How have courts dealt with the issue of state interference in a criminal trial?

In finding that defendant aided and abetted a gang member in attempting to steal a car, the court did not deprive defendant of the effective assistance of counsel by relying on a new theory raised only after the close of the presentation of evidence. "[T]he conduct forming the factual basis for an [aiding and abetting] finding was crystal clear . . . . The range of potential offenses was in no way mysterious." (People v. Lucas, supra, 55 Cal.App.4th at pp. 738-739.)

The cases defendant cites to show state interference are distinguishable. In Geders v. United States (1976) 425 U.S. 80, the court barred the defendant from consulting with his lawyer during a 17-hour overnight recess in the middle of trial.

(Id. at p. 91.) In Herring v. New York (1975) 422 U.S. 853, the court denied defendant's counsel the right to make a closing argument. (Id. at pp. 856, 864-865.) Defendant in the case before us alleges no comparable action on the part of the trial court that actually restrained his counsel's actions.

In Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, an information charged the defendant with one court of murder and with the use of a firearm. (Id. at p. 1235.) The concept of felony murder was not raised, either directly or indirectly, before the parties rested or even when jury instructions were submitted and settled. Not until the day scheduled for final arguments did the prosecution request instructions on felony murder. (Ibid.) Over the defendant's objection, the court gave the requested instructions. (Id. at pp. 1235-1236.) The jury returned a verdict of first degree murder with the use of a firearm. It gave no indication of the legal theory on which it relied. (Id. at p. 1236.)

On appeal, the People conceded that the defendant had been denied adequate notice of the felony-murder charge. (Sheppard v. Rees, supra, 909 F.2d at p. 1236.) The court thereafter concluded that the defendant had been "`ambushed.'" (Ibid.) It reversed the denial of defendant's petition for a writ of habeas corpus.

(Id. at p. 1238.)

Sheppard v. Rees, supra, 909 F.2d 1234, is distinguishable on several grounds. In the case before us, the Penal Code section 186.22, subdivision (a) violation was charged in the amended petition. Defendant was not ambushed. He knew about the charge before trial. He had every opportunity to prepare and present a defense to it. To the extent he suffered surprise when his motion to dismiss the amended petition was granted only as to count one, and not also as to count two, he still had an opportunity to regroup and present new arguments. Defendant informed the court that he did not intend to present any evidence directed towards count two and that he would rest testimony. However, he expressed the opinion that count two could not stand alone and asked for permission to file a brief addressing the point. The court granted his request. In defendant's brief, filed before the court ruled, he argued not only lack of notice of the charge, but also lack of sufficient evidence to support a conviction under Penal Code section 186.22, subdivision (a). The facts of this case are dissimilar to those in Sheppard v. Rees, supra, 909 F.2d 1234.