Indigent defendant facing retrial is presumptively entitled to free trial transcript including opening and closing arguments. Defendant Reese was an indigent, pro se defendant facing retrial on charges of making criminal threats, possession of a firearm by a felon, and assault with a firearm. Prior to the retrial, defendant received a transcript that included all witness testimony from the first trial. Without hearing from the prosecution, the trial court denied Reese’s request for the transcript of opening and closing statements. Defendant was convicted on all counts. The court of appeal found no error, reasoning that a defendant is required to demonstrate a need for portions of the transcript beyond witness testimony. The California Supreme Court granted review. Held: Affirmed. In People v. Hosner (1975) 15 Cal.3d 60, the court held that an indigent criminal defendant facing retrial is presumptively entitled to a “full” and “complete” trial transcript of the prior proceedings. The prosecution may rebut this presumption by showing that the defendant would have an effective defense or appeal with something less than the full transcript. The Hosner presumption is not limited to witness testimony but extends to opening and closing arguments. This is because principles of equal protection guarantee an indigent criminal defendant’s opportunity to mount a similar defense as a wealthy defendant, and a wealthy defendant would certainly purchase the transcript of counsel’s statements, which are important for what they convey about the prosecution’s theory and key arguments. Here, the prosecution did not rebut the presumption that Reese was entitled to the full and complete transcript of the first trial. Thus, the trial court and Court of Appeal erred in requiring defendant to demonstrate why a transcript of counsel’s arguments was necessary for his defense.
The trial court’s wrongful denial of portions of the previous trial transcript is subject to harmless error review and the error was harmless in this case. The denial of the transcript of counsels’ arguments in this case amounted to federal constitutional error. In Hosner, the court concluded that where an indigent defendant is erroneously denied practically all of the previous trial transcript, the error is structural, requiring automatic reversal. This is because near-total denial of a prior trial transcript infects the entire second trial, and an appellate court can only hypothesize as to how the denial of the transcript affected the retrial. However, where only portions of the trial transcript are missing, the Court of Appeal will generally have little difficulty conducting harmless error review. Where, as here, counsel’s statements are missing, the reviewing court can determine from the record whether the defense failed to anticipate the prosecution’s theory or argument as to a specific dispute. Accordingly, the error in this case was reviewable under Chapman v. California (1967) 386 U.S. 18, which requires reversal unless the People demonstrate the error was harmless beyond a reasonable doubt. Based on the circumstances of this case, the trial court’s erroneous denial of transcripts of the opening and closing statements was harmless.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S230259.PDF