or she is dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity).  Also, the trial court also did not err in denying defendant’s request for the appointment of an expert witness to review the minor’s records and the recommendation of the minor’s therapist.  Lastly, the court did not err in admitting the conditional examination testimony at trial.  (People v. Garcia (2016) 5 Cal.App.5th 640.)

 

Defendant in a death penalty case was not entitled to a requested conditional examination of two potential penalty phase witnesses who were over the age of 65 in that the jury heard substantially similar testimony from other witnesses about defendant’s abusive upbringing and his capacity to act compassionately.  (People v. Williams (2016) 1 Cal.5th 1166, 1201-1202.)

 

Face to Face Confrontation:  The confrontation right includes the right to a “face-to-face confrontation.”  “The perception that confrontation is essential to fairness has persisted over the centuries because there is so much truth in it. . . . That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child, but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.  It is a truism that constitutional protections have costs.”  (Coy v. Iowa (1988) 487 U.S. 1012 [108 S.Ct. 2798; 101 L.Ed.2nd 857, 865].)

 

See Winzer v. Hall (9th Cir. 2007) 494 F.3rd 1192, 1196-1198, for a discussion of the history behind the implementation of the “confrontation clause.”

 

In Winzer, use of California’s “spontaneous declaration” (E.C. § 1240) exception to the hearsay rule held to be improper where there was no evidence that the victim’s declaration was in fact “spontaneous.”

 

Allowing a child molest victim to testify from behind a screen, blocking the defendant’s view of the victim, was error.  (Coy v. Iowa, supra.)

 

Devising a seating arrangement whereby the defendant was able to hear, but not see, the five-year-old victim held to be a violation of the defendant’s Sixth Amendment right to confrontation.  (Herbert v. Superior Court (1981) 117 Cal.App.3rd 661, 671.)

 

Use of a one-way glass during an adult victim’s testimony, shielding the victim from the defendant so that she could not see the defendant during her testimony, was a Sixth Amendment violation.  The trial court failed to hold an evidentiary hearing or make any determinations that such a procedure was necessary under the circumstances.  (People v. Murphy (2003) 107 Cal.App.4th 1150.)

 

Defendant’s absence when the trial court sought to excuse a juror (the juror having been 15 minutes late to court) was held to be a Sixth Amendment violation.  “[A] criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and (Penal Code) sections 977 and 1043.” (People v. Cole (2004) 33 Cal.4th 1158, 1230 . . . ; see People v. Kelly (2007) 42 Cal.4th 763, 781–782 . . . .) “Although . . . this privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but a shadow,’ [citation], due process clearly requires that a defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his [or her] absence,’ [citation]. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his [or her] presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2nd 631, 107 S. Ct. 2658]; People v. Young (2017) 17 Cal. App.5th 451, 466.)

 

Whether the value of stolen property was high enough to disqualify defendant from resentencing under P.C. § 1170.18, as to his grand theft and burglary convictions, was a factual finding made in a contested proceeding.  Without a waiver, the trial court violated defendant’s constitutional and statutory right to be present, under the Sixth Amendment, California Const., art I, § 15, and P.C. §§ 977 & 1043, by holding evidentiary hearings on the value of the relevant property in the defendant’s absence.  (People v. Simms (2018) 23 Cal.App.5th 987.)

 

Pursuant to the Confrontation Clause, a defendant’s right to physical, face-to-face confrontation at trial may be compromised by the use of a remote video procedure only upon a case-specific finding that the denial of physical confrontation was necessary to further an important public policy, and the reliability of the testimony was otherwise assured.  Maryland v. Craig’s ((1990) 497 U.S. 836 [110 S.Ct. 3157; 111 L.Ed.2nd 666].) requirement of necessity for denial of physical confrontation was not met in this case.  The witness’s inability to travel for trial was due to her pregnancy; a temporary disability.  There were alternatives available to preserve defendant’s right to physical face-to-face confrontation, such as continuing the trial to a later date or severing the count related to this victim and trying it separately at a later date, meaning that denying him that right was not necessary.  Also, the government failed to carry out its burden of showing that the Sixth Amendment Confrontation Clause violation was harmless beyond a reasonable doubt.  (United States v. Carter (9th Cir. 2018) 907 F.3rd 1199.)

 

Defendant was convicted of 14 sex offenses involving four young girls and sentenced to prison for 33 years plus 275 years to life.  He appealed, and claimed the trial court erred and violated defendant’s confrontation rights by permitting the victims to shield defendant from their view during testimony with a raised computer monitor.  He claimed the raised monitor “violated his Sixth Amendment right to face-to-face confrontation because it blocked his ‘entire view’ of the girls, and the girls’ view of him, as the girls testified.”  In reversing a lower appellate court opinion, the California Supreme Court held that defendant’s Sixth Amendment constitutional right to confrontation was violated by this procedure.  The accommodation was not justified by the fact that the victim started crying the first time she entered the courtroom.  As to the other victims, however, defendant forfeited his claim under the Confrontation Clause by failing to object at trial to the repositioning of the monitor during their testimony. (People v. Arredondo (2019) 8 Cal.5th 684.)

 

Note:  Instructing a jury, and then allowing argument to the effect that a defendant’s voluntary absence from court proceedings (i.e., his refusal to come to court) was evidence of his “consciousness of guilt,” is improper as a violation of his “due process” rights.  (People v. Gomez (2018) 6 Cal.5th 243, 287-290; finding the error to be harmless in light of the abundance of evidence of defendant’s guilt; pp. 291-292.)

 

Defendant, a minor, claimed a right to be personally present in court during his delinquency hearings pursuant to Welf. & Inst. Code § 679, despite pandemic‑motivated local rules requiring good cause.  The Court sided with minor.  Section 679’s right “to be present” unambiguously means personal presence.  The Judicial Counsel’s emergency rules likewise require a minor’s consent to remote proceedings, in that rule 3’s reference to the “consent of the defendant” must be interpreted in a “broader context” to include juvenile offender’s consent.  (E.P. v. Superior Court (2020) 59 Cal.App.5th 52.)

 

However, “this right is not absolute.”  (People v. Seijas (2005) 36 Cal.4th 291, 303; Michigan v. Bryant (2011) 562 U.S. 344, 352-378 [131 S.Ct. 1143; 179 L.Ed.2nd 93].)

 

“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ [Citation.] However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation.  Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] [210]  California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.”  (People v. Lucas (2014) 60 Cal.4th 153, 271; quoting People v. Frye (1998) 18 Cal.4th 894, 946.)

 

In Lucas, the trial court erroneously prevented defense counsel form introducing evidence that a prosecutor witness had a significant financial interest in helping convict defendant.  However, the Court found this error to be harmless in that defendant was unable to demonstrate that the prohibited cross-examination would have produced “a significantly different impression of [the witness’s] credibility.”  (People v. Lucas, supra, at pp. 271-273.)

 

Recognizing that there are exceptions, the Supreme Court allowed a child abuse victim to testify from a separate room in the presence of both counsel and a one-way closed circuit television so that the defendant (who had communication with his attorney), judge and jury, all in the courtroom, could see the victim as he testified.  This was after the judge made a finding that requiring the child to testify in the courtroom “will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.”  (Maryland v. Craig (1990) 497 U.S. 836 [110 S.Ct. 3157; 111 L.Ed.2nd 666].)

 

Under limited circumstances, a court may actually close a courtroom to the public.  “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”  The court must articulate the interest at stake “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” (Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501, 510 [78 L.Ed.2nd 629].)

 

In a sexual abuse trial, the defendants’ rights to a public trial was not violated by the closure of the courtroom while child victims were testifying, since the victims’ young ages (5, 6, and 10 years respectively, with the 10-year old being “mentally slow) and tensions would adversely affect their abilities to effectively communicate absent closure, and closure occurred only when the victims were testifying.  Closure of the courtroom under 18 U.S.C. § 3509 did not require prior testimony from the victims, a guardian ad litem, or an expert.  The defendants’ family members were properly excluded during the closure since their personal interests in the proceedings were not direct interests in the criminal case.  (United States v. Yazzie (9th Cir. 2014) 743 F.3rd 1278, 1286-1293.)

 

Note:  18 U.S.C. § 3509 provides:  “When a child testifies the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child's inability to effectively communicate. Such an order shall be narrowly tailored to serve the Government’s specific compelling interest.”

 

The confrontation right does not bar admission of statements of an unavailable witness if the statements “bea[r] adequate 'indicia of reliability.'” We held that reliability can be established if “the evidence falls within a firmly rooted hearsay exception,” or if it does not fall within such an exception, then if it bears “particularized guarantees of trustworthiness.”  Michigan v. Bryant, supra, at pp. 352-378, citing Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L. Ed. 2nd 597].)

 

“Unavailability” is codified under Evid. Code, § 240(a)(1)-(6).

 

Per the Supreme Court, the right to confrontation may be satisfied without face-to-face confrontation only where:

 

• The denial of such confrontation is necessary to further an important public policy; and

 

• The reliability of the testimony is otherwise assured.

 

(Maryland v. Craig, supra, at p. 837 [111 L.Ed.2nd at p. 682].)

 

Both requirements are met where the purpose is to protect child witnesses from the trauma of giving testimony in child abuse cases and all the other elements of the confrontation right (i.e., competency of the witness, testimony under oath, contemporaneous cross-examination, and observation of the child’s demeanor by the defendant and the trier of fact) are present.  (Ibid.)

 

See also People v. Williams (2002) 102 Cal.App.4th 995, 1006, where it was held that the trial judge did not err in admitting a videotape recording of an adult victim on the ground that she suffered from physical and mental disabilities and would be traumatized by having to face defendant.

 

A seven-year-old child witness, the sister of the murder victim, was allowed to testify over a two-way, closed-circuit television based on the court’s earlier finding that the witness would be traumatized by facing defendant in court.  Child witnesses shown to be traumatized by face-to-face confrontation can testify remotely without violating a defendant’s Confrontation Clause rights, whether or not those witnesses were victims of an independent crime committed by that defendant.  Necessity-based remote testimony by non-victim child witnesses is consistent with the legislature’s intent, even though it was not specifically authorized by P.C. § 1347.  (See below)  (People v. Lujan (2012) 211 Cal.App.4th 1499, 1503-1508.)

 

Defendant’s confrontation rights at a probation revocation hearing outweighed by the prosecutor’s good faith attempt to produce the victim to prove a domestic violence allegation, where there were corroborative facts tending to establish the reliability of the victim’s report to law enforcement.  The officer’s hearsay testimony was properly admitted.  (United States v. Hall (9th Cir. 2005) 419 F.3rd 980.)

 

However, hearsay testimony at a probation revocation hearing is inadmissible where the declarant is readily available and no good cause is shown.  (People v. Shepherd (2007) 151 Cal.App.4th 1193.)

 

See also People v. Liggins (2020) 53 Cal.App.5th 55, where it was held that while the trial court was within its discretion to admit challenged statements of an out-of-court declarant under the spontaneous statement exception at a probation revocation hearing, their admission in the absence of a showing of the declarant’s unavailability or other good cause to present hearsay in lieu of live testimony from the declarant violated defendant’s due process right of confrontation. Although there were compelling reasons that what the declarant told the police ought to be accepted as the truth, defendant was entitled to confront the declarant with evidence that she made contradictory statements on a later occasion. There was no showing of the declarant’s unavailability or of good cause for the admission of hearsay from her in lieu of live testimony. Because prejudice was uncontested, the error in admitting the challenged statements required reversal.

                

Charged with battery on his girlfriend, defendant was excluded from the courtroom because of repeated loud and profane outbursts and other disruptive behavior.  Defendant’s counsel requested an audio or video feed to her client to allow him to hear or observe the testimony of the girlfriend.  The motion was denied because the courtroom, constructed in the 1960’s, didn’t have such capabilities.  The trial judge further denied defendant a continuance to see if such a system could be obtained.  The appellate court ruled that defendant’s exclusion from the courtroom without an audio or video feed did not violate his right to be present at trial under U.S. Const., 6th, 14th Amends, Cal. Const. art. I, § 15, or P.C. §§ 977 or 1043.   No statute or court rule requires a trial court to provide an excluded defendant with an audio or video feed of the trial testimony.  Defense counsel had been told that she could consult with defendant as often as she needed.  Moreover, no prejudice resulted because the trial testimony of the victim was substantially the same as her testimony during the preliminary hearing.   (People v. Mayham (2013) 212 Cal.App.4th 847, 856-858.)

 

The use of hearsay at a preliminary examination violates neither the defendant’s Sixth Amendment right to confrontation nor his Fourteenth Amendment right to due process.  (Peterson v. State of California (9th Cir. 2010) 604 F.3rd 1166, 1169-1171.)

 

Nothing in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2nd 177] (see below) changes this conclusion.  (Id., at p. 1170.)

 

Allowing a confidential informant (CI) to testify while wearing a fake mustache and wig did not violate the Confrontation Clause of the Sixth Amendment where there were valid reasons for protecting the CI’s identity and safety; i.e., his continuing involvement in the cartel drug investigations as an undercover agent.  The reliability of the CI’s testimony was otherwise ensured, because; (1) he was physically present in the courtroom, (2) he testified under oath, thus impressing him with the seriousness of the matter and the possibility of penalty for perjury, (3) he was subject to cross-examination while defendant could see him, (4) despite his disguise, the jury was able to hear his voice, see his entire face including his eyes and facial reactions to questions, and observe his body language.  (United States v. DeJesus-Casteneda (9th Cir. 2013) 705 F.3rd 1117, 1119-1121.)

 

Allowing a witness’s prior inconsistent statements (E.C. §§ 770, 1235) made to police to be introduced into evidence does not violate the Confrontation Clause when the witness testifies and is subject to cross-examination by the defendant.  The witness’s alleged lack of recall does not change this rule.    (People v. Rodriguez (2014) 58 Cal. 4th 587, 632-633; citing California v. Green (1970) 399 U.S. 149 [26 L.Ed.2nd 489].) 

 

However, allowing a prosecutor to ask “unlimited” (i.e., about 100) leading questions of a witness who, on the witness stand, refused to answer any of the questions (nor the defense counsel’s cross-examination questions), such questions highlighting the fact that the witness had identified defendant as the shooter in a murder case, deprived the defendant of the right to cross-examine a witness against him.  An admonition to the jury that the prosecutor’s questions did not constitute evidence failed to undue the prejudice to the defendant.  The trial court should have granted defendant’s motion for mistrial.  (People v. Murillo (2014) 231 Cal.App.4th 448, 454-568.)

 

By allowing the prosecutor to ask a series of questions of a witness concerning his prior statements to police, many of which implicated defendant in a robbery/murder, but where the witness simply refused to answer, denied defendant his Sixth Amendment right to cross-examine the witness.  (People v. Perez (2016) 243 Cal.App.4th 863, 883-890.)

 

A witness’s prior statements are not admissible pursuant to Evid. Code § 1235 where the witness has no recollection of the underlying facts as to which he is being questioned.  In People v. Rios (1985) 163 Cal.App.3rd 852, 864, the Court held that there is no relevant legal difference between the situation where the stonewalling witness refuses to answer any questions and the situation where the witness totally recalls no facts, for purposes of determining inconsistency under E.C. § 1235.  In both situations there is simply no statement in the record which is inconsistent, or for that matter consistent, with prior statements; there is no express testimony at all from which to infer or deduce implied inconsistency.  The Court held that E.C. § 1235, by its express terms, requires a witness give testimony from which an inconsistency, express or implied, may be determined. Where, the witnesses give no testimony, there is no evidence to support a finding of inconsistency. E.C. § 1235 does not apply. 

 

See also People v. Homick (2012) 55 Cal.4th 816, 859-860, where the Supreme Court endorsed the reasoning of Rios, explaining that while selectively refusing to answer some questions at trial, “expos[es] the witness to impeachment under Evidence Code section 1235,” no such impeachment is permissible where the witness refuses to testify at all.

 

However, “As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don't remember’ statements are evasive and untruthful, admission of [the witness's] prior statements is proper. [Citation.]”  (People v. Debouver (2016) 1 Cal.App.5th 972, 980; quoting People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.  See also People v. Ervin (2000) 22 Cal.4th 48, 84-85.) 

 

Defendant’s right to confrontation was not violated by the trial court refusing to strike the testimony of a witness who stated that he did not know if he knew defendant and did not know him by his name.  Defendant had an opportunity to cross-examine the witness which is what the Sixth Amendment requires, even when the witness asserts a loss of memory.  (People v. Foalima (2015) 239 Cal.App.4th 1376, 1387-1394.)

 

However, defendant in an “oral copulation” case involving a 5-year-old female victim—defendant’s daughter—was held to have been denied an opportunity to effectively cross-examine the victim when she refused to answer hundreds of questions posed by defendant’s counsel, including approximately 150 that sought substantial information on important issues.  Although trial counsel was able to extract some favorable statements, the victim refused to answer many other questions that bore directly on the oral-copulation count as well as her credibility. (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 961-969.)

 

There is no requirement under California law that, in an administrative hearing, such as at a college or university’s disciplinary hearing, that an accused is entitled to cross-examine witnesses. “Although we recognize the value of cross-examination as a means of uncovering the truth [citation], we reject the notion that as a matter of law every administrative appeal . . . must afford the [accused] an opportunity to confront and cross-examine witnesses.” (James v. City of Coronado (2003) 106 Cal.App.4th 905, 912.)  Yet, in the instant matter, where the Panel’s findings are likely to turn on the credibility of the complainant, and respondent faces very severe consequences if he is found to have violated school rules, we determine that a fair procedure requires a process by which the respondent may question, if even indirectly, the complainant.  (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1084-1093; procedure upheld where accused allowed to submit written questions to be asked of his accuser by the school investigative panel.)

 

Defendant did not suffer any prejudice by not being present during chambers discussions concerning defense counsel’s alleged conflict of interest (held in the same case not to be an actual conflict).  (People v. Perez (2018) 4 Cal.5th 421, 437-440.)

 

“‘[W]hen read together, (Penal Code) sections 977 and 1043 permit a capital defendant to be absent from the courtroom only on two occasions: (1) when he has been removed by the court for disruptive behavior under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to section 977, subdivision (b)(1).’ (Citation omitted.) “‘“Section 977 requires . . . that the defendant personally execute, in open court, a written waiver of the right to be present.”’” (People v. Romero (2008) 44 Cal.4th 386, 418 . . . )”  (People v. Wall (2017) 3 Cal.5th 1048, 1060.)

 

Failure to execute a written waiver to be present during a portion of the jury selection process held to be harmless error.  (Id. at pp. 1059-1061.)

 

In a capital murder case, defendant challenged the admissibility of a child witness's testimony, arguing that it was unreliable because of gaps in her memory and her prior discussions of the events with the prosecutor and others.  The California Supreme Court ruled that a witness’s limited memory does not violate a defendant’s right to confrontation; that right “secures to an accused an adequate opportunity to cross-examine adverse witnesses; it does not guarantee testimony free from forgetfulness, confusion, or even evasion.” (citing People v. Dennis (1998) 17 Cal.4th 468, 526.) The Court further rejected the notion that the witness’s testimony was insufficiently reliable to satisfy the heightened standards of a capital case: “Also without merit is defendant’s claim that [the child’s] testimony was unreliable and, because it contributed to a judgment of death, it violated his constitutional rights under the Eighth and Fourteenth Amendments. Defendant was fully afforded the protections of the procedures constitutionally required to ensure reliability in the fact-finding process. As we have previously remarked in rejecting essentially the same contention, defendant ‘“was given an opportunity to be heard and to cross-examine in a judicial forum.”’”  (People v. Lopez (2018) 5 Cal.5th 339, 351-354.)

 

The Appellate Department of Riverside’s Superior Court recently hinted that using videoconferencing technology to conduct court trials for infractions is not a violation of the defendant’s confrontation rights, or at the very least, the procedure constitutes harmless error.  In a split 2-to-1 decision, the majority ruled that: “Nothing in the record demonstrates Appellants were not afforded the right to a public trial. There is no allegation the images displayed or the sound quality on either end of the two-way video conferencing were unclear or inaudible. Additionally, the advent of major developments in videoconferencing equipment, including the use of high definition technology, allow a judge to see the most detailed observations of a witness, almost eliminating any concerns of a judge not being physically present in the same courtroom.”  (People v. Sekhon (2018) 26 Cal.App.5th Supp. 26.)

 

Over defendant’s hearsay objections, and that his right to confrontation had been denied, the trial court admitted evidence of a five-year-old’s statements the morning of the shooting to two police officers that the man he saw in the bedroom had a “wisp on his chin” and had brought him ice cream, and that a photograph of defendant as that man.  The California Supreme Court held that the trial court acted within its discretion in finding the statement to the first officer was admissible as a spontaneous statement and that the statement to the second officer admissible as a past recollection recorded.  The child’s statement to police the morning after the murders was properly admitted as past recollection recorded, even though the child did not remember the statements, because he testified that he remembered talking with the police, and he remembered that he told them the truth.  (People v. Sanchez (2019) 7 Cal.5th 14, 30-42.)

 

In the penalty phase of a capital murder trial, defendant’s absence from proceedings the day after his courtroom outburst and fight with deputies did not violate Pen. Code, §§ 977 and 1043, because a conclusion that he would be disruptive if compelled to be present was supported by the severity of the outburst and counsel's explanation of his physical and mental state and unwillingness to attend court.  On the day of the outburst, it was within the trial court’s discretion to remove defendant from court for the remainder of the afternoon’s proceedings because the outburst was the most serious the judge had seen in 17 years on the bench and required nine deputies to restrain defendant.  (People v. Bell (2019) 7 Cal.5th 70, 114-118.)

 

In a death penalty case, defendant failed to show that her presence during discussions between the trial court judge and counsel concerning stipulations for the excusal of various prospective jurors for cause or hardship, based upon them screening juror questionnaires, prejudiced her, finding any such prejudice to be merely “unduly speculative.”  (People v. Caro (2019) 7 Cal.5th 463, 479.)

 

During trial on various counts stemming from a series of child molests, the trial court admitted into evidence, after jury deliberations began and without any limiting instructions, a video and transcript of defendant’s police interrogation. In a pre-Miranda portion of that interrogation, an officer made statements on the video to the effect that children had informed law enforcement that defendant had molested them; he (the officer) knew defendant was lying; he could tell defendant was lying from his experience as an investigator; and that defendant had committed the crimes. Although the officer testified at trial, the parties had agreed earlier to limit questioning to the post-Miranda portion of the interrogation only.  Because the officer had already been dismissed as a witness, defendant was unable to cross-examine him again.  Defendant, on appeal, argued that by admitting into evidence the pre-Miranda portion of the video without allowing him to cross-examine the officer on these belatedly admitted statements, his Sixth Amendment right to confrontation had been violated.  The Court disagreed, ruling that in order to implicate the confrontation clause, a statement must be testimonial (Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2nd 177]; meaning that it must be made with sufficient formality and with the primary purpose of creating a substitute for trial testimony. Accusatory statements made by law enforcement in an interrogation will, absent unusual circumstances, satisfy neither of these requirements. A law enforcement officer’s statements were not sworn to by the declarant before an officer authorized to administer oaths. Whether or not the officer’s pre-Miranda statements were offered for their truth, they fell short of the formality required to deem them testimonial.  (People v. Morales (2020) 44 Cal.App.5th 353.)

 

On appeal, defendant, who was 18 years old at the time of two attempted murders and 21 years old when he committed murder, contended that his case should be remanded for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (to determine the appropriateness of a sentence that is the “functional equivalent of life without parole”) because his counsel stipulated, without his consent, to limit information regarding youth-related mitigating factors to a written submission following the sentencing hearing.  Defendant argued that such a procedure, without live witnesses, violated his constitutional rights to due process, to present a defense, to cross-examine witnesses, and to be present at a critical stage of the criminal proceeding. Although defendant contended that the case should be remanded for a hearing because defense counsel stipulated, without defendant's consent, to limit information regarding youth-related mitigating factors to a written submission following the sentencing hearing, the appellate Court ruled that the trial court properly exercised its discretion in accepting defense counsel’s proposal to submit the relevant information in written form without live testimony or cross-examination. This procedure did not violate defendant's constitutional rights.  (People v. Sepulveda (2020) 47 Cal.App.5th 291.)

 

It was held to be no confrontation clause violation where the trial court permitted the victim witness to testify while she faced sideways and thereby avoiding eye contact with the defendant and limiting visibility of her face in general, where the victim expressed difficulty testifying due to reliving trauma and was unable to look up or look at the defendant, rarely looked around the courtroom, took long pauses answering, and spoke very softly.  The Court here provides a lengthy discussion of cases involving the face-to-face aspect of confrontation.  (People v. Bharth (Aug. 19, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 753].)

 

In Department of Motor Vehicle Hearings:

 

When the Department of Motor Vehicles (DMV) holds an administrative hearing to consider whether to suspend a driver’s license, certain relaxed evidentiary standards govern. The DMV can usually support its case by relying on an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. As a matter of first impression, the Fourth District Court of Appeal held that licensees rebut that presumption only when they cast doubt on the integrity of the test. It is not enough to show a violation of governing regulations that has only a tenuous connection to the accuracy of the results. Here, because the plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and thus the reliability of the test results, the Court upheld the hearing officer’s suspension of the plaintiff’s driver’s license.  (Gerwig v. Gordon (2021) 61 Cal.App.5th 59.)

 

Penal Code Provisions:

 

P.C. § 977.2:  Provides for two-way audio-video communication in lieu of a defendant’s physical presence in all but the prisoner’s preliminary examination and trial.  This includes motions to suppress and sentencings, and applies whenever a state prison inmate has felony or misdemeanor charges pending in a particular county. The section also authorizes preliminary hearings and trials to be held by two-way electronic audio-video communication if the defendant agrees.

 

P.C. § 1346:  Use at trial of a videotape recording of the preliminary examination testimony of a victim of a sex act with a child 10 years of age or younger (P.C. § 288.7), or the physical (P.C. §§ 273a & 273d) or sexual assault/abuse (P.C. §§ 220, 243.4, 261, 261.5, 264.1, 269, 285, 286, 288, 288a, 288.5, 289, 647.6), such victim being 15 years of age or less, or developmentally disabled as a result of mentally retardation, upon a finding by the trial court that further testimony would cause the victim emotional trauma so that the victim is medically or otherwise unavailable, per E.C. § 240.

 

P.C. § 1346.1:  Use at trial of the videotaped preliminary examination testimony of a spousal rape or spousal battery victim when otherwise legally admissible.

 

P.C. § 1347:  Use at trial or preliminary examination of the two-way closed circuit TV testimony, out of the presence of the judge, jury, defendant and attorneys, of a child sexual assault or violent felony victim, or victim of child endangerment (per P.C. § 273a) or child abuse (per P.C. § 273d) when the victim is 13 years of age or younger and other statutory requirements are met.

 

P.C. § 1347.1:  Authorizes a minor age 15 or younger to testify in a human trafficking case (P.C. § 236.1) out of the presence of the defendant, judge, jury, and attorneys, via closed-circuit television.

 

P.C. § 1347.5:  Use of close circuit TV to communicate the testimony of a disabled physical or sexual assault victim.

 

Defendant’s Absence from the Courtroom or from Discussions:

 

Statutes:

 

P.C. § 1043(a):  Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial. 

 

(b):  The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases:

 

1. Any case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom.

 

2. Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.

 

(c):  Any defendant who is absent from a trial pursuant to subd. (b)(1) may reclaim his right to be present at the trial as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

 

(d):  Subds. (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with P.C. § 977.

 

Note:  P.C. § 977(a) deals when a misdemeanor defendant may, or may not, waive his right to be present during various court proceedings.  P.C. § 977(b) deals with felony defendants.

 

(e):  If the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of Section 977.  

 

If there is no authorization pursuant to P.C. § 977(a) and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may do one or more of the following, as it deems appropriate:

 

1. Continue the matter.

 

2. Order bail forfeited or revoke release on the defendant's own recognizance.

 

3. Issue a bench warrant.

 

4. Proceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held.

 

Nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.

 

Case Law:

 

“‘Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.” [Citations.] Due process guarantees the right to be present at any “stage … that is critical to [the] outcome” and where the defendant's “presence would contribute to the fairness of the procedure.”’ [Citation.] The state constitutional right to be present at trial, which is guaranteed by article I of the California Constitution, ‘“is generally coextensive with the federal due process right.”’”  (People v. Thompson (2016) 1 Cal.5th 1043, 1098; quoting People v. Cunningham (2015) 61 Cal.4th 609, 633.)

 

The lawfulness (constitutionally and statutorily) of an ex parte hearing in chambers concerning incriminating letters written by defendant not decided in that the error in excluding defendant and her attorneys, if any, was held to be harmless.  (People v. Thompson, supra, at pp. 1098-1099.)

 

A defendant has a statutory and constitutional right to be present at his own trial.  (People v. Conception (2008) 45 Cal.4th 77, 71; see also People v. Butler (2009) 46 Cal.4th 847, 861; and Cal. Const. Art I, § 15.)

 

The right to be present is not absolute; a defendant may expressly or impliedly waive the right to be present.  (People v. Conception, supra, at p. 82.)

 

A defendant in a noncapital case may also waive the right to be present by absenting himself from trial on his own volition, provided the waiver is knowing and voluntary.  (Taylor v. United States (1973) 414 U.S. 17, 18 [38 L.Ed.2nd 174]; People v. Conception, supra.; People v. Connolly (1973) 36 Cal.3rd 379, 384.)     

 

“‘Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination.’ (People v. Butler 2009) 46 Cal.4th 847, 861, . . . quoting Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17 [96 L.Ed.2nd 631, . . . ].)  In  [889]  addition, a defendant has a due process right “to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer, at p. 745.) “Neither the state nor the federal Constitution, nor the statutory requirements of (Penal Code) sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his [63]  opportunity to defend the charges against him.” (Butler, at p. 861.)’ (People v. Lynch (2010) 50 Cal.4th 693, 745-746 . . . .)”  (People v. Carrasco (2014) 59 Cal.4th 924, 958-959.)

 

The Carrasco Court, at p. 959, noted that defendant failed to demonstrate that any of the proceedings he was absent from “bore a reasonable, substantial relation to his opportunity to defend against the charges against him,” such as:

 

At discussions of jury selection procedures.  (People v. Lynch, supra, at pp. 745-746.)

 

At a conference in the hallway where a prospective juror was questioned and ultimately excused for cause because the prosecutor had personally prosecuted a relative.  (People v. Kelly (2007) 42 Cal.4th 763, 781.)

 

At a conference on whether certain spectators should be excluded from the courtroom.  (People v. Perry (2006) 38 Cal.4th 301, 312-314.) 

 

At a hearing involving discussions of whether questioning by defense counsel or co-defendant’s counsel had opened the door to certain evidence or inquiry.  (People v. Box (2000) 23 Cal.4th 1153, 1191-1192.)

 

At hearings involving procedural, evidentiary, and housekeeping matters, including discussions of the proposed jury instructions.  (People v. Waidla (2000) 22 Cal.4th 690, 741-742.)

 

A defendant may waive his presence at in camera court hearing (P.C. § 977(b)(1)), including chamber conferences in a capital case.  (People v. Lucas (2014) 60 Cal.4th 153, 323.)

 

Nor did defendant’s absence create or exacerbate a conflict of interest with his defense counsel or require that defendant be advised by other counsel.  Also, defense counsel’s mistake in giving his expert a report containing defense counsel’s work product create grounds for a claim of constitutionally deficient assistance or that he should have been present and/or advised by non-conflicted counsel about whether he should challenge the performance of his attorney.  (Id., at pp. 323-324.)

 

Proceeding on with an already-commenced trial, after defendant had expressly waived his right to counsel and then implicitly waived his right to be present by voluntarily failing to appear, did not violate the Sixth Amendment nor P.C. § 1043(b)(2).  It was immaterial whether defendant actually knew that the trial would continue on without his presence if he chose to absent himself after the first witness testified because he could not argue that his own defense was ineffective assistance of counsel.  The trial court was not required to revoke defendant’s self-representation rights and reappoint counsel, given defendant’s expressed antipathy towards counsel.  The trial court reasonably found that defendant’s failure to appear was a continuation of his efforts to manipulate the court and delay his criminal trial.  Also, it was legally proper, under the circumstances, for the court to have denied defendant’s request for a one-day continuance after granting his motion to represent himself.  (People v. Espinoza (2016) 1 Cal.5th 61.)

 

However, a “defendant’s statutory ability to waive his presence in a capital case is more circumscribed than the associated ability to waive his constitutional right.”  (People v. Cunningham (2015) 61 Cal.4th 609, 634.)

 

The use of restraints in transit, between court hearings, did not improperly coerce defendant to waive his presence at the pretrial and guilt phase proceedings, particularly [39]  as the court permitted him to remain completely unrestrained in the courtroom.  (Id., at pp. 633-635.)

 

Although defendant in a capital case being absent from court proceedings during the guilt phase violated P.C. §§ 977 and 1043, the error did not warrant reversal of the judgment because it was not reasonably probable that the result of the trial would have been more favorable to defendant absent the error.  Defendant failed to explain how he could have effectively [42]  assisted counsel in subjecting the prosecution’s case to meaningful adversarial testing.  (Id., at p. 635.)

 

It was not an abuse of discretion to send a video exhibit to the jury room for replay because the video was a properly-admitted exhibit which was sent to the jury room with other exhibits, and not trial testimony.  This procedure did not violate defendant’s right to be present at every stage of the trial under Fed. Rules of Criminal Procedure 43(a).  Rule 43(a) does not extend to a jury’s private review of evidence during deliberations in the jury room.  (United States v. Chadwell (9th Cir. 2015) 798 F.3rd 910, 914-916.)

 

“A capital defendant may waive his right to presence at trial, as long as his waiver is voluntary, knowing and intelligent under the standard set forth in Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, . . . ].” People v. Mendoza (2016) 62 Cal.4th 856, 898-899; quoting People v. Davis (2005) 36 Cal.4th 510, 531.) 

 

It is an open question, however, whether defense counsel’s assertion to the court that defendant has so waived his rights is legally sufficient, or whether the defendant himself must personally waive his right to be present to the court itself.  (People v. Mendoza, supra, at p. 900.)  The Court, however, held that in order for the lack of a personal waiver to cause a reversal of his conviction, the error, if any, must be prejudicial.  (Id., a pp 900-905.)

 

Barring defendant from the courtroom for the entirety of his capital murder trial did not violate the U.S. Constitution or P.C. §§ 977 & 1043 because there was ample evidence that defendant’s desire to disrupt and delay the proceedings would not abate; among other things, he had violently attacked his attorney, in full view of the court and the prospective jurors and while wearing a stun belt meant to control him.  Defendant’s misconduct forfeited his right to testify.  In addition to the behavior that supported excluding him from the courtroom, defendant would not agree to abide by rules for testifying via closed-circuit television and, during a dry run, purported to offer unsupported legal conclusions, referred to alleged facts not in evidence, and, other than affirming that he intended to continue in the same manner, declined to actually answer any questions.  (People v. Johnson (2018) 6 Cal.5th 541.)

 

See also pp. 589-591, disusing the trial court’s instructions to the jury not to consider defendant’s absence from the courtroom and its possible confusion with the standard “flight” instruction (CALJIC No. 2.52), which was also given in that there was evidence that defendant had fled from the murder scene. 

 

No prejudice resulted in a capital murder trial from defendant’s absence from proceedings where the court and counsel discussed whether he would testify.  Defendant had ample opportunity to participate in his defense and knew the prosecutor’s opening statement would include the substance of his anticipated testimony.  (People v. Powell (2018) 6 Cal.5th 136, 147-150.)

 

In a case in which the People petitioned to extend defendant’s involuntary commitment after having been found not guilty by reason of insanity, the trial court prejudicially erred by deciding in defendant’s absence that he was incompetent to decide whether to waive his right to a jury trial, and by accepting his counsel’s waiver of that right. Defendant’s subsequent testimony at trial suggested that had he been present at the pre-trial hearing, he might well have been able to dispel any doubt about his capacity to understand the jury-waiver decision. The relevant question was not whether defendant then possessed the necessary knowledge to make an informed waiver decision, but whether he had the capacity to understand the decision, once informed of his right to make it. The Court held that it was not confident the violation of defendant’s right to be present at the pretrial hearing was harmless beyond a reasonable doubt.  (People v. Ford (2020) 56 Cal.App.5th 385.)

 

Note:  A criminal defendant found not guilty by reason of insanity may be committed to a state medical facility for a period equal to the maximum sentence the court could have been imposed for the underlying offense, per Pen. Code § 1026.5(a)(1).  Before this term expires, the prosecuting attorney may file a petition with the superior court seeking to extend the defendant's commitment by two years. (P.C. § 1026.5(b))

 

Involuntary Absence: 

 

When a trial court removes a pro se defendant for engaging in tactics that disrupt the proceedings in some fashion, it is error to proceed with trial absent the appointment of defense counsel.  (People v. Soukomlane (2008) 162 Cal.App.4th 214, 235; People v. El (2002) 102 Cal.App.4th 1047, 1050; People v. Carroll (1983) 140 Cal.App.3rd 135, 143; United States v. Mack (9th Cir. 2004) 362 F.3rd 597, 602.)   

 

Voluntary Absence: 

 

A pro se defendant may voluntarily and knowingly absent himself from trial on the record, at least so long as he is aware that the trial is proceeding without his presence.  (People v. Parento (1991) 235 Cal.App.3rd 1388.)

 

However, where a pro se defendant merely fails to return to court, mid-trial, without any evidence that he was aware that the trial would proceed without him, it is error to continue on with the trail in his absence.  (People v. Espinoza (2015) 233 Cal.App.4th 914, 929-933: “We hold only that the record shows defendant here did not make a knowing, voluntary waiver of his fundamental [30]  trial rights; the trial court therefore erred by proceeding with trial in defendant's absence and without appointing counsel.”

 

Alternate solutions proposed by the Court:

 

1. Declare a mistrial.
2. Reappoint counsel and proceed with the evidence.
3. Verbally warn defendant when being granted his pro per status that should he voluntarily fail to come to court, that this would constitute a waiver of his trail rights and the trial will proceed without him.

 

“[I]f a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.” (Italics added; Taylor v. United States (1973) 414 U.S. 17, 19, fn. 3 [38 L.Ed.2nd 174].)

 

Penal Code § 977(b)(1) requires that a felony defendant must be present at five specified proceedings (arraignment, the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence) and at “all other proceedings” unless he or she has properly executed a written waiver.  As such, this statute gives rise to a “lawfully required appearance under P.C. § 1305(a); the bail bond forfeiture statute.  Therefore, unless a felony defendant has properly executed a written waiver of personal appearance (P.C. § 977(b)(1) & (2)), or has “sufficient excuse” for his or her absence at a scheduled proceeding (P.C. § 1305), the trial court must declare any bail forfeited.  Defendant, in this case, charged with a felony, failed to appear at a scheduled pretrial hearing which was scheduled in open court when he was present.  Defendant did not, with leave of court, execute a written waiver or his right to be present at this hearing, and he did not otherwise argue that he had a “sufficient excuse for his absence under P.C. § 1305.  Thus his absence at the scheduled pretrial hearing constituted a basis on which to forfeit bail under section 1305.  (People v. Safety National Casualty Corp. (2016) 62 Cal.4th 703.)

 

Pursuant to P.C. § 977(a), entitling a defendant to waive his presence and not personally attend a hearing on a misdemeanor, the trial court did not deprive defendant at his right to be present at a hearing resentencing him on several misdemeanors where appointed counsel waived his presence.  Defendant was not entitled to be present for that part of the uncontested hearing to determine his eligibility under Proposition 47 to have his felony convictions reduced to misdemeanors and resentenced accordingly. (People v. Fedalizo (2016) 246 Cal.App.4th 98, 109-110.)

 

Defendant’s sentencing in absentia did not violate his due process rights or Fed. Rules of Criminal Procedure 43, as a finding of voluntary absence was supported by the record.  Defendant had appeared for previous hearings and had motive to flee once drugs were found in his home, and he presented no evidence that his absence was involuntary.  (United States v. Ornelas (9th Cir. 2016) 828 F.3rd 1018.)

 

Penal Code § 977(a) entitles a misdemeanor defendant to have counsel appeal at a probation violation hearing on his or her behalf until lawfully required to personally be present.  (People v. Financial Casualty & Surety, Inc. (2018) 18 Cal.App.5th 1183, 1187-1190.)

 

Identity of Witnesses:

 

As a statutory matter, the prosecution must generally disclose at least 30 days before trial the names and addresses of persons it intends to call as witnesses at trial.  (P.C. §§ 1054.1(a), 1054.7)

 

The Sixth Amendment right to confront witnesses has also been interpreted to require that witnesses be identified.  “(W)henever nondisclosure of a witness’s identity will prevent the effective investigation and cross-examination of a crucial witness, the confrontation clause precludes the prosecution from relying upon the witness’s testimony at trial while refusing to disclose the witness’s identity.”  Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1125.)

 

However, when the trial court finds for good cause that to disclose the identities of witnesses exposes them to threats or possible danger, the court has the discretion to restrict this right.  (Id., at p. 1134.)

 

“There is no general constitutional right to discovery in a criminal case” and “(t)he Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . .”  (Weatherford v. Bursey (1977) 429 U.S. 545, 559 [51 L.Ed.2nd 30].)

 

The Constitution does not require disclosure of protected witness’s identity before the morning of his testimony.  (United States v. Edwards (7th Cir. 1995) 47 F.3rd 841, 842-843.)

 

However, a protective order by the trial court that prevents the discovery of the identity of “crucial” witnesses whose veracity and credibility are likely to be central to the prosecution’s case, where non-disclosure would significantly impair the defense’s ability to investigate or effectively cross-examine them,” is a Sixth Amendment violation.  (Alvarado v. Superior Court, supra, at pp. 1146-1147.)

 

“(I)n every case in which the testimony of a witness has been found crucial to the prosecution’s case the courts have determined that it is improper at trial to withhold information (for example, the name or address of the witness) essential to the defendant’s ability to conduct an effective cross-examination.”  (Id., at p. 1146.)

 

Providing the defense with the right to interview the witnesses, insuring that they were informed of any prior convictions, inviting the defense to seek a modification of the order where necessary, providing for the availability of a continuance if necessary, giving the defense the names of at least the “crucial” witnesses within two days prior to their testifying, and otherwise insuring that the defense attorneys were not “significantly impaired” in their ability to investigate or effectively cross-examine the witnesses, were found to be sufficient to avoid a Sixth Amendment violation.  (People v. Valdez (Aug. 9, 2012) 55 Cal.4th 82, 105-118.)

 

The Hearsay Rule:  As to the various exceptions to the “Hearsay Rule” that have Sixth Amendment confrontation implications, see “Hearsay,” below:   E.g.:

 

• E.C. § 1228:  Sex abuse child’s statements admissible for foundational purposes.
• E.C. § 1230:  Declaration against interest.
• E.C. § 1223:  Admission of a co-conspirator.
• E.C. § 1231:  Statement of deceased declarant in gang cases.
• E.C. § 1238:  Prior Identification (e.g.., at a curbstone lineup.)
• E.C. § 1240:  Spontaneous statements. 
• E.C. § 1241:  Contemporaneous statements.
• E.C. § 1242:  Dying declaration.
• E.C. § 1250:  Statement of declarant’s then existing mental or physical state.
• E.C. § 1251:  Statement of declarant’s previously existing mental or physical state.
• E.C. § 1253:  Child neglect or abuse victim’s statement made for purposes of medical diagnosis or treatment.
• E.C. § 1270:  Business records.
• E.C. § 1291:  Former Testimony.
• E.C. § 1360:  Statement of child abuse victim.
• E.C. § 1370:  Victim’s report of physical injury.

 

Right to Cross-Examine:  Right to confront one’s accusers includes the right to cross-examine those witnesses.  (Pointer v. Texas (1965) 380 U.S. 400, 406-407 [13 L.Ed.2nd 923]; Douglas v. Alabama (1965) 380 U.S. 415, 418 [13 L.Ed.2nd 934]; United States v. Larson (9th Cir. 2007) 495 F.3rd 1094, 1102.)

 

Confrontation Clause issues are reviewed by appellate courts de novo.  (United States v. Nielsen (9th Cir. 2004) 371 F.3rd 574, 581.)

 

“Cross-examination is the greatest legal engine ever invented for the discovery of truth [citation] . . . . (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733.)  Cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.  (Pointer v. Texas (1965) 380 U.S. 400, 405 [13 L.Ed.2nd 923].) Because it relates to the fundamental fairness of the proceedings, cross-examination is said to represent an ‘absolute right,’ not merely a privilege [citations], and denial or undue restriction thereof may be reversible error. [Citation.] (Fost, at p. 733)” (Internal quotes deleted; People v. Noriega (2015) 237 Cal.App.4th 991, 1000.)

 

In Noriega, the fact that a sexual assault victim testified to a lack of recollection as to many facts was held not deprive defendant of his right to cross-examination. 

 

“Effective cross-examination is critical to a fair trial because ‘[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.’” (United States v. Larson, supra., citing Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2nd 347].)

 

In Larson, it was held that while it is not error to prohibit opposing counsel from cross-examining a witness about the potential maximum sentence he might face in the absence of leniency being offered by the government for his cooperation in testifying against the defendant, it is error to prevent counsel from asking about the potential minimum sentence he would have been exposed to absent that cooperation.  (Id., at pp. 1102-1107.)

 

“Cross-examination may expose facts from which jurors can appropriately draw inferences about the reliability of a witness, including the possibility of bias. The trial court, however, has wide latitude to restrict such cross-examination, and such testimony is properly barred unless the defendant can show the prohibited cross-examination would have produced a significantly different impression of the witness's credibility.”  (People v. Capistrano (2014) 59 Cal. 4th 830, 866; citing People v. Brady (2010) 50 Cal.4th 547, 560, and People v Smith (2007) 40 Cal.4th 483, 513.)

 

Precluding defense counsel from questioning a prosecution witness about her misdemeanor petty theft convictions was error, but harmless under the circumstances:  “‘(P)roof of impeaching misdemeanor conduct’  may be in the form of a ‘witness’s admission on direct or cross-examination that he or she committed such conduct’ as well as by other means.”  (People v. Capistrano, supra, at pp. 866-867; quoting People v. Wheeler (1992) 4 Cal.4th 284, 300, fn. 14.)

 

“(A) criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed  . . . ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’”  (Fowler v. Sacramento County Sheriff’s Department (9th Cir. 2005) 421 F.3rd 1027, 1035; quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2nd 674].)

 

The Confrontation Clause may be violated by excluding testimony of other witnesses relevant to the veracity of a victim’s statements regarding the allegations made against the defendant.  (Holly v. Yarborough (9th Cir. 2009) 568 F.3rd 1091.)

 

“(T)he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness’ testimony.”  (Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2nd 347]; Fowler v. Sacramento County Sheriff’s Department, supra, at pp. 1036-1037.)

 

Cross-examination of the detective who interviewed the missing witness is insufficient to meet this standard.   (Ocampo v. Vail (2011) 649 F.3rd 1098, 1113.)

 

The United States Supreme Court has held that a trial court violated a defendant’s right to confrontation by permitting a prosecutor to pose a series of questions to a witness concerning the witness’s prior statements to police to which the witness refused to answer. The prosecutor was allowed to ask a series of questions concerning the charged crime. Although the witness invoked his Fifth Amendment privilege against self-incrimination, the trial court ruled that he had no privilege to invoke and ordered him to answer the prosecutor’s questions. Despite the court’s order, the witness continued to refuse to answer any questions. The prosecutor proceeded to read a statement that the witness had allegedly made to the police in which he inculpated the defendant in firing a shotgun with the intent to murder. During his reading of the statement, the prosecutor repeatedly asked the witness whether he had made the statement.  The witness refused to answer the questions.  The United States Supreme Court held that the defendant’s inability to cross-examine witness as to the statement he allegedly made to the police “plainly denied” the defendant his constitutional right to confrontation.”  (Douglas v. Alabama (1965) 380 U.S. 415 [13 L.Ed.2nd 934].)

 

The victim witness’s “refusal to answer over 100 leading questions while the prosecutor read to the jury from his police interviews denied [defendant] the opportunity to cross-examine the victim on what was tantamount to devastating adverse testimony.” (People v. Murillo (2014) 231 Cal.App.4th 448.) 

 

The admission of a prior statement made by a witness who stonewalls at trial and refuses to answer any question on direct or cross-examination held to deny a defendant the right to confrontation which contemplates a meaningful opportunity to cross-examine the witness.  (People v. Rios (1985) 163 Cal.App.3rd 852.) 

 

By allowing the prosecutor to ask a series of questions of a witness concerning his prior statements to police, many of which implicated defendant in a robbery/murder, but where the witness simply refused to answer, denied defendant his Sixth Amendment right to cross-examine the witness.  (People v. Perez (2016) 243 Cal.App.4th 863, 883-889.)

 

Where defendant’s five-year-old victim refused to answer hundreds of questions posed by trial counsel, it was held that defendant had been denied his right to confront his accuser.  Although “a witness’s failure to remember, whether real or feigned, generally does not deny the defendant an opportunity for effective cross-examination” and “a witness’s difficulty in communicating is insufficient to establish a constitutional violation, even if it limits the types of questions that the cross-examiner may ask, (a) defendant’s ‘opportunity [to cross-examine] may be denied if the witness refuses to answer questions.’”  “(T)he right to an opportunity for effective cross-examination is more likely violated as the number of relevant questions that go unanswered increases.”  (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 961-969.)

 

But see People v. Morgain (2009) 177 Cal.App.4th 454, where although it was noted that “[a] defendant’s confrontation rights may be violated where a prosecutor examines a recalcitrant witness and poses questions that relate to prior statements made by that witness, in circumstances where the witness’s recalcitrance effectively prevents cross-examination concerning those prior statements,” it was held that this rule was not violated where the witness only denied remembering a limited number of statements she was alleged to have made, and most of the prosecutor’s questions did not involve those statements.  Also, the trial court granted the defendant’s motion to strike the questions that did refer to what the witness had said but which she denied remembering, and which implicated defendant, instructing the jury to not consider them. 

 

The Ninth Circuit uses three factors in evaluating an alleged right-to-effective-cross-examine issue:

 

• Whether the excluded evidence was relevant;
• Whether there were other legitimate interests outweighing the defendant's interest in presenting the evidence; and
• Whether the exclusion of evidence left the jury with sufficient information to assess the credibility of the witness.

 

(United States v. Ganoe (9th Cir. 2008) 538 F.3rd 1117, 1125; excluding cross-examination related to the credibility of a witness likely error, but harmless beyond a reasonable doubt under the circumstances.)

 

Refusal to allow defendant to cross-examine his wife about what she considered to be a threat from the prosecutor to testify consistent with her preliminary hearing testimony or she would go to jail, when she was told that she had to tell the truth, held to be error where the wife was the principal witness against him.  (Ortiz v. Yates (9th Cir. 2012) 704 F.3rd 1026, 1034-1040.)

 

“The confrontation clause guarantees a meaningful but limited right—the opportunity to engage in effective cross-examination, not necessarily cross-examination that satisfies the defendant in any conceivable respect. (People v. Gonzales (2012) 54 Cal.4th 1234, 1265 . . . ) The United States Supreme Court has distinguished between sufficiently effective cross-examination and cross-examination as effective as the defendant wishes. (United States v. Owens (1988) 484 U.S. 554, 559 [98 L.Ed.2nd 951, 108 S.Ct. 838].)”  (People v. Mora and Rangel (2018) 5 Cal.5th 442, 477; where defense counsel was given a six-page report just prior to the witness taking the stand to testify as to the contents of the report, but where he was given the opportunity to read the report prior to the testimony and did not ask for additional time, held not to be error.)

 

Miscellaneous Issues:

 

Pre-Trial Discovery of Another’s Psychiatric Records:

 

Defendant appealed his conviction for committing lewd and lascivious acts on his foster child when she was between 12 and 13 years old, a violation of P.C. § 288(a)(1). The Supreme Court affirmed defendant's conviction. The court granted review on the specific issue of whether the trial court erred by quashing his subpoenas duces tecum, which sought to compel disclosure of the records held by the psychotherapists who treated the victim—and thus protected by the patient-psychotherapist privilege—without first reviewing the records in camera. The Supreme Court ruled that the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of the third party psychotherapists. The court reasoned that because defendant proposed to impeach the victim on privileged information, the trial court could have been called upon to balance defendant's need for cross-examination and the state policies the privilege was intended to serve, and thus if pretrial disclosure was permitted, a serious risk arose that privileged material would have been disclosed unnecessarily. The court specifically disapproved of a line of several cases that favored such pretrial disclosure under the theory that the Sixth Amendment right to confrontation required such pretrial disclosure of privileged information.  (People v. Hammon (1997) 15 Cal.4th 1117.)

 

See also People v. Caro (2019) 7 Cal.5th 463, at p. 501, where the California Supreme Court upheld the continuing validity of Hammon and sustained the trial court’s finding that the psychotherapist-patient privilege applied and its refusal to grant defendant a pre-trial in camera review of the defendant’s husband’s psychiatric records finding their relevance to be speculative, at best.

 

In College or University Disciplinary Proceedings:

 

In a case involving a student who was expelled from a private university for committing intimate partner violence, the Appellate Court concluded that the student received sufficient notice of the violations with which he was charged. The student was not only provided notice of the factual basis of the allegations against him, but was also provided with a meaningful opportunity to respond to them.  However, the university’s procedures at the time of the student disciplinary proceeding were unfair because they denied the student a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. Even absent cross-examination of the victim, who had recanted, the student should have been able to cross-examine the third-party witnesses to test their recollection, their ability to observe the incident, and any biases they may have had against him.  (Boermeester v. Carry (2020) 49 Cal.App.5th 682.)

 

Code Civ. Proc., § 1094.5’s requirement of a “fair trial” in a student disciplinary case means that there must have been a fair administrative hearing. A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law. However, the appellate court reviews for substantial evidence the university's substantive decisions and factual findings, pursuant to CCP § 1094.5(c).  (Id., at p. 695.)

 

Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2nd 177] (combined with Hammon v. Indiana, on appeal from Hammon v. State (Ind. 2005) 829 N.E.2nd 444.)  The rules on the use of “hearsay” (i.e., an extra-judicial statement made to a witness who now proposes to testify in court to the statement as he heard it, when offered in evidence to prove the truth of that statement; E.C. § 1200) were changed by the United States Supreme Court in the case of Crawford v. Washington, supra.].

 

Prior to Crawford, it had been held that the “Confrontation Clause” of the Sixth Amendment was not automatically violated just because a witness was permitted to testify to someone else’s out-of-court statements; i.e., “hearsay.”  The old rule was that testimony relating to such an out-of-court statement might still be admissible whenever such a statement would “bear ‘adequate indicia of reliability.’”  To meet this test, the evidence must have fallen either within a “firmly rooted hearsay exception” or otherwise bear “particularized guarantees of trustworthiness.”  (See Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2nd 597, 608]; see also People v. Cervantes (2004) 118 Cal.App.4th 162, 172; Michigan v. Bryant (2011) 562 U.S. 344 [179 L.Ed.2nd 93].) 

                                                

Finding the above rule to be “too broad” (at p. 60), Crawford announced a new rule:  A declarant’s statements to police (or others) are inadmissible at trial, despite an applicable exception to the hearsay rule, unless it is proved that the declarant is (1) now unavailable to testify and (2) the defendant has had a prior opportunity to confront and cross-examine the declarant.  (Crawford v. Washington, supra, at p. 54; see also Ohio v. Clark (June 18, 2015) 576 U.S. __, __ [135 S.Ct. 2173, 2179; 192 L.Ed.2nd 306]; and People v. Rangel (2016) 62 Cal.4th 1192, 1214.)

 

This rule, however, only applies to “testimonial” statements.  Citing Webster, An American Dictionary of the English Language (1828): 

 

The “Confrontation Clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’”  (Crawford v. Washington, supra, at p. 51.)

 

“‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’”  (Ibid.)

 

“(W)here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.”  (Id, at pp. 68-69.)

 

Note:  Absent testimonial hearsay being at issue, the traditional “adequate indicia of reliability” test still applies.  

 

The problem is defining “testimonial:”

 

Without specifically defining the term (“We leave for another day any effort to spell out a comprehensive definition of “testimonial.” (pg. 68.)), the Crawford Court held that “testimonial” includes (but is not necessarily limited to) prior testimony at a preliminary hearing, grand jury hearing, and a former trial.  It also includes statements made during police interrogations.  (Crawford v. Washington, supra, at pp. 51-52, 68.)

 

“Testimonial” may also include statements contained in affidavits and depositions, depending upon which of the various legal definitions of “testimonial” is used.  (Ibid.)

 

In general, “testimonial” statements would include any “pretrial statements that declarants would reasonably expect to be used prosecutorially.”  (Ibid.)

 

Crawford identified three proposed alternate “formulations” (at pp. 51-52) for identifying a testimonial statement:

 

• Ex parte in-court testimony or its equivalent; i.e., material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.

 

• Extrajudicial statements contained in formalized testimonial materials, such as affidavit, deposition, prior testimony, or confessions.

                                               

• Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

 

(See also In re Fernando R. (2005) 137 Cal.App.4th 148, 161; People v. Jefferson (2008) 158 Cal.App.4th 830, 842-844.)

 

“ . . . Crawford supports a conclusion that the test for determining whether a statement is ‘testimonial’ is not whether its use in a potential trial is foreseeable, but whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue.”  (People v. Taulton (2005) 129 Cal.App.4th 1218, 1224.)

 

The Supreme Court later expanded upon the above third category of testimonial statements in the context of a 9-1-1 call to police for assistance in Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266; 165 L.Ed.2nd 224] (decided along with Hammon v. Indiana, on appeal from Hammon v. State (Ind. 2005) 829 N.E.2d 444.) :

 

• A recording of a domestic violence victim’s 9-1-1 telephone call, requesting help in an on-going situation, was found to be non-testimonial, where the following circumstances existed:

 

• The victim was speaking of events as they were actually happening.

 

• The victim was facing an on-going emergency.

 

• The statements elicited from the victim were necessary to enable the police to resolve the present emergency rather than simple to learn what had happened in the past.

 

• The formality of the situation was less than where a victim is interviewed about a past event.

 

• The statements of a domestic violence victim from an interview obtained by police officers responding to a 9-1-1 call for assistance, about an event that although recent, was over, with the victim and suspect separated, were held to be testimonial because:

 

• The interview of the victim was part of an investigation into possibly past criminal conduct.

 

• There was no emergency in progress.

 

• The interview was to determine not what was happening, but rather what had happened.

 

• The primary, if not sole, purpose of the interview was to investigate a possible crime.

 

Even though both the scenarios involved in the Davis case were domestic violence related, it has been noted that non-testimonial statements are not restricted to such cases.  (See Michigan v. Bryant (2011) 562 U.S. 344, 344-345 [131 S.Ct. 1143, 1152-1167; 179 L.Ed.2nd 93].)

 

Davis v. Washington further, at p. 822, provided the following summary of the difference between “testimonial” and “non-testimonial” statements:

 

• “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”

 

• “They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

 

(Italics added; Id., at p. 822; where the Court also notes that the term “interrogation” is not to be taken literally (fn. 1).  It would include what might more often be referred to as a “witness interview.”)

 

See also Ohio v. Clark (June 18, 2015) 576 U.S. __, __ [135 S.Ct. 2173, 2179-2180; 192 L.Ed.2nd 306], reviewing Davis, noting that the test for what is testimonial and what is not has become known as the “primary purpose” test, based upon the above.

 

See also People v. Byron (2009) 170 Cal.App.4th 657, 668.

 

It is also noted in Davis v. Washington, supra, at p. 828, that what is a non-testimonial statement at the beginning may devolve into a testimonial statement at that point when the emergency is over and the police move onto an effort to obtain information concerning a crime that is no longer occurring.

 

The rule of Davis was analyzed by the California Supreme Court in People v. Cage (2007) 40 Cal.4th 965, at page 984, where it summarized the issue:

 

“First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial.

 

Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.  [fn. omitted.]

 

Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial.

 

Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.  [fn. omitted.]

 

Fifth, sufficient formality and solemnity are present when, in a non-emergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses.

 

Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.”  (see also People v. Osorio (2008) 165 Cal.App.4th 603, 612-613; and People v. Byron (2009) 170 Cal.App.4th 657, 668.)

 

The United States Supreme Court further held that when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the primary purpose of the interrogation by objectively evaluating the statements and actions of the parties to the encounter in light of the circumstances in which the interrogation occurs. The existence of an emergency or the parties’ perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. The existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.  (Michigan v. Bryant (2011) 562 U.S. 344, 358-366 [179 L.Ed.2nd  93].)

 

The Court also noted that there may be other situations than an ongoing emergency that make an out-of-court statement non-testimonial, such as the “informality of the situation and the interrogation.”  (Id, at pp. 366, 377.)

 

Also, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”  (Id., at 358-359.) 

 

The California Supreme Court summarized the above in People v. Sanchez (2016) 63 Cal.4th 665, noting specifically at pg. 689 that “(t)estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.”

 

The California Supreme Court again summarized the issue in People v. Rangel (2016) 62 Cal.4th 1192, at pgs. 1214-1215, where it was noted: 

 

“Although the court in Crawford ‘did not offer an exhaustive definition of “testimonial” statements,’ the court has since clarified that ‘a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial’ (Ohio v. Clark (2015) 576 U.S. ___, ___–___ [192 L.Ed.2nd 306, 135 S. Ct. 2173, 2179–2180])—that is to say, unless the statements are given in the course of an interrogation or other conversation whose “‘“primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution”’” (Id. at p. ___ [135 S.Ct. at p. 2180], quoting Davis v. Washington (2006) 547 U.S. 813, 822 [165 L.Ed. 2nd 224, 126 S. Ct. 2266]; see Ohio v. Clark, at pp. ___–___ [135 S.Ct. at pp. 2180–2181] [noting that “‘the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause”]). Under this test, “‘[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.’” (Id. at p. ___  [287]  [135 S.Ct. at p. 2182].) The court in Ohio v. Clark, however, “‘decline[d] to adopt a rule that statements to individuals who are not law enforcement officers are categorically [35]  outside the Sixth Amendment.” (Ibid.) A court also considers the formality “‘“of the situation and the interrogation”’” in determining the primary purpose of a challenged statement. (Id. at p. ___ [135 S.Ct. at p. 2180].) “‘In the end, the question is whether, in light of all the circumstances, viewed objectively, the ‘“primary purpose”’ of the conversation was to ‘“creat[e] an out-of-court substitute for trial testimony.”’” (Ibid.; see Id. at p. ___ [135 S.Ct. at p. 2183].)”

 

Noting that an “on-going emergency” is but one factor to consider in determining whether certain out-of-court hearsay were “testimonial,” the Court state:  “Ultimately, the question that a court must answer in determining whether a statement falls within the ambit of the confrontation clause is whether, in light of all the circumstances and when viewed objectively, ‘the ‘“primary purpose’” of the conversation was to ‘“creat[e] an out-of-court substitute for trial testimony.’” (People v. Smith (2016) 248 Cal.App.4th 794, 821; quoting Ohio v. Clark (June 18, 2015) 576 U.S. __ [135 S.Ct. 2173, at p. 2180; 192 L.Ed.2nd 306].)  

 

“Ultimately, the question that a court must answer in determining whether a statement falls within the ambit of the confrontation clause is whether, in light of all the circumstances and when viewed objectively, ‘the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”’” (People v. Smith (2017) 12 Cal.App.5th 766, 787; quoting Ohio v. Clark, supra, at p. 576 U.S. at p. __ [135 S.Ct. at p. 2180].)

 

“‘Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.’ [Citation.] Also, in order to be considered testimonial, ‘the statement must be made with some degree of formality or solemnity.’”  (People v. Mooring (2017) 15 Cal.App.5th 928, 941; quoting People v. Ochoa (2017) 7 Cal.App.5th 575, 583.)

 

The Third Appellate District held that routine gang affiliation questions asked during the process of booking a defendant into jail amounted to an interrogation for purposes of triggering his or her Miranda rights, as dictated by People v. Elizalde et al. (2015) 61 Cal.4th 523.  This is because such questions are reasonably likely to elicit an incriminating response in light of California’s comprehensive scheme of penal statutes aimed at eradicating criminal activity by street gangs.  The Court here also held that aside from the booking interview issue, a defendant’s on-the-street admissions to his gang affiliation contained in response to a “Step notice” (California Street Terrorism Enforcement and Prevention Act; “STEP Act;” P.C. §§ 186.20 et seq.), informing him he was associating with a known gang, were both inadmissible hearsay and, when used by a gang expert as a basis for his opinion that defendant was indeed a gang member, a violation of the defendant’s Sixth Amendment right to confrontation under Crawford v. Washington, supra.  (People v. Lara (2017) 9 Cal.App.5th 296, at pages 335-337.)

 

Prior statements that are not testimonial were identified in Crawford as information obtained from “business records” (E.C. § 1270) and statements made in “furtherance of a conspiracy” (E.C. § 1223), and maybe even “dying declarations.”  (E.C. § 1242)  (Crawford v. Washington, supra, at p. 56, and fn. 6; In re Fernando R. (2005) 137 Cal.App.4th 148, 160.)

 

See “Dying Declarations,” below.

 

“Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial for confrontation purposes than statements given to law enforcement officers.”  (People v. Clark (2016) 63 Cal.4th 522, 561-564; statements of a co-conspirator, admissible under E.C. § 1223.)

 

Also, an “off-hand, overheard remark” does not necessarily involve the Sixth Amendment.  Further, it is apparent that statements offered on some other issue than to establish the “truth of the matter asserted” in the statement (e.g., information used by a police officer to establish probable cause, or, arguably, statements used to impeach a witness when he or she testifies and lies) are not “testimonial.”  (Crawford v. Washington, supra, at pp. 51-52.)

 

Hearsay statements that are determined not to be testimonial are tested for admissibility as dictated in Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2nd 923] and Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2nd 597]; (Parle v. Runnels (9th Cir. 2004) 387 F.3rd 1030, 1037-1042; homicide victim’s diary entries describing prior incidents of domestic abuse inflicted by the defendant held to be admissible non-testimonial hearsay, pursuant to E.C. § 1370 [Infliction of, or threat to inflict, physical injury].)

 

“(A) statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’” (Ohio v. Clark (June 18, 2015) 576 U.S. __, __ [135 S.Ct. 2173, 2180; 192 L.Ed.2nd 306], quoting Michigan v. Bryant, supra, at p. 359.) 

 

There is no “Crawford error” where the witness merely states that he’d talked to a third party, but never testifies to what that third party had told him even though it could be inferred (and in fact was argued by the prosecution), by the context, what the response might have been.  (People v. Kopatz (2015) 61 Cal.4th 62, 87-89; prosecutor’s argument as to what that witness apparently said held to have been waived due to the defendant’s failure to object.)

 

Out-of-court statements offered for a non-hearsay purpose, so long as not done for the purpose of doing “an end-run around Crawford and hearsay rules, particularly when those statements directly inculpate the defendant,” may be admissible.  (United States v. Johnson (9th Cir. 2017) 875 F.3rd 1265, 1278-1279; a witness’ statement to police that the gun must belong to defendant, offered to for the non-hearsay purpose of showing why officers did not concentrate on a third party in conducting their investigation, used to rebut defendant’s third-party culpability evidence. 

 

The trial court’s admonition to the jury not to use such evidence as indicative of defendant’s guilt, and the prosecution’s refraining from arguing such testimony as evidence of defendant’s guilt, helped in the Court’s conclusion that introduction of the witness’ statement was not error.  (Id., at p. 1279.)

 

Also, it has been noted that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted; i.e., as hearsay.  (Crawford v. Washington, supra, at p. 59, fn. 9; citing Tennessee v. Street (1985) 471 U.S. 409, 414 [85 L.Ed.2nd 425; 105 S.Ct. 2078.)

 

Examples of “Testimonial” statements that will not be admitted into evidence:

 

An interview at the scene of a recent domestic violence incident, after the victim and suspect are separated and the victim is interviewed about what had occurred after the fact, for the purpose of investigating a possible crime.  (Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2nd 224].)

 

Statements made by a child abuse victim (e.g., four years old) to a police officer and, separately, a professionally trained child interviewer, after the child is ruled to be incompetent to testify due to her age, such statements thus meeting the hearsay rule exception requirements of Evid. Code § 1360 (Statements of a child under the age of 12, describing an act of child abuse), are “testimonial” and thus inadmissible as a violation of the defendant’s Sixth Amendment right to confrontation.  (People v. Sisavath (2004) 118 Cal.App.4th 1396.)

 

A police videotaped interview of a “dependent adult” (per P.C. § 368(h)) in an elder and dependent adult financial abuse case, where the victim dies a few days later.  (People v. Pirwani (2004) 119 Cal.App.4th 770.)

 

The interviews of a slashing victim conducted by a police officer, both in the hospital emergency room and later at the police station, are clearly testimonial, although the victim’s statements to the emergency room doctor, asked for the purpose of determining treatment that was to be given, is not testimonial.  (People v. Cage (2007) 40 Cal.4th 965; the issue being the admissibility of the victim’s hearsay statements under E.C. §§ 1240 [spontaneous statements] and 1370 [victim’s report of physical injury].)

 

A witness’s testimony in front a grand jury is testimonial.  Where defendant is precluded from cross-examining the witness at trial on her grand jury testimony, after she had been questioned on it in the Government’s case-in-chief during which she disavowed what she had told the grand jury under oath, and thereafter made herself “unavailable” by invoking her Fifth Amendment right against self-incrimination, the defendant was deprived of his Sixth Amendment right to confrontation under Crawford.  (United States v. Wilmore (9th Cir. 2004) 381 F.3rd 868.)

 

A declaration previously sworn to by a homicide victim in her application for a restraining order is testimonial, and not admissible against the defendant in his later murder prosecution.  (People v. Pantoja (2004) 122 Cal.App.4th 1, 9.)

 

Tape-recorded statements of two witnesses to defendant’s crime were held to be inadmissible hearsay statements, and violated defendant’s Sixth Amendment confrontation rights when admitted into evidence.  (People v. Lee (2004) 124 Cal.App.4th 483, 487-491.)

 

The statements to a police detective by defendant’s six-year-old step daughter, where the victim was unable to reiterate her prior account to the detective of being molested.  (Bockting v. Bayer (9th Cir. 2005) 399 F.3rd 1010, as amended at 408 F.3rd 1127; the Court finding the Crawford rule to be a new rule, that it was retroactive, and that admission of the victim’s hearsay statements were not harmless error.)

 

Admission into evidence of non-testifying co-defendant’s statement to an investigator implicating the other defendants in a jail assault, where the declarant did not testify and was therefore not subject to cross-examination, violated the rule of Crawford.  (People v. Pena et al. (2005) 128 Cal.App.4th 1219.)

 

The statements by a robbery victim given to one of the initial officers at the scene of the suspect’s arrest after it was already clear that a robbery had occurred.  (In re Fernando R. (2005) 137 Cal.App.4th 148.)

 

An interview of an elder adult by a law enforcement officer after any exigencies have expired, and where most of the interview consisted of questions pertaining to the defendant’s conduct, the victim’s deteriorating opinion of him, and her desire that he not inherit any of her property.  (People v. Cooper (2007) 148 Cal.App.4th 731, 745.)

 

Victim’s statements to a police officer a full week after being assaulted in a domestic violence incident.  (People v. Quitiquit (2007) 155 Cal.App.4th 1, 14; conc. Opinion.)

 

A sexual assault victim’s statements made to a nurse during a sexual assault examination which was done for the purpose of documenting and collecting evidence, are testimonial and inadmissible.  (People v. Vargas (2009) 178 Cal.App.4th 647.)

 

The rule of Crawford does not apply in a civil, Sexually Violent Predator (“SVP”) commitment proceeding, and is not applicable to an expert’s testimony about hearsay statements that served as a basis for his or her opinion.  (People v. Fulcher (2006) 136 Cal.App.4th 41, 53-57.)

 

The fact that testimonial statements were introduced by defendant’s co-defendant’s counsel is irrelevant to the issue whether the Sixth Amendment was violated.  It is also irrelevant whether the statements directly inculpated defendant.  The issue is whether defendant was deprived of his right to cross-examine the declarant.  (United States v. Nguyen (9th Cir. 2009) 565 F.3rd 668.)

 

While a non-testifying victim made admissible excited utterances to civilians (Evid. Code § 1240), the statements she later made to an officer—well after defendant fled the scene—were testimonial and improperly admitted.    (People v. Roberts (2021) 65 Cal.App.5th 469, 477-479.)

 

The affidavit of a Washington Department of Employment Security Assistant Records Officer, prepared for use at defendant’s trial to prove the absence of any record of defendant having legitimate employment, should not have been admitted without the testimony of the affiant.  (United States v. Norwood (9th Cir. 2010) 603 F.3rd 1063, 1068; error held to be harmless.)

 

In a federal prosecution for re-entering the United States without permission after once having been removed, introduction of a “Certificate of Non-existence or Record” (or “CNR”), in which a District Director of the Citizenship and

Immigration Services of the Department of Homeland Security certifies that “after a diligent search [of two agency databases,] no record was found to exist indicating that the defendant obtained consent . . . for readmission in the United States,” is a violation of the defendant’s right to confrontation.  (United States v. Orozco-Acosta (9th Cir.

2010) 607 F.3rd 1156, 1161-1162, and fn. 3.)

 

See also United States v. Valdovinos-Mendez (9th Cir. 2011) 641 F.3rd 1031, 1034; finding that despite the Sixth Amendment violation of allowing the CNR into evidence, such evidence was harmless was harmless beyond a reasonable doubt where sufficient other evidence existed to prove the same fact.

 

Admission of a written report of defendant’s blood alcohol level violated defendant’s right to confront the analyst who prepared the report.  The report was clearly testimonial in nature as a statement made in order to prove a fact at defendant’s criminal trial, and the testimony of the substitute analyst who did not perform or observe the reported test did not satisfy the right to confrontation. Further, the report did not consist exclusively of a machinegenerated number but also indicated that the analyst properly received defendant’s sample, performed testing on the sample adhering to a precise protocol, and observed no circumstance or condition affecting the integrity of the sample or the validity of the analysis.  The substitute analyst could not convey what the reporting analyst knew or observed, or expose any lapses or inaccuracies on the part of the reporting analyst.  (Bullcoming v. New Mexico (June 23, 2011) __ U.S. __ [131 S.Ct. 2705; 180 L.Ed.2nd

610].)

 

A detective’s testimony that indisputably conveyed some of the critical substance of the witness’s statements to the jury was found to be in violation of the Confrontation Clause even though his testimony was not detailed.  Altogether, the detective’s testimony indicated that the unavailable witness had confirmed the defendant’s presence at the scene of the crime. The admission of testimony regarding the unavailable witness’s statements, in combination with the prosecutor’s closing remarks, had a substantial and injurious effect or influence in determining the jury’s verdict.  (Ocampo v. Vail (2011) 649 F.3rd 1098, 1107-

1113.)

 

Examples of “Non-Testimonial” statements that may be admitted into evidence:

 

A recording of a domestic violence victim’s 9-1-1 telephone call, requesting help in an on-going situation, is non-testimonial.  (Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2nd 224]; People v. Byron (2009) 170

Cal.App.4th 657, 675-676; People v. Banos (2009) 178

Cal.App.4th 483, 493-496.)

 

Statements are not testimonial when made to a friend of the declarant’s under circumstances where the declarant did not believe that they would later be used against him in court. 

(People v. Cervantes (2004) 118 Cal.App.4th 162, 169174.)

 

The interviews of a slashing victim conducted by a police officer, both in the hospital emergency room and later at the police station, are clearly testimonial, although the victim’s statements to the emergency room doctor, asked for the purpose of determining treatment that was to be given, is not testimonial.  (People v. Cage (2007) 40 Cal.4th 965; the issue being the admissibility of the victim’s hearsay statements under E.C. §§ 1240 [spontaneous statements] and 1370 [victim’s report of physical injury].)

 

A 9-1-1 call from the victim in a domestic violence incident, telling the 9-1-1 operator that her husband had just hit her, qualified both as a “spontaneous statement,” per

E.C. § 1240, for purposes of the hearsay rule, and a nontestimonial statement for purposes of Crawford v. Washington.  (People v. Corella (2004) 122 Cal.App.4th

461.)

 

Also, the initial responding officer’s interview of the victim at the scene were held to be nontestimonial.  “Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation.’”  (Id., at p.

469.)

 

But see Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2nd 224], above.

 

Similarly, a 9-1-1 call from the victim of a physical confrontation and stabbing, telling the 9-1-1 operator that defendant had just stabbed him in the stomach, qualified both as a “spontaneous statement,” per E.C. § 1240, for purposes of the hearsay rule, and a non-testimonial statement for purposes of Crawford v. Washington.  (People v. Brenn (2007) 152 Cal.App.4th 166.)

 

Also, the victim’s brief description of what happened (“(The victim) seemed befuddled and in agony, saying only that someone had stabbed him next door with a kitchen knife.”), responding to the brief questioning of the first officer on the scene, held to be non-testimonial under the circumstances. 

(Ibid.)

 

Although structured interviews of a domestic violence assault victim by a law enforcement officer, generally admissible under E.C. § 1370 (victim’s report of physical injury), are testimonial and therefore inadmissible when the victim later refuses to testify, the first initial statements obtained from the victim by responding police officers before they know what, if any, crime they may have had, are not testimonial and thus admissible under the prior Ohio v. Roberts standard.  (People v. Kilday (2004) 123

Cal.App.4th 406; People v. Banos (2009) 178 Cal.App.4th

483, 493-496, 497.)

 

Note:  Kilday has been granted review by the California Supreme Court and is therefore not citable authority.

 

An anonymous 9-1-1 call from a witness giving a suspect’s vehicle description and license number, as a “spontaneous statement” (E.C. § 1240), is admissible as non-testimonial. 

(People v. Caudillo (2004) 122 Cal.App.4th 1417.)

 

A laboratory report introduced at probation revocation hearing and reflecting the analysis of contraband (i.e., rock cocaine in this case), is not testimonial.  (People v.

Johnson (2004) 121 Cal.App.4th 1409.)

 

Testimony by a supervising criminalist who reviewed the report of another laboratory employee in a cocaine possession case, who did not testify, held to be non- testimonial.  Also, the content of the report is not being offered as a substitute for live testimony and the defendant had a full opportunity to cross-examine the supervising criminalist.  (People v. Salinas (2007) 146 Cal.App.4th

958.)

 

The lab report is admissible under the “public records exception” (E.C. § 1280) to the hearsay

rule.  (People v. Parker (1992) 8 Cal.App.4th 110.)

 

The words of a prospective purchaser of narcotics calling the defendant’s home in a phone call answered by police officers executing a search warrant, is admissible when testified to by the officer as non-testimonial hearsay (and admitted as a judicially created hearsay exception).  (People v. Morgan et al. (2005) 125 Cal.App.4th 935. 947.)

 

Statements made to co-workers, admissible at trial as prior inconsistent statements (E.C. §§ 770, 1235), are not testimonial even though later included in police reports. 

(People v. Butler (2005) 127 Cal.App.4th 49, 59.)

 

An officer’s filled-out proof of service, attesting to the details of the service of a domestic violence temporary restraining order, is not testimonial in nature, and is therefore admissible hearsay, to be used in evidence pursuant to P.C. § 1102 and CCP § 2009 to prove the fact that defendant was served with notice of the order.  (People v. Saffold (2005) 127 Cal.App.4th 979.)

 

Statements made by the defendant to another person (i.e.,

Sanchez) (admissible as a spontaneous statement; E.C. § 1240) who was not law enforcement, introduced into evidence through the testimony of a police officer who interviewed Sanchez as to those statements, were admissible as a prior inconsistent statement (E.C. § 1235) when Sanchez, who testified, denied having made those statements to the officer.  The defendant’s statements to Sanchez were non-testimonial.  Sanchez relaying those statements to the officer were admissible despite Crawford because Sanchez testified and was subject to crossexamination.  (People v. Rincon (2005) 129 Cal.App.4th

738, 749-757.)

 

Documentary evidence (i.e., court or prison records) used to prove the existence of one or more prior convictions and/or imprisonments for purpose of enhancing a defendant’s present sentence, is non-testimonial.  (People v.

Taulton (2005) 129 Cal.App.4th 1218; the defendant’s “P.C. § 969b packet,” or prison records, in this case.)

 

Police officers’ recorded statements on tape, recording during a high speed pursuit, even if testimonial (holding that they were probably not), did not violate Crawford.  (People v. Mitchell (2005) 131 Cal.App.4th 1210.)

 

A co-conspirator’s statement to another co-conspirator (testified to by the second co-conspirator), is not testimonial, and therefore admissible.  (United States v. Allen (9th Cir. 2005) 425 F.3rd 1231, 1234-1235.)

 

Spontaneous declarations (per E.C. § 1240) made to a nonlaw enforcement witness, implicating a co-defendant, held to be admissible against the non-confessing co-defendant over  Sixth Amendment Aranda/Bruton and Crawford objections.  (People v. Smith (2005) 135 Cal.App.4th 914.)

 

A murder suspect’s confession to his attorney, implicating defendant as a co-principal in the murder, was nontestimonial in nature.  Therefore, after the murder suspect was himself murdered and thus not available for defendant’s trial, his attorney’s testimony as to what the suspect had told him was not precluded by the Crawford v.

Washington, supra, decision.  (Jensen v. Pliler (9th Cir.

2006) 439 F.3rd 1086.)

 

Responses to an officer’s initial questions upon arriving at the scene of an incident, where they “need to know whom they are dealing with in order to assess the situation, the threat to their safety, and possible danger to the potential victim,” are not testimonial.  The admissibility of the responses to these initial questions will not be precluded by Crawford.  (Davis v. Washington (2006) 547 U.S. 813,

822-827 [165 L.Ed.2nd 224].)

 

Statements of an elder adult to a social worker and a nurse, even though a law enforcement investigator accompanied them, where the “primary purpose” of the interview “was to assess (the victim’s) mental and physical condition and deal with her potentially critical need for assistance and protection.”  (People v. Cooper (2007) 148 Cal.App.4th

731, 743.)

 

Also held to be “non-testimonial” was a video-taped

tour of the victim’s home.  (Id., at p. 746.)

 

A domestic violence victim’s statement (“He punched me in the face, look at my nose”) held to be non-testimonial when obtained as a result of an officer’s question; “What happened.”  The officer had come to the front door and heard a woman screaming.  Defendant answered the door with blood on his hands.  The victim had a bloody, broken nose.  “(A)lthough (the officer) might have suspected domestic violence, (the officer) did not know at that point whether or not a crime had been committed.  Having interrupted an “ongoing emergency” and attempting to obtain information from the victim in order to assess the situation, the victim’s response to the officer’s question was held not to be testimonial.  (People v. Johnson (2007) 150 Cal.App.4th

1467, 1477-1480.)

 

The excited utterances of defendant’s victims who, up to the moment of the arrival of the police, were being held captive by the defendant, were admissible through the testimony of the first police officer on the scene who at that point was merely trying to find out what had happened, and what may happen in the next few minutes.  (People v. Chaney (2007)

148 Cal.App.4th 772.)

 

A victim of a domestic violence incident which had occurred some 30 minutes earlier, where her husband had battered her and threatened to kill her, even though she was at the police station reporting the incident, where the court held that the officer’s questions to her about what had happened were asked for “the primary purpose . . . to enable police assistance to meet an ongoing emergency.”  (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1591-1598; rejecting defendant’s argument [and the Attorney General’s

concession] that the emergency was over.)

 

A police officer/gang expert’s hearsay testimony, testified to as a basis for his expert opinion that the predicate crimes were committed for the benefit of a criminal street gang, per P.C. § 186.22.  (People v. Thomas (2005) 130 Cal.App.4th

1202, 1210; People v. Ramirez (2007) 153 Cal.App.4th

1422.)

 

Any statements “offered for purposes of probable cause,” i.e., is “offered as a basis for action, nor for its truth.”  (United States v. Mitchell (9th Cir. 2007) 502 F.3rd 931, 966.)

 

Surreptitiously recorded statements between two homicide suspects in a holding cell are not “testimonial” and may be used against both of them at trial.  (People v. Jefferson

(2008) 158 Cal.App.4th 830, 842-844.)

 

A DNA analysis report, from which a DNA expert testified,  held to be admissible as non-testimonial without the live testimony of the examiner who prepared the report.  (People v. Geier (2007) 41 Cal.4th 555, 593-607.)

 

However, casting doubt on the continuing validity of People. V. Geier, supra, is Melendez-Diaz v.

Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2nd 314; 129 S.Ct. 2527], decided on June 25, 2009, where it was held that a forensic report prepared by a laboratory technician is testimonial, and thus inadmissible under Crawford as a Sixth Amendment confrontation issue, requiring the technician himself to testify. 

 

See People v. Vargas (2009) 178 Cal.App.4th 647, 659-660, noting the conflict, but declining to decide whether Melendez-Diaz did in fact overrule Geier in that even if error, the evidence was harmless.

 

Petitions granted, 12/2/09, in four California cases dealing with this issue:  People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, S176213, People v. Dungo (2009) 176 Cal.App.4th 1388, S176886,

People v. Lopez (2009) 177 Cal.App.4th 202,

S177046, and People v Gutierrez (2009) 177 Cal.App.4th 654, S176620.

 

A defendant’s rap sheets offered into evidence for the purpose of proving his prior convictions are not testimonial because they are not prepared for the primary purpose of a criminal prosecution.  Also, they are not facts related to the charged crime, but rather historical data only.  (People v.

Morris (2008) 166 Cal.App.4th 363.)

 

An injured victim’s statements about how her neck had been cut and a description of the assailant, made initially to a paramedic and then to the first police officer on the scene, obtained by both individuals in response to an on-going emergency and for the primary purpose of determining what had happened, were non-testimonial and admissible in evidence at defendant’s trial when this victim died prior to

trial.  (People v. Osorio (2008) 165 Cal.App.4th 163.)

 

Calling for police assistance from a phone booth, reporting her fear of defendant, did not constitute testimonial statements.  (People v. Banos (2009) 178 Cal.App.4th 483,

497.)

 

A mortally wounded victim told police that defendant had shot him.  The officers testified at trial about what the victim, who died shortly after the shooting, had told them. The United States Supreme Court held that the informality of the exchange suggested that the officers’ purpose was to address what they perceived to be an ongoing emergency. The circumstances lacked any formality that would have alerted the victim to, or focused him on, the possible future prosecutorial use of his statements.  Under these circumstances, the victim’s identification and description of the shooter and the location of the shooting were not testimonial hearsay. The Sixth Amendment, therefore, did not bar their admission at defendant's trial.  (Michigan v. Bryant (2011) __ U.S. __ [131 S.Ct. 1143; 179 L.Ed.2nd

93].)

 

A witness to a murder perceived the event within the meaning of Evid. Code, § 1240(a) (Spontaneous Statements) and was sufficiently affected for the spontaneous statement exception to the hearsay rule to apply.  The confrontation clause of the Sixth Amendment did not bar the witness’s statements (who was unavailable due to dementia) made to the initial officer on the scene, even though taking place about an hour after the shooting, because they were not testimonial but addressed an emergency.  (People v. Blacksher (2011) 52 Cal.4th 769,

809-818.)

 

A “Warrant of Removal,” documenting the order that defendant be removed from the United States and his actual physical removal, is not made in contemplation of litigation and is therefore non-testimonial.  (United States v. OrozcoAcosta (9th Cir. 2010) 607 F.3rd 1156, 1162-1164.)

 

A shooting victim’s statement to a firefighter while en route to the hospital in an ambulance, identifying the defendant as the person who shot him, was not testimonial even though made in response to the firefighter’s question. 

(People v. Nelson (2010) 190 Cal.App.4th 1453, 1460-

                                       1468.)                                                    

 

A federal “Warning to Alien Ordered Removed or Deported,” like a “Warrant of Removal,” is non-testimonial because it is prepared routinely and is not made in anticipation of litigation.  The Warning is a standardized form with no personalized content or factual findings.    (United States v. Valdovinos-Mendez (9th Cir. 2011) 641

                                          F.3rd 1031, 1034-1035.)                    

 

Documentary evidence of a defendant’s prior convictions is non-testimonial.  Therefore, determining the truth of defendant’s prior convictions based on those documents did not violate defendant’s Sixth Amendment confrontation rights.  The materials included in a prior-conviction packet under P.C. § 969b are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. The records were made for other purposes in the ordinary course of other business of the courts and agencies and were maintained for other purposes. They were offered as evidence only if an accused committed another offense.  Accordingly, the records were beyond the scope of the Sixth Amendment right of confrontation and cross-examination.  (People v.

Larson (2011) 194 Cal.App.4th 832, 836-838.)

 

Examples of “Testimonial” statements that may be admitted into evidence because defendant was accorded his right to crossexamine the hearsay declarant:

 

“(W)hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”  (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6, citing Crawford, supra, at p. 59, fn. 9.)

 

A wife’s statement to the police about defendant having beaten her, admissible as a “Threat of Infliction of Injury,” per E.C. § 1370, was held to be admissible at trial after the victim/wife refused to testify at trial but where the defendant had had the opportunity to cross-examine her at the preliminary hearing.  (People v. Price (2004) 120

Cal.App.4th 224.)

 

A four-year-old child’s statements to a Child Protective Services interviewer, although “testimonial” in nature and thus potentially in violation of Crawford, are admissible pursuant to E.C. § 1360 so long as the defendant did have the opportunity to cross-examine her.   (People v. Warner (2004) 119 Cal.App.4th 331; where the four-year-old was found competent to testify by the trial court and did in fact do so.)  

 

The fact that the child/witness/victim was unable to remember much of what she had previously told the interviewer was held to be irrelevant.  The Sixth Amendment confrontation protection only guarantees defendant an “opportunity” to crossexamine the witness; not a guarantee that such cross-examination will necessarily be effective. 

(Ibid.)

 

Note:  Review was granted in Warner by the California Supreme Court (Sept. 15, 2004), making this case unavailable for citation pending decision by the High Court.

 

A defendant’s right to confrontation is not denied when the prosecution offers a witness a plea bargain in exchange for the witness’s truthful testimony, but does not allow for the execution of the plea agreement until after the completion of defendant’s case.   When the prosecution decided not to use the witness’s testimony, and where the witness therefore refused to testify for the defense claiming the benefits of his Fifth Amendment self-incrimination privilege, but the trial judge relaxed the hearsay rule thereby providing the defense a means to get the witness’s proposed evidence before the jury through the testimony of other witnesses, there was no Sixth Amendment confrontation violation.  (People v. Woods (2004) 120

Cal.App.4th 929, 934-939.)

 

A child’s testimony, answering “I don’t know” to many of the questions, did not make her unavailable.  “The Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ (Citations.)”  (Italics in original; People v. Harless (2004) 125 Cal.App.4th 70, 85-88.)

 

Note:  Review was granted in Harless by the California Supreme Court (Mar. 23, 2004), making this case unavailable for citation pending decision by the High Court.

 

The same issue occurred in People v. Guess (2007) 150 Cal.App.4th 148, where the witness had testified during the preliminary examination, but the defendant received discovery concerning that witness’s proposed testimony late and the magistrate denied defendant’s motion for a continuance.  Defendant complained that his ability to effectively cross-examine the witness at the prelim was compromised, depriving him of his right to confrontation when the preliminary hearing transcript was used at trial (per E.C. § 1291; former testimony) because the witness had disappeared by then.  The Court ruled that Crawford and the Sixth Amendment only guarantee the “opportunity” to cross-examine the witness.  (Review granted, June

27, 2007.  As such, this decision is not citable.)

 

Statements made to co-workers, admissible at trial as prior inconsistent statements (E.C. §§ 770, 1235), are not testimonial.  However, even if they were, the persons making such statements were available at trial for crossexamination.  Just because they denied making such statements does not mean that defendant was deprived of his right to cross-examine them on the statements.  (People v. Butler (2005) 127 Cal.App.4th 49, 59.)

 

A detective’s testimony concerning a witness identifying the defendant in a photographic lineup, per E.C. § 1238 (Prior Identification), was admissible when the witness also testified and was subjected to defendant’s crossexamination.  (People v. Bayor (2005) 130 Cal.App.4th

355, 364-368.)

 

Note:  Review was granted in Bayor by the California Supreme Court (Sep. 21, 2004), making this case unavailable for citation pending decision by the High Court.

 

A witness’s preliminary hearing testimony, where he was subject to the defendant’s cross-examination, after the witness, at trial, asserted a Fifth Amendment right not to testify (People v. Seijas (2005) 36 Cal.4th 291, 303.) or was unavailable because he died between the prelim and trial  (People v. Carter (2005) 36 Cal.4th 1114 1171-1174.), or disappeared after the preliminary hearing and couldn’t be located by the prosecution executing “due diligence” to find her.  (People v. Byron (2009) 170 Cal.App.4th 657,

674.)

 

Police officers’ recorded statements on tape, recording during a high speed pursuit, even if testimonial (holding that they were probably not), did not violate Crawford because the officers testified at trial and were subject to crossexamination.  (People v. Mitchell (2005) 131 Cal.App.4th

1210.)

 

Statements made by a bank robbery co-conspirator to an F.B.I. agent that were testified to by the agent, where the declarant also testified and was subject to cross examination. 

(United States v. Allen (9th Cir. 2005) 425 F.3rd 1231, 12341235.)

 

The results of a “conditional examination” of a witness, per P.C. §§ 1335 et seq., are admissible at trial because the defendant has had the opportunity to cross-examine the witness, despite the fact that the facts known to defendant, which may have resulted in other questions being asked, changed after the examination, at least in the absence of any wrongful failure by the prosecution to provide timely

discovery.  (People v. Jurado (2006) 38 Cal.4th 72, 115-116.) A witness who feigns forgetfulness, saying he has no memory of the event, is nonetheless subject to crossexamination.  The jury is still able to evaluate his demeanor and assess his credibility.  His prior recorded statement to the police about the event in issue is admissible as a prior inconsistent statement (E.C. § 1235).  (People v. Gunder (2007) 151 Cal.App.4th 412, 419-120.)

 

Statements by a domestic violence victim to police after defendant had already fled the scene, in once instance, and after he was already arrested in another instance, were testimonial, but nevertheless admissible under the “Rule of Forfeiture by Wrongdoing” based upon evidence that defendant later murdered the victim to keep her from reporting the incidents to the police and from testifying. 

(People v. Banos (2009) 178 Cal.App.4th 483, 497-498,

499-504)

 

Admission at trial of a witness’s preliminary hearing testimony where the witness, prior to trial, properly asserted his right against self-incrimination, was proper, despite the fact that at the preliminary hearing, the witness was given “use immunity” by the prosecution, and then later, after the prelim, was charged with murder (with his use immunity withdrawn) prior to trial.  Defendant had the opportunity to cross-examine the witness at the preliminary examination.  The prosecutor’s decision to later charge that witness as an accomplice in the murder, precipitating his unavailability to testify at trial, did not improperly deprive defendant of his right to cross-examine him at trial.  Absent an improper motive, the prosecution was not required to again provide the witness with immunity at the trial.  (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1546-

1553, as modified at 2011 Cal.App. LEXIS 36 (1/13/11).)

 

See also the “Rule of Forfeiture by Wrongdoing,” below.

 

Testimonial Statements when offered for a Non-Hearsay Purpose:

 

Admission of hearsay statements when admitted as the basis for an expert’s opinion, although maybe testimonial, do not involve the defendant’s Sixth Amendment rights.  (People v. Thomas (2005) 130 Cal.App.4th 1202, 12081210; gang expert’s testimony about conversations had with gang members on the street, offered as to support his opinion as to defendant’s gang membership.)

 

The rule of Crawford does not apply in a civil, Sexually Violent Predator (“SVP”) commitment proceeding, and is not applicable to an expert’s testimony about hearsay statements that served as a basis for his or her opinion.  (People v. Fulcher (2006) 136 Cal.App.4th 41, 53-57.)

 

Police officers’ recorded statements on tape, recording during a high speed pursuit, even if testimonial (holding that they were probably not), did not violate Crawford because they were not offered to prove the truth of the statements.  (People v. Mitchell (2005) 131 Cal.App.4th 1210.)

 

Evidence of an elder adult’s mental state, even though in the form of an interview of the victim, is a non-hearsay purpose and thus does not invoke the rule of Crawford.   (People v. Cooper (2007) 148 Cal.App.4th 731, 744-745.)

 

Also, when an expert’s testimony is based partially upon the victim’s statements, using those statements for the non-hearsay purpose of reaching an opinion, those statements are admissible to show the basis for

the expert’s opinions.  (Id., at p. 746-747.)

 

There are no confrontation clause restrictions on the introduction of an out-of-court statement when introduced into evidence for a non-hearsay purpose.  (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.)

 

A slashing victim’s statement to an investigator at the hospital for days after she had been assaulted, that her assailant had tan skin, was admitted pursuant to E.C. § 1202, as a prior inconsistent statement and only for the purpose of impeaching her prior statement that her assailant had been white, was admissible.  (People v. Osorio (2008) 165

Cal.App.4th 603, 615-616.)

 

A gang member’s out-of-court testimonial statement to a police officer that defendant directed a gang-related robbery, as basis evidence to support the opinion of the prosecution’s gang expert that defendant was an active, high-ranking gang member when he committed the charged crimes, and not as substantive evidence that defendant was an active, high-ranking gang member, was properly admitted into evidence.  The Appellate Court held that the admission did not violate defendant's Sixth Amendment rights. Out-of-court testimonial statements did not violate the Confrontation Clause when they were admitted solely as basis evidence and not as substantive or independent evidence of the truth of the matter asserted.  (People v.

Archuleta (2011) 202 Cal.App.4th 493, 508-513.)

 

Whether or not such evidence is admissible is tested under E.C. § 352, determining whether the probative value of such evidence outweighs it’s

potential prejudicial effect.  (Id., at pp. 513-519.)

 

Testimonial Statements when offered in a Hearing Related to other than a Criminal Prosecution:

 

Testimonial hearsay statements of a child sexual molest victim are admissible in a civil child dependency case even though they would not have been admissible in a criminal case.  “In a criminal case the issue is the guilt of the defendant, whereas in a dependency case the subject is the well-being of the victim . . . “  (In re April C. (2005) 131 Cal.App.4th 599, 610-612.)

 

Crawford does not apply in a probation revocation proceeding in that the Sixth Amendment right to confrontation applies only to “criminal prosecutions.”  (United States v. Hall (9th Cir. 2005) 419 F.3rd 980; held not to apply in post-conviction proceedings for violations of conditions of release.)

 

A hearsay statement that qualifies as a “spontaneous statement,” admissible as an exception to the Hearsay Rule under E.C. § 1240, when used at a probation revocation hearing, automatically satisfies the probationer’s due process confrontation/cross-examination rights without the court having to find good cause for the witness’s absence or to perform a balancing test.  (People v. Stanphill (2009)

170 Cal.App.4th 61, 78-81.)

 

The “balancing test” referred to by the court, and which the court declined to decide whether it applies to statements admitted under other hearsay exceptions, involves an analysis of the importance of the hearsay evidence to the court’s ultimate finding when balanced with the nature of the facts to be proven by the hearsay evidence, as described in United States v. Comito (9th Cir. 1999) 177 F.3rd 1166.

 

Crawford applies to trial testimony only.   Therefore, so long as otherwise reliable, hearsay evidence was admissible at defendant’s sentencing.  (United States v. Littlesun (9th Cir. 2006) 444 F.3rd 1196; wife’s statements to an investigator as to how much methamphetamine defendant was dealing relevant to sentencing under federal sentencing guidelines.)

 

The Confrontation Clause has been held not to apply to civil forfeiture proceedings.  (United States v. $40,955 in United States Currency (9th Cir. 2009) 554 F.3rd 752, 758); citing United States v. Zucker (1896) 161 U.S. 475, 481

[40 L.Ed. 777].)

 

Testimonial Statements Admitted Under Equitable Principles:

 

The “Doctrine of Forfeiture by Wrongdoing:”

 

“(I)f a witness is absent by his own [the accused’s] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.  The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.”  (Reynolds v. United States (1879) 98 U.S. 145, 158

[25 L.Ed. 244].)  

 

See also Davis v. Washington (2006) 547 U.S. 813, 832-834 [165 L.Ed.2nd 224]; a domestic violence case, where the “rule of forfeiture by wrongdoing” was noted to be applicable any time a defendant does something to procure the absence of a witness.

 

Where it is shown that the defendant prevented a witness’s testimony, when the witness is “kept back,” “detained” by “means of procurement,” whenever the defendant’s acts are “designed to prevent the witness from testifying,” then he will not be able to prevent otherwise admissible (under a hearsay exception) statements of the witness (or victim) from being admitted into evidence.  (Giles

v. California (2008) 554 U.S. 353 [171 L.Ed.2nd 488; 128 S.Ct. 2678]; reversing the California Supreme Court which had held that merely being the cause of the witness’s unavailability was sufficient, whether or not done to prevent his or her testimony in the instant case.)

 

The rule of Giles, to the effect that the forfeiture exception applies only if a defendant specifically intended to prevent the witness from testifying, as a new rule, is not to be applied retroactively.  (Ponce v.

Felker (9th Cir. 2010) 606 F.3rd 596.) 

 

And see People v. Costello (2007) 146 Cal.App.4th 973, where the Appellate Court approved the admission of six separate prior spontaneous statements of the victim, admissible pursuant to E.C. § 1109(a) (prior acts of domestic violence), through the testimony of responding police officers at defendant’s trial for murdering that same victim, under the “forfeiture by wrongdoing” theory, while providing a complete history of the theory from Reynolds, supra (in 1879), to Crawford.  

 

Statements by a domestic violence victim to police after defendant had already fled the scene, in one instance, and after he was already arrested in another instance, were testimonial, but nevertheless admissible under the “Rule of Forfeiture by Wrongdoing,” based upon evidence that defendant later murdered the victim to keep her from reporting the incidents to the police and from testifying. 

(People v. Banos (2009) 178 Cal.App.4th 483, 497-

498, 499-504)

 

“Dying Declarations:” An example of a “testimonial” statement that may be admitted into evidence on “equitable principles.” or because of its recognition as a hearsay exception before the establishment of the Sixth Amendment confrontation clause.

 

Because the “dying declaration” exception to the hearsay rule is one that was recognized at common law, and in existence at the time of the establishment of the Sixth Amendment right to confrontation, admitting such hearsay is not a Sixth Amendment violation.  (People v. Monterroso (2004) 34 Cal.4th 743, 762-765; A robbery victim’s dying declaration properly admitted into evidence whether or not it was “testimonial.”)

 

A murder victim’s dying declaration, identifying defendant as the murderer, was admissible through the testimony of the officer (and a tape of the interview) who interviewed the witness to the dying declaration who, in recanting his statement to the officer, denied, at trial, that the victim had in fact identified defendant.  (People v. Mayo (2006) 140 Cal.App.4th 535; Crawford not violated.)

   

The “Rule of Completeness;” per E.C. § 356:

 

Where defendant is allowed to use evidence of certain statements of a co-principal under the theory that they are being admitted for a non-hearsay purpose (e.g., to support defendant’s claim that he acted in fear for his life), the prosecution will be allowed to introduce other testimonial statements obtained in the same police interview where necessary to prevent the co-principal’s statements to police from being taken out of context, per E.C. §

356.  (People v. Parrish (2007) 152 Cal.App.4th

263, 269-276.)

 

Other Exceptions to the Rule of Crawford:

 

Testimonial statements made by a co-suspect in the defendant’s presence, where the co-suspect is later not available for cross-examination at trial, are still admissible under the theory that the statements become those of the defendant as “adoptive admissions” (E.C. § 1221) when the defendant fails to deny them at the time the declarations are originally made.  (People v. Combs (2004) 34 Cal.4th 821, 842-844:  Admissible for the non-hearsay purpose of giving meaning to the defendant’s silence in face of the cosuspect’s incriminatory statements to the police.)

 

Adoptive admissions made by three robbery/murder suspects, all interviewed together, where the investigator sought the agreement of each as questions were asked and answers provided by one of more of the defendants.  (People v. Castille (2005) 129 Cal.App.4th 863, 876-883.)

 

A probation revocation hearing is not a “criminal prosecution” to which the Sixth Amendment applies.  Therefore a laboratory report introduced at the probation revocation hearing and reflecting the analysis of contraband (i.e., rock cocaine in this case), does not implicate a defendant’s right to confrontation under the Sixth Amendment.  Rather, the issue is one of the defendant’s right to “due process” under the Fourteenth Amendment.  (People v. Johnson (2004) 121 Cal.App.4th 1409; report

held to be admissible.)

 

Failing to deny a sentencing judge’s comment that defendant “broke just about every bone in the victim’s body” was held by the California Supreme Court not to be an adoptive admission, per E.C. § 1221, reversing the lower court on this issue.  As such, the use of the defendant’s silence to such an accusation may not be used to prove a prior conviction and a third strike when offered as proof of such conviction in a subsequent case.  (People v.

Thoma (2007) 150 Cal.4th 1096.)

 

Evidence admitted under E.C. § 356 (i.e., the “Rule of Completeness:”  “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . “) does not violate Crawford.  The propose of E.C. § 356 is founded “not on reliability but on fairness so that one party may not use selected aspects of a conversation . . . so as to create a misleading impression on the subject addressed.”  (People v. Parrish (2007) 152 Cal.App.4th 263; co-suspect’s hearsay statements admitted into evidence to rebut other parts of the same interview by law enforcement that were introduced by defendant to support his argument that he participated in the crime under duress.)

 

Hearsay statements of a co-defendant that have been redacted to eliminate any references to the defendant “serves to prevent Crawford error.”  (People v. Stevens

(2007) 41 Cal.4th 182, 199; citing United States v. Chen

(2nd Cir. 2004) 393 F.3rd 139, 150.)

 

“‘A witness whose testimony is introduced at a joint trial is not considered to be a witness “against” a defendant if the jury is instructed to consider that testimony only against a codefendant.’ (Citation)  The only exception to this rule is the narrow class of statements . . . that powerfully incriminate the defendant on their face because they directly implicate the defendant by name or do so in a manner the jury could not reasonably be expected to ignore.  (Citations)  Accordingly, redacted codefendant statements that satisfy Bruton's (Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2nd 476].) requirements are not admitted

‘against’ the defendant for Crawford purposes.  (Citation)”

(People v. Lewis (2008) 43 Cal.4th 415, 506.)

 

See Aranda/Bruton, below.

 

Statements of a domestic violence victim which were testimonial but admitted into evidence anyway may not require reversal where they were merely cumulative to other evidence that was properly admitted (e.g., the victim’s preliminary hearing testimony).  (People v. Byron

(2009) 170 Cal.App.4th 657, 676.)

 

Retroactivity of the Crawford Rule:

 

The rule of Crawford is not retroactive, at least when attempting to apply it to a case that is otherwise final (i.e., the defendant’s direct appeals have been exhausted), and is thereafter tested in a “collateral” habeas corpus petition.  (In re Moore (2005) 133 Cal.App.4th 68; habeas corpus petition challenging the competency of defense counsel.

 

The rule under Crawford, being a new procedural rule, and not one considered to be a “watershed” rule (i.e., one that implicates “the fundamental fairness and accuracy of the criminal proceeding”), is not retroactive for purposes of either direct or collateral appellate review.  (Whorton v. Bockting (2007) 549 U.S. 406 [167 L.Ed.2nd 1]; see also Woods v. Sinclair (9th Cir. 2011) 655 F.3rd 886, 899, fn.

7.)    

 

Also, it has been held that a limiting instruction is insufficient to cure a

Crawford violation.  (People v. Song (2004) 124 Cal.App.4th 973, 984.)

 

Also note, however, that a defendant must object to a Sixth Amendment violation at trial in order to preserve the issue on appeal.  Merely complaining that he is not being allowed to cross-examine a missing witness whose hearsay statements are being admitted, without specifying that the objection is based upon Six Amendment grounds, does not preserve the issue on appeal.  (People v. Chaney (2007) 148 Cal.App.4th 772.)

 

Admissibility of a Co-Defendant’s Hearsay Admissions or Confession Implicating Defendant:

 

Aranda/Bruton Rule:  

 

Use of the hearsay admissions or confession of one defendant at trial, admissible against that defendant pursuant to E.C. § 1220 (Party Admission), as testified to by that defendant’s interrogator, which implicate a co-defendant, at least when there is no hearsay exception applicable to that co-defendant and the confessing defendant does not testify at trial and is therefore not subject to cross-examination by the co-defendant, has been held to be a violation of the co-defendant’s Sixth Amendment right to confront and cross-examine his accuser

(i.e., the confessing defendant).  (People v. Aranda (1965) 63 Cal.2nd

518; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2nd 476].)

 

Note:  The Truth-in-Evidence provision of Proposition 8 (Cal. Consti. Art. I, § 28(d)) abrogated Aranda to the extent it required relevant evidence to be excluded when federal constitutional law did not require exclusion.  (People v. Fletcher (1996) 13 Cal.4th 451, 465; People v. Mitcham

(1992) 1 Cal.4th 1027, 1045, fn. 6.)

 

The “Aranda/Bruton Rule” does not apply unless the two codefendants are “jointly tried.”  A defendant cannot complain under this theory when the declarant, whose hearsay statements he is challenging, is tried separately.  Other admissibility rules (e.g., hearsay) must be considered instead.  (People v. Combs (2004) 34 Cal.4th 821, 840-841; see also People v. Brown (2003) 31 Cal.4th

518, 537; United States v. Mitchell (9th Cir. 2007) 502 F.3rd 931,

965.)

 

Neither Bruton nor defendant’s confrontation rights are violated merely by admitting testimony to the effect that a coprincipal made a statement to police resulting in that coprincipal being taken into custody, without any reference to the content of that statement or other references to the defendant.  (Mason v. Yarborough (9th Cir. 2006) 447 F.3rd

693.)

 

“Bruton (and Aranda) must be viewed ‘through the lens of Crawford and Davis;’ if the challenged statement is not testimonial, the confrontation clause has no application.  (Citation omitted)  Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to non-testimonial statements.”  (People v. Arceo et al. (2011) 195

Cal.App.4th 556, 571.)

 

Referring to Crawford v. Washington (2004) 541 U.S. 36

[158 L.Ed.2nd 177], and Davis v. Washington (2006) 547

U.S. 813 [165 L.Ed.2nd 224].)

 

The Aranda/Bruton Rule also does not apply when there is a hearsay exception applicable to the non-confessing co-defendant, so long as the exception survives a “confrontation analysis.”  For instance:

 

A “declaration against interest,” made by one codefendant to a witness, under circumstances where the proponent of the evidence establishes that the declarant is not available to testify (e.g., another defendant invoking his right to remain silent), and the statement has “adequate indicia of reliability” sufficient to justify dispensing with the requirement of confrontation, may be admissible.  (People v. Greenberger (1997) 58 Cal.App.4th 298, 326-334.)

 

“The Court has applied this ‘indicia of reliability’ requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection.’ . . . [¶] . . . Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.  In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Ibid; citing Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2nd 597,

608]; see also People v. Cervantes (2004) 118

Cal.App.4th 162, 174-177, using the rule of Greenberger to uphold the admission into evidence statements of a co-principal to others than law enforcement (and thus, not a “testimonial” statement, per Crawford v. Washington, supra.) over the hearsay and confrontation objections of the other co-principals.)

 

Also, a “spontaneous statement” per E.C. § 1220, implicating the defendant, made by a co-defendant to his girlfriend, were admissible against the non-confessing defendant.  Aranda and Bruton were held not to apply because the “party admission” exception was not used as grounds for admissibility.  Crawford v. Washington, supra, did not apply because the statements were not “testimonial.”  (See above).  As statements which “bore adequate indicia of reliability” because they fell “within a firmly rooted hearsay exception,” they were properly admitted into evidence despite the lack of opportunity for the defendant to cross-examine the co-defendant on those statements.  (People v. Smith (2005) 135 Cal.App.4th 914.)

 

The admission of statements possessing sufficient indicia of reliability to fall within the hearsay exception for declarations against interest did not deny a defendant the right of confrontation. The witness statements in this case qualified as declarations against interest which were so trustworthy that adversarial testing would add little to their reliability.  Also, another statement qualified as a statement in furtherance of a conspiracy.

Accordingly, because the witness statements here were admissible under state law as exceptions to the hearsay rule, there was no error in the admission of that testimony.  (People v. Arceo et al.

(2011) 195 Cal.App.4th 556, 571-579.)

 

Where Aranda and Bruton do apply, the alternative solutions to this problem are to:

 

• Try the defendants in separate trials, using the confessing defendant’s statements only in his own trial.

 

• Try the defendants in the same trial, but with a separate jury for each defendant.

 

• Try the defendants in the same trial and use the confessing defendant’s statements in evidence but redact (i.e., remove) any references to the co-defendant.

 

• Try the defendants in the same trial but exclude the statements altogether.  

 

(Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2nd 176]; see also People v. Aranda, supra, at pp. 530-531; People v. Song (2004) 124 Cal.App.4th 973, 981; People v.

Stallworth (2008) 164 Cal.App.4th 1079, 1091.)

 

Redacting the confessing defendant’s statements, taking out any references to the co-defendant, creates a dilemma for the prosecutor:

 

“(T)he Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.”  (Richardson v. Marsh, supra, at p. 211 [95 L.Ed.2nd at p. 188].)

 

A defendant, however, is deprived of his Sixth Amendment right of confrontation if references to defendant’s name are merely replaced by a symbol or by a blank space in place of the defendant’s name.  (Gray v. Maryland (1998) 523 U.S. 185, 192 [140 L.Ed.2nd 294,

300-301].)

 

Prior to the decision in Gray, this prohibition on the use of a co-defendant’s redacted statements was not clearly established law.  Under 28 U.S.C.S. § 2254(d)(1), clearly established federal law includes only the Supreme Court’s decisions issued before the relevant adjudication of the merits of a prisoner’s claim, regardless of when the prisoner’s conviction became final. A direct appeal was thus the relevant adjudication of the merits. (Greene v.

Fisher (Nov. 8, 2011) __ U.S. __ [132 S.Ct. 38; 181 L.Ed.2nd 336].)

 

Similarly a reference to “another guy” is insufficient to overcome the

Sixth Amendment confrontation issue.  (People v. Schmaus (2003)

109 Cal.App.4th 846, 854-856.)

 

Redacting the codefendants’ hearsay statements to “other” or “others,” where the jury could easily determine that they were referring to defendant, was insufficient to avoid Aranda/Bruton error.  (People v. Burney (2009) 47 Cal.4th 203, 230-236; error harmless beyond a reasonable doubt given the amount of other evidence of defendant’s guilt.

 

Whether or not such editing is sufficient to overcome the right-toconfrontation issues depends upon the circumstances of each particular case.  “The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.”  (People v. Fletcher (1996) 13 Cal.4th 451, 455-456.) Where the co-defendant’s hearsay statements are redacted to the point where it is unknown who else was involved in a series of kidnappings and murders, but it is apparent that someone else was involved, and there are two or more other co-defendants being tried in the same case, may pose an Aranda/Bruton issue, depending upon the circumstances.  (People v. Lewis (2008) 43 Cal.4th 415, 453-460;

Court held that if error, it was harmless error.)

 

“Severance may be necessary when a defendant’s confession cannot be redacted to protect a codefendant’s rights without prejudicing the defendant.  [Citation]  A defendant is prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory.”  (Id., at p. 457.)

 

The use of a non-testifying co-defendant’s statement to an investigator that the victim “had to be checked” (i.e., assaulted) because he had “disrespected the Nortenos,” where it was alleged that the other co-defendants were all members of the Nortenos gang, violated the other defendants’ confrontation rights despite not being named individually.  (People v. Pena et al. (2005) 128 Cal.App.4th

1219.)

 

Admission of one defendant’s statement to police, saying “Well, if you don’t find the gun, then you are going to let us go, right?”, assumed to be Aranda/Bruton error when the only person who could have been the one to toss the gun was the non-confessing codefendant.  (People v. Reyes (2008) 159 Cal.App.4th 214; error held to be harmless given the weight of the rest of the evidence.)

 

Redaction of the defendant’s statements, eliminating any reference to the codefendant at trial, tended to render the defendant’s exculpatory account of a shooting implausible.  As such, defendant was prejudiced and his convictions on the affected counts were reversed.  (People v. Stallworth (2007) 164 Cal.App.4th 1079, 1091-1103.)

 

Another solution recently upheld by an appellate court is to question all suspects together while obtaining each defendant’s concurrence with each of the others’ accounts.  The defendant’s statements (i.e., the one who talked to the police) are then admissible against him under the “party admission” exception to the hearsay rule (E.C. § 1220), with those same statements admissible against the co-defendants as an “adoptive admission.”  (E.C. § 1221)  Such “deeply rooted” exceptions to the hearsay rule, given their obvious trustworthiness, do not violate the Sixth Amendment.  (People v.

Castille (2005) 129 Cal.App.4th 863.)

 

But see People v. Jennings (2003) 112 Cal.App.4th 459, where the co-suspect did not always agree with her co-conspirator’s incriminatory statements.  On appeal, the Court held that a criminal suspect does not “adopt” the incriminatory admissions of a cosuspect when she challenges the truth of those admissions.

 

The interrogation technique upheld in Castille was used again in People v. Jennings (2010) 50 Cal.4th 616, 660-666 (co-defendant to the defendant Jennings in 112 Cal.App.4th 459, supra.), and found to be lawful.  Specifically, the California Supreme Court held that this interrogation technique avoids any confrontation issues discussed in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2nd 177]; People v. Aranda (1965) 63 Cal.2nd 518, and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2nd 476].

 

The prior People v. Jennings, found at 112 Cal.App.4th 459, cited above, was this Jennings’ wife, and co-defendant, whose appeal, not involving the death penalty, was litigated separately.

 

There are other automatic exceptions to the Aranda/Bruton rule of exclusion:

             

Court trials.  (Cockrell v. Oberhauser (1969) 413 F.2nd 256, 258; Rogers v. McMackin (1989) 884 F.2nd 252, 254; People v. Walkkein (1993) 14 Cal.App.4th 1401.)

 

At a preliminary examination.  (People v. Miranda (2000) 23 Cal.4th 340.)

 

When the confessing codefendant testifies and is therefore available for cross-examination by the one implicated in the codefendant’s confession.  (Nelson v. O’Neil (1971) 402 U.S. 622 [29 L.Ed.2nd 222].)

 

Aranda is also inapplicable when the non-testifying co-defendant’s admissions were introduced into evidence not for the truth of the content of such statements, but rather for the non-hearsay purpose of proving defendant’s state of mind in admitting his own involvement and as relevant to the defendant’s credibility when he testified that his admission was motivated by a desire to “bring forth the truth.”  (People v. Carter (2003) 30 Cal.4th 1166, 1208-1209.)

 

While using the pronoun “he” or “she,” if the person is still readily identifiable as the defendant, won’t avoid an Aranda problem, it might be okay if the defendant is but one of a “large group” of possible co-suspects. 

(People v. Fletcher (1996) 13 Cal.4th 451, 466.)

 

Where defendant is one of only two other possible co-suspects, he might still qualify as part of a “large group.”  (People v. Jefferson (2008) 158 Cal.App.4th 830, 844-845; if error, held to be harmless error given the strength of the evidence against the defendant.)

 

Redactions that Prejudice the Defendant:

It is also possible that by redacting a defendant’s statements by eliminating any references to the codefendants, the defendant himself is made to look even more culpable to his prejudice.  This might be error if it does in fact prejudice the speaking defendant.  “Ordinarily, . . . a trial court should review both the unredacted and the redacted statements to determine whether the redactions so distort the original statement as to result in prejudice to the defendant.”  (People v. Gamache (2010) 48 Cal.4th 347, 378-382.)

On Appeal:  Aranda/Bruton error is not reversible per se.  Because it implicates a constitutional right, it is scrutinized under the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S.18 [17 L.Ed.2nd 705].  (Brown v. United States (1973) 411 U.S. 223, 231-232 [36 L.Ed.2nd 208, 215];

People v. Anderson (1987) 43 Cal.3rd 11.4, 1128; People v. Song (2004) 124 Cal.App.4th 973, 981; People v. Burney (2009) 47 Cal.4th 203, 236.