Court: Superior County: Santa Cruz Judge: John Jeffrey Almquist Ct.App. 6 H031992 Super. Ct. No. F12934
The opinion of the court was delivered by: Werdegar, J.
Defendant Jacob Townley Hernandez (Townley),*fn1 convicted of attempted murder, contends the trial court violated his right to counsel as guaranteed by the Sixth Amendment to the United States Constitution, by barring his attorney from discussing with him the existence or contents of a sealed transcript of a witness's plea agreement proceedings and a sealed declaration executed by the witness as part of those proceedings. We hold that Townley can obtain relief on that claim only by establishing that the trial court's order affected the reliability of the trial process, a question not addressed by the Court of Appeal. We reverse the judgment of the Court of Appeal and remand the matter for further proceedings.
On the evening of February 17, 2006, four young men in a white Honda sedan drove into a neighborhood associated with the Sureno criminal street gang. The driver remained in the car, with the engine running. The other men, each of whom was wearing clothing suggesting an association with the Norteno criminal street gang, approached the victim, Javier Lazaro, who was walking on the sidewalk across the street. Lazaro was not associated with any gang, but was wearing blue, a color linked with the Sureno criminal street gang. One of the men shot Lazaro five times, injuring but not killing him. The men then ran back to the car, jumped in, and sped away.
A short time later, police located the Honda near an apartment known to be a gang hangout, where they found a number of people, including Townley. Officers determined Townley was a possible witness and transported him to the police station. During the trip, the transporting officer received information Townley had been seen secreting a small gun in one of his shoes and a small bag of bullets in the other. The officer stopped the car and searched Townley, finding a .25-caliber handgun in one of Townley's shoes and in the other a velvet sack containing 20 live cartridges. Townley's hands and jacket sleeves tested positive for gun residue. It was later determined that bullet casings found at the scene of the shooting had been fired from the gun.
Townley invoked his right not to speak with the authorities. Investigators, however, took statements from three other men thought to have been involved in the crime: Jesse Carranco, Reuben Rocha, and Noe Flores. Each admitted some involvement, and each reported Townley was the fourth participant. Each man, including Townley, was charged with premeditated attempted murder with enhancements for personal use of a firearm, discharge of a firearm, discharge of a firearm causing injury, and infliction of great bodily injury. (Pen. Code, §§ 187, 664, 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d), 12022.7, subd. (a).)
Townley successfully moved to sever his trial from that of his co-defendants. Later, during closed proceedings, Flores and Rocha pleaded guilty to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(2).) The other charges against them were dismissed. As part of the plea agreements, the prosecutor required each man to execute a short declaration about the events of February 17, 2006. It does not appear the prosecutor sought the declarations to use against Townley or Carranco; rather, she sought to impress on each declarant that he could be charged with perjury if he attempted to undermine the prosecution's case against Townley or Carranco by testifying contrary to the facts recited in his declaration. The trial court, concerned that Flores and Rocha would be vulnerable to retaliation if the existence or contents of their declarations were revealed outside of the plea proceedings, ordered that the declarations and transcripts of the plea proceedings be sealed. It ordered, further, that they were to remain sealed unless either man appeared as a witness in the trials of Townley or Carranco, at which point the sealed materials relating to that man's plea were to be made available to defense counsel and could be used by either the defense or the prosecution for purposes of impeachment.
Townley's and Carranco's cases were then consolidated and tried to a jury. The defense attorneys were provided with summaries of police interviews of Rocha and Flores and a copy of Flores's tape-recorded interview, but they were not given anything related to the plea proceedings. The attorneys, who nonetheless knew of the declarations, asked the court to revoke the order forbidding their discovery. The court denied the request. Observing that the sealing order had been entered in other proceedings, the court expressed doubt it had the power to modify or revoke the order in the absence of the declarants and their attorneys and without their consent. The court then ordered the attorneys not to disclose the existence or the contents of the declarations to their clients, investigators, or any other persons, but indicated it would revisit the matter if Rocha or Flores testified.
Rocha did not appear at the trial, but Flores appeared as a witness for the prosecution and provided testimony that was essentially consistent with, but more detailed than, the information he had provided to police investigators. At the end of the first day of Flores's testimony, in the jury's absence, the court ordered the prosecution to provide copies of Flores's sealed declaration to defense counsel "to provide for adequate cross-examination of Mr. Flores." But it again prohibited counsel from sharing the statements with their clients, investigators, or other attorneys and further ordered that the statements be used solely "for purposes of cross-examination." Both defense attorneys used Flores's declaration to impeach him, establishing discrepancies between it and his trial testimony. For example, witnesses to the shooting reported that the man who shot Lazaro wore a red-and-black plaid shirt or jacket. Flores testified he had worn a blue or black shirt and Townley had worn a red-and-black flannel shirt. Defense counsel brought out that in his declaration Flores had asserted he had worn a red-and-black Pendleton shirt.
The jury returned a verdict finding Townley guilty of attempted premeditated murder. It also found true the enhancement allegations of personal use of a firearm and infliction of great bodily injury.
The Court of Appeal reversed. It found an absence of good cause for the order sealing Flores's declaration and the transcript of his plea proceedings, concluding the order therefore unjustifiably interfered with Townley's access to his attorney.*fn2 The court then held that the trial court's order barring defense counsel from discussing the declaration with Townley violated Townley's right to counsel under the Sixth Amendment to the United States Constitution, requiring automatic reversal without a showing of prejudice resulting from the trial court's error. We disagree.