People v. Arredondo

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON ARRON ARREDONDO,
Defendant and Appellant.
S244166
Fourth Appellate District, Division Two
E064206
Riverside County Superior Court
RIF1310007 and RIF1403693
December 16, 2019
Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. ARREDONDO
S244166
Opinion of the Court by Chin, J.
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 (Pen. Code, § 288, subd. (a))1; one count of
lewd acts upon a child under the age of 16 (§ 288, subd. (c)(1));
one count of oral copulation of a person under the age of 14
1
All further unlabeled statutory references are to the Penal
Code.
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Opinion of the Court by Chin, J.
(§ 288a, subd. (c)(l)); and one count of sexual penetration of a
person under the age of 14 (§ 289, subd. (j)). The information
also alleged numerous enhancements. All four victims testified
at trial. At that time, F.R. was 18 years of age, M.C. was 16,
Ar.R was 14, and An.R was 13.
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 short break. Take about
five or ten minutes, folks, and we will attempt to start again at
that time. . . . We will be in a short recess.” A minute order
indicates that the court took a recess “to allow for witness
composure.”
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 the witness box to accommodate the
witness.” After the jurors took their seats, F.R. entered the
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Opinion of the Court by Chin, J.
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
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Opinion of the Court by Chin, J.
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 looks when
the witness is maybe not telling the truth or when the witness
is feigning something. I don’t have that knowledge. I have
never seen this witness before. And [defendant] is unable to
assist me in that regard because he is unable to see 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
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Opinion of the Court by Chin, J.
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 defendant’s claim that repositioning of
the monitor violated his constitutional right of confrontation,
the court unanimously held as to Ar.R and An.R that defendant
had (1) forfeited the claim by failing at trial to object to the
modification’s use for these witnesses, and (2) not shown that
his counsel’s failure to object constituted ineffective assistance.
As to F.R., the court was divided. The majority found no error,
concluding that the trial court’s action was consistent with
governing precedent. The dissent disagreed, finding that the
trial court’s decision was inconsistent with established Sixth
Amendment law.
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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 accuser as ‘essential to a fair
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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 witness ‘may feel
quite differently when he has to repeat his story looking at the
man whom he will harm greatly by distorting or mistaking the
facts. . . .’ [Citation.] It is always more difficult to tell a lie about
a person ‘to his face’ than ‘behind his back.’ In the former
context, even if the lie is told, it will often be told less
convincingly.” (Id. at p. 1019.) In this sense, “the right to face-
to-face confrontation,” like the right to cross-examine the
accuser, “serves” to “ ‘ensur[e] the integrity of the factfinding
process.’ ” (Id. at pp. 1019-1020.) It is true that this “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.)
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
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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
confrontation at trial,’ [citation], a preference that ‘must
occasionally give way to considerations of public policy and the
necessities of the case.’ ” (Id. at p. 849.) However, the Craig
court cautioned, “[t]hat the face-to-face confrontation
requirement is not absolute does not . . . mean that it may easily
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be dispensed with.” (Id. at p. 850.) On the contrary, “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 and only where the reliability of the
testimony is otherwise assured.” (Ibid.)
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 equivalent 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
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Opinion of the Court by Chin, J.
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 use of a procedure that, despite the absence of face-
to-face confrontation, ensures the reliability of the evidence by
subjecting it to rigorous adversarial testing and thereby
preserves the essence of effective confrontation.” (Ibid.)
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 court 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
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Opinion of the Court by Chin, J.
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, the 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 considerable 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
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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 reviewing this decision, the high court began by
observing that there were sufficient assurances of reliability
because “the child witnesses . . . testified under oath, were
subject to full cross-examination, and were able to be observed
by the judge, jury, and defendant as they testified.” (Craig,
supra, 497 U.S. at 857.) The court next explained that, on the
issue of necessity, the Court of Appeals’ analysis was “consistent
with our holding today” to the extent it stated that a trial court
must “make a specific finding that testimony by the child in the
courtroom in the presence of the defendant would result in the
child suffering serious emotional distress such that the child
could not reasonably communicate.” (Id. at p. 858.) However,
the high court continued, the Court of Appeals erred insofar as
it concluded that a trial court must “observe the children’s
behavior in the defendant’s presence and . . . explore less
restrictive alternatives to the use of the one-way closed circuit
television procedure.” (Id. at pp. 859-860.) “Although . . . such
evidentiary requirements could strengthen the grounds for use
of protective measures, . . . as a matter of federal constitutional
law, [there are no] such categorical evidentiary prerequisites for
the use of the one-way television procedure. The trial court in
this case, for example, could well have found, on the basis of the
expert testimony before it, that testimony by the child witnesses
in the courtroom in the defendant’s presence ‘will result in
[each] child suffering serious emotional distress such that the
child cannot reasonably communicate,’ [citation]. [Citations.]
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So long as a trial court makes such a case-specific finding of
necessity, the Confrontation Clause does not prohibit a State
from using a one-way closed circuit television procedure for the
receipt of testimony by a child witness in a child abuse case.
Because the Court of Appeals held that the trial court had not
made the requisite finding of necessity under its interpretation
of ‘ . . . [Coy] . . .’ [citation], we cannot be certain whether [the
state appellate court] would reach the same conclusion in light
of the legal standard we establish today. We therefore vacate
the judgment of the [state appellate court] and remand the case
for further proceedings not inconsistent with this opinion.”
(Craig, at p. 860.)
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. 1261.) As here relevant, the defendant
based this claim on the fact that his eight-year-old son, while
testifying at the preliminary hearing, had been “seated at an
angle, not directly facing the defendant[].” (Id. 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] defendant” (id. at p. 1265),
“made no factual showing to support its claim” (id. at p. 1266),
and (3) “the court’s concerns on this point were not based on any
information specific to this case” (ibid.). We rejected the claim,
explaining first that, because the defendant “had no
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[constitutional] right to confront” his son “at the preliminary
hearing,” “there was no occasion for the preliminary hearing
court to make Craig findings, and defense counsel did not
request them.” (Id. at p. 1267.) The defendant’s argument to
the contrary, based on attachment of his confrontation right
“when the videotape of the preliminary hearing testimony was
introduced,” is “particularly artificial.” (Ibid.)
“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 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, 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
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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 de minimis,
and whether accommodation is necessary to protect the
witness’s welfare. He also complains that Craig requires
express, particularized, case-specific findings on these matters
and that the court failed to make such findings. Finally, he
argues there was insufficient evidence to support the findings
that Craig requires to justify an accommodation.
Defendant also makes several related arguments based on
section 1347, which, as here relevant, sets forth a procedure for
allowing some child witnesses to testify remotely by closed-
circuit television “out of the presence of the judge, jury,
defendant or defendants, and attorneys” when their testimony
will involve reciting the facts of “[a]n alleged sexual offense
committed on or with” them. (§ 1347, subd. (b)(1).) As pertinent
to defendant’s arguments, the statute: (1) requires the
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prosecution to give written notice that the accommodation is
sought at least three days before the witness is scheduled to
testify, unless the court takes up the issue “during the course of
the proceeding on [its] own motion” (id., subd. (b)); (2) authorizes
the procedure’s use only for witnesses “13 years of age or
younger at the time of the motion” (ibid.); and (3) requires the
court to make a finding that it has been “shown by clear and
convincing evidence” that testifying in front of the defendant
“would result in the child suffering serious emotional distress so
that the child would be unavailable as a witness” (id., subd.
(b)(2)(a)).
Defendant acknowledges that section 1347 is “not
applicable” with respect to F.R. because she was older than 13
when she testified, but asserts that it “defines the extent of
accommodations in California” because it reflects “the
Legislature’s determination as to a proper balance between the
defendant’s rights and protecting the victim.” “[A]t the very
least,” he asserts, we should “use [it] as the template for any
protections offered to traumatized witnesses.” Thus, he argues,
“in line with” this section, no accommodation was permissible
here because F.R. was “over the age of 13” when she testified,
the prosecution failed to give written notice of its request for
accommodation at least three days before F.R.’s scheduled
testimony, and there was not “clear and convincing evidence”
that testifying in front of defendant would cause F.R. “trauma
so great as to render [her] unavailable.” Moreover, even had a
proper showing been made, the only “authorized”
accommodation, other than rearranging the courtroom so F.R.
could look away from defendant, was using the closed-circuit
television procedure “set forth in section 1347.” The
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accommodation the court chose, which completely blocked
defendant’s view of F.R., was unauthorized and impermissible.
We reject defendant’s argument that, in light of section
1347, a court is constitutionally precluded from ordering an
accommodation as to witnesses older than 13 years of age, and
from ordering an accommodation other than testimony by
closed-circuit television. Nothing in the statute’s language or
legislative history suggests that the particular accommodation
the statute sets forth is the only permissible accommodation.
On the contrary, relevant legislative history indicates that the
Legislature enacted the statute in 1985, not to set forth a
comprehensive resolution of all confrontation issues, but to
address Hochheiser v. Superior Court (1984) 161 Cal. App. 3d
777, 780, which held that a trial court had “exceeded its
authority” under state law in allowing a minor, who was the
alleged victim of a sex offense, to testify from a separate room
by closed-circuit television. The appellate court based its
conclusion on “the lack of explicit legislative authority for [the
trial court’s] order” (id. at p. 783), reasoning that a trial court’s
“inherent powers” (id. at p. 787) are insufficient to authorize use
of such a “radical innovation,” (ibid.) and that “explicit statutory
authorization” (ibid.) was “necessary . . . for such a drastic
deviation from settled procedures” (ibid.).
Less than a month after Hochheiser’s publication, the bill
through which the Legislature enacted section 1347 was
introduced. (Sen. Bill No. 46 (1984-1985 Reg. Sess.).) One
analysis of the bill explained: (1) in Hochheiser, the court “found
that no statutory authority exists for using closed-circuit
television testimony during a trial”; and (2) this bill “was
introduced to provide this authority.” (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 46 (1984-1985 Reg. Sess.), as amended
17
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
Jan. 10, 1985, p. 4.) Another explained that “[b]ased on
Hochheiser, legislative action is necessary before” courts may
use a closed-circuit television procedure for child witnesses.
(Assem. Com. on Public Safety, Analysis of Sen. Bill No. 46
(1984-1985 Reg. Sess.), as amended Mar. 11, 1985, p. 3.) Given
the statute’s language and legislative history, we reject
defendant’s view that the authorization section 1347 provides
for one particular accommodation implicitly precludes any other
accommodation, and that the statute reflects the Legislature’s
view regarding the limit of what is constitutionally permissible.2
Supporting this conclusion are decisions affirming use of
accommodations other than those section 1347 authorizes. As
previously discussed, and as defendant himself acknowledges,
in Gonzales, supra, 54 Cal.4th at page 1265, we affirmed an
alteration of the courtroom seating arrangement that placed the
witness “at an angle, not directly facing the defendant[].” In
People v. Lujan (2012) 211 Cal. App. 4th 1499, the court affirmed
use of a remote, closed-circuit television procedure for a child
witness who fell “outside the ambit of section 1347” (id. at p.
1506) as it read at the time, concluding that the accommodation
stood “on solid constitutional footing” (id. at p. 1507) and was a
2
In any event, regarding the latter point, for purposes of
evaluating the claim at issue here — that the accommodation
violated defendant’s federal constitutional rights — a legislative
determination of what the confrontation clause permits would
not bind this court. “[W]hatever the Legislature’s intent may
have been, ‘the ultimate constitutional interpretation must
rest . . . with the judiciary.’ ” (City of San Buenaventura v.
United Water Conservation Dist. (2017) 3 Cal.5th 1191, 1209, fn.
6.) The Legislature is free to provide protections that exceed the
constitutional minimum, but any decision to do so cannot alter
the requirements of the Constitution itself.
18
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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 section 1347 sets forth.
We need not address defendant’s other arguments under
section 1347, or his remaining procedural arguments, because
we ultimately agree with him that the record before us is
insufficient to sustain the trial court’s accommodation order.
The relevant evidence before us is quite sparse: After entering
the courtroom, being directed to the witness stand, and being
advised to “step up here,” “follow the instructions of” the bailiff,
“watch your step as you take the stand,” “[s]tay standing” and
“raise your right hand” while “the clerk . . . swear[s] you in,” F.R.
started crying. When the court asked if she “need[ed] a
moment,” she replied, “I think so.” These are the only facts in
the record that underlie the court’s subsequent statement that
F.R. was “unable to proceed at that time.” Assuming F.R.’s act
of crying and her equivocal response support the court’s
statement, they provide little support for a finding that the
trauma F.R. would have suffered upon testifying in defendant’s
presence was such that an accommodation abridging
defendant’s right of face-to-face confrontation was necessary.
Indeed, the court also stated for the record that F.R. was able to
“get her emotions back in order” after a relatively short break.
19
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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 record
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 difficulty disclosing the abuse.” However,
M.C.’s testimony actually cuts against the People’s ultimate
position, because (1) it indicates that F.R. had difficulty
disclosing the abuse to anyone, even her best friend, and (2)
under Craig, an accommodation that abridges the right of face-
to-face confrontation is constitutionally permissible only if the
harm the witness may suffer from testifying is caused by “the
presence of the defendant,” “not by the courtroom generally.”
(Craig, supra, 497 U.S. at p. 856.) Notably, consistent with what
M.C.’s testimony indicates, F.R. mentioned or indicated
numerous times during her testimony that she had difficulty
telling anyone about defendant’s acts, even her mother.3
3
Asked what part of defendant’s body was touching her,
F.R. replied, “I don’t want to say it.” Asked why she had testified
20
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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 “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
that the events were not still fresh in her mind, she replied, “I
don’t want to.” Asked why she hadn’t told anyone what
defendant had done, she replied, “I don’t know.” Asked if she
had recently talked to M.C. about the case, F.R. replied, “No. I
don’t like talking about it.” Asked if she was scared about being
in court, she replied, “I just don’t like being in court.” Asked
why she had not told M.C.’s mother or defendant’s mother about
what defendant had done, she replied, “Just didn’t want to tell
anyone.” Asked why she had not earlier told M.C. what
defendant had done, F.R. replied, “I was always scared,” “It was
just no one’s business,” “It was just something I didn’t want to
talk about,” and “[I]t’s still something — I never liked talking
about it.” F.R. also testified that she was shy with “everyone”
other than her mother, and that even though she was “not shy”
with her mother, she did not tell her mother at first about
defendant’s acts because “that’s the hardest thing you could ever
say to someone” and “it’s so hard to say anything like that.”
21
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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 declined to resolve the competing accounts
offered by the prosecution and the defense, and that it ordered
the accommodation without determining whether it was
defendant personally, or the courtroom more generally, that
upset F.R. In any event, even interpreting this comment as the
People suggest — that “it” referred to facing defendant — the
circumstance that facing defendant “clearly affected” F.R. when
she first entered the courtroom would be insufficient alone to
establish the level of emotional trauma Craig requires to justify
use of an accommodation that abridges a defendant’s right of
face-to-face confrontation. (Cf. Craig, supra, 497 U.S. at p. 856
[“ ‘mere nervousness or excitement or some reluctance to
testify’ ” is insufficient].)
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 young
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
22
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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 confrontation clause are
subject to the federal harmless error analysis of Chapman v.
California (1967) 386 U.S. 18, under which reversal is required
unless it is clear beyond a reasonable doubt that a rational jury
would have reached the same verdict absent the error. (People
v. Livingston (2012) 53 Cal. 4th 1145, 1159.) In Coy, the high
court explained that in this context, “[a]n assessment of
harmlessness cannot include consideration of whether the
witness’ testimony would have been unchanged, or the jury’s
assessment unaltered, had there been confrontation; such an
4
Although our conclusion makes it unnecessary to address
defendant’s assertion that Craig requires express findings, we
caution that trial courts normally should make such findings
before ordering an accommodation. Among other reasons,
because the determinations necessary under Craig depend
heavily on considerations that are difficult to convey through a
paper record, it may be quite difficult for an appellate court to
glean adequate implied findings from the record on appeal.
Nevertheless, we do not foreclose the possibility that, on some
records, the degree and cause of witness distress and the need
for accommodation may be so manifest that an accommodation
ordered without express findings may survive on appeal.
23
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
inquiry would obviously involve pure speculation, and
harmlessness must therefore be determined on the basis of the
remaining evidence.” (Coy, supra, 487 U.S. at pp. 1021-1022.)
After quoting this explanation, the People do not contend that
as to the convictions involving acts against F.R. — counts 3, 4,
and 5 — if there was error, it was harmless in light of the
evidence aside from F.R.’s testimony; instead, they ask in their
brief that we remand the case to allow them an opportunity to
retry defendant on those counts or dismiss those counts and
resentence defendant. We agree that, as to those counts, the
error was not harmless in light of the remaining evidence and
that reversal is necessary.5
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
confrontation clause by failing to object at trial to the
repositioning of the monitor during their testimony. As a
general rule, a defendant’s failure to object to an alleged trial
error relieves an appellate court of the obligation to consider the
claim on review. (People v. Romero (2008) 44 Cal. 4th 386, 411.)
The reason for this rule is to allow the trial court to correct its
5
At oral argument, the People, contrary to what they stated
in their brief, asserted that were we to find the record
insufficient to sustain the trial court’s order, the remedy should
be a remand “to the trial court to make a clearer record”
regarding the relevant considerations at this 2015 trial. Given
the People’s failure to raise this question sooner, and
defendant’s lack of opportunity to address the question, we
decline to consider it. (See People v. Pena (2004) 32 Cal. 4th 389,
403 [“ ‘[a]n appellate court is not required to consider any point
made for the first time at oral argument, and it will be deemed
waived’ ”].)
24
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
errors and “to prevent gamesmanship by the defense.” (Ibid.)
We have applied this rule numerous times to find forfeiture of a
constitutional right of confrontation claim. (People v. Riccardi
(2012) 54 Cal. 4th 758, 827, fn. 33; People v. Dement (2011) 53
Cal. 4th 1, 23; People v. Redd (2010) 48 Cal. 4th 691, 730; People
v. D’Arcy (2010) 48 Cal. 4th 257, 289-290; People v. Raley (1992)
2 Cal. 4th 870, 892.) As the People argue, had defendant objected
to the repositioning of the monitor during the testimony of Ar.R
and An.R, “the trial court would have had an opportunity to
correct [any] error (by lowering the monitor), or to make
additional findings on the record regarding the necessity of the
accommodation as to” these witnesses. Because defendant did
not object, he has forfeited his claim.
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 ruling as to” Ar.R and An.R, who were “younger
witnesses.” However, as detailed above, the trial court
explained that it had repositioned the monitor during F.R.’s
testimony because of “her initial reaction” upon entering the
courtroom, i.e., “when she first came in to take the oath, she was
unable to proceed at that time.” Given this explanation, the
record offers no support for defendant’s assertion that had he
objected, the trial court would have ordered the accommodation
simply because Ar.R and An.R were “younger witnesses,”
without regard to whether they were having difficulty testifying.
Defendant’s futility argument therefore fails.
25
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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 the failure to object will rarely
26
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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,
based on his experience with F.R.’s testimony, that the
repositioned monitor — which did not interfere with defense
counsel’s view of F.R., did not prevent defendant from hearing
F.R., did not prevent F.R. from testifying that she saw defendant
in the courtroom, and did not preclude F.R. from describing
where defendant was sitting and what he was wearing — had
no meaningful impact on defendant’s right of confrontation or
on his ability to assist his counsel, and that any benefit from
preventing the accommodation’s use for Ar.R and An.R therefore
did not outweigh the risk of upsetting them during their
testimony and arousing sympathy for them with jurors that
might work to defendant’s detriment and prejudice his case. In
other words, counsel could have concluded, based on his
experience with F.R., that taking steps to minimize any trauma
to Ar.R and An.R was actually in defendant’s best interests.
Because this rational tactical reason could account for counsel’s
failure to object, defendant’s ineffective assistance claim fails.
And because defendant does not claim that the error with
respect to F.R. prejudiced him with respect to the convictions
involving acts against Ar.R and An.R, there is no basis to reverse
those convictions.
27
PEOPLE v. ARREDONDO
Opinion of the Court by Chin, J.
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.
28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Arredondo
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 13 Cal.App.5th 950
Rehearing Granted
__________________________________________________________________________________
Opinion No. S244166
Date Filed: December 16, 2019
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: David A. Gunn
__________________________________________________________________________________
Counsel:
Steven A. Torres, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Johnson, Deputy State Solicitor General,
Steven T. Oetting, Meredith S. White, A. Natasha Cortina, Meagan Beale and Annie Featherman Fraser,
Deputy Attorneys General, for Plaintiff and Respondent.
Kent S. Scheidegger and Kymberlee S. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae
on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Steven A. Torres
Torres & Torres
3579 East Foothill Boulevard
Pasadena, CA 91107
(626) 836-5855
Annie Featherman Fraser
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9137