Filed 4/19/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S178823

v. )

) Ct.App. 6 H031992

JACOB TOWNLEY HERNANDEZ, )

) Santa Cruz County

Defendant and Appellant. ) Super. Ct. No. F12934

____________________________________)

Defendant Jacob Townley Hernandez (Townley),1 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.

 

1

In accordance with the parties‟ practice, we refer to defendant as Townley.
2

BACKGROUND

On the evening of February 17, 2006, four young men in a white Honda

sedan drove into a neighborhood associated with the Sureño 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 Norteño 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 Sureño 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 
3

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 

codefendants. 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 
4

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-andblack 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 
5

his attorney.

2 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.

DISCUSSION

I.

The Sixth Amendment to the United States Constitution provides: “In all 

criminal prosecutions, the accused shall enjoy the right . . . to have the assistance 

of counsel for his defense.” As the Supreme Court has stated: “An accused‟s 

right to be represented by counsel is a fundamental component of our criminal 

justice system. Lawyers in criminal cases „are necessities, not luxuries.‟ Their 

presence is essential because they are the means through which the other rights of 

the person on trial are secured. Without counsel, the right to a trial itself would be 

„of little avail‟ . . . . „Of all the rights that an accused person has, the right to be 

represented by counsel is by far the most pervasive for it affects his ability to 

assert any other rights he may have.‟ ” (United States v. Cronic (1984) 466 U.S. 

648, 653-654, fns. omitted (Cronic).)

In Geders v. United States (1976) 425 U.S. 80 (Geders), the Supreme Court 

held that a trial court‟s order violated the Sixth Amendment when it barred the 

defendant from discussing the case with his attorney during a 17-hour overnight 

recess called after the first day of the defendant‟s testimony. The court recognized 

 

2 We accept and express no opinion on the appellate court‟s conclusions on 

these points, as no party has challenged them. 
6

valid reasons exist for sequestering a witness,

3 but held that when the purpose 

served by sequestration conflicts with “the defendant‟s right to consult with his 

attorney during a long overnight recess in the trial, . . . the conflict must, under the 

Sixth Amendment, be resolved in favor of the right to the assistance and guidance 

of counsel.” (Geders, at p. 91.) Turning to the order before it, the court 

explained: “It is common practice during such recesses for an accused and 

counsel to discuss the events of the day‟s trial. Such recesses are often times of 

intensive work, with tactical decisions to be made and strategies to be reviewed. 

The lawyer may need to obtain from his client information made relevant by the 

day‟s testimony, or he may need to pursue inquiry along lines not fully explored 

earlier. At the very least, the overnight recess during trial gives the defendant a 

chance to discuss with counsel the significance of the day‟s events. Our cases 

recognize that the role of counsel is important precisely because ordinarily a 

defendant is ill-equipped to understand and deal with the trial process without a 

lawyer‟s guidance.” (Id. at p. 88.) The court has since clarified that in Geders it 

established a rule of reversal per se. (E.g., Mickens v. Taylor (2002) 535 U.S. 162, 

166 [“We have spared the defendant the need of showing probable effect upon the 

outcome, and have simply presumed such effect, where assistance of counsel has 

been denied entirely or during a critical stage of the proceeding.”].) 

Geders left two questions unanswered. By emphasizing the length of the 

sequestration order and the complete ban on attorney-client communications 

during a critical period of the trial proceedings, the Supreme Court left open the 

 

3 The court explained that sequestration may restrain witnesses from tailoring 

their testimony to that of earlier witnesses, may aid in detecting testimony that is 

less than candid, and may prevent improper attempts to influence a witness‟s 

testimony in light of the testimony already given. (Geders, supra, 425 U.S. at 

p. 87.)
7

possibility that the Sixth Amendment might not be violated by some lesser 

interference with a client‟s ability to consult with counsel. With respect to this 

point, it is perhaps significant that the majority opinion did not embrace the 

expansive view of the concurring justices that “the general principles adopted by 

the Court today are fully applicable to the analysis of any order barring 

communication between a defendant and his attorney, at least where that 

communication would not interfere with the orderly and expeditious progress of 

the trial.” (Geders, supra, 425 U.S. at p. 92 (conc. opn. of Marshall, J., joined by 

Brennan, J.).) The high court also did not discuss whether reversal without inquiry 

into resulting prejudice is appropriate in all cases of unwarranted interference with 

the right to counsel.

In Cronic, supra, 466 U.S. 648, the Supreme Court provided a partial 

answer to both questions. The district court in that case had appointed an 

inexperienced attorney to represent the defendant after the defendant‟s first 

attorney had withdrawn, and had allowed the new attorney only 25 days to prepare 

for trial. (Id. at p. 649.) The Tenth Circuit reversed the defendant‟s conviction, 

finding the circumstances mandated an inference that counsel had been unable to 

discharge his duties and thus the district court‟s actions violated the defendant‟s 

constitutional right to counsel. (Id. at pp. 650, 658.) The Supreme Court reversed. 

It affirmed that the Sixth Amendment guarantees not only the right to the 

assistance of counsel but also the right to the effective assistance of counsel

(Cronic, at pp. 654-656), which is “the right of the accused to require the 

prosecution‟s case to survive the crucible of meaningful adversarial testing” (id. at 

p. 656), but the court also explained that not every unwarranted imposition on an 

attorney‟s ability to fully represent his or her client violates the Sixth Amendment. 

Thus, “the right to the effective assistance of counsel is recognized not for its own 

sake, but because of the effect it has on the ability of the accused to receive a fair 
8

trial. Absent some effect of challenged conduct on the reliability of the trial 

process, the Sixth Amendment guarantee is generally not implicated.” (Cronic, at 

p. 658.) 

The Supreme Court explained that in most cases the defendant bears the 

burden of showing that the challenged conduct affected the reliability of the trial

process. (Cronic, supra, 466 U.S. at p. 658.) But it further held: “There are, 

however, circumstances that are so likely to prejudice the accused that the cost of 

litigating their effect in a particular case is unjustified. [¶] Most obvious, of 

course, is the complete denial of counsel. The presumption that counsel‟s 

assistance is essential requires us to conclude that a trial is unfair if the accused is 

denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to 

subject the prosecution‟s case to meaningful adversarial testing, then there has 

been a denial of Sixth Amendment rights that makes the adversary process itself 

presumptively unreliable.” (Id. at pp. 658-659, fns. omitted.)

In a supporting footnote, the court observed it had “uniformly found 

constitutional error without any showing of prejudice when counsel was either 

totally absent, or prevented from assisting the accused during a critical stage of the 

proceeding.” (Cronic, supra, 466 U.S. at p. 659, fn. 25.) It provided examples of 

instances where the government‟s interference with counsel‟s ability to render 

effective assistance justified a presumption of prejudice: Geders, supra, 425 U.S. 

80 (bar on attorney-client consultation during overnight recess); Herring v. New 

York (1975) 422 U.S. 853 (bar on summation at bench trial); Brooks v. Tennessee 

(1972) 406 U.S. 605, 612-613 (requirement that defendant be the first defense 

witness); White v. Maryland (1963) 373 U.S. 59, 60 (denial of counsel at 

preliminary hearing); Hamilton v. Alabama (1961) 368 U.S. 52, 55 (denial of 

counsel at arraignment); Ferguson v. Georgia (1961) 365 U.S. 570, 593-596

(defense counsel barred from questioning defendant at trial); Williams v. Kaiser 
9

(1945) 323 U.S. 471, 475-476 (guilty plea taken after defendant requested but was 

denied counsel). (Cronic, at p. 659, fn. 25.) In the following footnote the court

explained: “Apart from circumstances of that magnitude, however, there is 

generally no basis for finding a Sixth Amendment violation unless the accused can 

show how specific errors of counsel undermined the reliability of the finding of 

guilt.” (Id. at p. 659, fn. 26.) It further observed: “Circumstances of that 

magnitude may be present on some occasions when although counsel is available 

to assist the accused during trial, the likelihood that any lawyer, even a fully 

competent one, could provide effective assistance is so small that a presumption of 

prejudice is appropriate without inquiry into the actual conduct of the trial.” (Id. at 

pp. 659-660.) The Cronic court concluded the circumstances before it did not 

justify a presumption of prejudice. It therefore remanded the matter to allow the 

defendant to identify specific instances of ineffectiveness that could then be

evaluated under the standards the court enunciated the same day in Strickland v. 

Washington (1984) 466 U.S. 668 (Strickland). (Cronic, at pp. 662-666 & fn. 41.) 

In Strickland, the court stated the now familiar test that a defendant 

claiming the ineffective assistance of counsel is required to show both that 

counsel‟s performance was deficient and that counsel‟s errors prejudiced the 

defense. (Strickland, supra, 466 U.S. at p. 687.) The court explained: “This 

requires showing that counsel‟s errors were so serious as to deprive the defendant 

of a fair trial, a trial whose result is reliable.” (Ibid.) Further, also relevant to the 

issue presented here, the court again explained prejudice is presumed in certain 

Sixth Amendment contexts, such as those it had identified in Cronic, supra, 466 

U.S. at page 659, footnote 25, because “[p]rejudice in these circumstances is so 

likely that case-by-case inquiry into prejudice is not worth the cost. [Citation.] 

Moreover, such circumstances involve impairments of the Sixth Amendment right 
10

that are easy to identify and, for that reason and because the prosecution is directly 

responsible, easy for the government to prevent.” (Strickland, at p. 692.)

In United States v. Gonzalez-Lopez (2006) 548 U.S. 140, the Supreme 

Court clarified the reason for requiring a showing of resulting prejudice when the 

claim is a deprivation of the effective assistance of counsel. It explained that the 

Sixth Amendment right to counsel has two aspects: the right to counsel derived 

from the “root meaning” of the amendment (id. at pp. 147-148), which includes 

the right to counsel of choice; and the right to a fair trial guaranteed through the

due process clause, but defined through the Sixth Amendment. The high court 

explained that where the right to be assisted by counsel of one‟s choice is wrongly 

denied, inquiry into resulting prejudice is unnecessary to establish a Sixth 

Amendment violation. (Gonzalez-Lopez, at pp. 146-148.) But, “[c]ounsel cannot 

be „ineffective‟ unless his mistakes have harmed the defense (or, at least, unless it 

is reasonably likely that they have). Thus, a violation of the Sixth Amendment 

right to effective representation is not „complete‟ until the defendant is 

prejudiced.” (Id. at p. 147; and see Strickland, supra, 466 U.S. at p. 685.)

II.

Turning to the present case, Townley was provided with appointed counsel, 

who appeared at all critical times and actively represented him throughout the 

proceedings. As an indigent defendant, Townley was not entitled to select an 

attorney (People v. Jones (2004) 33 Cal.4th 234, 244; Drumgo v. Superior Court 

(1973) 8 Cal.3d 930, 934), and he makes no claim he was deprived of his counsel 

of choice. Accordingly, there was no violation of the right to counsel derived 

from the root meaning of the Sixth Amendment to the United States Constitution.

The trial court‟s order, which implicated only that aspect of the Sixth Amendment 

protecting Townley‟s right to the effective assistance of counsel, amounts to 

constitutional error only if Townley suffered resulting prejudice.
11

The burden of establishing prejudice falls on Townley unless the 

circumstances are comparable in magnitude to those presented in Geders, supra, 

425 U.S. 80, by rendering the adversarial process presumptively unreliable, such 

as where an accused is denied counsel at a critical stage of trial, or counsel entirely 

fails or is unable to subject the prosecution‟s case to meaningful adversarial 

testing. (Cronic, supra, 466 U.S. at p. 659 & fns. 25, 26.) The circumstances of 

this case do not rise to that standard.

The Supreme Court has explained that the phrase “ „a critical stage‟ ” was 

used in Cronic “to denote a step of a criminal proceeding, such as arraignment, 

that held significant consequences for the accused.” (Bell v. Cone (2002) 535 U.S. 

685, 695-696.) Here, defense counsel was present during all critical stages of the 

trial and Townley at all times had access to his attorney, including during and after 

Flores‟s testimony. In contrast to the situation in Geders, supra, 425 U.S. 80, 

where the defendant was prevented from discussing the events of a day‟s trial, 

Townley was at all times free to consult with his attorney generally about trial 

tactics and defense strategy, and although he was not fully informed about Flores‟s 

probable testimony before Flores took the stand, he was not prevented from 

discussing how to respond to Flores‟s testimony after hearing it. 

A defendant claiming counsel failed or was unable to subject the 

prosecution‟s case to meaningful adversarial testing is relieved from the burden of 

showing prejudice only if “ „counsel entirely fails to subject the prosecution‟s case 

to meaningful adversarial testing.‟ ” (Bell v. Cone, supra, 535 U.S. at p. 696, 

italics added, quoting Cronic, supra, 466 U.S. at p. 659.) Prejudice must be 

shown if counsel has opposed the prosecution throughout the relevant proceeding, 

even if counsel failed or was unable to do so at specific points. (Bell, at pp. 696-
12

697.)4 Townley‟s attorney opposed the prosecution throughout the proceedings. 

That he was unable to discuss Flores‟s sealed declaration and the sealed transcript 

of the related plea proceedings does not mean he entirely failed to subject the 

prosecution‟s case to adversarial testing and therefore does not justify reversal 

without a showing of prejudice. 

Finally, the circumstances present here do not render it so likely Townley 

was deprived of the effective assistance of counsel as to entitle him to a 

presumption of prejudice without inquiry into the actual conduct of the trial. 

(Cronic, supra, 466 U.S. at p. 659.) “As the high court pointed out in Mickens, the 

presumption of prejudice is a prophylactic measure established to address 

„situations where Strickland[, supra, 466 U.S. 668,] itself is evidently inadequate 

to assure vindication of the defendant‟s Sixth Amendment right to counsel.‟ 

(Mickens [v. Taylor], supra, 535 U.S. at p. 176.) Only when the court concludes 

that the possibility of prejudice and the corresponding difficulty in demonstrating 

such prejudice are sufficiently great compared to other more customary 

assessments of the detrimental effects of deficient performance by defense 

counsel, must the presumption be applied in order to safeguard the defendant‟s 

 

4 Because a defendant is relieved from the burden of showing prejudice only 

if counsel entirely fails to subject the prosecution‟s case to meaningful adversarial 

testing, we need not consider whether, as Townley contends, the trial court‟s order 

might have been interpreted to bar defense counsel from discussing anything 

referenced in the sealed documents, even if the same material also appeared in 

unsealed materials such as Flores‟s statement to the police. The order, even if so 

broadly construed, did not prevent counsel from opposing the prosecution 

throughout the proceedings. Nor was counsel prevented from vigorously crossexamining Flores or from mentioning Flores‟s declaration during the course of 

that cross-examination. 
13

fundamental right to the effective assistance of counsel under the Sixth 

Amendment.” (People v. Rundle (2008) 43 Cal.4th 76, 173.) 

Here, in contrast to the above mentioned examples provided by the court in 

Cronic, supra, 466 U.S. at page 659, footnote 25 (see ante, at p. 8), where the 

nature of the imposition on the right to counsel made it difficult to assess its effect 

on the outcome of the trial, Townley‟s complaint is susceptible to harmless error 

analysis. The primary value of the sealed materials to Townley was their

usefulness as tools of impeachment during cross-examination, either to highlight 

discrepancies between the facts Flores recited in his declaration and his testimony 

at trial, or to support the argument Flores had fashioned a declaration favorable to 

himself and must have then felt compelled to testify in accordance with that 

declaration. Counsel‟s inability to consult with Townley about the materials

would not have hampered his ability to make either point.5

We observe that the Supreme Court has held prejudice will not be 

presumed for purposes of due process through the Sixth Amendment‟s 

confrontation clause even when the defendant has been denied any opportunity to 

impeach a witness for bias. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 

[trial court barred all inquiry into the possibility that a prosecution witness would 

be biased as a result of the state‟s dismissal of a pending charge against him].) As 

the court explained there: “Whether such an error is harmless in a particular case 

depends upon a host of factors, all readily accessible to reviewing courts. These 

factors include the importance of the witness‟ testimony in the prosecution‟s case, 

 

5 Townley asserts that Flores‟s declaration contains at least 22 distinct details 

not contained in the police reports. But the very ease with which these details may 

be identified works against his argument that it would be difficult to assess the 

prejudicial effect of the trial court‟s order.
14

whether the testimony was cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the witness on material points, the 

extent of cross-examination otherwise permitted, and, of course, the overall 

strength of the prosecution‟s case.” (Id. at p. 684.) It also has been held that 

under some circumstances an order limiting the ability of a defendant to consult 

with his attorney about some portion of the evidence may be justified. (See U.S. v. 

Moussaoui (4th Cir. 2010) 591 F.3d 263, 289, and cases cited there.) That holding 

is inconsistent with the conclusion such a restriction presumptively deprives a 

defendant of a fair trial. Finally, although the suppression by the prosecution of 

evidence that might be used to impeach a prosecution witness may violate due 

process (Brady v. Maryland (1963) 373 U.S. 83, 87), it is unconstitutional only if 

the evidence is “material” under the Strickland formulation: there is a reasonable 

probability that, absent the error, the fact finder would have had a reasonable 

doubt respecting guilt. (Kyles v. Whitley (1995) 514 U.S. 419, 433; United States

v. Bagley (1985) 473 U.S. 667, 682; Strickland, supra, 466 U.S. at p. 694.) There 

is no reason in logic to require a showing of prejudice to establish reversible error 

when impeaching evidence is withheld from a defendant and the defendant‟s 

attorney, but to presume prejudice when impeaching evidence is withheld only 

from the defendant, even if it was the trial court and not the prosecution that 

prevented the defendant from learning about the evidence.

We find, for the above stated reasons, that the circumstances present here 

are not comparable in magnitude to those in Geders, supra, 425 U.S. 80, or to the 

other cases cited in Cronic, supra, 466 U.S. at page 659, footnote 25, and thus do 

not justify a presumption of prejudice. 

Townley, however, asserts that settled law establishes a rule of reversal per 

se for any improper restriction on attorney-client communications. To support this 

assertion, he chiefly relies on language from Perry v. Leeke (1989) 488 U.S. 272. 
15

The Supreme Court in that case found a complete ban on attorney-client 

communication during a 15-minute recess at the end of the defendant‟s direct 

testimony was not an unwarranted imposition on the right to counsel. (Id. at 

pp. 280-285.) But in so finding, it distinguished Geders, supra, 425 U.S. 80, 

explaining: “The interruption in Geders was of a different character because the 

normal consultation between attorney and client that occurs during an overnight 

recess 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. It is the defendant’s right to 

unrestricted access to his lawyer for advice on a variety of trial-related matters 

that is controlling in the context of a long recess.” (Perry, at p. 284, italics 

added.) Townley reads this explanation to state that any and all unwarranted 

court-imposed restrictions on communications between attorney and client violate

Geders. We disagree.

The word “unrestricted” was used in the context of Geders‟s complete bar 

to access to counsel for any and all purposes. Geders thus can be interpreted to 

explain that the Sixth Amendment is violated when the restriction on access to 

counsel was so profound as to create an inference that the defendant‟s attorney 

was unable to perform the essential functions of trial counsel. This interpretation 

is confirmed by the Perry court‟s explanation, at a different point in the opinion, 

that the disposition in Geders was consistent with the court‟s later decision in 

Strickland, supra, 466 U.S. 688, where it cited Geders as an example of a case

where a defendant was able to establish a Sixth Amendment violation without a 

showing of actual prejudice. The court explained: “Our citation of Geders in this 

context was intended to make clear that „[a]ctual or constructive denial of the 

assistance of counsel altogether,‟ [citation], is not subject to the kind of prejudice 
16

analysis that is appropriate in determining whether the quality of a lawyer‟s 

performance itself has been constitutionally ineffective.” (Perry v. Leeke, supra, 

488 U.S. at p. 280, italics added.) The order here, which at most prevented

defense counsel from fully discussing the anticipated testimony of a single 

prosecution witness, albeit one key to the prosecution, cannot reasonably be 

characterized as the denial of the assistance of counsel altogether.

Townley nevertheless asserts that unrestricted communication about the 

sealed material might have led to changes in strategy or identification or 

production of other witnesses, or might have altered plea negotiations. He 

complains that requiring him to show the existence of such matters would of 

necessity reveal strategy and other privileged information, and thus would unfairly 

prejudice him upon retrial. But the same argument can be made in many cases of 

claimed attorney ineffectiveness. In Cronic, for example, the court-imposed 

limitations on counsel‟s ability to prepare for trial likely affected trial strategy, 

witness preparation, and plea negotiations. Yet the Supreme Court declined to 

presume a Sixth Amendment violation and remanded the case so the defendant 

might specify exactly how the trial court‟s order had deprived him of the effective 

assistance of counsel. (Cronic, supra, 466 U.S. at pp. 666-667.)

Townley further observes that several appellate courts have applied

Geders‟s rule of reversal per se in cases where the trial court, although not 

restricting the defendant‟s access to his or her attorney during a recess from the 

proceedings, barred any discussion of the defendant‟s ongoing testimony. (E.g., 

Martin v. U.S. (D.C. 2010) 991 A.2d 791, 793; U.S. v. Cobb (4th Cir. 1990) 905 

F.2d 784, 791-792; Mudd v. U.S. (D.C. Cir. 1986) 798 F.2d 1509, 1512-1515.) 

We need not address the merits of these decisions because they are 

distinguishable. The harm from preventing an accused from speaking with his or 

her attorney about his or her own testimony extends further than that attending 
17

court-imposed limitations on communications about a nondefendant witness, and

is also more difficult to quantify. As the Fourth Circuit explained, to remove from 

the accused “the ability to discuss with his attorney any aspect of his ongoing 

testimony effectively eviscerated his ability to discuss and plan trial strategy. To 

hold otherwise would defy reason. How can competent counsel not take into 

consideration the testimony of his client in deciding how to try the rest of the 

case?” (Cobb, at p. 792.) And in Mudd, the District of Columbia Circuit

observed: “Even though [the defendant] was free to discuss strategy and tactics, 

there are obvious, legitimate reasons he may have needed to consult with counsel 

about his upcoming cross-examination. For example, [the defendant‟s] lawyer 

may have wanted to warn defendant about certain questions that would raise selfincrimination concerns, or questions that could lead [the defendant] to mention 

excluded evidence. More generally, defendant may have needed advice on 

demeanor or speaking style, a task made more difficult if specific testimony could 

not be mentioned.” (Mudd, at p. 1512.) Such considerations are not present here.

CONCLUSION

The Court of Appeal found the trial court erred by prohibiting Townley‟s 

attorney from discussing Flores‟s sealed declaration with Townley or any other 

person. No party has challenged that finding, and we therefore accept and express 

no opinion on it. As we have explained, however, the appellate court‟s further 

conclusion that the error violated Townley‟s right to counsel under the Sixth 

Amendment to the United States Constitution without any showing of resulting 

prejudice was incorrect. The trial court‟s order implicated only that aspect of the 

Sixth Amendment right to counsel defining the right to a fair trial guaranteed 

through the due process clause. Because a violation of that aspect of the Sixth 

Amendment is not “complete” until the defendant is prejudiced, an inquiry into 

resulting prejudice is required unless the circumstances are so likely to have 
18

undermined the reliability of the finding of guilt as to justify a presumption of 

prejudice. As we have also explained, not all unwarranted interference with a 

client‟s ability to consult with counsel justifies a presumption of prejudice, 

requiring per se reversal. Where, as here, the interference prevents counsel from 

consulting with a client about a specific piece of evidence, a presumption of 

prejudice is not justified; the error is reversible only upon a showing of prejudice, 

as would be the case if prosecutorial misconduct suppressed the evidence 

altogether. Townley therefore may obtain reversal only by showing, in 

accordance with the standard stated in Strickland, supra, 466 U.S. at pages 686-

687, that the trial court‟s order deprived him of the effective assistance of counsel 

and there is a reasonable probability that, but for the error, the result of the trial 

would have been different.

DISPOSITION

The judgment of the Court of Appeal is reversed. The case is remanded to 

that court to conduct further proceedings consistent with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hernandez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 178 Cal.App.4th 1510

Rehearing Granted

__________________________________________________________________________________

Opinion No. S178823

Date Filed: April 19, 2012

__________________________________________________________________________________

Court: Superior

County: Santa Cruz

Judge: John Jeffrey Almquist

__________________________________________________________________________________

Counsel:

Marc J. Zilversmit for Defendant and Appellant.

Ann C. Moorman and John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae 

on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit, Laurence K. Sullivan and 

Amy Haddix, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Marc J. Zilversmit

523 Octavia Street

San Francisco, CA 94102

(415) 431-3472

Amy Haddix

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5893