People v. ArredondoPeople v. Arredondo
PEOPLE v. ARREDONDO
S244166
A jury convicted defendant Jason Arredondo of multiple sex offenses involving several minor victims. While three of the victims testified, the trial court positioned a computer monitor so they could not see defendant and he could not see them. We granted review in this case to determine whether the trial court‘s action violated defendant‘s right of confrontation under the Sixth Amendment to the United States Constitution. We conclude that, as to one of the witnesses, the trial court committed reversible error, and we reverse defendant‘s convictions involving that witness. Regarding the other two witnesses, we conclude that defendant forfeited his claim by failing to object to the trial court‘s action, and that defendant has not shown his attorney‘s failure to object constituted ineffective of assistance of counsel.
I. FACTUAL AND PROCEDURAL BACKGROUND
As here relevant, defendant was charged by information with committing the following sexual offenses involving F.R., Ar.R, An.R, and M.C.: eleven counts of lewd acts upon a child under the age of 14 (
When F.R. first entered the courtroom to take the witness stand, the bailiff said, “Right this way, Miss,” and the court added, “[I]f you‘d just step up here, please, and follow the instructions of my deputy there. He will tell you what you need to do.” The bailiff then stated, “Please watch your step as you take the stand. Stay standing, raise your right hand, and the clerk will swear you in.” F.R. started crying, and the court asked, “[D]o you need a moment?” F.R. replied, “I think so.” The court then announced, “We will take a
After the jury left the courtroom, the court said to the prosecutor, “[A]fter your victim-witness advocate has spent some time with her, just let me know if she is able to proceed or ready to proceed and we will resume.” The prosecutor responded, “I am going to inquire of her if she prefers the advocate sits behind her.” The court replied, “Oh, yes. Right. If there‘s something like that that you can do that would make her more comfortable, I‘m fine with that. I mean, the law allows it.”
When proceedings resumed about 30 minutes later, but before the jury reentered the courtroom, the court stated, “We‘ve made some modifications to thе witness box to accommodate the witness.” After the jurors took their seats, F.R. entered the courtroom and the bailiff said, “Right this way. Watch your step as you take the stand. Please remain standing and raise your right hand, and the clerk will swear you in.” F.R. took the oath standing at the witness box and then sat down to testify, with her advocate sitting nearby. After she testified that she knew someone named Jason Arredondo, and that he was her mother‘s boyfriend, the prosecution asked, “Do you see Jason in court today?” F.R. replied, “[Y]es.” The prosecution then asked, “Can you identify an item of clothing he is wearing and where, to your left, to your right, is he seated?” F.R. answered, “To my right with the blue shirt.” The prosecution asked “[i]f the record could reflect the witness has identified the defendant,” and the court responded, “It may.”
About 45 minutes later, the court took another recess. After the jurors left the courtroom, it said: “I just want to note for the record too that I had mentioned earlier that the witness box had been reconfigured a little bit. It‘s not a big change, but the monitor was placed kind of to the witness‘s right, apparently blocking at least some of her view of possibly [defendant]. And I think that was the only change that‘s been made.” Addressing defendant‘s counsel, the court then asked, “Did you have anything you wanted to say about that?” Defendant‘s counsel responded, “Yes I did, Your Honor. It does block [defendant‘s] entire view of the witness.” The court replied, “Well, he is present in court. He can hear the witness, hear her answers. I think [the accommodation is] appropriate given her initial reaction. Again, for the record when she first came in to take the oath, she was unable to proceed at that time. We took about a 15-minute break before she could get her emotions back in order.” Defendant‘s counsel responded, “[F]or the record, I object to my client being unable to view the witness as the witness testifies in that his knowledge of the witness would be able to assist counsel in her demeanor and looks, you know, as the quasi parent. He is aware of how the witness
The court, commenting that it wanted to make “the record[] clear,” then stated: “It‘s a fairly small computer monitor that‘s on the witness stand. It‘s there for the witness to be able to view photographs that are shown on the monitor. Again, it was simply repositioned so that the witness doesn‘t have to look at [defendant]. I think—at best it‘s a small infringement on his confrontation rights. I think it‘s an allowable infringement on his right to confrontation, but it‘s a very limited blockage, if you will.” The prosecution, stating that it wanted “to clarify” the record, then added: “The position of the monitor in terms of where it is in the witness box is the exact same as it was for [M.C.]. It was elevated with a Penal Code as well as one volume of the CALCRIMs.” The court thanked the prosecution “for noting that” and commented, “I didn‘t see that.” The prosecution continued, “Given that the witness had indicated that the defendant looked at her the first time she came in.” The court added, “And whether that happened or didn‘t, I think it‘s appropriate.”
Defendant‘s counsel responded, “[F]or the record, Your Honor, when the witness first came in, she began crying before she was even able to see [defendant‘s] face. So [defendant] made no effort to look at her, intimidate her, or make any kind of eye contact or suggestive contact with her.” The court replied: “I understand. I‘m not casting any aspersions at this point. But it clearly affected her, and I think it‘s appropriate for the court to take whatever small efforts it can make to make the witness more comfortable without infringing on any of [defendant‘s] constitutional rights, and I don‘t believe that his rights have been infringed on at this point.” The court then “note[d]” counsel‘s objection “for the record” and “overruled” it.
Later, after both sides had rested but before closing arguments, the prosecution noted on the record that the monitor had been similarly repositioned during the testimony of Ar.R and An.R. Defendant‘s counsel did not object to the repositioning with respect to Ar.R and An.R. The fourth victim, M.C., had testified without the repositioned monitor.
The jury convicted defendant of the 14 charged crimes and found the enhancement allegations to be true. The court sentenced him to an indeterminate prison term of 275 years to life, plus a determinate term of 33 years to run consecutively.
The Court of Appeal affirmed defendant‘s convictions but, based on the parties’ agreement, remanded for resentencing on three counts. Regarding
We granted defendant‘s petition for review, specifying the following issue for consideration: “Was defendant‘s right of confrontation violated when he was unable to see witnesses as they testified because the trial court allowed a computer monitor on the witness stand to be raised by several inches to allow them to testify without seeing him when they testified in his presence?”
II. DISCUSSION
To address defendant‘s claim, we begin by reviewing the two decisions of the United States Supreme Court that provide principal guidance on the issue—Maryland v. Craig (1990) 497 U.S. 836 (Craig), and Coy v. Iowa (1988) 487 U.S. 1012 (Coy)—and the only case in which we have applied those decisions in an analogous context—People v. Gonzales (2012) 54 Cal.4th 1234 (Gonzales). We then apply these precedents to the record before us.
A. Relevant Precedent
In Coy, supra, 487 U.S. at pages 1012, 1014, the high court considered whether the trial court had violated the defendant‘s right of confrontation by placing, as authorized by state statute, a large screen between him and the witness stand while two complaining witnesses testified that he had sexually assaulted them. The court began with a general discussion of the constitutional right‘s nature, explaining that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” (Id. at p. 1016.) This “guarantee,” the court stated, “serves ends related both to appearances and to reality.” (Id. at p. 1017.) Because “something deep in human nature... regards face-to-face confrontation between accused and accusеr as ‘essential to a fair trial in a criminal prosecution‘” (ibid.), “the right of confrontation ‘contributes to the establishment of a system of criminal justice in which the perception... of fairness prevails‘” (id. at pp. 1018-1019). And “[t]he perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A
Applying these principles, the Coy court held that use of the screen at trial had violated the defendant‘s constitutional right. With the screen in place and the courtroom lighting adjusted, the defendant could “dimly... perceive the witnesses” while they testified, but they could not see him “at all.” (Coy, supra, 487 U.S. at p. 1015.) “It is difficult,” the court said, “to imagine a more obvious or damaging violation of the defendant‘s right to a face-to-face encounter.” (Id. at p. 1020.) The court rejected the government‘s argument that the defendant‘s “confrontation interest... was outweighed by the necessity of protecting victims of sexual abuse.” (Ibid.) If there are “any exceptions” to the confrontation clause‘s “irreducible literal meaning“—i.e., the “right to meet face to face all those who appear and give evidence at trial“—“they would surely be allowed only when necessary to further an important public policy.” (Id. at p. 1021.) “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.)
Two years later, in Craig, the high court took up the issue again in a case where an alleged child abuse victim had testified at trial in a room separate from the courtroom, in the physical presence of only the prosecutor and defense counsel, while the defendant, the judge, and the jury remained in the courtroom and watched the testimony by one-way closed-circuit television. (Craig, supra, 497 U.S. at p. 840.) The court began by explaining that the confrontation clause does not “guarantee[] criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.” (Id. at p. 844.) “Although face-to-face confrontation forms ‘the core of the values furthered by the Confrontation Clause,’ [citation]... it is not the sine qua non of the confrontation right” and is not required “in every instance in which testimony is admitted against a defendant.” (Id. at p. 847.) “[I]n certain narrow circumstances, ‘competing interests, if “closely examined,” may warrant dispensing with confrontation at trial.‘” (Id. at p. 848.) In other words, “‘the Confrontation Clause reflects a preference for face-to-face
Turning first to the latter requirement, the high court in Craig found that the Maryland procedure provided sufficient “assurances of reliability” because it “preserve[d] all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.” (Craig, supra, 497 U.S. at p. 851.) Notwithstanding “the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation—oath, cross-examination, and observation of the witness’ demeanor—adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally еquivalent to that accorded live, in-person testimony.” (Ibid.) Thus, Maryland‘s “use of the one-way closed circuit television procedure... does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause.” (Id. at p. 852.)
The Craig court next considered whether “use of the procedure [was] necessary to further an important state interest.” (Craig, supra, 497 U.S. at p. 852.) The court first recognized the “‘compelling‘” (ibid.) nature of the state‘s interest in protecting “‘minor victims of sex crimes from further trauma and embarrassment‘” (ibid.), and concluded that, upon “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). “To be sure,” the court explained, “face-to-face confrontation may be said to cause trauma for the very purpose of eliciting truth.” (Id. at p. 856.) However, “where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause‘s truth-seeking goal.” (Id. at p. 857.) Thus, “where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child‘s ability to communicate, the Confrontation Clause does not prohibit
Regarding the requirement that denial of face-to-face confrontation be “necessary to further” the state‘s interest (Craig, supra, 497 U.S. at p. 852), the Craig сourt stressed that “[t]he requisite finding of necessity must... be a case-specific one: The trial court must hear evidence and determine whether use of the [alternative procedure] is necessary to protect the welfare of the particular child witness who seeks to testify. [Citations.] The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. [Citations.] Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, thе trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than ‘mere nervousness or excitement or some reluctance to testify.‘” (Id. at pp. 855-856.) The Craig court declined to specify “the minimum showing of emotional trauma required for use of the special procedure,” reasoning that the Maryland statute “clearly suffice[d] to meet constitutional standards” because it “require[d] a determination that the child witness will suffer ‘serious emotional distress such that the child cannot reasonably communicate.‘” (Id. at p. 856.)
Finally, the Craig court applied these principles to the record before it, which showed the following: The state moved to invoke the statutory closed-circuit television procedure and presented “expert testimony that the named victim” and several “other children who were alleged to have been sexually abused by” the defendant “‘would have some or considerаble difficulty in testifying in [the defendant‘s] presence‘” and “‘would suffer “serious emotional distress such that [they could not] reasonably communicate,“’ [citation], if required to testify in the courtroom.” (Craig, supra, 497 U.S. at p. 842.) “The trial court... found that, based upon the evidence presented... the testimony of each of these children in a courtroom will result in each child suffering serious emotional distress... such that each of these children cannot reasonably communicate.‘” (Id. at pp. 842-843.) The Court of Appeals reversed the trial court‘s decision, finding that the state‘s showing was, under Coy, insufficient to overcome the defendant‘s right to confront the witnesses face-to-face. (Craig, at p. 843).
In the nearly thirty years since the high court decided Craig, we have applied these high court precedents in a relevant context only once—in Gonzales. There, the defendant, in appealing from a murder conviction, argued that the trial court had violated his right of confrontation by admitting at trial a videotape of his son‘s preliminary hearing testimony. (Gonzales, supra, 54 Cal.4th at p. 1261Id. at p. 1265.) This arrangement, the defendant asserted, was invalid under Craig because (1) the preliminary hearing court “fail[ed] to make a case-specific factual finding of necessity” (id. at p. 1266), (2) the prosecution, which requested the arrangement because the son “had expressed great fear of [the]
“In any event,” we continued in Gonzales, “the claim fails on its merits.” (Gonzales, supra, 54 Cal.4th at p. 1267.) Although “the preliminary hearing court made no factual findings on the need to shield [the witness] from [the] defendant‘s gaze, the trial court made extensive findings that the child would be traumatized if he were made to testify at trial. [The] [d]efendant does not dispute the vulnerability of the young witness, either at the time of the preliminary hearing or the time of trial. Indeed, [the] defendant claims that testifying against his father was so traumatic for [the witness] that even the videotape should have been excluded from evidence. ... [W]e conclude that the seating arrangement for the child witness‘s testimony was fully justified by the record, and defendant‘s confrоntation 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, cross-examination, and observation of demeanor by the trier of fact.‘” (Id. at p. 1268.)
B. F.R.
Based on these authorities, defendant attacks the trial court‘s ruling as to F.R. on numerous grounds. After noting that F.R. was 18 years old when she testified, he argues that because there is “no ‘transcendent’ state interest in protecting adult witnesses as exists for child witnesses,” no accommodation was permissible. He also argues that, even were there a compelling state interest at stake, the particular accommodation the court chose was impermissible because it “wholly blocked [his] view of” F.R. and completely precluded him from observing her while she testified. Thus, to the extent any accommodation was necessary, the trial court should have selected a “less restrictive” one that “would have adequately protected” his right of confrontation, such as “rearrang[ing] the courtroom so [F.R.] could look away from” him—as in Gonzales—or using a closed-circuit television procedure—as in Craig. Procedurally, defendant complains that the trial court failed to hold an evidentiary hearing and to require expert testimony regarding the relevant factors Craig sets forth, i.e., whether the defendant‘s presence would traumatize the witness, whether the witness‘s emotional distress would be more than
Defendant also makes several related arguments based on
Defendant acknowledges that
We reject defendant‘s argument that, in light of
Less than a month after Hochheiser‘s publication, the bill through which the Legislature enacted
Supporting this conclusion are decisions affirming use of accommodations other than those
proper exercise of the trial court‘s “constitutionally conferred, inherent authority to ‘create new forms of procedures’ in the gaps left unaddressed by statutes and the rules of court” (ibid.). And in People v. Sharp (1994) 29 Cal.App.4th 1772, 1780-1781, the court, citing Craig, affirmed use of an accommodation that allowed the prosecutor to sit or stand next to a young victim witness during examination so she could look away from the defense table while testifying, limiting the defendant‘s view of her to the side and back of her head. These decisions further undermine defendant‘s argument regarding the exclusivity of the accommodation that
We need not address defendant‘s other arguments under
Consistent with this observation, as far as the record shows, after the break, F.R. reentered the courtroom, walked to the stand, and took the oath, all with an unobstructed view of defendant and without any apparent emotional difficulty. She also identified defendant during her testimony - stating that she saw him in the courtroom and describing where he was sitting and what he was wearing — again, as far as the rеcord shows, without any apparent emotional difficulty.
Other aspects of the record on which the People rely do little, if anything, to establish the requisite necessity. According to the People, before the prosecution called F.R. as a witness, “[h]er best friend of six years, [M.C.], had already testified that when she confronted [F.R.] about [defendant‘s] abuse, [F.R.] initially refused to disclose the abuse to her despite the girls’ very close relationship.” Thus, the People argue, when F.R. first entered the courtroom, “[t]he trial court was already aware that [she] had particular
Likewise unpersuasive is the People‘s reliance on the court‘s exchange with counsel as to whether facing defendant was the cause of F.R.‘s emotional difficulty the first time she entered the courtroom. As the People note, after explaining that the monitor had been elevated by placing it on several books, the prosecution added, “Given that the witness had indicated that the defendant looked at her the first time she came in.” But the court did not accept the prosecution‘s unsworn statement, instead commenting, “And whether that happened or didn‘t, I think it‘s appropriate.” Defendant‘s counsel then stated that F.R. “began crying before she was even able to see [defendant‘s] face,” and that defendant “mаde no effort to look at her, intimidate her, or make any kind of eye contact or suggestive contact with her.” The court replied: “I understand. I‘m not casting any aspersions at this point. But it clearly affected her, and I think it‘s appropriate for the court to take whatever small efforts it can make to make the witness more comfortable without infringing on any of [defendant‘s] constitutional rights, and I don‘t believe that his rights have been infringed on at this point.” (Italics added.) Given the court‘s failure to disagree with defense counsel‘s statement, the court‘s stated refusal to “cast[] aspersions,” and the court‘s earlier statement that the accommodation was appropriate “whether [defendant looked at F.R.] or didn‘t” when she first entered the courtroom, we cannot determine to what the court was referring when the court said “it” clearly affected F.R. In other words, it appears that the trial court expressly declinеd
In summary, we cannot conclude here that the accommodation was “fully justified by the record.” (Gonzales, supra, 54 Cal.4th at p. 1268.) To find that an accommodation was constitutionally permissible merely because F.R. — a yоung adult — started crying the first time she entered the courtroom and the court took a short recess to allow her to compose herself, would give courts license to abridge the right of face-to-face confrontation almost any time a witness breaks down on the stand. This does not appear to be what the high court in Craig had in mind when it cautioned that the constitutional “face-to-face confrontation requirement” may not be “easily . . . dispensed with,” and then added that “a defendant‘s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy.” (Craig, supra, 497 U.S. at p. 850.) In terms of establishing that necessity, the evidence in the record here falls short.4
Regarding prejudice, consistent with our case law, the parties agree that violations of the
C. Ar.R and An.R
Regarding Ar.R and An.R, we agree with the People and the Court of Appeal that defendant forfeited his claim under the
Defendant fails to persuade us that we should “excuse[]” his failure to object because an objection would have been “futile.” According to defendant, given the standard the trial court set forth in connection with F.R. — whether defendant “was present and could hear the witnesses” — and the trial court‘s finding as to F.R., the court “would undoubtedly have made the same
Likewise unpersuasive is defendant‘s alternative argument: if “further objection was necessary,” then his attorney‘s failure to object constituted “ineffective assistance of counsel.” To prevail on this claim, defendant must show, among other things, that his “counsel‘s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) In evaluating his claim, we “defer[] to counsel‘s reasonable tactical decisions” and presume that “counsel acted within the wide range of reasonable professional assistance.” (Ibid.) Thus, defendant ” ‘must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1243, quoting Strickland v. Washington (1984) 466 U.S. 668, 689.) His burden in this regard “is difficult to carry” in this case, because this is a direct appeal and the record does not disclose the reason for counsel‘s failure to object. (People v. Lucas (1995) 12 Cal.4th 415, 437.) For those reasons, we may reverse “only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (Mai, at p. 1009; see People v. Earp (1999) 20 Cal.4th 826, 896 [“When . . . defense counsel‘s reasons for conducting the defense case in a particular way are not readily apparent from the record, we will not assume inadequacy of representation unless there could have been ‘no conceivable tactical purpose’ for counsel‘s actions“].) This rule “is particularly apt” where, as here, “the asserted deficiency arises from defense counsel‘s failure to object. ‘[D]eciding whether to object is inherently tactical, and thе failure to object will rarely establish ineffective assistance.’ ” (People v. Salcido (2008) 44 Cal.4th 93, 172.)
Defendant has failed to carry his burden because counsel was not asked why he failed to object, the record does not affirmatively disclose that counsel had no rational tactical purpose for the omission, and we are not convinced there could be no satisfactory explanation. Counsel could have concluded,
III. DISPOSITION
For the reasons set forth above, we reverse defendant‘s convictions on counts 3, 4, and 5, we affirm the remainder of defendant‘s convictions, and we remand for resentencing on counts 1, 12, and 14 (as the Court of Appeal ordered) and for further proceedings consistent with this opinion.
CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.