On appeal, defendant contends: (1) we must reverse the judgment because the trial court lacked good cause to excuse one of the sitting jurors (Juror No. 4) and doing so in the absence of both defendant and his assigned trial counsel violated defendant's constitutional rights; (2) defendant's convictions for Counts 3 and 6 must also be reversed for insufficient evidence; (3) defendant's Count 6 conviction must be vacated because section 288.5, subdivision (c), mandates charges of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, be charged in the alternative; (4) the trial court prejudicially erred and violated defendant's constitutional rights by allowing two prosecution witnesses to testify to their opinion that the complaining witnesses were credible; (5) defendant's trial counsel provided constitutionally deficient assistance by failing to object to certain assertions of prosecutorial misconduct; and (6) the trial court prejudicially erred by failing to instruct the jury on attempted sexual penetration as a lesser included offense to Count 7.
We conclude the trial court did not have good cause to excuse Juror No. 4. We also conclude doing so outside defendant's presence and while he was represented by an attorney who was standing in for defendant's temporarily ill trial counsel, and who was told she was appearing to agree to a continuance on defendant's behalf, violated defendant's federal constitutional rights. Because we cannot conclude this error was harmless beyond a reasonable doubt, we must reverse the judgment. This conclusion makes it
FACTS
Defendant and his family, consisting of his wife and daughters A. and H., moved from Texas to Hornbrook, a rural community not far from the Oregon border, sometime in May 2013. They initially stayed in a
Sexual Abuse of A. and H.
Defendant's sexual abuse of his daughters came to light during the third weekend of August 2013. At some point that weekend, M.'s mother discovered from talking to her daughter that A. had tried to put her finger in M.'s vagina while the two were picking blackberries together. On two prior occasions, A. had tried to hold M. down and kiss her. Concerned A. was acting out sexually, M.'s mother spoke to defendant's wife about the latest incident and obtained her permission to ask A. about it.
M.'s mother then had a private conversation with A. while they played with M.' s hamster. When asked about the incident, A. "got a shy look on her face," but then admitted to trying to put her finger in M.'s vagina. M.'s mother told A. several times that she was not in trouble and asked how she knew something could go into a vagina, using the word "pee-pee" for vagina because that was the word the children used for it. A. responded, "Daddy taught me" and added: "This is how we show we love each other." As M.'s mother explained her reaction: "I tried really hard to keep a straight face for that little baby. Everything in me as a mom wanted to just explode and freak out." Instead, she calmly asked for more details. A. said it was "not okay to tell because [defendant] might kill Mommy." After multiple assurances that "it was okay to tell the truth," A. revealed defendant played "games" with her while her mom was at work, including defendant touching and putting things into her vagina and making her touch and kiss his penis. In the conversation, A. used the word "pee-pee" for both vagina and penis. A. also said defendant did these things to her when they lived in Texas and continued to do so in California, both at her grandfather's house and at their new house.
M.'s mother reported these disclosures to defendant's wife, who "flipped out," going from "sobbing and crying" to "screaming angry." At some point, defendant's wife took A. outside and asked about what she had told M.'s mother. A. told her mother she touched M.'s vagina because she loved her friend and, as she put it, "that's how Daddy showed us love." When asked how defendant showed her love, A. said he "would touch [her] pee-pee and [they] would play pee-pee kissing games," elaborating: "I would kiss H.'s pee-pee, and Daddy would kiss mine." A. also told her mother defendant "would stick carrots inside of [their] pee-pees." Defendant's wife then had a private conversation with H. about what she had told M.'s mother. When she asked H. what the "pee-pee kissing game" meant, H. said: "Daddy ... would kiss my pee-pee and put carrots
M.'s mother and defendant's wife decided to call the Siskiyou County Sheriff's Department and Child Protective Services (CPS) to report the abuse. M.'s mother made the call because defendant's wife "was physically ill at that point." Defendant moved out after his wife confronted him with the allegations.
A social worker from CPS, Angeline Brophy, came out to the house to interview A. and H. the following week. The purpose of these initial interviews was not to document the abuse in detail, but to determine whether or not to refer the matter to law enforcement authorities. Brophy spoke with A. first. After establishing A. knew the difference between the truth and a lie through introductory questions, Brophy asked her who lived at the house. When A. got to defendant, she added: "But he is naughty." Brophy asked what she meant. A. responded, "My dad is naughty because he puts sticks and stuff in my pee-pee," pointing to her vagina. Brophy asked when the last time something like that happened. A. said defendant put a carrot in her vagina at their house in Hornbrook, he told her not to tell anyone, and she was afraid of him. Brophy also asked about the incident with M., but A. denied touching her vagina. She also denied defendant ever asked her to
Brophy then interviewed H. After establishing she knew the difference between the truth and a lie, Brophy also asked her who lived at the house. When H. got to defendant, she said: "My dad touches my pee-pee with his fingers." She also pointed to her vagina to indicate that is what she meant by "pee-pee." After establishing H. knew the difference between inside and outside, Brophy asked whether defendant put his fingers inside her vagina. H. said he did. She also revealed that he put a carrot inside her vagina. When asked how many times he did that, H. responded: "A lot. More than five times." She said the last time defendant put his fingers in her vagina was at the recreational pool in Hornbrook. Defendant told her not to tell anyone about the carrots. Finally, H. said defendant put his penis on her eye, but denied he put his mouth on her vagina or had her put her mouth on his penis. Again, because Brophy had enough information to refer the matter to law enforcement, she ended the interview without getting additional details.
Brophy referred the matter to law enforcement the first week of September. The following week, Detective Jacques Morlet went out to the house to conduct follow-up interviews with A. and H. The detective spoke to A. first. When he asked her if she knew why he wanted to talk to her, A. said: "Because Daddy's a bad, bad man." After establishing A. knew the difference between the truth and a lie, much like Brophy had done, the detective asked whether defendant did anything to her that he told her not to tell anyone. A. responded: "He, um, messed with me." When the detective asked how defendant messed with her, A. said he made her eat an apple when she did not want to and also made her touch a flower. The detective then established A. knew what her "private parts" were and "the difference between a good touch and a bad touch" and asked whether she remembered telling Brophy about defendant doing something that was "kinda like a bad touch." A. said
About two weeks later, Brophy conducted a forensic interview with H. During the interview, H. said her father was "mean" because he "put carrots ... and all that stuff in [her] pee-pee" at the house in Hornbrook.
At this point in the interview, Brophy brought out some anatomical drawings of a girl and a man and had H. identify the various parts and point out where defendant touched her and where she touched him. Brophy then asked whether anything happened at the pool. H. said defendant "put his pee-pee on the ground and he touched [her] pee-pee" during a pool party. Brophy asked: "How did your daddy get his pee-pee into your pee-pee in the pool?" H. answered: "Like he put inside his finger in my pee-pee like this." Brophy then asked: "Did he put his pee-pee in your pee-pee in the pool?" H. answered: "Yes." After stepping outside to talk to Detective Morlet, Brophy returned and had H. color on the drawings to represent the various places defendant touched her and had her touch him.
A. and H. testified at trial, although H. refused to answer any questions relating to the abuse, repeating, "I don't want to talk about it" and, "I don't want to say it" several times. She also stated there was someone in the courtroom she was afraid of, identifying that person as "a boy," but providing no further details. A. did provide testimony regarding the abuse. She testified defendant touched her on her "pee-pee" and her "butt," identifying her vagina
Sexual Abuse of M.
During the second week of September, two days after Detective Morlet interviewed A., M. revealed to her mother that defendant also put his finger inside her vagina on one occasion. M.'s mother testified: "She told me that [defendant] had-the girls were over there playing at their rental on my property, and they were all running around in bathing suits, like every day, and that he was on his computer, and that she ran in that room to ask him something and that he put his finger underneath her bathing suit on her pee-pee, and that she got scared and tried to pull away and said, 'I want my Mommy.' And he said, 'You can't go tell your mommy, you can't tell anybody, you can't go over. You need to go play with the girls right now.' " When M.'s mother asked her daughter where defendant put his finger, M. put her finger "onto her pee-pee, right in her labia." M. did not say when this occurred. M.'s mother estimated it must have happened during the "middle to the third week" of August, based on when M. would have been over there playing with her friends.
M.'s mother reported the incident to Detective Morlet, who came out to her house with Brophy two days later to conduct an interview with M. Brophy tried to interview M. in private, but she refused, so the interview took place in the living room with M. sitting on the couch with her parents and Brophy sitting on the floor facing the child. During the interview, after establishing M. knew the difference between the truth and a lie, Brophy asked whether there was a time M. "got in trouble" while she was over at defendant's house playing with her friends. M. responded: "I did." When Brophy asked why she got in trouble, M. apparently looked up at her mother, prompting her mother to say: "I don't know why hunny. Just tell her what happened." M. then pointed to her vagina. Brophy asked what she called that part of the body. M. answered: "Our pee-pee." Brophy then asked what happened to her pee-pee. M. responded, "He did this," grabbing her vaginal area with one hand and lifting upwards. In response to further questions, M. identified defendant as the "he" who did that to her and also said she was wearing a bathing suit at the time and defendant's finger went underneath the bathing suit and inside her vagina.
M. also testified at trial. She testified defendant touched her "pee-pee" and "butt" on the outside of her bathing suit. She claimed to not remember what he touched her with, but said it happened on one occasion while she was over
DISCUSSION
I
Removal of Juror No. 4
Defendant contends we must reverse the judgment because the trial court lacked good cause to excuse Juror No. 4 and doing so in the absence of both defendant and his assigned trial counsel violated defendant's constitutional rights. We agree.
Additional Background
The prosecution's presentation of its case against defendant was set to begin on Monday, June 16, 2014, the jury (including the alternates) having previously been selected and sworn. The trial court went on the record at 8:30 a.m., prior to the arrival of the jury, to note neither defendant nor his defense counsel, Barton, was present. Barton was apparently ill and informally agreed with the prosecutor that the matter would be continued until the following day and therefore defendant need not be brought over to court. Explaining it was not up to the attorneys and custodial staff to decide whether the matter would be continued and whether defendant's presence would be necessary, the trial court ordered defendant brought over and also ordered the presence of someone from the Public Defender's Office to stand in for Barton.
Defendant and stand-in counsel, O'Connor, arrived a short time later. After some discussion between the trial court and the prosecutor about when Barton was expected to be well enough to return and other scheduling matters, the trial court stated it intended to excuse defendant because he was "in his jail garb." The trial court also explained the jury would be brought in at 9:00 a.m., informed there would be no proceedings that day because of unexpected circumstances, and ordered to return the following day. The trial court then asked O'Connor whether she agreed conversation with the jury could take place outside defendant's presence. O'Connor agreed. Defendant was then excused.
At 9:00 a.m., before the jury was brought into the courtroom, the trial court stated on the record that two of the jurors were not present and explained:
The jury was then brought into the courtroom. Juror No. 4 was still not present. As promised, the jury was informed there would be no proceedings that day because of "unexpected issues" and ordered to return the following day. The trial court then removed Jurors No. 12 and No. 4, replacing them with alternate Jurors No. 1 and No. 2, respectively. After excusing the newly-constituted jury for the day, the trial court stated: "I'll direct my clerk to contact our jury commissioner to know that I have discharged [Juror No. 4], he could possibly be on his way. There is some roadwork going on, but unless they contact us we just don't know."
B.
Forfeiture
As a preliminary matter, the Attorney General asserts defendant's challenge to Juror No. 4's removal is forfeited by his failure to object below. Had defendant
In People v. Davidian (1937)
Based on these authorities, Barton might well have concluded it was too late to object to the removal of Juror No. 4 after the removal had already taken place and the trial court would have had no basis upon which to grant such a motion. In short, there was reason for Barton to conclude an objection to the removal at that time would have been futile in the sense the erroneous removal of the juror could not have been remedied. (See People v. Abbaszadeh (2003)
In any event, the fact that a party may forfeit a right to present a claim of error to the appellate court if he or she did not raise the issue in the trial court does not mean the appellate court is deprived of authority to reach the merits of the issue. "An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so. [Citation.] True, it is in fact barred when the issue involves the admission ( Evid. Code, § 353 ) or exclusion (id ., § 354) of evidence. Such, of course, is not the case here. Therefore, it is free to act in the matter. [Citation.] Whether or not it should do so is entrusted to its discretion." ( People v. Williams (1998)
C.
Section 1089
Section 1089 provides in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (Italics added.)
" 'Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty "to make whatever inquiry is reasonably necessary" to determine whether the juror should be discharged.' [Citation.] On appeal, the trial court's determination is reviewed for abuse of discretion. [Citations.]" ( People v. Leonard (2007)
Here, Juror No. 4 was removed for being absent about 15 minutes after he was scheduled to report for the start of the evidence portion of the trial. As the trial court acknowledged on the record, he might have been stuck in traffic due to
Nevertheless, the Attorney General argues the trial court did make an inquiry into Juror No. 4's whereabouts and the lack of information in this regard "was not for lack of trying," pointing out the court clerk was apparently unable to reach the juror by phone and the bailiff checked the juror waiting area to see if he had arrived prior to his removal. However, under Mendes , supra ,
The Attorney General also cites Bell , supra ,
We recognize an exercise of discretion "is not rendered abusive merely because other alternative courses of action may have been available to the trial judge." ( People v. Hall (1979)
Constitutional Claim
We now address defendant's contention that, in addition to amounting to an abuse of discretion, the trial court's decision to discharge Juror No. 4 in these circumstances violated defendant's constitutional rights "to be personally present and to be represented by counsel at critical stages during the prosecution." ( United States v. Thompson (9th Cir. 1987)
"[A] criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043." ( People v. Cole (2004)
While these rights to personal presence and assistance of counsel at all critical stages of the proceedings obviously overlap, they are not coextensive. For example, "a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant's presence would not contribute to the fairness of the proceeding." ( People v. Perry (2006)
Here, both defendant and Barton were excluded from the removal decision. And, as we explain, O'Connor's presence was tantamount to no representation at all. Thus, we must determine whether or not the juror substitution that occurred in this case amounted to a critical stage of the proceedings against defendant entitling him to the assistance of counsel during the substitution. Because we conclude the answer is "yes," we need not determine whether his personal presence was also constitutionally required, or whether instead such presence " 'would be useless, or the benefit but a shadow.' " ( Kentucky v. Stincer , supra ,
We first note a juror substitution is not "necessarily ... a critical stage in the proceedings such that it gives the defendant the constitutional right to assistance of counsel." (
While defendant was represented by O'Connor when Juror No. 4 was removed, we agree with defendant she "did not function as the 'counsel' contemplated by the constitutional guarantee." ( Wilson v. State (Fla.Dist.Ct.App. 2000)
We therefore conclude defendant's constitutional right to be represented by counsel at critical stages during the prosecution was violated. (See, e.g., Thompson , supra ,
E.
Prejudice
We now turn to the question of prejudice. In Rushen v. Spain (1983)
We cannot conclude beyond a reasonable doubt the removal of Juror No. 4 in this case was harmless. Unlike Rushen , supra ,
Nevertheless, relying on Dell , supra ,
In sum, defendant was entitled to have Juror No. 4 on the jury, at least until his inability to serve appeared as a demonstrable reality. The improper removal of that juror without good cause outside the presence of defendant
II
DISPOSITION
The judgment is reversed and the matter is remanded for retrial as to Counts 1 through 5 and 7, if the People so elect.
We concur:
HULL, Acting P.J.
RENNER, J.
Notes
Undesignated statutory references are to the Penal Code.
People v. Wheeler(1978)
See footnote *, ante.