Opinion
E051866 Super.Ct.No. FVA024499
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. LOUIS A. ALARCON, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Louis A. Alarcon (defendant) appeals an order denying his motion for a new trial and reinstating his conviction, after this court conditionally reversed the judgment and remanded for proceedings concerning defendant's request to represent himself or for appointment of counsel to represent him in filing a motion for new trial. (People v. Alarcon (Apr. 14, 2009, E044063) [nonpub. opn.] (Alarcon I).) Specifically, defendant contends that he was deprived of due process because the court improperly restricted his access to the names of and contact information for witnesses he believed his trial attorney should have called to testify during the trial. We conclude that defendant has not shown any reversible error.
PROCEDURAL HISTORY
Defendant was convicted of first degree murder. In his first appeal from that conviction, we rejected all of his contentions concerning trial errors. (Alarcon I, supra, E044063 [at pp. 1-18].) In that appeal, defendant also contended that the trial court erred when it denied his request either for appointment of new counsel to file a motion for new trial asserting the ineffectiveness of his trial attorney or for permission to file a new trial motion in pro. per. We agreed that the court erred by denying his request for counsel or to represent himself in a motion for new trial without conducting an adequate hearing. We concluded that his conviction should be conditionally reversed and remanded with instructions to determine whether defendant wanted to represent himself or wanted new counsel appointed to prepare a new trial motion and to conduct the appropriate proceeding, depending upon the nature of defendant's request. If no new trial motion was filed or if it was denied, we directed the trial court to reinstate the judgment. (Alarcon I, supra, E044063 [at pp. 18-19].)
On remand, the trial court first granted defendant's request to represent himself for the purpose of filing a motion for new trial, and subsequently granted his request for appointment of counsel to file the motion on his behalf. After the motion was filed and argued, the court denied the motion and reinstated the conviction.
Defendant filed a timely notice of appeal.
FACTS
To summarize the underlying facts briefly, defendant was socializing with some friends at a home in Fontana when he got into an argument and then an altercation with one of them, James Lightner. Defendant threatened Lightner with a tire iron but did not strike him. Another person who was present, Chris Stewart, left and called 911 from another friend's house, asking the police to break up the fight so no one got hurt. (Alarcon I, supra, E044063 [at p. 3].)
About an hour later, defendant was sitting in a car parked on the driveway at the location where the altercation had taken place. He was listening to loud music. A neighbor, Avanell Jones, came outside and yelled at him to turn the music down. After Jones returned to her house, a sheriff's deputy arrived, apparently in response to Stewart's call about the altercation. He found defendant standing in the driveway with a large rock in his hand. Defendant dropped the rock and ran, but was soon apprehended. (Alarcon I, supra, E044063 [at pp. 3-4].)
After being released on bail, defendant asked several friends who had called the police on him. He told Lightner that he was going to kill whoever had made the call. (Alarcon I, supra, E044063 [at p. 4].)
Three days after the first incident, the Jones family had a birthday party on their patio. Defendant walked up to the gate and spoke to Avanell Jones. He was looking for his friend Scott, who lived in one of the three houses on the property. (Alarcon I, supra, E044063 [at pp. 3, 4].) Jones told him that Scott was not there and told him to leave. They argued, and James Jones approached and asked what the problem was. Defendant told him not to "make things worse than they already are." James Jones said he was going to go inside and "take care of this." He walked toward the house to get his cell phone. (Id. [at p. 4].)
Defendant had a gun in his pants pocket. As James Jones was walking toward the house, defendant fired the gun without removing it from his pocket. The bullet hit the ground. He removed the gun from his pocket and fired it toward the house, hitting Avanell Jones in the back and fatally wounding her. (Alarcon I, supra, E044063 [at p. 5].)
Testifying in his defense, defendant stated that he was a chronic user of methamphetamine and that he had been using the drug for several days before the shooting and had not been sleeping. He testified that he knew that it was Stewart and not Jones who called the police during the first incident and that he did not go to her house with the intention of killing her. He had been "paranoid" since being shot early in 2005 and had begun carrying a gun for protection. He did not intentionally fire the shot while the gun was in his pocket. After defendant accidentally fired the gun, he saw Rick Howard, one of the Joneses' guests, coming out of the house with what appeared to him to be a gun in his hand. Believing that he was about to be shot, he pointed the gun in Howard's direction and fired. At that moment, Avanell Jones, who had been leaning over, stood up and put herself into the bullet's path. (Alarcon I, supra, E044063 [at p. 5].) Defendant testified that he was not wearing his prescription glasses and that he could not see Howard clearly. He also presented expert evidence that he was in a paranoid state as a result of his use of methamphetamine. (Ibid.)
LEGAL ANALYSIS
DEFENDANT WAS NOT PREJUDICED BY ANY ERROR IN THE ORDER
REDACTING WITNESS NAMES AND CONTACT INFORMATION
Defendant contends that by ordering total redaction of all witness identification and contact information contained in the discovery materials, the trial court denied him his constitutional right to a meaningful opportunity to represent himself and to a fair trial. More specifically, he contends that the total redaction made it "virtually impossible for [him] to prepare a motion for new trial based on what he found most important, trial counsel's failure to call certain witnesses." He asserts that this renders the order denying his new trial motion reversible per se. The Attorney General contends that the trial court acted within the scope of its discretion pursuant to Penal Code section 1054.2, subdivision (b). (All further statutory citations refer to the Penal Code.) We conclude that the trial court's redaction order exceeded its authority and consequently abused its discretion.
Judicial discretion is circumscribed by the terms of the statute which grants the discretion. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393-394.) Section 1054.2, subdivision (b) provides: "If the defendant is acting as his or her own attorney, the court shall endeavor to protect the address and telephone number of a victim or witness by providing for contact only through a private investigator licensed by the Department of Consumer Affairs and appointed by the court or by imposing other reasonable restrictions, absent a showing of good cause as determined by the court." It does not authorize the court to conceal the names of witnesses, as the trial court did here. Moreover, the court also denied defendant's request to provide his investigator with unredacted witness information. This, too, was not authorized by section 1054.2. Moreover, a trial court's discretion to fashion an order to protect crime victims or witnesses does not extend to concealing victim or witness identifying information from a defendant's attorney or from a self-represented defendant's investigator because doing so would deprive the defendant of a fair trial. (See Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1150-1151.) Accordingly, in both respects, the redaction order constitutes an abuse of discretion.
The court did, however, order the investigator to perform the redaction. This obviously gave her the ability to record witness names and contact information before turning the redacted materials over to defendant.
This does not, however, mean that the order denying the new trial motion must be reversed: An action by the court which improperly limits the defendant's ability to represent himself effectively is reversible only if it completely denies the defendant the reasonable resources necessary to present a defense. (People v. Moore (2011) 51 Cal.4th 1104, 1127.) Here, the record does not support the conclusion that the trial court's redaction actually impeded defendant's ability to determine the names of and/or contact witnesses he believed would have exonerated him if they had been called to testify at his trial. At the first hearing on this subject, defendant told the court that there were witnesses who could have exonerated him, and that he had told his trial attorney that they were available. He did not say that he needed discovery to determine the names or locations of those witnesses, and his statement implies, at least, that he knew the names of those witnesses. And, he never informed the court that there were any witnesses referred to in the discovery materials whose names and/or contact information he needed in order to prepare his new trial motion. On the contrary, he told the court that there were witnesses he needed to have his investigator interview, but not only did he not ask the court for disclosure of their names or their contact information, he informed the court that one of the witnesses was in Chino state prison and asked the court to sign an order allowing his investigator access to that inmate. The court did sign the order. In the absence of any indication that the redaction actually impeded defendant's ability to exercise his right to self-representation meaningfully, reversal is not required. (People v. Moore, supra, at pp. 1126-1127.)
Moreover, before the new trial motion was actually filed, defendant elected to forgo self-representation and asked to have counsel appointed to prepare the new trial motion. Counsel was appointed, and the attorney did prepare, file and argue the new trial motion. There is no indication in the record that the attorney was not given full access to witness information. Nor is there any indication that defendant's decision to forgo self-representation resulted from the trial court's improper restriction on his access or on his investigator's access to identifying information concerning witnesses. Indeed, the record is silent as to defendant's reasons for requesting counsel. He may simply have realized that he needed assistance in drafting the motion. In the absence of a record which affirmatively shows that defendant gave up his right to self-representation as a result of the improper redaction order, we will not assume that he did so.
Because there is nothing in the record which shows that defendant's right to self-representation was actually impeded by the trial court's redaction order, defendant has failed to demonstrate that he was denied due process. And, because he was represented by counsel for purposes of the new trial motion and there is no showing that the court's improper redaction order affected counsel's ability to prepare the motion, defendant has also failed to show that any abuse of discretion by the trial court was prejudicial. Accordingly, we will affirm the judgment.
Defendant does not contend that the trial court erred in ruling on the merits of the new trial motion.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur: Hollenhorst
Acting P.J.
Richli
J.