People v. Reese

So important is an indigent defendant's right to transcripts of prior proceedings that it applies in misdemeanor cases-even where the defendant is sentenced only to a monetary fine. ( Mayer v. City of Chicago (1971) 404 U.S. 189 , 196-197, 92 S.Ct. 410 , 30 L.Ed.2d 372 .) And it applies not only on appeal but where an indigent defendant faces retrial. ( Britt , supra , 404 U.S. at p. 227, 92 S.Ct. 431 .) In Britt , the court held that an indigent defendant facing retrial has a right to a free transcript of the first trial. In so holding, the court emphasized the importance of two factors that determine whether an indigent defendant's interest in obtaining a transcript of prior proceedings is strong enough to entitle him or her to the transcript: (1) the value of the transcript to the defendant; and (2) the availability of alternative means that would fulfill the same functions as a transcript. ( Ibid . ) In elucidating the first factor, the court rejected any notion that a defendant is required to demonstrate a need for the transcript. Instead, Britt concluded that courts could ordinarily assume that a defendant would benefit from the transcript of an earlier trial. ( Id . at p. 228, 92 S.Ct. 431 .) What cannot be assumed-because of the second factor-is that an indigent defendant is automatically entitled to a transcript of the prior proceeding. With the second factor, the court struck a balance that appears calibrated to protect defendants' interests without imposing unnecessary costs on the government: defendants are not required to prove the inadequacy of transcript alternatives, but neither are they entitled to a transcript of the first trial if the substantial

Given the scope of the equal protection principles we articulated in Shuford and Hosner , we need look no further than those cases to decide whether the trial court violated defendant's equal protection rights in this case. Before the start of the retrial, defendant requested the entire transcript of his first trial-including the opening and closing statements. Because defendant had the benefit of Hosner 's presumption, he was entitled to a full and complete transcript of his first trial unless the prosecution " 'clearly establish[ed] the contrary.' " ( Hosner , supra , 15 Cal.3d at p. 69, 123 Cal.Rptr. 381 , 538 P.2d 1141 , quoting

Defendant argues that a full transcript would have left him better able to respond to the government's contention that he hid the gun, and he points to two moments from the second trial as examples of his claimed disadvantage. Our review of the record persuades us, however, that the withholding of the full transcript from the first trial did not prejudice the defense at either moment. First, defendant points to his attempts to compel the presence at trial of Officer Ramirez, who had handled the gun-sniffing dog at the scene. Prior to trial, defendant attempted to compel the presence of Officer Ramirez at trial to help establish that there was never any gun at the scene. The officer was on vacation, however, and the trial court declined to continue the case until his return. Defendant argues that he would have been able to persuade the trial court to continue the case if he had possessed a transcript of the statements from the previous trial. But it is difficult to see what extra force the missing transcript portions would have added to defendant's argument. It is clear that defendant did not need the statement transcripts to understand the significance of Officer Ramirez's potential testimony, as he argued to the trial court that the testimony would establish that there was "nowhere to hide" a gun in the mother's "very small apartment." Nor is there a reasonable probability that the trial court would have been more likely to grant the continuance had defendant pointed to those moments during the prosecution's arguments when it referenced the hidden gun.

Second, defendant points to his cross-examination of Officer Azarte, who supervised the witnesses outside the apartment. Defendant argues that he would have more effectively cross-examined Officer Azarte regarding the missing gun had he possessed a full transcript, but once again it is

At a pretrial hearing on April 26, the court granted defendant's motion for a "complete record of trial transcripts." The court continued the retrial date to June 10. On June 6, the defendant received a transcript that included all witness testimony from the first trial, but omitted the opening statements and closing arguments. Before trial commenced on June 10, defendant argued that he did not receive the "full set of transcripts which I am entitled to." The trial court responded that it had ordered "all the testimony" and that defendant was "entitled only to the testimony given." Defendant argued that he was "required" to have transcripts of the opening statements and closing arguments so that he "won't make the same mistakes," given that he had a "small amount of time to study a lot." Without hearing from the prosecution, the trial court denied the request and the defendant's motion for a continuance. After a three-day trial, the jury found defendant guilty on all counts. The trial court then sentenced the defendant to an aggregate sentence of 17 years in state prison.

A divided panel of the Court of Appeal rejected defendant's challenge to the denial of his request for a transcript of the opening statements and closing arguments. The majority recognized that a defendant facing retrial is presumptively entitled to a transcript of the first trial, but held that the presumption applies only to witness testimony. The majority reasoned that a defendant is required to demonstrate a need for other portions of the trial transcript, including opening statements and closing arguments. Concluding that defendant failed to demonstrate any such need,

In contrast, the Court of Appeal read Hosner 's presumption as applying only to transcripts of witness testimony. This led it to conclude that a defendant facing retrial must demonstrate a need for other portions of the trial transcript. But we decline to read Hosner so narrowly, because the constitutional interests at stake foreclose any conclusion that Hosner 's presumption applies only to witness testimony. In the context of criminal adjudication, the equal protection clause guarantees an indigent defendant's opportunity to mount a similar defense against criminal charges as can a wealthy defendant. (See Griffin , 351 U.S. at p. 17, 76 S.Ct. 585 [Equal protection safeguards "the central aim of our entire judicial system-all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court,' " quoting Chambers v. Florida (1940) 309 U.S. 227 , 241, 60 S.Ct. 472 , 84 L.Ed. 716 ].) As noted above, Hosner 's holding is grounded in this important equal protection principle. (See Hosner , supra , 15 Cal.3d at p. 62, 123 Cal.Rptr. 381 , 538 P.2d 1141 .) It is simply inconsistent with the purpose of this guarantee to distinguish between transcripts of witness testimony and transcripts of counsel's statements-both of which a wealthy defendant is certain to purchase-when determining whether Hosner 's presumption applies. For this very reason, we said nothing in Hosner to suggest that its framework applied only to transcripts of witness testimony. To the contrary-we described the transcript to which the defendant was presumptively entitled as a "full transcript of prior proceedings " and a "complete transcript of his first trial ," not merely a transcript of witness testimony. ( Id . at pp. 65-66, 123 Cal.Rptr. 381 , 538 P.2d 1141 , original italics omitted, italics added.)

In support of the Court of Appeal's holding, the People cite the high court's statement in Britt that the transcript of a previous trial is "assumed" to be valuable to a defendant "in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses." ( Britt , supra , 404 U.S. at p. 228, 92 S.Ct. 431 .) According to the People, it follows from this conclusion that opening statements and closing arguments are of lesser importance to an indigent defendant because they are not evidence and therefore not particularly relevant or even useful for discovery or impeachment purposes. Yet Britt clearly never purported to offer an exhaustive list of the uses of a trial transcript, nor did it limit an indigent defendant's equal protection interests in the transcript of the previous trial. ( Ibid . ["in at least two ways," italics added].) And for good reason. A transcript is important not solely for its impeachment and discovery value, but

Although the question whether a constitutional violation is structural or trial error is generally thought to be categorical, the harmless error status of certain constitutional violations is neither binary nor fixed. Certain errors can shift between being structural or subject to harmless error review depending on the nature and extent of the violation. An especially apt example is the right to counsel, as Hosner explicitly connected the right to previous trial transcripts and the right to counsel in its discussion of whether harmless error review was possible. ( Hosner , supra , 15 Cal.3d at p. 70, 123 Cal.Rptr. 381 , 538 P.2d 1141 .) There can be no question, of course,

We must now determine whether the defendant's inability to access a part of the transcript was harmless in this case. Federal constitutional errors subject to harmless error review are reviewed under Chapman , which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. ( People v. Aranda (2012) 55 Cal.4th 342 , 367, 145 Cal.Rptr.3d 855 , 283 P.3d 632 ( Aranda ).) To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a " ' "reasonable probability" ' " that the error contributed to the verdict. ( Ibid . )

In this case, our review of the record convinces us that the error was harmless beyond a reasonable doubt. The People charged defendant with making criminal threats, possession of a firearm by a felon, and assault with a firearm. The charges arose out of an incident at the home of defendant's mother. The prosecution alleged that defendant's mother called 911 and, once officers arrived, defendant's mother, uncle, and girlfriend all stated that defendant had threatened his mother and girlfriend with a firearm. Both of defendant's trials revolved around two key disputes. First, the three witnesses from the scene all recanted substantial portions of their earlier statements during their trial testimony. Second, the officers recovered a

Moreover, the retrial took place just two months after the initial trial, and defendant represented himself both times. There is no indication that defendant failed to anticipate the prosecutor's arguments, or that the constitutional violation otherwise prejudiced his defense. Throughout the retrial, defendant drew out testimony regarding the two central issues in the case: the missing firearm, and the discrepancies between the witnesses' statements. Simply put, nothing in the record

So we are convinced-beyond a reasonable doubt-that defendant's lack of access to a transcript of opening statements and closing arguments from his first trial did not contribute to the verdict. ( Aranda , supra , 55 Cal.4th at p. 367, 145 Cal.Rptr.3d 855 , 283 P.3d 632 .)

A defendant facing retrial is presumptively entitled to a full transcript of the previous trial-including opening and closing statements. The Court of Appeal's conclusion to the contrary ignores that transcripts of counsel's statements can be critical to an indigent defendant's ability to mount a defense similar to that available to a wealthy defendant. What a defendant is not entitled to receive, however, is automatic reversal for the partial denial of the right to a previous trial transcript. Instead, when-as happened here-defendant is denied only a portion of the transcript, the harmless error rule applies. Because we find the error harmless in this case, we affirm the judgment of the Court of Appeal.

We Concur:

Cantil-Sakauye, C.J.

Werdegar, J.

Chin, J.

Corrigan, J.

Liu, J.

Kruger, J.

We hold that we meant what we said in Hosner : An indigent defendant facing retrial is presumptively entitled to a "full" and "complete" trial transcript-and this entitlement extends to counsel's statements. The trial court and Court of Appeal therefore erred when they required defendant to demonstrate why a transcript of the statements

While Britt established the basic framework for considering an indigent defendant's claim to the transcripts of a previous trial, the Britt defendant's concession prevented the court from fully considering what showing would be required to overcome the defendant's presumption of need for a transcript. We first addressed that issue in

The considerable importance of counsel's statements does not imply, however, an equivalence for all purposes between such statements and evidence. The prosecution remains free, of course, to reference these distinctions when attempting to carry its burden of establishing that anything other than a full and complete transcript (including opening statements and closing arguments) suffices to guarantee the defendant an adequate defense. We simply hold here that any differences between a transcript of witness testimony and that of counsels' statements do not justify exempting opening statements and closing arguments from Hosner 's presumption of entitlement. The Court of Appeal erred when it held otherwise.

B.

Having found federal constitutional error, we must decide if it requires reversal of defendant's conviction. Most federal constitutional errors are subject to harmless error review under Chapman v. California (1967) 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 ( Chapman ). ( Washington v. Recuenco (2006) 548 U.S. 212 , 218, 126 S.Ct. 2546 , 165 L.Ed.2d 466 .) Not so for those federal constitutional errors deemed "structural," which require automatic reversal without a demonstration of harm to the defendant. ( Ibid . ) In Hosner , we held that the erroneous denial of an indigent defendant's motion for a transcript of a prior trial was indeed structural error that required automatic reversal. ( Hosner , 15 Cal.3d at p. 70, 123 Cal.Rptr. 381 , 538 P.2d 1141 .) Defendant argues that this holding requires us to reverse the conviction here regardless of harmless error, while the People argue that Hosner 's harmless error holding should be reexamined or, at a minimum, confined to a total denial of the right to a previous trial transcript.

By their very nature, structural errors render a trial fundamentally unfair or an unreliable determinant of a defendant's guilt or innocence. ( Neder v. United States (1999) 527 U.S. 1 , 9, 119 S.Ct. 1827 , 144 L.Ed.2d 35 .) For an error to be structural, it must affect the entire "framework within which the trial proceeds." ( Arizona v. Fulminante (1991) 499 U.S. 279 , 308, 310, 111 S.Ct. 1246 , 113 L.Ed.2d 302 ( Fulminante ).) Accordingly, denials of the right to the attorney of one's choice ( United States v. Gonzalez-Lopez (2006) 548 U.S. 140 , 126 S.Ct. 2557 , 165 L.Ed.2d 409 ), to an unbiased judge ( Tumey v. Ohio (1927) 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 ), and to a valid reasonable doubt instruction (

What does not follow from this conclusion is that the erroneous withholding of any portion of a previous trial transcript is automatically structural error. On this issue, the Ninth Circuit held that the partial denial

Several factors underscore why the error did not contribute to the verdict. The prosecution's case was straightforward and quite similar at the two trials. During his opening statement and closing argument at the first trial, the prosecutor argued that the witnesses recanted to protect defendant and that defendant had hidden the firearm. Defendant, by contrast, argued that the officers had lied about the witnesses' allegations at the scene and that there had never been a gun at all. The People's case during the retrial was not meaningfully different. The prosecutor's opening statement at the second trial previewed an identical theory of the case and explanation for the discrepancy between the witnesses' statements at the scene and on the stand. Each witness