Filed 3/20/14 P. v. Horton CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
MICHAEL HORTON,
Defendant and Appellant. B246679
(Los Angeles County Super. Ct. No. TA104028)

In re MICHAEL HORTON,
on Habeas Corpus. B251537

APPEAL from a judgment of the Supe rior Court of Los Angeles County, John Cheroske, Judge. ORIGINAL PROCEEDI NG; Petition for Writ of Habeas Corpus. Petition denied; judgment affirmed. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susa n Sullivan Pithey and Shawn McGahey Webb, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

_____________ __________2 INTRODUCTION

Michael Horton was convicted on two coun ts of attempted mu rder and one count of unlawfully driving or taking a vehicle, with true findings on great bodily injury, weapons use and gang enhancement allegations . He was sentenced as a third strike offender to an aggregate state prison term of 99 years to life. Horton appealed on numerous grounds. We cond itionally reversed the judgme nt on the attempted murder
convictions and directed the trial court to hold a new hearing on remand on Horton’s
motion to disclose the identity of a confidentia l informant, because the court had failed to follow the procedural requirements of Evid ence Code section 1042, subdivision (d) 1

. ( People v. Horton (July 18, 2012, B230381) [nonpub. opn.].) On remand, the trial court held a new hear ing, denied the motion and reinstated the judgment on the attempted mu rder convictions. Horton challenged the judgment by filing both an appeal, contendi ng the trial court again failed to comply with section 1042, subdivision (d), and a petition fo r writ of habeas corpus, argui ng he was denied his Sixth Amendment rights at the new hearing. We pr eviously issued an or der to show cause. After considering the petition in conjunction with this appeal, we affirm the judgment and deny the petition.

FACTUAL AND PROCED URAL BACKGROUND

I. Confidential Informant Disc losure Motion and Prior Appeal While representing himself in 2009, Hort on filed a pretrial motion seeking the identity of a confiden tial informant who had supplied info rmation to the police prior to
Horton’s arrest. The trial court denied th e motion at an in camera hearing outside Horton’s presence. Thereafter, Horton agreed to be represen ted by appointed counsel. On appeal, we determined the trial court erre d by not conducting “a hearing at which all parties may present evidence on the issues of disclosure” pursu ant to section 1042,

1 Statutory references are to the Evidence Code, unless otherwise indicated.3 subdivision (d). 2 Rather than holding a public portio n of the hearing and an in camera proceeding as contemplated by the statute, the court conducted the entire hearing in camera, effectively de nying Horton the opportunity to pr esent evidence on the question
of whether the informant was a materi al witness on the issue of guilt. ( People v. Horton (July 18, 2012, B2303 81) [nonpub. opn.].) We also concluded the trial court impr operly relied entirely upon an extremely brief and general presentati on by the prosecutor concerning the information supplied by the confidential informant. The prosecut or stated how the police had used the information given by the info rmant, but she did not desc ribe what the information actually was and how the informant had come to possess it. The court did not ask any questions after the prosecutor’s three-sentence de scription of the information. Because of these errors, the record was insu fficient to permit us to engage in a meaningful review of

2 Section 1042, subdivision (d), sets forth the procedural requirements for a motion to disclose a confidential info rmant’s identity: “When, in any such criminal proceeding, a party demands disclosure of th e identity of the info rmant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person auth orized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of th e defendant and his co unsel. At the in camera hearing, the prosecution may offer ev idence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclo sure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as we ll as any physical evidence presented at the hearing, shall be ordered sealed by the co urt, and only a court may have access to its contents. The court shall not order disclosu re, nor strike the testimony of the witness who invokes the privilege, nor dismiss the crim inal proceeding, if the party offering the witness refuses to disclose th e identity of the info rmant, unless, based upon the evidence presented at the hearing held in the presen ce of the defendant and his counsel and the evidence presented at the in cam era hearing, the court concludes that there is a reasonable possibility that nondisclosure might depriv e the defendant of a fair trial.”4 the court’s ruling that the iden tity of the informant need not be disclosed. Accordingly, we conditionally reversed the judgment and re manded with directions that the trial court conduct a full hearing under section 1042 and make the necessary findings on the evidence presented whethe r the informant was a ma terial witness. ( People v. Horton (July 18, 2012, B2303 81) [nonpub. opn.].)

II. Hearing on Remand On January 23, 2013, the tria l court held a new hearing on the motion to disclose
the confidential informant. Ho rton was not present. Defens e counsel, Robin Yanes, who had represented Horton at trial appeared on his behalf. After appearances of counsel were made, the court conducted an in camer a hearing outside the presence of defense
counsel. Present at the hearing were the prosec utor and Sergeant Robert Dean, the investigating officer. Dean was placed under oath and provided testimony in response to the prosecutor’s questions about what info rmation the informant had provided and how the informant had come to po ssess it. The prosecutor did not call the informant as a
witness at trial. At the close of the in ca mera hearing, the court concluded there was no reasonable possibility the inform ant could have give n evidence on the issue of guilt that might have exonerated Horton, and he was th us not deprived of a fair trial. In open court, the court ru led the informant was not to be disclosed and invited Yanes to speak. Yanes stated while the prosec utor had apparently never intended to have the informant testify at trial, had the defense been able to interview the informant, he or she may have provi ded relevant informati on regarding third-party culpability. The court
then denied the motion.

III. Habeas Corpus Petition In his petition for writ of habeas corpus, Horton contends the tr ial court violated his Sixth Amendment right to represent himsel f and to his choice of counsel, by holding the hearing on remand in his absence and ha ving defense counsel ap pear on his behalf.5 In support of the petition, Horton submitted his own declaration stating that in October 2012, Horton informed appellate co unsel that he currently was representing himself in the case, and he no longer wanted to be represented by Yanes, who had been appointed to represent him at tr ial. Horton stated that he intended either to represent himself or to retain private counsel to repr esent him at the new hearing. In November and December 2012 and in January 2013, Ho rton was repeatedly told by appellate counsel that the hearing had no t yet been scheduled and that the courtroom clerk handling
the matter was aware that Hort on no longer wished to be re presented by Yanes. Horton
never received notice from the trial cour t or Yanes of the hearing date. This showing was supplemented by a declar ation by appellate counsel, who stated in November 2012 he telephoned the courtroom of the bench o fficer who was to hold the hearing on remand. Appellate counsel inform ed the courtroom clerk that Horton did not want to be represented by Yanes at the hear ing, was currently representing himself and planned to retain private counsel. The cler k stated it was unlikely the hearing would be scheduled prior to January 1, 2013 and assured appellate coun sel that both he and Horton
would be notified of the hear ing date. In December 2 012 and early January 2013, appellate counsel again spoke to the clerk an d was told each time that the hearing had not yet been calendared. When appellate counsel contacted the clerk on January 29, 2013, he
learned the motion had been heard and denied on January 23, 2013. Appellate counsel received a copy of the minute order and conf irmed with Yanes that Horton had not been present at the hearing and that counsel had been ordered by the trial court to appear on
Horton’s behalf. Yanes did not notif y Horton of the hearing date. The People filed a return in which th ey maintained Horton’s Sixth Amendment rights were not violated because he was properly represente d by Yanes who was obligated to appear on Horton’s behalf in this case until he was either formally relieved as the attorney of record or the judgment became final. Accompanying th e return were the declarations of the courtroom clerk and de fense counsel. The courtroom clerk stated he did not recall receiving any telephone calls from appellate counsel. The clerk asserted6 that, had he been telephoned by an attorney indicating a par ticular defendant did not wish to be represented by his or her counsel of record, the clerk would have instructed the attorney to have the defendant so notify the trial court in writing. The clerk further stated he would never have agreed to “informally” notify an attorney, who is not counsel of record, of a hearing date in a case. According to Yanes’s declaration, ne ither Horton nor appellate counsel had
advised him that Horton did no t want defense counsel to represent him, was currently representing himself and was attempting to reta in private counsel to represent him at the new hearing. If Yanes had been made aware of Horton ’s wishes, he would have communicated them to the trial court at the new hearing.

DISCUSSION
I. Habeas Petition Horton contends that, because he was excluded from the hearing on remand to
disclose the confidential info rmant, he was denied his Sixth and Fourteenth Amendment rights to represent himself or to be represen ted by his choice of counsel and his right to be personally present at a criti cal stage of the proceedings. Without question a defendant’s right to counsel under the Sixth and Fourteenth Amendments applies at all critical st ages of a criminal proceeding. ( Mempa v. Rhay (1967) 389 U.S. 128, 134 [19 L.Ed.2d 336, 88 S.Ct. 254]; People v. Crayton (2002) 28 Cal.4th 346, 362.) Included in this Sixth Amendment guarantee is th e right to retained counsel of choice ( United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144, 151-152 [165 L.Ed.2d 409, 126 S.Ct. 1557]; People v. Maciel (2012) 57 Cal.4th 482, 512) as well as the right to waive counsel and invok e the right to self-representation. ( Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].) “[E]manating from the
confrontation clause of th e Sixth Amendment and the due process clause of the Fourteenth Amendment,” is the defendant’s right to be persona lly present “at any stage of the criminal proceedings that is critical to its outcome if hi s presence would contribute to the fairness of the procedure.’” ( Kentucky v. Stincer (1987) 482 U.S. 730, 745 [967 L.Ed.2d 631, 107 S. Ct. 2658]; see also United States v. Gagnon (1985) 470 U.S. 522, 526 [84 L.Ed.2d 486, 105 S.Ct. 1482]; People v. Blacksher (2011) 52 Cal.4th 769, 799 ; People v. Cole (2004) 33 Cal.4th 1158, 1230 .) “It is also required by section 15 of article
I of the California Constitution and by sections 977 and 1043.” ( People v. Concepcion (2008) 45 Cal.4th 77, 81.) 3 Because Horton failed to notify the court of his intention either to represent
himself or to substitute retained counsel for appointed counsel, we do not reach the claim that he was denied the right to self-represen tation or choice of counsel. Nor, on this record, can we conclude that th e court violated Horton’s right to be personally present at a critical stage of the criminal proceedings. Horton has failed to demonstrate that his presence was necessary to protect his rights to a fair trial or that his absence prejudiced
his defense.

A. Horton’s Rights to Coun sel Were Not Implicated
R obin Yanes was still Horton’ s attorney of record at the time of the hearing on remand. Although Horton may have intend ed to assert his Sixth and Fourteenth Amendment right to represent himself or to have retained counsel represent him at the pending hearing, he never did. Horton did not formally substitute Yanes out as counsel or otherwise personally contact the trial court, the district attorney or Yanes to make his
intentions known.

“ The main purpose of a substitution of attorneys is that both the court and opposing counsel may know that they are dea ling with an attorney who has the power to bind the party he purports to represent.” ( Carrara v. Carrara (1953) 121 Cal.App.2d 59,

3 Under Penal Code, section 977, subdivision (b)(1), a fe lony defendant “shall be present at the arraignment, at the time of plea, during the prelim inary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence,” and “shall” also attend “all other proceedings,” unless he or she executes a written waiver of the right to be present “in open court.” Penal Code, section 1043, subdivision (a), states that, “Ex cept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.”8 62.) “‘It is settled that the atto rney of record has the exclusiv e right to appear in court for his client and to control the court procee dings, so that neither the party himself [citations], nor another attorney [citations], ca n be recognized by the court in the conduct or disposition of the case.”’ ( People v Merkouris (1956) 46 Cal.2d 540, 554-555 [italics omitted].) “‘A party to an ac tion may appear in hi s own proper person or by attorney, but he cannot do both. If he app ears by attorney he must be heard through him, and it is indispensable to the d ecorum of the Court, and the due and orderly conduct of a cause that such attorney shall have the management and control of the action and his acts go unquestioned by any one [ sic ] except the party whom he re presents. So long as he remains attorney of record the Court cannot recogniz e any other as having the management of the case.”’ ( Magee v. Superior Court (1973) 34 Cal.App.3d 201, 213, disapproved on another ground in People v. Norris (1985) 40 Cal.3d 51, 56.) Two statutes specifically govern how substitu tion of counsel is to take place in the
absence of a motion: sections 284 and 285 of the Code of Ci vil Procedure. Section 284 provides, in relevant part, that “the attorney in an action . . . may be changed at any time before or after judgment or final determinatio n . . . [¶] upon the consent of both client and attorney, filed with the clerk or en tered upon the minutes.” (Italics added.) Section 285 provides: “When an attorney is changed, as provided in [section 284], written notice of the change and of the substitutio n of a new attorney, or of th e appearance of the party in person, must be given to the adverse party.” The procedure set forth in sections 284 and 285 of the Code of Civil Procedure applies to criminal as well as civil actions. ( People v.
Bouchard (1957) 49 Cal.2d 438, 440-441.) None of the requirements of sections 284 and 285 of th e Code of Civil Procedure were met here. Horton’s only contact w ith the court was thro ugh the informal communication by his trial counsel. Horton’s pro. per. filing of the notice of appeal in his prior appeal only rendered th e appeal effective; it did not constitute a request for, or an actual substitution of, counsel. Because the record fails to reflect that Horton made a request for substitution of counsel in anticipa tion of the hearing, th e record necessarily9 fails to support Horton’s claim that he wa s denied his right to counsel to selfrepresentation or to choice of counsel. The trial court could not deprive Horton of rights he never asserted. Accordingly, Horton’s Sixth and Fourteenth Amendment rights to counsel were not implicated.

B. Horton’s Fair Trial Rights Were Not Implicated
Horton maintains that his exclusion from the hearing on remand also violated his Fourteenth Amendment right to be personally present at a critical stage of the proceedings. The threshold issue thus beco mes whether Horton had a constitutional right to be personally present at the hearing, emphasizing the particular nature of these proceedings. We evaluate whether his presen ce would have a substa ntial relationship to his ability to defend, or would instead be of no use. ( Kentucky v. Stincer, supra, 482 U.S. at p. 745.)
In Stincer the defendant argued his exclusion from a hearing to assess the competency of child witnesses to testify viol ated his Fourteenth Amendment right to due process because the hearing was a crucial phase of the trial. The Court concluded the nature of the competency hear ing at issue, which addresse d only each child’s ability to
recall and narrate facts and to distinguish between truth a nd falsehood, did not bear a substantial relationship to the defe ndant’s opportunity to defend. ( Kentucky v. Stincer,

supra , 482 U.S. at pp. 746-747.) As defendant had not shown his presence would have been useful in determining wh ether the witnesses were comp etent to testify, the Court
found the defendant had failed to establish that his absence constituted a constitutional deprivation. ( Id. at p. 747.) The Supreme Court acknowledged that “even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right ‘to be present in his own person whenever his pres ence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge.’” ( Kentucky v. Stincer, supra, 482 U.S. at p. 745.) The Court st ressed that while the “privilege of presence is not guaranteed ‘w hen presence would be usele ss, or the benefit but a10 shadow,’ [citation], due process clearly requires that a defendant be a llowed to be present ‘to the extent that a fair and just hearing wo uld be thwarted by his ab sence.’ [Citation].” Thus, “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” ( Kentucky v. Stincer, supra, 482 U.S. at p. 745.) The state constitutional right to be pers onally present ““‘is ge nerally coextensive with the federal due process right. [Citations .]’ [Citation.] Neither the state nor the federal Constitution, nor the statutory requirem ents of sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him.””’ ( People v. Blacksher, supra , 52 Cal.4th at p. 799.) “‘Defenda nt has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.”’ ( Ibid. ; see Kentucky v. Stincer, supra, 482 U.S. at p. 747.) Having reviewed the transcript of the he aring on remand, we conclude that Horton has not met his burden to show that his pers onal presence would ha ve “contribute[d] to the fairness of the procedure” in any signif icant manner within the meaning of the Sixth and Fourteenth Amendments ( Kentucky v. Stincer, supra , 482 U.S. at p. 745), or had a “‘“‘reasonably substantial relation to the fullne ss of his opportunity to defend against the charge,’”’” within the meani ng of article I, section 15 of the California Constitution or Penal Code, sections 977 and 1043. (See People v. Cole, supra , 33 Cal.4th at pp. 1231-1232.) It is true the hearing on remand suffered from the same procedural defect as the prior hearing. The proceedi ngs had no public portio n, at which Horton could have presented evidence on the issue of materiality. However, Horton has not indicated that his presence at the heari ng on remand would have been useful in establishing the requisite materiality. Sp ecifically, nowhere in his declaration does Horton state how his presence would have contributed to de monstrating the need for the informant’s identity and counter ing the prosecutor’s claim of privilege. Furthermore, in his petition, Horton speculates that “it was possible that his total exclusion” from the11 hearing could have prejudiced him because, having prepared the motion, he was more familiar with it than defense counsel; he fa ils, however, to provide any information or argument he could have contribu ted. Horton failed to demons trate that in any manner the fairness of the hearing or the fullness of his opportunity to defend were somehow thwarted by his absence. (See Kentucky v. Stincer, supra, 482 U.S. at pp.745, 747.)

II. APPEAL As we discussed in our earlier opinion, th e procedure for seeking the identity of a
confidential informant involv es an initial hearing at which all parties may present
evidence whether the conf idential informant is a material witness. (§ 1042, subd. (d).) If the prosecutor refuses to disclo se the informant’s identity, the court holds an in camera hearing, outside the presence of the defe ndant and his counsel, during which the prosecutor may offer evidence on the materiality of the in formant, which would tend to disclose his or her identity. ( Ibid. ) “An informant is a material witness if there appears, from the evidence presented, a reasonable possib ility that he or she could give evidence on the issue of guilt that might exoner ate the defendant. [Citation.]” ( People v. Lawley (2002) 27 Cal.4th 102, 159- 160; see also § 1042, subd. (d).) “Where the evidence indicates [that] the informer was an actual participant in the crime alleged or was a nonparticipating eyewitness to th at offense, ipso facto it is held he would be a material witness on the issue of guilt and nondisclosure will deprive the de fendant of a fair trial.” ( People v. Lee (1985) 164 Cal.App.3d 830, 835-836.) Nonetheless, it is not enough that the witness could provide evidence relevant to issues of guilt, or is a percipient witness or participant. ( People v. Davis (2010) 186 Cal.App.4th 1272, 1277-1278.) “An informant
is not a ‘material witness’ nor does his nondisc losure deny the defend ant a fair trial where the informant’s testimony although ‘material’ on the issue of guilt could only further implicate rather than exon erate the defendant.” ( People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080-1081; People v. Garza (1995) 32 Cal.App.4th 148, 155.) Thus, when the evidence adduced at an in camera hearing tends to establish the lack of a “reasonable possibility that a partic ular percipient eyew itness-informer could12 give evidence on the issue of guilt which migh t result in a defendant’s exoneration . . . ,
the witness would not be material under th e test for materiality established by the California Supreme Court.” ( People v. Lanfrey (1988) 204 Cal.App. 3d 491, 502-503; see People v. Lawley
, supra , 27 Cal.4th at p. 159.)
In Roviaro v. United States (1957) 353 U.S. 53 [1 l.Ed.2d 639, 77 S.Ct. 623], the United States Supreme Court recognized the pros ecution’s privilege to refuse to disclose the identity of a confidential informant, but imposed various limitations on that privilege to ensure that its application comported with “the fundamental requirements of fairness.” ( Id . at p. 60.) “Where the disclosure of an in former’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” ( Id . at pp. 60-61, fn. omitted.) The nature of that determination precluded the establishment of a “fixed rule with respect to disclosure.” ( Id . at p. 62.) Instead, the Roviaro court favored an approach that balanced the “public in terest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possibl e defenses, the possible significance of the informer’s testimony, and ot her relevant factors.” ( Ibid .) We agree with Horton that the trial court failed to comply with the requirements of section 1042, subdivision (d) at the hearing on remand by again faili ng to hold a public hearing prior to the in camer a hearing for all parties to present evidence whether the
confidential informant was a mate rial witness. Nonetheless, following our review of the transcript of the in camera hearing, we ha ve concluded that under the most stringent
standard of review the trial court’s erro r was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) All
evidence introduced at the in camera hearing was given unde r oath, and no opinions, characterizations of witness statements, or assumptions or conclusions were uttered by the testifying officer–merely facts. We ar e satisfied from the in formation imparted13 during the in camera hearing that the confidential info rmant was not a material witness who could provide evidence that might resu lt in Horton’s exonera tion. The prosecutor conducted a sufficiently search ing inquiry, and the trial c ourt properly concluded the informant could not have provided exonerating evidence. (See People v. Lawley
, supra , 27 Cal.4th at p. 160.) Accordingly, notw ithstanding the trial court’s error, Horton was not deprived of a fair trial in this case by the denial of his motion to disclose the informant’s identity.
DISPOSITION

The petition is denied; the judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.