Filed 3/20/14 P. v. Horton CA2/7 

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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 Superior Court of Los Angeles County, John 

Cheroske, Judge. ORIGINAL PROCEEDING; 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, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and 

Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent. 

_______________________ 
2 

INTRODUCTION 

 Michael Horton was convicted on two counts of attempted murder 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 conditionally reversed the judgment 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 confidential informant, because the court had failed to 

follow the procedural requirements of Evidence Code section 1042, subdivision (d) 1.

(People v. Horton (July 18, 2012, B230381) [nonpub. opn.].) 

 On remand, the trial court held a new hearing, denied the motion and reinstated the 

judgment on the attempted murder convictions. Horton challenged the judgment by 

filing both an appeal, contending the trial court again failed to comply with section 1042, 

subdivision (d), and a petition for writ of habeas corpus, arguing he was denied his Sixth 

Amendment rights at the new hearing. We previously issued an order to show cause. 

After considering the petition in conjunction with this appeal, we affirm the judgment and 

deny the petition. 

FACTUAL AND PROCEDURAL BACKGROUND 

I. Confidential Informant Disclosure Motion and Prior Appeal 

While representing himself in 2009, Horton filed a pretrial motion seeking the 

identity of a confidential informant who had supplied information to the police prior to 

Horton’s arrest. The trial court denied the motion at an in camera hearing outside 

Horton’s presence. Thereafter, Horton agreed to be represented by appointed counsel. 

On appeal, we determined the trial court erred by not conducting “a hearing at which all 

parties may present evidence on the issues of disclosure” pursuant to section 1042, 

 

1 Statutory references are to the Evidence Code, unless otherwise indicated. 
3 

subdivision (d).2 Rather than holding a public portion of the hearing and an in camera 

proceeding as contemplated by the statute, the court conducted the entire hearing in 

camera, effectively denying Horton the opportunity to present evidence on the question 

of whether the informant was a material witness on the issue of guilt. (People v. Horton

(July 18, 2012, B230381) [nonpub. opn.].) 

We also concluded the trial court improperly relied entirely upon an extremely 

brief and general presentation by the prosecutor concerning the information supplied by 

the confidential informant. The prosecutor stated how the police had used the 

information given by the informant, but she did not describe 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 description of the information. Because of 

these errors, the record was insufficient 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 informant’s identity: “When, in any such criminal proceeding, a 

party demands disclosure of the identity of the informant 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 authorized 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 the defendant and his counsel. At the in 

camera hearing, the prosecution may offer evidence 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 nondisclosure 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 well as any physical evidence presented at the 

hearing, shall be ordered sealed by the court, and only a court may have access to its 

contents. The court shall not order disclosure, nor strike the testimony of the witness 

who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the 

witness refuses to disclose the identity of the informant, unless, based upon the evidence 

presented at the hearing held in the presence of the defendant and his counsel and the 

evidence presented at the in camera hearing, the court concludes that there is a reasonable 

possibility that nondisclosure might deprive the defendant of a fair trial.” 
4 

the court’s ruling that the identity of the informant need not be disclosed. Accordingly, 

we conditionally reversed the judgment and remanded with directions that the trial court 

conduct a full hearing under section 1042 and make the necessary findings on the 

evidence presented whether the informant was a material witness. (People v. Horton

(July 18, 2012, B230381) [nonpub. opn.].) 

II. Hearing on Remand 

On January 23, 2013, the trial court held a new hearing on the motion to disclose 

the confidential informant. Horton was not present. Defense counsel, Robin Yanes, who 

had represented Horton at trial appeared on his behalf. After appearances of counsel 

were made, the court conducted an in camera hearing outside the presence of defense 

counsel. 

Present at the hearing were the prosecutor and Sergeant Robert Dean, the 

investigating officer. Dean was placed under oath and provided testimony in response to 

the prosecutor’s questions about what information the informant had provided and how 

the informant had come to possess it. The prosecutor did not call the informant as a 

witness at trial. At the close of the in camera hearing, the court concluded there was no 

reasonable possibility the informant could have given evidence on the issue of guilt that 

might have exonerated Horton, and he was thus not deprived of a fair trial. 

In open court, the court ruled the informant was not to be disclosed and invited 

Yanes to speak. Yanes stated while the prosecutor 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 provided relevant information 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 trial court violated 

his Sixth Amendment right to represent himself and to his choice of counsel, by holding 

the hearing on remand in his absence and having defense counsel appear on his behalf. 
5 

In support of the petition, Horton submitted his own declaration stating that in 

October 2012, Horton informed appellate counsel 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 trial. Horton stated that he intended either to represent 

himself or to retain private counsel to represent him at the new hearing. In November 

and December 2012 and in January 2013, Horton was repeatedly told by appellate 

counsel that the hearing had not yet been scheduled and that the courtroom clerk handling 

the matter was aware that Horton no longer wished to be represented by Yanes. Horton 

never received notice from the trial court or Yanes of the hearing date. 

This showing was supplemented by a declaration by appellate counsel, who stated 

in November 2012 he telephoned the courtroom of the bench officer who was to hold the 

hearing on remand. Appellate counsel informed the courtroom clerk that Horton did not 

want to be represented by Yanes at the hearing, was currently representing himself and 

planned to retain private counsel. The clerk stated it was unlikely the hearing would be 

scheduled prior to January 1, 2013 and assured appellate counsel that both he and Horton 

would be notified of the hearing date. In December 2012 and early January 2013, 

appellate counsel again spoke to the clerk and 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 confirmed 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 notify Horton of the hearing date. 

The People filed a return in which they maintained Horton’s Sixth Amendment 

rights were not violated because he was properly represented 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 the return were 

the declarations of the courtroom clerk and defense counsel. The courtroom clerk stated 

he did not recall receiving any telephone calls from appellate counsel. The clerk asserted 
6 

that, had he been telephoned by an attorney indicating a particular 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, neither Horton nor appellate counsel had 

advised him that Horton did not want defense counsel to represent him, was currently 

representing himself and was attempting to retain 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 informant, he was denied his Sixth and Fourteenth Amendment 

rights to represent himself or to be represented by his choice of counsel and his right to 

be personally present at a critical stage of the proceedings. 

Without question a defendant’s right to counsel under the Sixth and Fourteenth 

Amendments applies at all critical stages 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 the 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 invoke 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 the Sixth Amendment and the due process clause of the 

Fourteenth Amendment,” is the defendant’s right to be personally present “at any stage of 

the criminal proceedings that is critical to its outcome if his presence would contribute to 

the fairness of the procedure.’” (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 
7 

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-representation or choice of counsel. Nor, on this 

record, can we conclude that the 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 Counsel Were Not Implicated 

Robin Yanes was still Horton’s attorney of record at the time of the hearing on 

remand. Although Horton may have intended 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 dealing 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 felony defendant “shall be 

present at the arraignment, at the time of plea, during the preliminary 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, “Except 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 attorney of record has the exclusive right to appear in court for 

his client and to control the court proceedings, so that neither the party himself 

[citations], nor another attorney [citations], can 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 action may appear in his own proper person or by attorney, but 

he cannot do both. If he appears by attorney he must be heard through him, and it is 

indispensable to the decorum 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 represents. So long as he 

remains attorney of record the Court cannot recognize 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 substitution of counsel is to take place in the 

absence of a motion: sections 284 and 285 of the Code of Civil 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 determination . . . [¶] upon the consent of both client and 

attorney, filed with the clerk or entered 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 substitution of a new attorney, or of the 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 the Code of Civil Procedure 

were met here. Horton’s only contact with the court was through the informal 

communication by his trial counsel. Horton’s pro. per. filing of the notice of appeal in 

his prior appeal only rendered the 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 anticipation of the hearing, the record necessarily 
9 

fails to support Horton’s claim that he was 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 becomes whether Horton had a constitutional right 

to be personally present at the hearing, emphasizing the particular nature of these 

proceedings. We evaluate whether his presence would have a substantial 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 violated 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 hearing at issue, which addressed only each child’s ability to 

recall and narrate facts and to distinguish between truth and falsehood, did not bear a 

substantial relationship to the defendant’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 whether the witnesses were competent 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 presence 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 stressed that while the “privilege of 

presence is not guaranteed ‘when presence would be useless, or the benefit but a 
10 

shadow,’ [citation], due process clearly requires that a defendant be allowed to be present 

‘to the extent that a fair and just hearing would be thwarted by his absence.’ [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 personally present ““‘is generally coextensive 

with the federal due process right. [Citations.]’ [Citation.] Neither the state nor the 

federal Constitution, nor the statutory requirements 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.) “‘Defendant 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 hearing on remand, we conclude that Horton 

has not met his burden to show that his personal presence would have “contribute[d] to 

the fairness of the procedure” in any significant 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 fullness of his opportunity to defend against the 

charge,’”’” within the meaning 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 proceedings had no public portion, at which Horton 

could have presented evidence on the issue of materiality. However, Horton has not 

indicated that his presence at the hearing on remand would have been useful in 

establishing the requisite materiality. Specifically, nowhere in his declaration does 

Horton state how his presence would have contributed to demonstrating the need for the 

informant’s identity and countering the prosecutor’s claim of privilege. Furthermore, in 

his petition, Horton speculates that “it was possible that his total exclusion” from the 
11 

hearing could have prejudiced him because, having prepared the motion, he was more 

familiar with it than defense counsel; he fails, however, to provide any information or 

argument he could have contributed. Horton failed to demonstrate 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, the procedure for seeking the identity of a 

confidential informant involves an initial hearing at which all parties may present 

evidence whether the confidential informant is a material witness. (§ 1042, subd. (d).) If 

the prosecutor refuses to disclose the informant’s identity, the court holds an in camera 

hearing, outside the presence of the defendant and his counsel, during which the 

prosecutor may offer evidence on the materiality of the informant, 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 possibility that he or she could give evidence 

on the issue of guilt that might exonerate 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 that offense, ipso facto it is held he would be a material 

witness on the issue of guilt and nondisclosure will deprive the defendant 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 nondisclosure deny the defendant a fair trial where 

the informant’s testimony although ‘material’ on the issue of guilt could only further 

implicate rather than exonerate 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 particular percipient eyewitness-informer could 
12 

give evidence on the issue of guilt which might result in a defendant’s exoneration . . . , 

the witness would not be material under the 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 prosecution’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 informer’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 interest 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 possible defenses, the possible significance of the 

informer’s testimony, and other 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 failing to hold a public 

hearing prior to the in camera hearing for all parties to present evidence whether the 

confidential informant was a material witness. Nonetheless, following our review of the 

transcript of the in camera hearing, we have concluded that under the most stringent 

standard of review the trial court’s error 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 under oath, and no opinions, 

characterizations of witness statements, or assumptions or conclusions were uttered by 

the testifying officer–merely facts. We are satisfied from the information imparted 
13 

during the in camera hearing that the confidential informant was not a material witness 

who could provide evidence that might result in Horton’s exoneration. The prosecutor 

conducted a sufficiently searching inquiry, and the trial court properly concluded the 

informant could not have provided exonerating evidence. (See People v. Lawley, supra, 

27 Cal.4th at p. 160.) Accordingly, notwithstanding 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.