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Filed 2/10/22 P. v. Kistler CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS I. KISTLER,

Defendant and Appellant.

 A160882

 (Humboldt County

 Super. Ct. No. CR1701479)

Defendant Nicholas I. Kistler appeals his jury trial 

conviction for attempted murder, felony assault with a deadly 

weapon, and misdemeanor resisting arrest, as well as his 

subsequent sentencing. First, Kistler asserts his counsel at trial 

“had an actual conflict of interest that affected her 

representation,” which entitles him to a new trial. Second, Kistler 

argues his attorney’s closing argument concession of guilt for

resisting arrest violated due process, requiring reversal. Last, 

Kistler asserts the trial court erred in sentencing him to 

“seven-years-to-life” for premeditated attempted murder rather 

than specifying life with the possibility of parole.

For the reasons explained below, we reject these claims and 

affirm the conviction and sentence.
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BACKGROUND

At approximately 5:00 p.m. on April 3, 2017, witness 

Sunrise MacDonald was sitting in a parked truck next to Arcata 

Plaza when she saw a man wearing a bandana approach a man 

later determined to be victim Thomas Holloway, pull a hammer 

from his waistband, and strike Holloway twice in the head. The 

assailant then ran away. MacDonald later identified Kistler as 

the assailant from a photo lineup.

Witness Jasmine Oakeshott was having a cigarette outside 

a Plaza bar when she saw a masked man hitting another with a 

hammer. She could not hear what was being said and was unable 

to identify Kistler as the attacker. 

Ami Mour testified for the defense. Mour knew both Kistler 

and Holloway from growing up in the area. On the incident date, 

Mour had taken his two-year-old daughter to the Arcata Plaza to 

“burn off some steam.” There he saw Holloway walking around 

the Plaza with a ball-peen hammer and drinking with a group of 

people. Around 4:30 p.m., Holloway left the group, was out of 

sight for less than 10 minutes, and returned with two gentlemen.

Kistler was also in the Plaza crowd, five to seven feet from 

Holloway. After several minutes, Mour heard Holloway say, 

“You’re not going anywhere,” followed by something like, “Get 

him.” Holloway stood up. “Mr. Kistler was pretty much—they 

were within arm’s reach of each other at that point, and I saw 

Mr. Kistler pull the hammer out in one swing. I couldn’t tell 

with—almost like a backhand. I couldn’t see it strike too well. I 
3

saw it like a backhand, and within less than a second of that he 

was leaving.”

Responding police collected a black bandana from the 

reported flight path. At the hospital, they showed Holloway a 

bystander’s photograph of the attacker running from the scene. 

Holloway responded, “That’s the guy that hit me with the 

hammer.” 

Meanwhile, Officer Matthew O’Donovan and his K-9 

tracked the assailant’s flight path. When the dog alerted to a 

crawl space under a house, the officer announced his presence 

and ordered surrender three times. When there was no response, 

the officer released the dog, which barked, indicating a find. The 

officer announced three more times that the person should come 

out or get bitten. When there was still no response the officer 

signaled the dog, which dragged Kistler out from the crawl space. 

Once the dog released him, Kistler was cooperative. At trial, 

Kistler testified that while in the crawl space he heard indistinct 

shouting but was not aware the police were there until the dog

bit him.

Kistler was charged with two felonies and one 

misdemeanor: (count 1) attempted murder (Pen. Code,

1 §§ 664, 

187); (count 2) assault with force likely to cause great bodily 

injury (§ 245 subd. (a)(4)); and (count 3) resisting arrest (§ 148, 

subd. (a)(1)). The information alleged in counts 1 and 2 that he 

1 Further statutory citations are to the Penal Code.
4

personally used a deadly weapon (§ 12022, subd. (b)(1)) and 

personally inflicted great bodily injury (§ 12022.7, subd. (a)).

The defense theory was that Kistler acted in self-defense. 

Kistler testified that Holloway had previously threatened him.

That day on the Plaza, Kistler had been told that Holloway 

thought Kistler had stabbed his girlfriend. Kistler saw one of 

Holloway’s companions hand Holloway “a small to medium black 

canister. It appeared to have like a red trigger mechanism on the 

top of it. [¶] . . . [¶] It looked like a can of mace or pepper spray.” 

When Kistler saw Holloway “returning with his buddies,” he was 

standing by the planter where Holloway had been with the 

hammer. Kistler saw the hammer and put it in his waistband. “I 

grabbed it just in case, you know, these guys were coming to do 

something—you know, in case things got out of control, in case I 

needed to defend myself.” Kistler told the group he was going to 

leave. Holloway responded, “You’re not going anywhere, mother 

fucker. . . . Let’s get him.” Kistler raised the bandana he had been 

wearing that day,

to potentially protect myself, I guess, against getting 

pepper sprayed, and then I turned—I approached maybe 

with one step in his direction as he was jumping up from 

the planter and swung the hammer once, and it hit him in 

the top of the head. I believe I was taking more of a step 

back when I brought the hammer back up again and made 

another quick blow. At that point in time, I saw him 

starting to go down, I turned around and ran.”

In closing argument, defense counsel Meagan O’Connell 

briefly addressed the misdemeanor resisting arrest charge:
5

While we are on the issue of flight, resisting arrest, 

resisting or delaying an officer. I asked Mr. Kistler on the 

stand, “Did you delay an officer?” “Yes.” He knows he did. 

He knows it. He said on direct he heard the dog barking. 

Did he see the dog, probably not. You heard the officer 

testify that he was burrowed in, and that the officer 

couldn’t really see him when the dog first went down. Look 

back at that testimony. There is no question that he 

delayed an officer. We are not fighting that. We are not 

arguing it. Mr. Kistler even testified to it.

A jury found Kistler guilty as to all counts and the 

enhancements to be true. The court sentenced him to a total term 

of “11 years to life as to Count One” (seven years to life for 

attempted murder, plus consecutive one- and three-year terms for 

the enhancements). It stayed an eight-year term for count 2 and 

its enhancements pursuant to section 654 and declined to impose 

additional time or a court fine for the misdemeanor count 3.

DISCUSSION 

I. Conflict

Meagan O’Connell was Kistler’s trial attorney and also the 

supervising attorney in the Humboldt County Conflict Counsel’s 

Office. At the start of the trial the district attorney informed 

court and counsel that his office was prosecuting witness 

Oakeshott and others for unrelated drug sales, a moral turpitude 

offense that could be used to impeach Oakeshott at trial. Another 

member of the Conflict Counsel’s Office represented someone also 

charged with Oakeshott. In addition, O’Connell had previously 

appeared in court on behalf of defense witness Mour, although 

she did not represent him.
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Kistler asserts O’Connell and her office’s connection with 

these trial witnesses created conflicts of interest that violate his 

Sixth Amendment right to counsel. He further asserts the trial 

court’s inquiry into any potential conflict was inadequate. We 

disagree.

A criminal defendant’s Sixth Amendment right to the 

assistance of counsel includes “the correlative right to 

representation free from any conflict of interest that undermines 

counsel’s loyalty to his or her client.” (People v. Doolin (2009) 

45 Cal.4th 390, 417 (Doolin).) “As a general proposition, such 

conflicts ‘embrace all situations in which an attorney’s loyalty to,

or efforts on behalf of, a client are threatened by his 

responsibilities to another client or a third person or by his own 

interests.’ ” (People v. Cox (1991) 53 Cal.3d 618, 653, overruled on 

another point in Doolin, supra, 45 Cal.4th at p. 421, fn. 22, 

quoting People v. Bonin (1989) 47 Cal.3d 808, 835 (Bonin).) To 

establish a Sixth Amendment violation, appellant must 

demonstrate “ ‘a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.’ ” (Mickens v. Taylor (2002) 535 U.S. 162, 166 

(Mickens), quoting Strickland v. Washington (1984) 466 U.S. 668, 

694; see Doolin, at p. 417.)

Conflicts can occur when an attorney representing a 

defendant in a criminal matter concurrently represents or 

previously represented another person who is a witness in the 

case. (Leverson v. Superior Court (1983) 34 Cal.3d 530, 538

[involving codefendant calling counsel’s former client as a witness
7

against defendant].) A conflict exists if the attorney is forced to 

choose between providing effective representation to the 

client/defendant and protecting the confidences of the witness 

with whom the attorney also has or had an attorney-client 

relationship. (Ibid.) But, when a public defender’s or conflict 

attorney’s office formerly represented a prosecution witness, the 

entire office is not necessarily disqualified. Counsel must 

consider, for example, the length of time between the 

representation, the nature and notoriety of the witness’s case, 

whether the attorney who represented the witness is still a 

member of the office, and the nature and extent of screening 

procedures of that office. (Rhaburn v. Superior Court (2006) 

140 Cal.App.4th 1566, 1581 [declining to apply a “rigid rule of 

vicarious disqualification”].)

A trial court has a duty to inquire into the propriety of 

multiple defendant representation only when “ ‘the trial court 

knows or reasonably should know a particular conflict exists.’ ” 

(Mickens, supra, 535 U.S. at pp. 168–169 [quoting Cuyler v. 

Sullivan (1980) 446 U.S. 335, 347, and declining to require 

automatic reversal for a trial court’s failure to inquire into the 

nature of a multiple defendant representation].) Although a trial 

court “is required to perform some inquiry once it knows or 

reasonably should know of a particular conflict of interest, the 

court may decline to pursue the matter if, in its view, the 

potential for conflict is too slight.” (People v. Cornwell (2005) 

37 Cal.4th 50, 75, overruled on another point in Doolin, supra, 
8

45 Cal.4th at p. 421, fn. 22, citing Bonin, supra, 47 Cal.3d at 

p. 837).)

A. Oakeshott

Here, Oakeshott was not O’Connell’s client, nor was she a 

client of O’Connell’s office; rather, Oakeshott was the codefendant 

of a client of O’Connell’s office. Absent an appropriate waiver, 

that codefendant dynamic may have precluded O’Connell or her 

office from representing Oakeshott in the unrelated, then

pending drug sales case. (See, e.g., People v. Mroczko (1983) 

35 Cal.3d 86, 92, 115 [“[S]eparate and independent counsel 

should be appointed for jointly charged indigent defendants at 

the outset of criminal proceedings”], overruled on another point

in Doolin, supra, 45 Cal.4th at p. 421, fn. 22; People v. Owen 

(1989) 210 Cal.App.3d 561, 566.) But that trial and potential 

codefendant representation is not before us. Even so, 

demonstrating her personal duty of inquiry, O’Connell informed 

the court of her intent to speak with Oakeshott’s defense counsel 

to determine the possibility of any conflict:

[If] it would be some sort of conflict if I were to essentially 

delve into this kind of crime of moral turpitude . . . . I 

definitely don’t want to find myself somehow incriminating 

a client that I represent or that my office represents. 

I also have office staff working on a conflict check just to 

ensure that there aren’t any additional clients of mine 

listed in the report that perhaps [counsel] is unaware of.

The record does not reveal that any other actual or 

potential conflicts arose. The trial court granted Oakeshott use 

immunity and authorized her impeachment with the moral 
9

turpitude offense, but declined to “allow a deeper exploration of 

her guilt or innocence . . . .” The district attorney and O’Connell, 

with Oakeshott’s separate defense attorney present, then entered 

into a stipulation regarding the trial inquiry into the 

unadjudicated charged offense.

Under these circumstances, the representation of 

Oakeshott’s codefendant by O’Connell’s office in an unrelated 

case is too attenuated to create a de facto conflict of interest.

B. Mour

O’Connell’s appearance in court on behalf of Mour presents 

an importantly different dynamic. Mour was not a prosecution 

witness called to evidence Kistler’s guilt at trial. Rather, Kistler

chose to call Mour to support his theory of self-defense after 

meeting him in custody and learning he had witnessed the 

incident. Even so, court and counsel explored the possibility of a 

conflict of interest and permissible trial examination related to 

bias. In that context, O’Connell repeatedly stated to the court and 

district attorney that she had never represented Mour, although 

she may have appeared in court with him one time.

Mour affirmed the lack of representation: “I have seen you 

around the court a lot, but you never represented me in any 

cases.” Mour further testified that he “sort of” remembered one 

day O’Connell “filling in for an attorney on my case, but I don’t 

remember what we did that day. I remember your face from 

being assigned for the day.” Thus, according to both O’Connell 

and Mour, there is no basis to believe O’Connell obtained 

confidential information from Mour or that there was a 
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“substantial” attorney-client relationship giving rise to a 

presumption of a conflict. (See Vangsness v. Superior Court 

(1984) 159 Cal.App.3d 1087, 1090; Global Van Lines, Inc. v. 

Superior Court (1983) 144 Cal.App.3d 483, 489.) In short, 

O’Connell’s single stand-in appearance did not create an 

attorney-client relationship precluding O’Connell’s later 

representation of Kistler.

C. The Trial Court’s Inquiry

In support of his argument that the trial court’s inquiry 

into the potential conflicts of interest was inadequate, Kistler

relies on Bonin, supra, 47 Cal.3d at p. 836, citing Wood v. Georgia

(1981) 450 U.S. 261, 272. He asks, at a minimum, that we return 

the matter to the trial court to determine if a conflict in fact 

existed. We decline to do so.

First, the facts of Bonin are notably distinguishable. There, 

the trial court denied a request for substituted representation 

based on the two-part conflict issues of (1) counsel’s attorneyclient relationship with a key prosecution witness expected to 

testify that he and the defendant killed the victim, and (2) a 

literary rights fee agreement entered into between the defendant 

and proposed counsel. (Bonin, supra, 47 Cal.3d at pp. 830–836.) 

But at the recall of trial 30 days later, after the Court of Appeal 

had summarily denied proposed defense counsel’s writ 

challenging the conflict finding, and without further trial court 

inquiry into the known conflicts or any subsequent waiver, the 

trial court did substitute in counsel who then represented the 

defendant throughout the trial. Bonin, therefore, has no bearing 
11

on the trial court’s duty of inquiry under the very different 

circumstances presented here.

Second, in Mickens the Supreme Court specifically rejected 

the extension Kistler requests today. “Petitioner’s proposed rule 

of automatic reversal when there existed a conflict that did not 

affect counsel’s performance, but the trial judge failed to make 

the Sullivan-mandated inquiry, makes little policy sense.” 

(Mickens, supra, 535 U.S. at p. 172.) “[W]e think ‘an actual 

conflict of interest’ meant precisely a conflict that affected 

counsel’s performance—as opposed to a mere theoretical division 

of loyalties.” (Id. at p. 171.)

Moreover, the California Supreme Court has clarified its 

adoption of “the standard set out in Mickens.” (Doolin, supra,

45 Cal.4th at p. 421.) This standard requires both an actual 

conflict of interest and a demonstration of prejudice, “which 

requires a defendant to show counsel’s deficient performance and 

a reasonable probability that but for counsel’s deficiencies, the 

result of the proceeding would have been different.” (Ibid.; People 

v. Rundle (2008) 43 Cal.4th 76, 169, overruled on another point in 

Doolin, at p. 421, fn. 22.)

As discussed above, Oakeshott’s representation by an 

attorney in O’Connell’s office in an unrelated case did not present 

an apparent conflict that demanded trial court inquiry. Yet the 

written motions and conflict-related on-record discussions 

demonstrate that the trial court did consider and inquire into the 

nature of the potential conflicts. The court started by asking 

counsel to “frame the issue” on the record. After the district 
12

attorney explained the pending drug case that presented “an act 

of moral turpitude that the defense would be entitled to impeach 

her with,” defense counsel opined that narration was 

“minimizing” the issue. O’Connell then offered greater detail, 

including her wish to speak with counsel for the codefendants in 

the drug case to “determine whether or not he believes it would 

be some sort of conflict if I were to essentially delve into this kind

of crime of moral turpitude, essentially. I definitely don’t want to 

find myself somehow incriminating a client that I represent or 

that my office represents.” At the conclusion of subsequent 

consultations, the potential Oakeshott conflict was resolved; no 

further trial court inquiry was needed.

Turning to Mour, O’Connell’s one-time stand-in appearance

could have presented a presumed conflict if a “substantial” 

attorney-client relationship had been established. (Vangsness v. 

Superior Court, supra, 159 Cal.App.3d at p. 1090.) The trial court 

appropriately inquired into the nature of that appearance and 

was strongly informed O’Connell had never represented Mour. 

Mour testified consistently at trial, raising no issue requiring 

further inquiry. Taken in the trial context, when Mour was a 

defense witness called to corroborate and confirm Kistler’s selfdefense theory, the trial court’s inquiry into the potential Mour 

conflict was sufficient.

D. Prejudice

Last, even if there was a potential conflict or the trial 

court’s inquiry was insufficient, there is still no prejudice that 

warrants reversal. While Kistler now argues O’Connell’s 
13

cross-examination of Oakeshott should have been more vigorous 

and included a deeper inquiry into her narcotics and criminal 

history, the scope of questioning was consistent with both the 

court’s order and the defense theory of self-defense. Under both 

direct and cross-examination, Oakeshott readily acknowledged 

that she did not see anything that preceded the assault, nor was 

she able to identify Kistler as the assailant.

2 It is difficult to 

imagine how a more rigorous cross-examination would have 

spurred Oakeshott to change her testimony in such a way that 

would have led to a different verdict. There was no prejudice to 

Kistler.

Not surprising, when called as a defense witness, Mour also 

testified consistently with Kistler and his theory of the case. 

While O’Connell’s one-time appearance with Mour led to a 

bias-related question, that single inquiry is unlikely to have had 

any impact on the verdict in view of the totality of the evidence 

presented. No prejudice requires reversal or rehearing on the 

conflict issue.

II. Concession

Kistler next asserts that O’Connell conceded Kistler resisted arrest 

without his knowledge or consent. He contends that this concession 

2 “I didn’t see anything before that because, like I said, I 

just walked outside. So I just saw the one person hitting the other 

person, and then he took off.” “Like I literally walked out and just 

saw it, and then the guy ran. And then – it was really fast. It 

wasn’t like on—it was very quick.”
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made during closing argument violated his due process rights and 

requires reversal. We disagree.

Defense counsel are responsible for tactical trial decisions 

such as “ ‘what arguments to pursue, what evidentiary objections 

to raise, and what agreements to conclude regarding the 

admission of evidence.’ ” McCoy v. Louisiana (2018) 548 U.S. ___, 

138 S.Ct. 1500, 1508 (McCoy), quoting Gonzalez v. United States

(2008) 553 U. S. 242, 248.) But certain decisions are reserved for 

the client—“notably, whether to plead guilty, waive the right to a 

jury trial, testify in one’s own behalf, and forgo an appeal.” 

(McCoy, at p. 1508, citing Jones v. Barnes (1983) 463 U.S. 745, 

751.) It is “the defendant’s prerogative, not counsel’s, to decide on 

the objective of his defense: to admit guilt in the hope of gaining 

mercy at the sentencing stage, or to maintain his innocence, 

leaving it to the State to prove his guilt beyond a reasonable 

doubt.” (McCoy, at p. 1505.)

However, a defendant must voice his position. “If a client 

declines to participate in his defense, then an attorney may 

permissibly guide the defense pursuant to the strategy she 

believes to be in the defendant’s best interest.” (McCoy, supra, 

138 S.Ct. at p. 1509.) It is only when there are express 

statements of the client’s will to maintain innocence that “counsel 

may not steer the ship the other way.” (Ibid., citing Gonzalez v. 

United States, supra, 553 U.S. at p. 254.) If counsel’s concession 

strategy, “given the evidence bearing on the defendant’s guilt, 

satisfies the Strickland standard, . . . no tenable claim of 

ineffective assistance would remain.” (Florida v. Nixon (2004) 
15

543 U.S. 175, 192 (Nixon) [refusing to require a defendant’s 

express consent before a concession of guilt at trial].)

3

The facts of the instant case are very different from the 

capital cases of Nixon and McCoy, which involved defense counsel 

conceding guilt as to the charged murders in an attempt to gain 

mercy in the penalty phases. Here, the “concession” involved 

counsel’s comment in closing argument that Kistler was not 

contesting the least serious offense, the misdemeanor resisting 

arrest charge.

While we are on the issue of flight, resisting arrest, 

resisting or delaying an officer. I asked Mr. Kistler on the 

stand, “Did you delay an officer?” “Yes.” He knows he did. 

He knows it. He said on direct he heard the dog barking. 

Did he see the dog, probably not. You heard the officer 

testify that he was burrowed in, and that the officer 

couldn’t really see him when the dog first went down. Look 

back at that testimony. There is no question that he 

delayed an officer. We are not fighting that. We are not 

arguing it.

Kistler concedes that “[t]he record here does not 

demonstrate that Kistler expressly objected to his counsel’s

concession,” but asserts that any rule requiring a defendant to 

personally object violates due process, the right to a fair trial, and 

the right to assistance of counsel. He asks us to impose a new 

rule requiring that a defendant “be informed on the record, either 

by the court or his counsel, of the need to object and be given the 

3 An attorney has a duty to consult with the client 

regarding “important decisions,” including questions of 

overarching defense strategy. (Strickland v. Washington, supra, 

466 U.S. at p. 688.)
16

opportunity to lodge that objection before any concession takes 

place.” 

But the United States Supreme Court has already rejected 

these arguments in Nixon and McCoy. As long as counsel 

discusses key trial strategy with the client, in satisfaction of 

Strickland, a defendant must specifically object to that strategy, 

or there is no error. (McCoy, supra, 138 S.Ct. at pp. 1505–1506; 

Nixon, supra, 543 U. S. at pp. 178, 192.) This court declines to 

extend that rule to require a separate on-record admonition as 

well.

Accordingly, because the record presents neither evidence 

of O’Connell failing to satisfy the Strickland consultation 

requirement nor of Kistler voicing an objection to counsel's 

concession strategy, Kistler’s claim fails. Moreover, although 

Kistler was ultimately found guilty of misdemeanor resisting 

arrest, he was not sentenced on that offense. Any potential error 

is therefore harmless.

III. Sentencing

Last, Kistler argues the trial court’s pronounced sentence of 

“seven years-to-life" on Count 1 is not a valid sentence because, 

with exceptions not applicable here, section 664, subdivision (a) 

only allows a sentence of “life without the possibility of parole” for 

attempted murder. (§ 664, subd. (a).) Accordingly, he maintains,

the trial court “had no authority to require appellant to serve a 

minimum of seven years.”

It is true that section 664, subdivision (a) provides that “if 

the crime attempted is willful, deliberate, and premediated 
17

murder, as defined in Section 189, the person guilty of that 

attempt shall be punished by imprisonment in the state prison 

for life with the possibility of parole.” (Italics added.) But section 

3046 further requires:

(a) An inmate imprisoned under a life sentence shall not be 

paroled until he or she has served the greater of the 

following:

(1) A term of at least seven calendar years.

(2) A term as established pursuant to any other law that 

establishes a minimum term or minimum period of 

confinement under a life sentence before eligibility for 

parole.

Kistler was not charged with “willful, deliberate, and 

premediated murder, as defined in section 189” (§ 189, subd. (a); 

thus, the stated sentence of “seven years-to-life” accurately

reflects the interrelationship between sections 664, subdivision 

(a) and 3046. In addition, consistent with the guidance of the 

California Supreme Court, “[b]y including the minimum term of 

imprisonment in its sentence, a trial court gives guidance to the 

Board of Prison Terms regarding the appropriate minimum term 

to apply, and it informs victims attending the sentencing hearing 

of the minimum period the defendant will have to serve before 

becoming eligible for parole.” (People v. Jefferson (1999) 

21 Cal.4th 86, 101–102, fn. 3.)

Accordingly, there is no error in the stated count 1 sentence 

of “seven years-to-life”; resentencing is not required.

DISPOSITION

The judgment is affirmed.
18

_________________________

Desautels, J.*

WE CONCUR:

_________________________

Streeter, Acting P.J.

_________________________

Brown, J.

A160882 People v. Kistler

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.