People v. Kistler CA1/4

Filed 2/10/22 P. v. Kistler CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A160882
v.
NICHOLAS I. KISTLER, (Humboldt County
Super. Ct. No. CR1701479)
Defendant and Appellant.
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.
1
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
2
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.
3
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:
4
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.
5
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
6
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,7
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
8
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
9
“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 attorney-
client 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
10
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
11
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 self-
defense 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
12
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.”
13
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)
14
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
3An 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.)
15
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
16
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.
17
_________________________
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.
18