against him . . . .” The confrontation clause “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” (Coy v. Iowa (1988) 487 U.S. 1012, 1016 (Coy).) The right to face-to-face confrontation is not absolute, however, and alternative procedures may be used when (1) necessary to further an important or compelling state interest, and (2) the reliability of the testimony is otherwise assured. (Maryland v. Craig (1990) 497 U.S. 836, 844, 850 (Craig).) The defendant in Coy was convicted of sexually assaulting two 13-year-old girls. (Coy, supra, 487 U.S. at p. 1014.) The girls were allowed to testify against the defendant through a large screen, which allowed the defendant “dimly to perceive” the girls but which blocked the girls’ entire view of the defendant. (Id. at pp. 1015, 1020.) The defendant objected to the use of the screen on confrontation grounds. (Id. at p. 1015.) The high court reversed the judgment, finding that the use of the screen violated the defendant’s right to face-to-face confrontation. (Id. at pp. 1020-1021.) Coy emphasized that the Amendment’s guarantee of face-to-face encounters between the criminally accused and their accusers has “a lineage that traces back to the beginnings of Western legal culture.” (Coy, supra, 487 U.S. at pp. 1015-1016.) Like the right to cross-examine one’s accusers, which is “a less explicit component of the Confrontation Clause,” the right to face-to-face confrontation ensures the integrity of the factfinding process. (Id. at pp. 1019-1020.) Coy elaborated: “The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential
‘trauma’ that allegedly justified the extraordinary procedure [the use of the screen] in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.” (Id. at p. 1020.) Coy also emphasized that face-to-face confrontation plays an essential role in ensuring the defendant receives a fair trial, which the high court in Craig later referred to as “the strong symbolic purpose” served by requiring adverse witnesses at trial to testify in the presence of the accused: “[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ [Citation.] . . . The phrase still persists, ‘Look me in the eye and say that.’” (Coy, supra, 487 U.S. at pp. 1017-1018; Craig, supra, 497 U.S. at p. 847.) “The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. . . . It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ . . . The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions.” (Coy, supra, at p. 1019.) Coy declined to determine whether there were any exceptions to the right to confrontation, given that the trial court made no “individualized findings” that the child witnesses needed any “special protection.” (Coy, supra, 487 U.S. at p. 1021.) An Iowa statute authorized the use of the screen to block the defendant’s and the witnesses’
views of each other, but the high court emphasized that the “generalized finding[s]” or “legislatively imposed presumption of trauma” to the witnesses, underlying the Iowa statute, were insufficient to justify depriving the defendant of his Sixth Amendment right to face the witnesses at trial. (Ibid.) Coy stated: “Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception.” (Ibid.) In 1990, two years after Coy was decided in 1988, Craig clarified that the right to face-to-face confrontation is not absolute, and alternative procedures may be used when it is shown that (1) such procedures are “necessary to further an important public policy,” and (2) “the reliability of the testimony is otherwise assured.” (Craig, supra, 497 U.S. at pp. 849-850.) Craig involved a six-year-old alleged child abuse victim who testified against the defendant by one-way closed-circuit television. The defendant, the trial judge, and the jury were in the courtroom while the child was in another room being examined by the prosecutor and defense counsel. A video monitor recorded and displayed the child’s testimony to those in the courtroom. The child could not see the defendant as she testified, but the defendant could see the child, and the defendant was in electronic communication with her defense counsel while the child testified. (Id. at pp. 840-842.) Regarding the reliability of the child’s testimony, Craig emphasized that the Maryland statute preserved all of the “other” elements of the right to confrontation: “The child witness must be competent to testify and must testify under oath; the defendant
trauma” and (2) obtaining the child’s “complete and accurate” testimony. (Id. at p. 1783, citing Craig, supra, 497 U.S. at pp. 845-846.) In the more recent California Supreme Court case of People v. Gonzales (2012) 54 Cal.4th 1234 (Gonzales), the state high court followed Sharp and found no confrontation violation in circumstances substantially similar to those in Sharp. (Gonzales, supra, at pp. 1267-1268.) The defendant in Gonzales was tried and convicted of the of his four-year-old niece, Genny. (Id. at p. 1242.) Genny lived with the defendant, his wife, and their six children, including their oldest son, Ivan, Jr. (Id. at pp. 1242-1243.) Ivan, Jr. was eight years old when he testified at his father’s preliminary hearing. Ivan, Jr. testified to events he witnessed on the night of Genny’s murder, that he had previously seen his mother and the defendant severely abuse Genny, and that he feared his father. (Id. at pp. 1247-1248.) Ivan, Jr.’s preliminary hearing testimony was admitted at the defendant’s trial in lieu of his live testimony. (Id. at pp. 1247, 1261; Evid. Code, § 1291.) At the preliminary hearing, the court granted the prosecutor’s motion to allow Ivan, Jr. and other “juvenile witnesses” to be seated “facing away” from the defendant. (Gonzales, supra, 54 Cal.4th at p. 1265, italics added.) The podium for counsel was placed so that the lawyers had eye contact with the witnesses, and the witnesses were “free to look around the courtroom and make eye contact” with the defendant, “if they desired.” (Ibid.) On appeal, the defendant claimed the admission of Ivan, Jr.’s preliminary hearing testimony at trial violated his confrontation rights because the murder
employed at defendant’s preliminary examination.” (Gonzales, supra, 54 Cal.4th at pp. 1267-1268.) Gonzales noted with approval Sharp’s observations that the alternative seating arrangement “‘resulted in only the most minimal interference with appellant’s right to confront his accuser’” and was “justified by the state’s interest in protecting the child witness and obtaining accurate testimony.” (Gonzales, supra, at p. 1267, citing Sharp, supra, 29 Cal.App.4th at p. 1783.) Gonzales also pointed out that: “While the trial court [in Sharp] had not made the findings required by Craig, the Sharp court had no difficulty ascertaining from the record that the seating arrangement was fully justified. [Citations.]” (Gonzales, supra, 54 Cal.4th at p. 1267.) Gonzales noted that “[o]ther state courts have approved the use of similar seating arrangements, without the findings required by Craig.” (Id. at p. 1267, fn. 17 & cases cited.) And “while the preliminary hearing court made no factual findings on the need to shield Ivan, Jr. from defendant’s gaze, the trial court made extensive findings that the child would be traumatized if he were made to testify at trial.” (Id. at p. 1268.) The defendant did not “dispute the vulnerability of the young witness, either at the time of the preliminary hearing or the time of trial.” (Ibid.) Thus, Gonzales concluded: “Here, as in Sharp . . . the seating arrangement for the child witness’s testimony was fully justified by the record, and defendant’s confrontation rights were not violated when the videotape was introduced at trial. The seating arrangement at the preliminary hearing satisfied the central concerns of the confrontation clause: ‘physical presence, oath,
view of F.R. while she testified. (Craig, supra, 497 U.S. at pp. 850, 857; Gonzales, supra, 54 Cal.4th at p. 1268; Sharp, supra, 29 Cal.4th at p. 1783.) Second, the record supports the trial court’s implied findings that the use of the computer monitor was necessary to further two important state interests: (1) protecting F.R. from suffering serious emotional trauma while testifying; and (2) obtaining F.R.’s “complete and accurate” testimony. (Craig, supra, 497 U.S. at pp. 850-852; Gonzales, supra, 54 Cal.4th at pp. 1267-1268; Sharp, supra, 29 Cal.App.4th at p. 1783.) The record shows F.R. was not merely crying or “uncomfortable” when she first stepped to the witness stand, but was so emotionally upset that she was unable to proceed and “participate effectively in the proceedings.” (Sharp, supra, at p. 1783.) The record also shows that raising the computer to block F.R’s view of defendant was necessary to allow F.R. to proceed and testify against defendant. Though the trial court was not expressly asked to make a “case-specific finding” that repositioning the computer monitor to block F.R.’s view of defendant was necessary to further an important state interest (Craig, supra, 497 U.S. at pp. 855-856), the court effectively made this finding and substantial evidence supports it. In overruling defendant’s confrontation objection, the court found that raising the monitor was “appropriate” given that F.R. was emotionally upset and “unable to proceed” when she first stepped to the witness stand. The court also indicated that the prospect of testifying while facing defendant “clearly affected” F.R. and was the cause of her emotional trauma
Additionally, Craig does not “mark[] the outer boundary” of when alternative procedures to face-to-face confrontation are constitutionally permissible. (Lujan, supra, 211 Cal.App.4th at p. 1505.) Trial courts have “constitutionally conferred, inherent authority to ‘create new forms of procedure’ in the gaps left unaddressed by statutes and the rules of court. [Citations.]” (Id. at p. 1507.) But courts may not sanction new procedures that are of “dubious constitutional validity.” (In re Amber S. (1993) 15 Cal.App.4th 1260, 1266.) Whether the trial court has a particular inherent authority is a question of law subject to de novo review, and the court’s exercise of its inherent authority is reviewed for an abuse of discretion. (Lujan, supra, at p. 1507.) We discern no “dubious constitutional validity” or abuse of discretion in the trial court’s decision to allow the computer monitor to be raised to protect 18-year-old 11th grade high school student F.R. from the emotional trauma of facing defendant while testifying, and, indeed, to enable F.R. to testify. (Sharp, supra, 29 Cal.App.4th at p. 1783.) Craig recognized that the right to face-to-face confrontation is not “an indispensable element of the Sixth’s Amendment’s guarantee of the right to confront one’s accusers,” and that the right “‘must occasionally give way to considerations of public policy and the necessities of the case.’” (Craig, supra, 497 U.S. at pp. 849-850.) Sharp and Gonzales also recognized that the state’s important interest in obtaining a witness’s testimony must be balanced against the right of the accused to face his or her accusers in court. (Sharp, supra, at p. 1783; Gonzales, supra, 54 Cal.4th at p. 1267.)
“[PROSECUTOR:] How if [defendant] was 20 years old when he was touching someone under the age of 14? “[C.H.:] Well, I’d consider that wrong. “[PROSECUTOR:] that change your opinion as to whether or not you trusted your son around [defendant]? “[C.H.:] Well, if I had a kid back then. I mean, now, yeah. But I didn’t have a kid back then so I can’t honestly answer that. “[PROSECUTOR:] Well, you said that you trust your son around . . . . “[C.H.:] I do “[PROSECUTOR:] And now knowing . . . . “[C.H.:] I believe he didn’t do nothing wrong. [¶] . . . [¶] “[PROSECUTOR:] In the past you don’t believe [defendant’s] done anything wrong? “[C.H.:] I—no, I have not. Not as far at that conviction, no. I don’t know the story on it. I never got the full story on it. “[PROSECUTOR:] And in fact, you were with [defendant] because he didn’t tell you about his first . . . . “[C.H.:] I yes.” C.H. was later recalled by the defense to testify that the garage door at the Olive Street house could only be opened and shut from the outside, and that C.H. did not recall seeing a sofa in the garage.
Evidence Code sections 1101, subdivision (a) and 1102, subdivision (b), evidence of specific acts of a criminal defendant’s misconduct is inadmissible to prove the defendant’s character or a trait of his character. “As the Law Revision Commission’s comments to section 1102 make clear, evidence of acts of the accused are, as a general rule, inadmissible to prove his disposition to commit such acts (see also Evid. Code, § 1101); this general rule is applicable ‘even though the defendant has opened the question by introducing evidence of his good character.’” (People v. Wagner (1975) 13 Cal.3d 612, 619; People v. Felix (1999) 70 Cal.App.4th 426, 432-433.) The precluding the admission into evidence of specific acts of misconduct under Evidence Code sections 1101 and 1102 “must, of course, be distinguished from the cross-examination of a reputation [or character] witness. When a defense witness, other than the defendant himself, has testified to the reputation of the accused, the prosecution may inquire of the witness whether he has heard of acts or conduct by the defendant inconsistent with the witness’ testimony. [Citations.]” (People v. Wagner, supra, 13 Cal.3d at p. 619.) Here, no evidence of defendant’s prior conviction was admitted as “rebuttal character evidence”—that is, to prove defendant had a character trait or propensity to molest children. Instead, the prosecutor was properly allowed to use the prior conviction to impeach the testimony of C.H. and Mrs. A. that defendant was a person of good character, unlikely to molest children. (People v. Marsh (1985) 175 Cal.App.3d 987, 992-993.)
is instructive. The defendant in Marsh was tried for the of his girlfriend’s young son. (People v. Marsh, supra, 175 Cal.App.3d at pp. 990-991.) Marsh held that the prosecutor was properly allowed to impeach the defendant’s character witnesses who testified the defendant was “‘very kind, loving, gentle, and patient with children,’” by asking the witnesses whether they were aware the defendant had a prior robbery conviction. As Marsh explained, the character witnesses testified the defendant had a character trait for nonviolence, and the robbery was “an assaultive-type crime directly relevant” to that character trait. (Id. at p. 992.) Similarly here, C.H. testified he trust defendant around his 13-year-old son, and Mrs. A. testified defendant had grown to be a good person who was trustworthy and loving toward his family. In both instances, this testimony was akin to opining defendant was a person of good character who was unlikely to molest children. That defendant had a prior conviction for violating section 288, subdivision (a) was directly relevant to whether he possessed this character trait. Thus there was no error in allowing the prosecutor to ask both C.H. and Mrs. A. whether they knew of the prior conviction and, if so, whether it changed their opinions of defendant’s good character. (People v. Marsh, supra, 175 Cal.App.3d at p. 992.) 3. Any Was Harmless Even if defendant’s prior section 288, subdivision (a) conviction was erroneously placed before the jury, the error was harmless. The Watson standard of review applicable to claims of state law error applies, and there is no reasonable probability defendant
A defendant’s Sixth Amendment right to look his accuser in the face and have his accuser do the same originates from “something deep in human nature that regards faceto-face confrontation . . . as ‘essential to a fair trial.’” (Coy v. Iowa (1988) 487 U.S. 1012, 1017 (Coy).) In Coy, the trial court permitted the use of a screen that allowed the defendant “dimly to perceive” the two 13-year-old witnesses and entirely blocked their view of him. The United States Supreme Court found the physical barrier unconstitutional, stating it was “difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” (Id. at p. 1020.) Two years later, in Maryland v. Craig (1990) 497 U.S. 836 (Craig), the Supreme Court created a narrow exception to the prohibition against accommodations eliminating face-to-face confrontation. The exception applies when the trial court has “hear[d] evidence” and made “a case-specific finding” that a child witness would be “traumatized” if made to confront the defendant face-to-face in court. (Id. at pp. 855-856, 858.) The emotional distress must be severe; anxiety or reluctance to testify is not enough. (Ibid.) Additionally, although the accommodation will eliminate face-to-face confrontation, it must otherwise assure the testimony is reliable by preserving the other aspects of confrontation, which include a defendant’s ability to view a witness’s demeanor as he or she testifies. (Id. at p. 851.) This aspect is crucial. The ability to view the witness’s demeanor “not only permit[s] a defendant to ‘confound and undo the false accuser, or reveal the child coached by a malevolent adult,’ [citation], but may well aid a defendant in eliciting favorable testimony from the child witness.” (Ibid.)
Accommodations upheld Craig have ranged from a live closed-circuit television feed (where the defendant can watch the witness as she testifies and has realtime communication with counsel) to allowing the witness to sit angled to the side while on the stand and thus not face the defendant directly. On the spectrum of accommodations, placing an opaque, physical barrier between the defendant and witness is the most invasive to the face-to-face confrontation right. (Craig, supra, 497 U.S. at p. 851; Coy, supra, 487 U.S. at pp. 1019-1020.) Before only one California decision has upheld the use of an accommodation eliminating a defendant’s ability to observe witness demeanor, and that case involved a physically and mentally disabled witness who—according to the testimony of medical professionals—would become suicidal if made to the defendant in court. (People v. Williams (2002) 102 Cal.App.4th 995 (Williams).) Here, the trial court opted for an opaque physical barrier without even attempting to ensure the adult witness truly required it, and the majority, remarkably, finds no constitutional violation. In no other case has a court upheld an accommodation as invasive as the one used here on the basis of such slight evidence of necessity. Because I believe the record discloses a clear violation of Arredondo’s face-toface confrontation rights, and that violation was not harmless beyond a reasonable doubt, I would reverse the convictions on counts 3, 4, and 5—the counts for sexual assaults against F.R. However, because I concur with the majority’s conclusions regarding the remainder of Arredondo’s claims of error, I would otherwise affirm the judgment, leaving
the courtroom. (Id. at pp. 841, 843.) The trial court found the accommodation necessary after the prosecution presented expert testimony the child witnesses, one of whom was six years old, “would suffer ‘serious emotional distress such that [they could not] reasonably communicate.’” (Id. at p. 842, brackets in original.) In upholding the accommodation, the Supreme Court announced a new rule: “[W]e hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.” (Id. at p. 855, italics added.) Craig established a two-part test. First, “[t]he trial court must hear evidence and determine whether” the accommodation “is necessary to protect the welfare of the particular child witness who seeks to testify.” (Craig, supra, 497 U.S. at p. 855, italics added.) The trial court must then make a “case-specific finding” that “the child witness would be traumatized” if made to face the defendant in court. (Id. at pp. 855-856, 860, italics added.) De minimis “emotional distress” like “nervousness or excitement or some reluctance to testify” will not suffice. (Id. at pp. 841-842, 855-856, 860.) Second, because it will invade the to face-to-face confrontation, the accommodation must preserve the confrontation right’s other “safeguards of reliability”—“oath, cross-examination, and observation of the witness’ demeanor.” (Craig, supra, 497 U.S. at p. 851.) The Supreme Court approved of Maryland’s statutory procedure because it ensured that “the defendant retains full opportunity for
to fashion new procedures. We may not sanction procedures of dubious constitutional validity.” (Ibid.) Here, without any indication F.R was traumatized to the she would not be able to reasonably communicate, the trial court imposed the most drastic of all accommodations—it erected a “physical barrier or screen . . . between appellant and the witnesses as they testified.” (Sharp, supra, 29 Cal.App.4th at p. 1783.) I view this procedure as a clear violation of Arredondo’s constitutional rights and therefore cannot agree with the majority view that the barrier was “far less intrusive than any other alternative procedure would have been.” (Maj. opn. ante, at p. 43.) A survey of the various alternate procedures appellate courts have upheld reveals nothing as invasive to the face-to-face confrontation right as the accommodation used here. (See People v. (1997) 56 Cal.App.4th 550, 556 [allowing child’s mother to sit next to him as a support person during testimony]; People v. Chenault (2014) 227 Cal.App.4th 1503, 1520 [permitting two children to testify with a support dog]; Sharp, at pp. 1780-1786 [allowing child witness to testify angled away from defendant]; In re Amber S. (1993) 15 Cal.App.4th 1260, 1266 [permitting one-way, closed-circuit TV in juvenile proceedings where Penal Code section 1347 does not apply].) Indeed, as the majority acknowledges, other jurisdictions do not allow opaque barriers of any sort, regardless of size, shape, or what the jury may think of them. (Maj. opn. ante, at p. 43, fn. 8.) The majority emphasizes its holding “is a narrow one . . . based on the particular facts of this case.” (Maj. opn. ante, at p. 28.) The majority explains, “[t]he older a child