*1 Dist., B005940. Second Div. Seven. Nov. [No. 1984.] HOCHHEISER, Petitioner,
ZEF RUBIN COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; PEOPLE, THE Real in Interest. Party
Counsel Richard S. Plotin and for Petitioner. Dennis A. Fischer *4 No for appearance Respondent. Reiner,
Robert H. Attorneys, Harry Philibosian and Ira District B. Sondheim and Richard for Real Attorneys, Party W. District Gerry, Deputy in Interest.
Opinion writ of THOMPSON, J. Zef Hochheiser seeks a prohibition —Petitioner the directing taking court from its order restraining superior enforcing television from out victims’ closed-circuit complaining testimony by order constitutes an impermis side the courtroom. Petitioner contends the unauthorized sible invocation of to create rules judicial power procedural rights. statute which risk on his constitutional seriously encroaching This case an of first in this state concerning issue presents impression court, statutory enabling legis- the trial in the absence of specific lation, minor victims new for the alleged promulgate radically procedures follow, we at trial via For the reasons to testify closed-circuit television. from will conclude that the exceeded its authority departing trial court and, the writ. established criminal trial accordingly, grant procedures
Facts under with a minor Petitioner faces trial on two counts of lewd conduct minors, I) (Pen. Code, (count and S. W. (a)). The T. B. age subd § December (count II) which was held on testified at the hearing, preliminary various and 1982. not at arraignment, Following petitioner’s guilty plea were granted. motions were considered and continuances pretrial 14, 1984, for jury On June the matter was called trial and selec- day tion began, that the witnesses prosecutor orally complaining requested room, be allowed to via from the instead testify jury closed-circuit television of in in a cоurt. The to a used open prelim- referred prosecutor procedure and and inary hearing suggested particular provide equipment company He indicated that the personnel the closed-circuit procedure. television cross-examiner, witness would be able to see defendant defendant would be objected, able to the witness. Defense counsel stat- see he ing that would fair trial deprive petitioner had no notice.
The day, further on the motion were conducted. following proceedings the victims’ prosecution presented testimony by parents support motion, to show that the closed-circuit was necessary television pre- vent psychological harm. father of T. B. testified that 10-year-old son, (Dec. time of the 1982), his who preliminary hearing “shy was about his said he did want talk about the private parts,” had not B., incident in front of a lot After the hearing, T. people. preliminary prior whose had “went bed-wetting nighttime problems improved, . . . through several round nights nightmares and a of bed-wetting,” son, which then off. The father stated he had discussed with the tapered not *5 over year, anything testifying about court. The mother of eight and one-half S. testified that nine-year-old to W. when her son exited the courtroom after his 1982 tes- preliminary hearing talk,” he timony, was . . “totally distraught ... in tears and couldn’t . and behavior,” “started back baby-like to such as to wear reverting wanting When diapers. she told him the week before the June that hearing he would be to to he to coming court burst into tears and went testify, up room, his indicating there was no was back court and that way he to going if he did come to court he would “I don’t know She claimed say, anything.” he to started talk talk baby picked using and that his mother was up diaper as a and it rag, waved at He seemed to be less which concerned eating her. her because he has cystic fibrosis.
The mother that also testified she had to the the suggested prosecutor stated, examination, use of possible closed-circuit She on direct television. that when she mentioned her over to son the closed possibility circuit, around, he where there not be a and asked if would lot people would agree to he “didn’t and was still procedure, say anything” crying this he seemed more she admitted that although relaxed. On cross-examination he fact never reacted one or the other to the idea of closed-circuit way television. no both had been taken their to
Although boys by parents psychiatrists, evidence psychiatric was offered. (1) the lacked
At the June 15 defense that counsel hearing, argued (2) the authority proce- the statutory anticipated procedure; promulgate trial, dure violate confron- would constitutional petitioner’s public (3) made the was insuf- People tation and due the process; showing by ficient argued invocation of this justify prosecutor procedure. control that court had under Code 765 to Evidence section mode constitutional manner and presenting proof, petitioner’s not be would enable rights would since the television infringed equipment view the jury, proceedings counsel judge contemporaneously each the anteroom and witnesses to see would the defendant and permit other. The court “I stated: believe there is some legislаtion pending whole new codify this idea on. That is going apparently phenomenon is We all it is know used.” developing. being counsel, motion. People’s the court
Following argument by granted “I has The court stated: Code 765 the court think under Evidence [section] and the Civil right to control the mode of of witnesses interrogation affidavits, Code about oral examination. talks modes being deposition what “Then 2005 of the Civil talks about [section] [Code Procedure] oral examination is and talks or tribunal jury about again presence heard the jury which is the or act deciding testimony being fact upon or C.C.P. 2005. tribunal from witness. That out of lips
“I viewable a televi- would of the witness would be suggest lips sion, it I based what has and I think would be an think open hearing. me, been the discretion of submitted to I think that it would within two court under 765 to for these witnesses. allow this typе *6 to “The truth and of 765 is to the trier of fact ascertain help purpose harassment, think as witnesses from undue or and I protect embarrassment well as defendant. protecting rights
“I allow think all of this be done this and I will can under procedure, that. Code the for it 765 the Evidence Is petitioner]: [Counsel Plotin
“Mr. court is as the authority? using control
“The No. I think has inherently power Court: still that cover instances the courtroom and that come develop procedures up we had a whole and I think never come this is new up, thing, fifteen years fourteen or ago. have to can do we do before.
“Now we be and couldn’t things “I have no I doubt a in a shuttle that am watching spaceman actually can watching person and no doubt mind we my develop here so the jury is convinced that it is the child without undue any influence.
“I think it court and due protects defendant oрen and to process confront the accused and to be the witness as confronted well.
“I am to allow going that.” Defense counsel’s for a motions mistrial and for a continuance to bring a writ were denied. after the up Immediately court’s selection ruling, jury resumed. Subsequently, because of defense counsel’s hospitalization, a mistrial was declared and the In jury was panel discharged. response this we petition, stayed trial and an alternative writ of petitioner’s issued prohibition.
I Lack Inherent Power
Petitioner the trial challenges authority court’s this promulgate new radically for procedure which substitutes closed-circuit television long established in-court examination state’s witnesses. We principal agree.
The trial court the lack of for acknowledged legislative authority explicit order its it claimed was relying on its inherent control the courtroom and develop new We believe that procedures. far-reaching such innovation in a criminal trial “is more left to appropriately Legislature initial consideration.” (People v. Collie 30 Cal.3d 54 [177 Cal.Rptr. 634 P.2d A.L.R.4th
While this
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Court has
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1975)
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In Court observed Reynolds, supra, our Supreme law balanced and federal constitutional closely of state questions [were] as innovation requiring concluded that “such a presented” procedural be in notice of alibis should defendants criminal cases to advance give troduced, all, the Legislature.” if at only judgment considered (Id., at p. restraint,
In court Reynolds empha the need for judicial explaining by or required sized the between dichotomy judicial rulemaking inspired rulemak- and judicial constitutional limitations on the government which it which might would to the ing merеly grant government unanimous court ex (Id., 846.) The claim for itself. at legislatively p. at once to consider “We our see little to recommend plained: attempting and to objective a notice-of-alibi desirability procedure pass creating It is which result. might on the such ly constitutionality any necessary to protect one for a court to thing prescribe judicial procedures con effectuate some specific some fundamental constitutional or to principle It is another of individual liberty. quite stitutional guarantee [Citations.] are in no way required for a court which judicial thing design procedures and perhaps but which desirable socially law seem some by higher may federal Consti our state and extent—by least to some may permitted—at instance, court’s guide tutions. In the former constitutionаl principles hand; well have to stay in the latter may instance constitutional principles questions posed the court’s hand. Given the of the constitutional difficulty if and judgment, it far better for court to pass this procedures, [such] than on our own when on an document necessary, integrated legislative constitutionally conditional decree which we seek to smooth might 845-846.) (Italics (Id., of the court below.” at pp. of the order rough edges in original.) Collie, Court, reaffirming our
In Cal.3d People (id., 51), that a stressed judicial “a model restraint” Reynolds to im- to create rules that tend body “not the proper procedural was *8 on the of pinge traditional and a criminal de arguably rights constitutional fendant” and therefore of of de any compelled “disapprove[d] production 48). fense evidence (id., absent authоrization” explicit legislative p.
As (30 56): Justice Mosk reasoned Collie Cal.3d at aptly “Firmly embedded in our is law the doctrine that the are the final interpreters courts guardians the Constitution. As the heirs of that institutional obliga- tion, we must reluctant to our step out of traditional role undertaking to define in the first instance reflection may procedures appear undermine the foundational it is our principles primary responsibility protect.
“We can do justice neither to the of the prosecution needs nor legitimate to the rights the defendant in this if judicial context we undertake rule- making an to accommodate both attempt simultaneously. Any ends effort to further the function bears truth-seeking considerable risk encroaching noted, constitutional and other as we have protections: problem is an complicated by interrelated and federal composite state constitutional concerns, rules and statutory common law We realize the same privileges. problems would issue, confront the if Legislature it were to consider the and we have grave doubts that a rule discovery valid criminal affecting defendants can be if devised. But undertakes to Legislature formulate a comprehensive solution that to be con- purports practical application interest, sistent with the public would be any subject error legislative review. judicial is Ours be the last on the for that likely subject; word reason, it observed, should not also be the Reynolds first. As the most course of appropriate action is to refrain from in the absence of word acting from the . . . Legislature. [Fn. omitted.]” issue allowing the closed- complaining testify witnesses to via room,
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The mere presence gravity significant these and concerns questions render it ad de- inappropriаte create hoc fiat such a drastic judicial from parture established procedures.3 We are satisfied that such a radical innovation is not within the framework of proper rulemaking contemplated under the trial court’s inherent powers.
We need not reach the substantial constitutional raised the questions terms Where, here, of the can scope order. the case be decided on the narrower grounds the lack the autho- necessary explicit statutory rization for such a drastic deviation from settled we find this procedures, the more prudent It course. is not our an give function as court to appellate an advisory opinion on constitutional issues. Our con- has sistently refused to decide constitutional unless are they absolutely questions necessary (See, disposition of the case. v. Williams e.g., People 16 Cal.3d 1000]; Cal.Rptr. 547 P.2d v. Green People [128 27 Cal.3d 609 P.2d Moreover, our unwillingness reach the of a constitutionality closed- trial, circuit in the absence of statutory enabling legislation, reinforced by the fact that there is an the not even order from court describ- with the ing particularity actual arrangements. generalized minute order of the court contains no details whatsoever.4 to the
According the parties, will include the physical layout following: Each of the two minors to be called as will prosecution testify witness in room) a small separately anteroom with the other (probably jury only adult, in persons present that room being parent, as a supporting defendant, counsel, clerk, court bailiff. The judge, jury, both the court and the will in reporter public press) be courtroom. (including separate Both the courtroom will and anteroom have television cameras and three coverage proceedings permitted guidelines. 3Television of courtroom is now under certain 980.2.) Court, Cal. Rules of rule parties agree procedures apparently generally 4Both will be modeled after that used Angeles preliminary Municipal Los People examination Court in the case Greenup, ANo. 752034. in the court-
television monitors for The three television screens viewing. table, room and the jury will face the well in front counsel judge, defendant, the trial box. The three will show the screens anteroom a single who is the witness. judge attorney examining Apparently minor and will televised. image parent supporting as the voices of those will be transmitted simultaneously anteroom examination is conducted. court,
However, assume, if even we without order of any *11 in fact additional disputed will follow these there are procedures, factual be to a the constitu- allegations may which relevant discussion it would be of the Accordingly, prema- closed-circuit tionality procedure.5 to ture reach the in the constitutional issues abstract.
II Lack Power Statutory Penal Code sec- contend that Evidence Code section 765 and People closed- authority tion for (c) statutory subdivision the requisite provide circuit television. We disagree.
A. Evidence Code 765 Section that court shall exercise
Evidence Code section provides “[t]he (a) to control a witness so as reasonable over the mode of interrogation distinct, for make effective the ascer such as as interrogation as rapid, truth, be, undue (b) tainment of the to the witness from as may protect harassment or embarrаssment.”
It that enactments statutory legislative is an axiom of construction law should long-established principles not to overthrow presumed decla by express unless such an intention is made either clearly appear (1982) 31 Cal.3d ration or v. Cardenas (People necessary implication. 569]; v. Blackwell 647 P.2d People Cal.Rptr. [184 There is nothing the in its that warrants general history pre of this statute or language the it was to order that complaining meant to a court sumption empower People been the allegations by 5For have not ascertained: example, following segment showing counsel and anteroom screen the defendant will also show defense courtroom; facing counsel table behind in the the courtroom screen audience seated them audience; will be informed before spectators will be in the the victim visible seated viewing courtroom simultaneously televised into the testimony that his will be defendant, parent present by judge, judge will instruct jury, public; counsel and and the during his unless with the touch talk to the minor minor the anteroom not to or comforting. he needs victims trial via from a room testify closed-circuit television separate court, from defendant and long-standing requirement jury despite requiring physical presence.
As the Law Revision comment to Evidence Commission out, Code section 765 this section the substance points restates supersedes section 2044 of the Code of Civil Procedure.6 language the repealed statute which it recodified Court must provided “[t]he exercise a reasonable control over the mode of so as make interrogation, it distinct, witness, as as raрid, as little as effective for annoying truth, be; rule, extraction of the as but may parties this subject may put (7 such pertinent as see fit.” Cal. Law legal questions they Revision Com. from former Rep. It is evident language that the conferred trial mode to control the of interro judges gation essentially witness, referred to and form of type questioning not the witness’ or presence absence courtroom.
The Law Revision Commission comment further describes section *12 in continuing effect “the latitude in the ex- permitted judge controlling amination of latitude, witnesses under law.” As such existing examples the comment cites (1934) Commercial U. A. Co. & E. v. G. Co. Pacific 220 793], Cal. 515 P.2d (1907) and v. Davis 6 People [31 229 Cal.App. Commercial, 810], P. In [91 where the of the court’s appellant complained rulings on the witnesses, “A questioning our Court stated: trial is not to be judge and unduly unreasonably and restricted in the hampered exercise of control over the and examination of witnesses the conduct proper be, the trial is, generally. Considerable latitude and must accorded to him in (220 this regard.” Cal. at p.
But this “considerable well- latitude” does not confer overturn authority settled procedures of testify constitutional dimension witnesses by having outside the Rather, it courtroom. must be in the context of the exercised questioning witnesses within the in People courtroom. For v. example, Davis, 229, it was court did not err Cal.App. out pointed in directing prosecuting testify witness in narrative fashion about defendant’s to her statements a few minutes before the offense. 288,
B. Penal Code (c) Section Subdivision The People’s 288, (c) claim Code that Penal section subdivision expressly mandates the closed-сircuit also lacks merit. Whereas (a) (b) subdivisions of section 288 define and fix for lewd punishment 6The only commission’s comments “are of the not of the draftsmen of declarative intent but of the legislators (Kaplan Superior code also subsequently who enacted it.” v. 150, 649, 6 Cal.3d Cal.Rptr. fn. [98 P.2d arrest any “In minor, (c) as follows: with a subdivision provides conduct officer, attorney, the district or under this section the peace prosecution shall do whatever victim and the child the court shall consider the needs of harm psychological to prevent is necessary constitutionally permissible victim.”7 child There have been (c) 1981. Legislature Subdivision was adopted the comment aside from so far its intent reported construing no decisions 1132, 1140 [201 People Hetherington 288 in 1981 756], (c) to section subdivision “[b]y adding often (b) violations (a) both . . the subdivisions recognized . Legislature victims.” to child damage emotional cause irreparable psychological No. 586. of Senate Bill (c) 288 as part Subdivision was added to section this section. purpose Council on Digest silent Legislative Penal for Revision source of this was the Joint Committee legislation 17.)8 Sess.], Gen. Summary Code. Crime Legislation Joint 10, 1981, On and April December April investigatory held extensive Committee for of the Penal Code Revision We refer to the child California. on the molestation hearings problem intent but legislative not the actual record of these to ascertain hearings statute.” rather, construction an aid to a reasonable merely as “placing *13 (P 465, 481 v. Cicero 157 eople does not disclose of these Our examination of the record proceedings of use television presentation reference to the of closed-circuit any for Revision of Committee trial a minor Joint at witness. 1980, 16, and Code, Molestation, on Dec. on Child the Penal Hearing 288, “(a) shall (a) (b) Any person who as follows: provide 7Section subdivisions and constituting including any the acts of willfully other crimes lewdly any commit lewd or lascivious act any or body, part or in or with the provided for Part 1 of this code thereof, arousing, appealing with intent of age years, member of a child under of child, to, shall person or of such passions of such gratifying or the lust or or sexual desires six, three, or prison for a term of guilty felony imprisoned of in the state be a shall be years. eight force, (a) vio- “(b) by use of Any who in subdivision person commits an act described lence, menace, harm, felony duress, guilty a and shall bodily be of great or threat of shall three, eight yеars.” imprisoned in or prison be the state for a term of six 16, (c) bill introduced on March part original language 8The of subdivision was of 1981, 25, 1981, version of the the entire Senate August remained in the bill until when The lan Assembly Committee. during hearings before the Criminal Justice bill was struck and was during committee guage placed Bill No. 586 conference was back into Senate 1064, 1981, 1) signed (Stats. which was chapter § in of ch. contained version the bill 30, September Governor Brown on 1981. 24, on Child on Hearings Legislation Apr. Molestation Apr. 1981.)9
Moreover, the Crime Summary Report compiled by Legislation the Joint Committee for Revision of the Penal Code states that “S.B. merely 586 mandates in of the for child molestation the needs any prosecution child to be arrest and protected during from further harm psychological be on an prosecution placеd priority prosecution with successful equal offender.” of 1981 Crime (Summary Legislation, supra, We construe focusing this to mandate a philosophical change language the minor’s needs. But we cannot read into this statute a mandate legislative or, indeed, closed-circuit television other specific pro- any cedure, which so drastically affects the of a defendant. rights
We broad, cannot (c) from the in imply subdivision open-ended language that the Legislature in intended such a fundamental our law organic change which would traditional to the abrogate statutory presence (See, witness in the courtroom with the for example, defendant. Code, 711; Evid. Code, 3.) Indeed, Pen. subd. were we to read § § (c) subdivision as the it literally broadly urge, would autho- People rize trial, wholesale revision in the entire format a criminal procedural since especially every sex crime a minor under against can age charged as Penal Code section violation. flurry (c) legislative after the activity argues subdivision passage such a
against broad interpretation of statute. For section example, 868.5, which provides for a minor sex offense to have victim a alleged attendance, a supporting person was two specifically amended years after the (c) of subdivision to include passage section cases section 288 involving and to can provide that remain supporting person in attendance if even he is a signed witness. Senate Similarly, recently Bill (Stats. 1984, 1423) No. 1899 ch. amends Evidence Code 767 to section permit leading to child under a case questions years age involving under prosecutiоn Penal Code section 288. There would be no reason to such legislation (c) if pass subdivision such remedies. already provided
As we noted, have be enactments should not previously legislative construed to overthrow of law an long-established unless such principles 9Testimony by presented sensitivity was a of the questioning number witnesses the of justice system criminal special by to the needs of who are victimized sexual abuse. children advocating police, Besides courts, more by prosecutor considerate treatment of such children recommended, procedures witnesses at the hearing among things, videotaping other continuances, having to closing avoid victims to repeat testimony, strictly prohibiting their hearings, providing limiting for the of supporting parent, attendance the kind of questioning and authorizing vоir we dire. But have found no references to closed-circuit youth during pro television to avoid the testifying presence the of the defendant Indeed, ceedings. joint there is particular no evidence that the committee ever discussed this procedure. necessary implication. is shown declaration or clearly by
intention express Moreover, Blackwell, 377.) at v. (People supra, Cal.App.3d where, here, of more than one construc reasonably susceptible language the law, more used in a construction which is favorable tion is the penal the benefit of be The is entitled to defendant should defendant adopted. or the construc doubt as to the true of words reasonable every interpretation 814, Cal.3d of used in a v. Davis tion statute. language (People 186].) 633 P.2d [176 III Television Closеd-circuit Showing Use Support Insufficient of (c) Furthermore, subdivision permits even that assuming arguendo television, whether the record of the as to the use closed-circuit issue arises In order in the instant case the invocation of this procedure. supports two significant parts define the we will first examine properly problem, the problem. stature, not it is the of confrontation is of constitutional
Although right Court, (Herbert 667- Superior pp. absolute. v. have from the rule general Courts drawn several narrow exceptions (Ibid.) an has him. against accused to confront the witnesses right which can to ob hearsay apply For from the example, “[a]part exceptions by trial waive may right viate confrontation at defendant [citation] . . ‘The accused also conduct in the courtroom. . disruptive [Citations.] his by entering plea. waives confrontation right guilty [Citations.]’” (Ibid.) testimony of closed-circuit present use television the defendant’s confron may right state’s witnesses principal implicate a denial testimony represents tation. To extent that televised confrontation, it is must shown the denial necessitated right Superior interest. Globe Co. compelling Newspaper 256-257, 2613]; 102 S.Ct. 457 U.S. 606-607 L.Ed.2d [73 605-606, (1980) 448 63-64 Ohio v. Roberts U.S. L.Ed.2d S.Ct. interest of televised state asserted here use support of sex crimes.
is the harm to child victim prevention psychological Co., Here, to note that in the as in Globe Newspaper important “[i]t not in the (c)], of the State’s interest lies context measure [subd. but rather injured by testifying, extent to which minor victims are presence [jury] suffered injury incremental *15 607, 258].) In (457 U.S. 19 L.Ed.2d at p. the at fn. p. [defendant].” [73 matter, dis- the have not our research of the literature on we professional data, damaging on which deals with the covered based any study, empirical of the jury effect the testimony presence of psychological giving
793 accused, Rather, the such literature on abused child. we found that sexually (See, Pynoss contains e. merely g., statements to this effect. generalized Eth, Issues, 2, & (1984) The Child as 40 J. No. Witness Homicide Soc. 87, 96-97; Weiss & Court Impact Child Victims Sexual Assault: Berg, of of 5, 515; Procedures 21 Am. J. Acad. Child No. Psychiatry, Reifen, Court Procedures in Israel to As Protect Child-Victims Sexual of Focus, Crimes, saults in 3 Victimology: A New Victims and Justice (Drap Viano, 67-68; & Schultz, kin 1974) edits. ch. The Child aas Sex pp. Victim: Focus, A Socio-Legal Perspectives, in New Vio Victimology: Viano, lence and 184-185.) Its Victim & 1974) edits. ch. (Drapkin pp. Co., Like Globe we that the Newspaper recognize “safeguarding physical and psychological of a minor” is a state interest. well-being compelling (457 at Nevertheless, U.S. 258].) L.Ed.2d at we conclude p. p. [73 that, before child victim is in of the excused from the testifying presence jury the accused on he will suffer additional the injury, premise for basis such a must established both in fact as well as in premise logic, nature, and its dimensions must be out in its spelled terms of degree potential duration. The for this reason conclusion is that extreme care must be taken to strike the correct balance between policies protecting mental of health the child victim and the of to a the accused fair trial. right
Moreover, each case must be determined on its own facts. For example, Co., in Globe Newspaper where the court was concerned with the exclusion press from a criminal in child public case ordеr to protect victim, the United States “A trial can stated: deter- mine on a case-by-case basis whether closure necessary protect welfare of a minor victim. at (457 U.S. L.Ed.2d p. [Fn. omitted.]” [73 258].) Furthermore, at decisions, p. in need connection with for individual one commentator “Psychiatric stated: and studies opinions emphasize each child victim reacts to an offense its aftermath his own individual A case of way. incest is different from indecent exposure, stranger-ag- gressor knows, different from an offender whom the child dif- use force ferent from Thus, etc. be more willing participation, there can no justifi- for cation all child than excusing victims from imposing duty all Each (Libai, them. case merits its own individual decision.” The Protection Child Victim a Sexual Criminal Offense System, Justice addition,
In tele burden on the issue invocation of proof vised rests with the and the showing proponent must be made Stritzinger evidence. competent People v.
Cal.3d We are satisfied that P.2d chil parents’ testimony the instant case on the issue their minor dren’s mental health is insufficient to that this legally finding support
794 did, in analo Stritzinger Thus, is we as conclude necessary. section Evidence Code under situation of a witness
gous unavailability or the witness’ condition 24010 that either on the witness’ expert testimony (Id., at 516-517.) own is testimony properly required. pp.
Conclusion in witnesses television for the main complaining The use closed-circuit system jurispru our change a criminal trial a drastic encompasses cross-examination, It, dence. other among things, may impinge upon United and described heart of the tools used for very truth-finding 149, 158 Green U.S. States v. California 497, ever 1930], “‘greatest legal engine as thе L.Ed.2d 90 S.Ct. Court, su Superior Herbert v. discovery invented of truth.’” taken, “if at 667.) should pra, at Such major step (Reynolds all, judgment Legislature.” considered only Court, Superior Cal.3d at p. use of ordering we that the trial court erred conclude
Accordingly, restrain- writ of prohibition closed-circuit television and issue a peremptory enforcement that order. ing
Johnson, J., concurred. scholarly majority LILLIE, P. J. in the result reached concur —I case, with the con- I disagree on the facts of this but respectfully opinion closed-circuit have the to permit clusion that the trial court does not child victim in a case. testimony by a proper amended, January just effective Code 240 has been 10Wenote that Evidence section 401), regard (Assem. with ch. Reg. Bill No. 3840 Stats. [1983-1984 Sess.J (c). That “unavailability of subdivision sub the definition of of a the addition witness” showing” “may а sufficient expert testimony in which constitute division includes instances to alleged crime has caused physical resulting or from an mental trauma “establish[] testify unable to without severity is . .
harm to a witness of sufficient that the witness . physician, section is defined suffering expert trauma . An within this substantial ...” worker, or mar surgeon, licensed psychiatrist, psychologist, licensed licensed clinical social riage, family or child counselor. from the court to People may permission obtain Under Penal Code section hearing at testimony years given preliminary less videotape the of a child victim of 15 or wit, crimes, to Penal Code charged where of certain sex the defendant with violation Also, 261.5, 264.1, 285, 288, 288a, 243.4, provides: or 289. section sections victim emotional testimony would cause the “If at the time of trial the court finds that further within the mean- medically or otherwise unavailable trauma so that the victim is unavailable Code, videotape of the victim’s may admit the ing of Evidence the court Section 240 of the Evidence testimony under Section 1291 preliminary hearing as former Code.” *17 Penal Code section that in a (c) subdivision mandates pros- expressly (a) ecution under that (§ (b)) section the court “shall con- subds. sider the needs of the child victim and do whatever is necessary shall to harm to the child vic- constitutionally permissible prevent psychological (Italics tim.” added.) This is a the court. Certainly broad to grant power mentioned, closed-circuit is not but I find testimony nothing specifically the statute or in the Joint Committee’s comments that such indicating pro- cedure would be outside the is ... necessary prevent “whatever scope Instead, harm to the child а common sense psychological reading victim.” of the statute would seem to permit just such an accommodation the fears and traumas of a child victim who would suffer harm from psychological court. open First,
The statute contains two limitations on the exercise this power. the court is authorized to do whatever harm to the necessary is prevent child. The determination of this need must on the be made facts each I case, case. particular agree with the in this majority that showing consisting only testimony of the issue the mental parents children, health of their minor is insufficient support finding closed-circuit necessary to harm to these children. The prevent second limitation is that the court may only constitutionally do what is per- missible to prevent harm psychological to the child. notes the mаjority constitutional which questions arise from use of may closed-circuit tes- in a timony criminal case. The court must exercise its under section (c) subdivision with care and precision order the consti- protect tutional rights the defendant. The record before not reflect the us does requisite attention to these A constitutional concerns. bare minute order permitting closed-circuit without for the manner provision precise in which it shall be given does not provide necessary protection defendant’s constitutional is therefore not exercise of proper court’s authority (c). under section subdivision
A 7, 1984, for a petition was denied December rehearing opinion was modified to read as real printed above. in interest petition party Lucas, for hearing by the February was denied 1985. J., was of the opinion that the petition granted. should