P. v. Carranco

P. v. Carranco

Filed 2/24/10 P. v. Carranco CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Appellant, v. JESSE CARRANCO, Defendant and Appellant.

H032412 (Santa Cruz County Super. Ct. No. F12954)

After trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley Hernandez ("Townley") of attempted deliberate and premeditated murder (Pen. Code,  664, 187) for Townley's shooting of Javier Zurita Lazaro on February 17, 2006 in Santa Cruz. The jury found that Townley was armed with a handgun (Pen. Code,  12022) that he personally used (Pen. Code, 12022.5, 12022.53, subd. (b)) and discharged (Pen. Code, 12022.53, subd. (c)) and that he personally inflicted great bodily injury on Lazaro (Pen. Code, 12022.53 subd. (d)). The jury also found that Carranco and Townley were minors who were at least 14 years old at the time of the offense within the meaning of Welfare and Institutions Code section 707, subdivision (d)(2) and were at least 16 years old at the time of the offense within the meaning of Welfare and Institutions Code section 707, subdivision (d)(1). They were charged and tried as adults.

Townley shot Lazaro after Townley and Carranco emerged from a car driven by Noe "Tony" Flores. Jose Ruben Rocha also emerged from that car. Flores and Rocha were originally also charged as codefendants with attempted murder, but their cases were severed on Townley's motion. Before trial in this case, each entered into a plea agreement in which the prosecution would reduce the charges in exchange for their declarations under penalty of perjury. Flores pleaded guilty to assault with a firearm subject to a three-year prison term, and the prosecutor dismissed the attempted murder charge against him. Rocha pleaded guilty to assault with force likely to produce great bodily injury, with an expected sentence of two years. On the same date that Flores and Rocha entered their pleas, the prosecution filed a motion to reconsolidate the cases of Carranco and Townley, which the court subsequently granted.

After trial, at sentencing Carranco argued it would be unconstitutionally cruel and unusual for him to receive the same punishment as the shooter, Townley, which was a life sentence with the possibility of parole. The trial judge agreed, stating in part: "This is an extremely difficult call." The judge "had a question since day one as to whether anybody in the car besides" Townley and Flores knew that Townley had a gun. "To me it seemed like a case of you really have to be careful who you get in the car and ride around with." Carranco "had an important role in selecting the victim. . . . [] But the fact is that he actually did nothing to the victim. He didn't touch the victim. He didn't shoot the victim. He didn't hit the victim with" a bat he was holding. The court noted the involvement of Carranco's parents and whole family in gang activities. "[G]iven all these factors, it's my determination that it would constitute cruel and unusual punishment, and would constitute a grossly disproportionate sentence if I were to sentence him to a life sentence based on the conduct in the case." The court imposed the aggravated term of nine years for the attempted murder, plus one year for a principal being armed during the crime. The court ordered Carranco to pay victim restitution of $45,926, and other fines and fees. Carranco and the People have each appealed from the judgment.

On appeal, Carranco has joined in four sets of arguments made by Townley in his appeal, as well as making four of his own arguments. In a published opinion filed on November 9, 2009 in Townley's appeal (H031992), this court determined that it was reversible error for the trial court to impose a gag order forbidding defense counsel from talking to their clients about a written declaration by Flores. (People v. Hernandez (2009) 178 Cal.App.4th 1510.) We will reach the same conclusion for the same reasons in this appeal and will reverse the judgment.

In light of this conclusion, there are several contentions we need not and do not reach, including the People's challenge to the sentence reduction, Carranco's challenge to the victim restitution order, and incorporated arguments by Townley that the prosecutor committed seven kinds of misconduct and that the trial court erred in commenting on Flores's credibility and in excluding Carranco from hearings about Flores's declaration. However, we do consider Carranco's challenge to the sufficiency of the evidence, and for the guidance of further proceedings we will consider the admissibility of Carranco's pretrial statements and a claim of instructional error.

Trial evidence

Rocha, Carranco, and Townley did not testify at trial, though each had talked to detectives before trial. Flores did testify at trial, pursuant to subpoena. We will summarize the trial evidence to the extent it is relevant to the contentions on appeal.

According to Flores, around 7 p.m. on Friday, February 17, 2006, Townley called Flores on the telephone and asked him to "do a ride" that night. To Flores, that meant to cruise around, not to go shoot someone. Flores was 18 years old at the time and owned a 1992 white Honda Accord. Flores was carrying in his car a T-ball bat, smaller than a regular baseball bat, as he had since he was "tagged" by some Sureos, whom he called "scraps," in downtown Santa Cruz on December 31, 2005.

According to gang expert Santa Cruz County Sheriff's Sergeant Roy Morales, Norteos and Sureos are rival Hispanic gangs. Norteos identify with the color red, the letter N, the Huelga bird symbol, and various representations of the number 14. Sureos identify with the color blue, the letter M, and various representations of the number 13. "Scrap" or "scrapa" is a pejorative term Norteos use for Sureos.

Flores was aware that Southerners associate with blue and Northerners associate with red. Flores denied being a Norteo gang member or associating with Norteo gang members, but he admitted associating with Norteo associates.

After receiving Townley's telephone call on February 17, 2006, Flores picked up Townley and his girlfriend at Townley's house in Santa Cruz. Townley was wearing a red and black Pendleton shirt-jacket. He was 17 years old, having been born in January 1989.

Shortly after Townley got into the car, he showed Flores a small handgun. Flores handled it briefly and returned it to Townley. Flores did not know if the gun was loaded. He did not see a satchel containing bullets.

Townley gave Flores directions to drive to Watsonville. It was dark when they arrived. They picked two people up, who introduced themselves to Flores. Townley got into the back seat with his girlfriend and Jose "Listo" Rocha, while Jesse "Little Huero" Carranco got into the front seat. Carranco was wearing a red sweatshirt with the words "Santa Cruz" on it. Carranco was 16 years old, having been born in September 1989.

From their conversation, Townley and Carranco seemed to know each other. Flores asked Carranco about four dots on his knuckles. Carranco said it represented the North Side.

North Side Santa Cruz is a Norteo gang with which gang expert Morales had not been familiar prior to this shooting. As far as he knew, it was a small Norteo gang with no connection to a prison gang.

Flores did not recall talking to Townley about his gang association. He did not see Townley show anyone else the gun that night.

They returned to Townley's residence in Santa Cruz, dropped off his girlfriend, and drove around downtown Santa Cruz. Carranco said, "How's that Norte life?" to a pedestrian.

Carranco told Flores where to drive. They parked and visited Anthony Gonzalez's apartment on Harper Street. Flores did not know Gonzalez. There were about 10 teenagers in the apartment drinking. They went into Gonzalez's bedroom for about 15 minutes. Gonzalez and Carranco left the room and talked for a couple of minutes. At the time, Gonzalez identified himself as a Norteo, though not associating with any subset.

Townley, Carranco, Rocha, and Flores left the apartment together. Carranco gave Flores more directions on where to drive. The passengers in the car were talking about finding a Sureo and saying there would be violence. Flores told Detective Sulay that Carranco was doing most of the talking. According to Flores, there was no talk about shooting anyone as they drove around. As they were driving down 17th Avenue, they saw a male pedestrian wearing a blue sweater on a sidewalk in front of an apartment complex. Someone said he might be a Sureo. Flores complied with Carranco's requests to make a U-turn and pull over.

That night, Javier Zurita Lazaro left his apartment to retrieve something from a friend's car. Lazaro lived in the Ocean Terrace apartments on the corner of 17th Avenue and Merrill Street. According to then Santa Cruz County Sheriff's Deputy Stefan Fish, who had worked in the area for five years, at that time the Ocean Terrace apartments were associated with Sureos. According to gang expert Morales, some apartment complexes in Santa Cruz are associated with Norteos, others with Sureos.

Lazaro was born in Mexico, but had lived in Santa Cruz for 10 years. He was 28 years old and was not involved in a gang. He was wearing a sky blue sweatshirt imprinted with the words "North Carolina" and light yellow pants. He lit a cigarette and walked around as he smoked. He saw a white Honda pull up and heard someone inside the car say in Spanish, "Come here." According to Flores, Townley does not speak Spanish. Lazaro thought the request was addressed to someone else, so he kept walking.

Townley, Carranco, and Rocha got out of the car quickly. Carranco grabbed the bat in the car. Flores did not see anyone but Townley with a gun that night. There was no discussion about the gun as they got out of the car. The three crossed the street and ran after Lazaro. Flores lost sight of them. He left the engine running. According to gang expert Morales, gang members are expected to back each other up.

When Lazaro turned into a parking lot, he saw three or four people out of the white car running up to him. They asked in Spanish if he was Sureo or Norteo. Ginger Weisel, a neighbor in the Ocean Terrace apartments, was outside in the parking lot shortly before 9 p.m. She heard yelling and cursing, calling someone a "fucking scrap" and asking where he was from. It was three guys talking to her neighbor, Lazaro. Lazaro was scared when he heard the gang talk and he began to run.

According to gang expert Morales, for a gang member to ask someone else where he is from is a challenge to fight, because it indicates the belief that he belongs to a rival gang. Denying gang membership will not avoid a confrontation. In some gangs, committing a crime for the gang is a way to gain respect from other members of the gang. It helps to have a witness in the gang to report back to the gang. Committing a murder of a rival gang member is one of the most noteworthy feats. It is a major sign of disrespect to attack a rival gang member on his own turf.

Townley took out a .25 caliber Beretta and fired it at Lazaro. Weisel recalled six to eight shots. A motorist who was passing by, David Bacon, saw and heard five or six shots. He saw the shooter in a classic shooting position with his gun in his outstretched arm. From Bacon's experience with handguns, it was a small caliber gun. Lazaro felt something push him and he fell to the ground. He could not feel his arms or feet.

The emergency room doctor who treated Lazaro that night observed five gunshot entry wounds, two to his right hand, one to his right knee, one to his left thigh, and one in the upper left back, and two exit wounds. A bullet was removed from his hand. Bullets remain in his left thigh and back. While there was no exit wound in the knee, no bullet appeared in x-rays. Lazaro also had two grazing wounds, on his abdomen and his right little finger. Lazaro was hospitalized for five days.

From his car, Flores heard a sound like firecrackers. He did not know how many. Within a couple of minutes, Townley, Carranco, and Rocha all came back to his car quickly and got in. They urged him to go. The bat was returned to the front seat of the car.

Carranco gave him different directions to return to the apartment on Harper Street. Flores parked haphazardly in the parking lot. His passengers got out of the car before he finished parking and went into Gonzalez's apartment. Carranco and Gonzalez went outside the bedroom to talk. Carranco borrowed someone's cell phone and left the room for a short time. Almost everyone went outside the apartment. Carranco and Rocha left in a white car that pulled up. When a police car pulled up later, Flores walked to a dark area in front of the apartments. They moved his car. He concealed himself for about an hour before calling his mother from a pay phone for a ride.

Townley was taken into custody from Gonzalez's apartment that night. Based on information from one of the apartment's occupants that night, the sheriffs found the gun, now unloaded, in his right shoe and a satchel containing 20 cartridges for the gun in his left shoe.

The sheriffs came to Flores's house at 6 the next morning and brought him to an interrogation room. He did not tell them the truth initially because he did not want to be locked up or get his companions in trouble. Also, he might get hurt if he talked. Flores did not tell Detective Ramsay the truth. He did tell Detective Sulay the truth.

Flores was originally charged with attempted murder, and he had pleaded guilty to assault with a deadly weapon. He knew he was looking at a lot of time. His sentence was three years. He did not agree to testify as part of his plea. He understood he might be called as a witness and would have to tell the truth. On April 17, 2007, he signed a declaration under penalty of perjury that someone else wrote. He signed a changed declaration on May 8, 2007. It was changed from him having to swear the declaration is true to having to swear it was true when pleading guilty. It was also added that he had to tell the truth as a witness.

On February 23, 2006, sheriffs picked up Carranco at school and brought him to an interrogation room. Detective Mario Sulay summarized the police interview with Carranco as follows. Carranco had been a member of North Side Santa Cruz for about two years. He did not affiliate with gangs anymore because he had gotten into a real high school and he wanted to get an education. He said that Sureos or scraps were a rival gang and if he sees one, it was "toes up," Carranco wanted to fight him. He said it had been a while since he had a conflict with a Sureo.

On February 17, 2006, Carranco was wearing a red sweatshirt with Santa Cruz on it. The one the sheriffs recovered from the top of vehicle parked outside the Harper Street apartment was probably his. He sat in the front passenger seat of Flores's car. He saw a guy wearing a light blue hooded sweatshirt and yelled at him to approach. The individual on the sidewalk looked like someone he had fought with the prior weekend in a nearby location. When the guy ran away, Carranco grabbed a bat that was in the car and jumped out of the car to pursue him. He intended to "hook the guy once" with the bat and then fight him one on one because Carranco had been assaulted previously.

A search of Carranco's room on February 23, 2006 revealed prominent red coloring, a belt with an N on the buckle, and etchings on his television of X 4 and XIV, "little Huero," "XListo" and a backwards "NSSC." The backwards "NSSC" was repeated on a shoe box and on a piece of wood. A search of Rocha's room the following day revealed a red bandana and shoes on which was written X 4, XIV, and Northside Santa Cruz.

I. sufficiency of the evidence

In opening argument, the prosecutor argued to the jury that there were three ways of being guilty of attempted murder. One way is that "you're the one who fires the gun." Another way is to "have engaged in a conspiracy to commit attempted murder." The third way is to "have engaged in a conspiracy to commit assault, and attempted murder is a natural and probable consequence." "The natural and probable consequences theory also applies to aiding and abetting. And under those circumstances, if you help somebody commit an assault and a natural and probable consequence is that somebody almost dies, you are guilty of attempted murder. And in that case you yourself do not have to have the intent to kill."

After describing the elements of a conspiracy, the prosecutor asserted, "the only reasonable inference" supported by the evidence was "that there was an agreement to commit murder." However, if the jury had a doubt that Carranco had murder on his mind that night, "you don't have to find that he intended to commit murder for him to be guilty of attempted murder. You would only have to find that he intended to commit an assault[, a]nd that a natural and probable consequence of an assault was that somebody would almost die." Carranco admitted to Detective Sulay that he wanted to "hook him with a bat." "Carranco has to intend to commit the assault. That's all. And, again, folks, he admitted it." The prosecutor argued that under the circumstances, Lazaro's death was a foreseeable consequence of the assault. The prosecutor also argued that Carranco "did have the intent to kill," but the jury did not have to find that to convict him. The prosecutor asserted that Carranco "gave directions to Flores all night. He was running that show."

Carranco's counsel argued to the jury that Carranco is not a murderer. He never intended to kill anyone that night, though he was on the scene, he was in the front passenger seat of the car, he got out of the car with a baseball bat, and he chased Lazaro. He intended to hook him once with the bat and then fight him. He did not intend for the guy to get shot. "If you know somebody in the car is coming out afterwards with a gun in their hand and is going to shoot this guy, better not c[h]ase him with a bat and try to hit him with a bat." "[T]he most important issue in this case, I would propose to you[,] is whether or not he knew, Mr. Carranco knew[,] that there was a gun in that car." No one said that Townley showed Carranco the gun as he had showed Flores earlier. "Why jump out of the car with a bat, challenge this guy and chase this guy if you know that somebody in the car has a gun, and being in that situation might come out of the car with it and elevate the fight?"[1]

Carranco renews these arguments on appeal, asserting that there was "constitutionally insufficient evidence" that he aided and abetted an attempted murder. "There was no evidence at all that [Carranco] intended to aid and abet the shooting: there was no evidence that [Carranco] knew that [Townley] had a gun and intended to fire it at someone, that [Carranco] intended to commit or facilitate a murder, or that he aided or encouraged the shooting." The evidence also did not support his "conviction of attempted murder on the theory that it was a natural and probable consequence of any assault that [Carranco] aided and abetted because there was no evidence that [Carranco] knew [Townley] had a gun and was going to use it." We note that his opening brief was filed before the June 22, 2009 decision by the California Supreme Court in People v. Medina (2009) 46 Cal.4th 913 (Medina).

In Medina, in a four to three decision, the California Supreme Court reversed a decision by the Court of Appeal, which had held "there was insufficient evidence to support a finding that Medina's act of firing a gun was a reasonably foreseeable consequence of the gang attack in which defendants Marron and Vallejo participated." (Id. at p. 920.) The Court of Appeal had distilled from earlier cases six factors that had supported convictions for aiding and abetting gang violence. (Ibid.) On appeal Carranco seeks to contrast three of those cases, People v. Godinez (1992) 2 Cal.App.4th 492, People v. Montes (1999) 74 Cal.App.4th 1050, and People v. Gonzales (2001) 87 Cal.App.4th 1.

The California Supreme Court pointed out two flaws in the appellate court's reasoning. "First, in the gang context, it was not necessary for there to have been a prior discussion of or agreement to a shooting, or for a gang member to have known a fellow gang member was in fact armed. (People v. Montes, supra, 74 Cal.App.4th at p. 1056.)" (Medina, supra, 46 Cal.4th 913, 924.) "The issue is 'whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the [shooting] was a reasonably foreseeable consequence of the act aided and abetted by the defendant.' (People v. Nguyen, supra, 21 Cal.App.4th at p. 531, italics added.)" (Id. at p. 927.) The appellate court had also overlooked some evidence of what had happened. (Id. at p. 924.)

Medina quoted another appellate decision with approval. " 'The frequency with which such gang attacks result in homicide fully justified the trial court in finding that homicide was a "reasonable and natural consequence" to be expected in any such attack. It is, therefore, clear that [the defendant's] guilt of aiding and abetting an attempted murder does not depend upon his awareness that [either codefendant], or both of them, had deadly weapons in their possession.' " (Medina, supra, 46 Cal.4th 913, 926, quoting People v. Montano (1979) 96 Cal.App.3d 221, 227.)

Medina had earlier observed on page 920: " '[A]lthough variations in phrasing are found in decisions addressing the doctrine"probable and natural," "natural and reasonable," and "reasonably foreseeable"the ultimate factual question is one of foreseeability.' (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107 . . . .) Thus, ' "[a] natural and probable consequence is a foreseeable consequence" . . . .' (Ibid.) But 'to be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough . . . ." (1 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) 132, p. 150.)' (People v. Nguyen, supra, 21 Cal.App.4th at p. 535.) A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case (ibid.) and is a factual issue to be resolved by the jury. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 . . . ; People v. Godinez[, supra,] 2 Cal.App.4th 492, 499 . . . .)"

In Medina, applying the appellate test for sufficiency of the evidence (Medina, supra, 46 Cal.4th 913, 919), a bare majority the California Supreme Court concluded that "the jury could reasonably have found that defendants would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable . . . ." (Id. at pp. 927-928.)

Similarly applying the familiar test here, we find substantial evidence to support Carranco's conviction on two different theories. First of all, accepting Carranco's admissions to the detectives, he intended to hit the victim with a baseball bat. A baseball bat can be used as a deadly weapon. (Cf. People v. Jaramillo (1979) 98 Cal.App.3d 830, 837; People v. McCullin (1971) 19 Cal.App.3d 795, 801.) The victim's death from blows with a baseball bat was a reasonably foreseeable consequence of Carranco's intended behavior. (Cf. People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 21 [death was natural and probable consequence of intended group beating with fists]; People v. Fiu (2008) 165 Cal.App.4th 360, 373 ["Once defendant and the young gang members beat the victim severely, rendering him unconscious and leaving him lying outside, around the corner from the defendant's residence, it was not unforeseeable that he might die due to their actions or the type of injuries they inflicted"].)

Moreover, the jury was not required to accept Carranco's claim to the detectives that he went after the victim because he resembled someone who had attacked Carranco a week earlier. There was substantial evidence that this shooting began as an organized assault on a person perceived to be a Sureo, a rival gang member. Although Townley had enlisted Flores as the driver to pick up Carranco and Rocha, once Carranco joined the group, he called the shots that night. Carranco provided the driver with directions, first to the apartment of a Norteo, then to apartments associated with Sureos, where he told him to stop the car when he saw a pedestrian wearing blue, a Sureo color. According to Flores, his passengers said there would be violence if they found a Sureo. Carranco was doing most of the talking. Carranco could reasonably expect his gang associates, Townley and Rocha, to back him in his intended assault on their mutual rival. While the intended victim offered no resistance, the car's occupants were coordinated to meet resistance. Even assuming that Townley did not display the gun to Carranco as he had to Flores and that they did not talk about it on the telephone before Townley called Flores for a ride, it is, regrettably, no longer surprising that at least one in a group of Norteo or Sureo gang members has brought a handgun to an intended confrontation. In the context of gang violence, " 'escalation of this confrontation to a deadly level was much closer to inevitable than it was to unforeseeable.' " (Medina, supra, 46 Cal.4th 913, 925, quoting People v. Olguin, supra, 31 Cal.App.4th 1355, 1376.)

We express no opinion about whether the trial judge was justified in reducing Carranco's sentence based on his own doubts about whether Carranco knew that Townley was armed. Whether Carranco had this knowledge is not essential to concluding that there was substantial evidence that, once Carranco and some Norteo associates went hunting in Sureo territory for a Sureo victim that night, their chosen victim's death was a reasonably foreseeable consequence.

II. issues related to written declaration by Flores

A. restriction on attorney-client discussion of the declaration

Townley's appeal challenged a court order restricting defense counsel's discussion of Flores's written declaration, as well as the impact of the declaration on his testimony and the scope of defense counsel's cross-examination regarding this declaration. Carranco has incorporated those arguments by reference. Our analysis here is virtually identical to our recently published opinion in People v. Hernandez, supra, 178 Cal.App.4th 1510, with changes to apply to Carranco.

The guilty pleas in Flores's and Rocha's cases were taken in closed proceedings and the reporter's transcripts were sealed by trial court order.[2] At Flores's plea hearing the prosecutor stated that Flores would be permitted to serve his sentence out of state "because he was previously stabbed in the jail. There are very serious concerns about his physical well-being."

Rocha's declaration stated that he understood that he had "to tell the judge in open court and under oath what I myself did on February 17, 2006." In Flores's initial declaration, on the other hand, he stated:  "I understand that I have to tell the judge in open court and under oath that the contents of this declaration are true."  He also stated, "I do understand that I may be called as a witness in any hearing related to the events that transpired on February 17, 2006."

At each change-of-plea hearing, the court ordered the declaration to be filed under seal, to be opened only if the prosecution called the declarant to testify about any of the matters covered in the declaration. Defense counsel for the remaining defendants were permitted to look at the document, but they were "prohibited from discussing the contents or the existence of the document with their client or any other person." Defense counsel also were not permitted to have a copy of the declarations. As the Attorney General notes, Flores's counsel emphasized that, even if the declaration was opened under those circumstances, it "will not ultimately be part of the paperwork that follows Mr. Flores to his prison commitment." Thereafter, the prosecution provided a written copy to the defense counsel.[3]

Counsel for Townley and Carranco were unsuccessful in moving to withdraw the order not to discuss the contents or existence of the document with their clients. At a hearing from which the defendants were excluded, the court reasoned that it would be improper to rescind the order without Flores's and Rocha's counsel being present. The court did advise defense counsel that if the witnesses testified inconsistently with their statements, then the sealing order "would be undone" and counsel would be free to cross-examine them with the declarations. When the prosecutor asserted that defense counsel had a right to use the documents to cross-examine and impeach them, the court stated, "That's going a little beyond what we put on the record, those plea agreements. The agreement was for their protection." The court agreed with the prosecutor's statement, "So once they take the stand, the order would necessarily disappear because it doesn't make sense anymore."

Neither Flores nor Rocha was on the prosecutor's list of proposed witnesses filed April 27, 2007. Rocha was not called as a witness at trial. Flores was called as a witness on the second day of trial testimony. At the end of the day, in the jury's absence, his attorney was called in to a hearing at which the court explained that, "in order to provide for adequate cross-examination of Mr. Flores . . . that Counsel be provided with copies of his statement. . . . [T]he statement may not be shared with the clients. We've already talked about that." "They're subject to the same nondisclosure to clients, to investigator, to other attorneys[. I]t's only to be used by" defense counsel for purposes of cross-examination. "They have to be returned." Carranco's counsel asked again to be able to discuss it with his client. The court denied the request, pointing out that counsel had a lengthy statement from Flores to the police. The court added, "Put that in your briefcase and do not share it with Mr. Carranco. Put it in [your] briefcase right now."

Direct examination of Flores resumed two trial days later. He was the sole witness on the fifth day of testimony. During Carranco's cross-examination of Flores, the prosecutor successfully objected to defense counsel's reading the title of the document. Carranco's counsel tried to ask Flores about the requirement that he sign the declaration in order to obtain the three-year sentence; again the prosecutor's objection was sustained. In the jury's absence, the court explained that it also sustained some of the prosecutor's objections to "questions about things that weren't in the document . . . suggesting to the jury that we'd intentionally omitted facts. And that's misleading." The court stated that "[t]he document is sealed for protection of Mr. Flores." The examination of Flores concluded on the sixth day of testimony. Eventually the trial court took judicial notice of the fact that the declaration was part of the plea bargain and accordingly instructed the jury.

On appeal, Townley contended that the court's restrictions before trial and during examination of Flores violated Townley's Sixth Amendment right to consult with his attorney. Finding no California authority directly on point, we have reviewed federal authority.

Maine v. Moulton (1985) 474 U.S. 159 (106 S.Ct. 477) recognized at pages 168 and 169: "The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice. [Fn. omitted.] Embodying 'a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself' (Johnson v. Zerbst [(1938)] 304 U.S. 458, 462-463), the right to counsel safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding."

"The special value of the right to the assistance of counsel explains why '[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.' " (U. S. v. Cronic (1984) 466 U.S. 648, 654 [104 S.Ct. 2039], quoting McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14 [90 S.Ct. 1441].)

Courts have recognized that legal assistance can be more effective when attorneys and clients are allowed to confer, consult, and communicate. Inevitably, there are practical limitations that restrict the opportunities of criminal defendants to consult with their attorneys, including the defendant's custodial status, technological means available, the attorney's other commitments, the availability of courtrooms, the needs for orderly and timely court proceedings. In the context of a request for continuance, the United States Supreme Court has recognized, "Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." (Morris v. Slappy (1983) 461 U.S. 1, 11 [103 S.Ct. 1610].) But when the government unjustifiably interferes with attorney-client communication, the result may be determined to be a violation of a criminal defendant's constitutional "right to the assistance of counsel." (Geders v. United States (1976) 425 U.S. 80, 91 [96 S.Ct. 1330] [Geders].)

In Perry v. Leeke (1989) 488 U.S. 272 (109 S.Ct. 594) (Perry), the United States Supreme Court discussed 20 cases from federal and state courts (but not California) in footnote 2 on page 277 in support of the proposition: "Federal and state courts since Geders have expressed varying views on the constitutionality of orders barring a criminal defendant's access to his or her attorney during a trial recess." (Cf. Annot., Trial court's order that accused and his attorney not communicate during recess in trial as reversible error under Sixth Amendment guaranty of right to counsel (1989) 96 A.L.R. Fed. 601; Annot., Scope and extent, and remedy or sanctions for infringement, of accused's right to communicate with his attorney (1966) 5 A.L.R.3d 1360.)

In Geders, the United States Supreme Court held "that an order preventing petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment." (Geders, supra, 425 U.S. 80, 91.) In Perry, the United States Supreme Court held "that the Federal Constitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in progress if the judge decides that there is a good reason to interrupt the trial for a few minutes." (Perry, supra, 488 U.S. 272, 284-285.) "[W]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying." (Id. at p. 281.) In Perry, "[a]t the conclusion of his direct testimony, the trial court declared a 15-minute recess, and, without advance notice to counsel, ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break." (Id. at p. 274.)

California decisions are in accord. People v. Zammora (1944) 66 Cal.App.2d 166 (Zammora) appears to have been a gang case of sorts (though not a criminal street gang) involving 22 defendants, 12 of whom were convicted of murder and assault with a deadly weapon. (Id. at pp. 173-174.) On appeal, the defendants asserted "that the right of appellants to defend in person and with counsel was unduly restricted by the seating arrangement of the appellants in the courtroom, which, together with certain rulings of the court, prevented the defendants from consulting with their counsel during the course of the trial or during recess periods." (Id. at p. 226.) The defendants were seated in a group in the courtroom at sufficient distance from the five defense counsel as to be unable to confer except by walking the distance between their locations. (Id. at pp. 227, 234.) The court had ordered that counsel not talk to the defendants during court recesses. (Id. at p. 227.)

The appellate court observed: "To us it seems extremely important that, during the progress of a trial, defendants shall have the opportunity of conveying information to their attorneys during the course of the examination of witnesses. The right to be represented by counsel at all stages of the proceedings, guaranteed by both the federal and state Constitutions, includes the right of conference with the attorney, and such right to confer is at no time more important than during the progress of the trial." (Zammora, supra, 66 Cal.App.2d 166, 234.) "The Constitution primarily guarantees a defendant the right to present his case with the aid of counsel. That does not simply mean the right to have counsel present at the trial, but means that a defendant shall not be hindered or obstructed in having free consultation with his counsel, especially at the critical moment when his alleged guilt is being made the subject of inquiry by a jury sworn to pass thereon." (Id. at pp. 234-235.) The convictions were reversed on this basis. (Id. at pp. 235-236.)

People v. Miller (1960) 185 Cal.App.2d 59 presented a different situation. In that case the trial court denied a defendant's request to confer with his attorney in the middle of the defendant's cross-examination. The appellate court concluded, "The refusal of the trial court to permit the defendant to speak to his counsel in the midst of his cross-examination did not constitute an infringement upon his constitutionally guaranteed right to counsel. This right assures a defendant of every reasonable opportunity to consult with his counsel in the preparation and presentation of his defense [citations], but does not confer upon him the right to obstruct the orderly progress of a trial." (Id. at pp. 77-78.)

The court orders in the cases above involved a total ban, though limited temporally, on attorney-client communication, not what we may call a topical ban. None of the above cases involved an order preventing an attorney from talking with a defendant about a part of the evidence.[4] The same distinction applies to Jones v. Vacco (2d Cir. 1997) 126 F.3d 408, on which Townley relied. In that case, the trial judge ordered the defendant not to talk to his attorney during an overnight break in his cross-examination. (Id. at p. 411.) The court found Geders controlling. (Id. at p. 416.)

Townley also invoked precedent involving court orders containing topical bans of varying durations. In four cases, trial courts barred defense attorneys from discussing the defendant's testimony, though explicitly or implicitly allowing consultation on other topics. In Mudd v. United States (D.C. Cir. 1986) 798 F.2d 1509 (Mudd), the restriction was imposed during a weekend recess between the defendant's direct and cross-examination. (Id. at p. 1510.) In U. S. v. Cobb (4th Cir. 1990) 905 F.2d 784 (Cobb), the restriction was imposed during a weekend recess in the cross-examination of the defendant. (Id. at p. 791.) In U. S. v. Santos (7th Cir. 2000) 201 F.3d 953 (Santos), the restriction was imposed during an overnight recess between the defendant's direct and cross-examination. The court also essentially told defense counsel to comply with Perry. (Id. at p. 965.) In U. S. v. Sandoval-Mendoza (9th Cir. 2006) 472 F.3d 645 (Sandoval-Mendoza), the restriction was imposed during two morning recesses, a lunch recess, and an overnight recess in the defendant's cross-examination. (Id. at p. 650.)

In Mudd, which predated Perry, the court concluded that, "While the order in this case was indeed more limited than the one in Geders, the interference with [S]ixth [A]mendment rights was not significantly diminished." (Mudd, supra, 798 F.2d at p. 1512.) "[A]n order such as the one in this case can have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating the court's directive." (Ibid.)

The court in Cobb had "no difficulty in concluding that the trial court's order, although limited to discussions of Cobb's ongoing testimony, effectively denied him access to counsel." (Cobb, supra, 905 F.2d at p. 792.)

Santos concluded, "Perry makes clear, as do the cases before and after it (though some of the 'before' cases go too far, by forbidding any limit on discussions between lawyer and client), that while the judge may instruct the lawyer not to coach his client, he may not forbid all 'consideration of the defendant's ongoing testimony' during a substantial recess, 488 U.S. at 284, since that would as a practical matter preclude the assistance of counsel across a range of legitimate legal and tactical questions, such as warning the defendant not to mention excluded evidence." (201 F.3d at p. 965.) The appellate court concluded that defense counsel in that case "was given confusing marching orders that may well have inhibited the exercise of Sixth Amendment rights" (Id. at p. 966.)

In 2006, the Ninth Circuit, in reliance on Geders and Perry, concluded in Sandoval-Mendoza "that trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess." (Sandoval-Mendoza, supra, 472 F.3d at p. 651, fn. omitted.) In view of this rule, the trial court "erred in prohibiting Sandoval-Mendoza and his lawyer from discussing his testimony during an overnight recess." (Id. at p. 652.)[5]

Perry explained that a criminal defendant's right to the assistance of counsel does not include obtaining advice during short trial recesses about how to answer ongoing cross-examination. However, it does protect "the normal consultation between attorney and client that occurs during an overnight recess [which] would encompass matters that go beyond the content of the defendant's own testimony matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain." (Perry, supra, 488 U.S. 272, 284; our italics.)

Despite this language in Perry, one decision, on which the Attorney General heavily relied, has upheld an order barring a defense attorney from identifying to the defendant one of the witnesses anticipated the following day at trial. In Morgan v. Bennett (2d Cir. 2000) 204 F.3d 360 (Morgan), the Second Circuit Court of Appeals concluded "that Geders and Perry stand for the principle that the court should not, absent an important need to protect a countervailing interest, restrict the defendant's ability to consult with his attorney, but that when such a need is present and is difficult to fulfill in other ways, a carefully tailored, limited restriction on the defendant's right to consult counsel is permissible." (Id. at p. 367.)

In Morgan, the defendant was charged with murder as well as the attempted murder of a former girlfriend. The girlfriend was a potential witness. Before trial, she declined to testify because two associates of the defendant had made threatening statements while visiting her in jail. The defendant had also been making comments to the witness in the courthouse halls. (Id. at pp. 362-363.) It was apparently to avoid further witness intimidation that the trial court made its order. (Id. at p. 368.)

The appellate court stated: "In the present case, the problem addressed by the state trial court's limited gag order was far more troubling than the possibility of witness coaching involved in Geders and Perry, for intimidation of witnesses raises concerns for both the well-being of the witness and her family and the integrity of the judicial process." (Id. at p. 367.) The court concluded "that valid concerns for the safety of witnesses and their families and for the integrity of the judicial process may justify a limited restriction on a defendant's access to information known to his attorney." (Id. at p. 368.)

The court upheld the order, observing that its impact was quite limited. The attorney and client could discuss everything except the expected appearance of one witness. Since the witness had already been scheduled to testify, defense counsel presumably was already prepared to cross-examine her, so there was no impact on counsel's preparation. (Id. at p. 368.)

Again, we find California law in general accord. At issue in Alvarado v. Superior Court (2000) 23 Cal.4th 1121 (Alvarado) was not an order confining information to defense counsel, but "the validity of an order, entered prior to trial in a criminal action, that authorizes the prosecution to refuse to disclose to the defendants or their counsel, both prior to and at trial, the identities of the crucial witnesses whom the prosecution proposes to call at trial, on the ground that disclosure of the identities of the witnesses is likely to pose a significant danger to their safety." (Id. at p. 1125; first italics ours.) The court concluded that it violated neither the right of confrontation nor due process to keep a witness's identity secret before trial for good cause. (Id. at pp. 1034-1036.) " 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement." (Pen. Code, 1054.7.) The court noted that included in California discovery statutes in the Penal Code "is the requirement that a prosecutor disclose the names and addresses of the individuals whom he or she intends to call at trial. ( 1054.1, subd. (a).) The disclosure may be made to defense counsel, who is prohibited from revealing, to the defendant or others, information that identifies the address or telephone number of the prosecution's potential witnesses, absent permission by the court after a hearing and a showing of good cause. ( 1054.2.)" (Alvarado, supra, at p. 1132.)

The Supreme Court found that "the evidence presented to the trial court clearly justified its order protecting the witnesses' identities before trial." (Alvarado, supra, 23 Cal.4th at p. 1136.) In issuing its order after a series of in camera hearings from which the defense was excluded, the trial court explained in part: the charged crime was apparently an organized jailhouse murder of a snitch ordered by the Mexican Mafia prison gang; the Mexican Mafia is known for ordering the murders of other snitches and it has an excellent intelligence-gathering network; before such a murder is ordered, the gang has an informal trial based in part on paperwork identifying the snitch; and one of the three prospective witnesses had been cut while in jail and warned not to testify. (Id. at pp. 1128-1129.)

As to precluding pretrial disclosure to the defense, the court stated: "we are keenly aware of the serious nature and magnitude of the problem of witness intimidation. [Fn. omitted.] Further, we agree that the state's ability to afford protection to witnesses whose testimony is crucial to the conduct of criminal proceedings is an absolutely essential element of the criminal justice system. As we have explained, a trial court has broad discretion to postpone disclosure of a prospective witness's identity in order to protect his or her safety, and may restrict such pretrial disclosure to defense counsel (and ancillary personnel) alone." (Alvarado, supra, 23 Cal.4th at pp. 1149-1150.)

However, the Supreme Court reached a different conclusion about the impact on the rights of confrontation and cross-examination of keeping a witness anonymous during trial. The court reviewed United States Supreme Court authority requiring witnesses in criminal trials in general to provide their names and residences during cross-examination and a number of California and federal appellate opinions considering whether danger to the witness changed those requirements. (Id. at pp. 1141-1146.) It summarized precedent as follows on page 1146. "In short, although the People correctly assert that the confrontation clause does not establish an absolute rule that a witness's true identity always must be disclosed, in 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. (Accord, Roviaro v. United States [(1957)] 353 U.S. 53 [when an informant is a material witness on the issue of guilt, the prosecution must disclose his or her identity or incur a dismissal]; Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851-853 . . . [when an informant is a material witness to the crime of which the defendant is accused, the prosecution must disclose the informant's name and whereabouts]; People v. Garcia (1967) 67 Cal.2d 830 . . . [same].) [Fn. omitted.]"

The court concluded in Alvarado, "the state's legitimate interest in protecting individuals who, by chance or otherwise, happen to become witnesses to a criminal offense cannot justify depriving the defendant of a fair trial. Thus, when nondisclosure of the identity of a crucial witness will preclude effective investigation and cross-examination of that witness, the confrontation clause does not permit the prosecution to rely upon the testimony of that witness at trial while refusing to disclose his or her identity." (Id. at p. 1151.) "[W]e conclude that the trial court erred in ruling, on the record before it, that the witnesses in question may testify anonymously at trial." (Id. at p. 1149, fn. omitted.)

It is also relevant to our analysis that a criminal defendant in California is generally entitled to discover before trial "[r]elevant written . . . statements of witnesses . . . whom the prosecutor intends to call at the trial . . . ." (Pen. Code, 1054.1, subd. (f); cf. Funk v. Superior Court (1959) 52 Cal.2d 423, 424.) People v. Fauber (1992) 2 Cal.4th 792 stated on page 821: "[T]he existence of a plea agreement is relevant impeachment evidence that must be disclosed to the defense because it bears on the witness's credibility. (Giglio v. United States (1972) 405 U.S. 150, 153-155 . . . .) Indeed, we have held that 'when an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility.' (People v. Phillips (1985) 41 Cal.3d 29, 47 . . . .)"[6]

With the foregoing precedent in mind, we examine the order at issue and the parties' contentions. Absent countervailing considerations, Flores's written statement should have been disclosed to the defense during pretrial discovery once the prosecutor determined to call him as a witness, particularly because it reflected a plea agreement that was potentially relevant to his credibility. In this case, there were apparently some countervailing considerations that motivated the trial court to order the conditional sealing of the statement as well as the reporter's transcript of Flores's change of plea hearing that contained the court's sealing order. Flores's counsel expressed his concern that the paperwork not follow him into prison. The court several times stated that the order was made for the protection of Flores.

In Townley's appeal, the Attorney General asserted that "[t]his state's policy of protecting witnesses from bodily harm and intimidation is in accord with the principles in Morgan." "[T]he trial court's order here was narrowly tailored to address a compelling need to protect witness Flores's life. Flores was a cooperating witness in a gang-motivated attempted murder. He had been assaulted and stabbed with a knife while in pretrial custody." Citing a web site and the facts in People v. Reyes (2008) 165 Cal.App.4th 426, 429, the Attorney General claimed, "[i]t is well established that a cooperating witness's assistance to law enforcement is severely punished (usually with death) when the 'paperwork' documenting the individual's cooperation becomes known to the gang community."

This assertion is an attempt to create a record that was not made in this case to justify a restriction broader than the one upheld in Morgan, supra, 204 F.3d 360. In that case, defense counsel was prohibited from disclosing that the attempted murder victim would be appearing as a witness the following day. In this case, defense counsel was prohibited, as best we can tell, from both showing Flores's written declaration to defendants and discussing its contents with them, whether before, during, or after Flores's testimony at trial. Contrary to the Attorney General's characterization, this went well beyond "simply prevent[ing] the documentary evidence of Flores's cooperation . . . from being circulated through [defendants] into jail and prison populations." If that were the court's objective, it could have been served by a much more limited order prohibiting counsel from providing defendants with a copy, while permitting discussion of its contents.

The Attorney General asserted that the "order did not materially impede defendant's ability to consult with his attorney about Flores's knowledge of the crime and his statements." After all, defendants and their counsel had access to a police report of an interview of Flores.[7]