People v. Esquibel

49 Cal.Rptr.3d 393

143 Cal.App.4th 645

The PEOPLE, Plaintiff and Respondent, v. Peter ESQUIBEL, Defendant and Appellant.

No. B165767.

Court of Appeal, Second District, Division 8.

September 28, 2006.

Martin Kassman, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

COOPER, P.J.

INTRODUCTION

Appellant challenges his conviction for four counts of attempted murder and one count of assault with a firearm. His principal contention is that the trial court improperly excluded two of his friends during the examination of a seven year-old witness. We hold the temporary exclusion of these two spectators did not result in the violation of appellant's constitutional right to a public trial. We conclude that Penal Code section 686.2 has no application to this case 686.2¹. Appellant also challenges his sentence, which we modify. In all other respects, the judgment is affirmed.

PROCEDURAL BACKGROUND

In an information filed by the District Attorney of Los Angeles County, appellant was charged with five counts² of attempted, willful, deliberate, and premeditated murder, (§§ 664, 187(a).) Count 1 further alleged that in the commission of the crime, appellant personally inflicted great bodily injury upon the victim, causing the victim to become comatose due to brain injury and to suffer paralysis. (§ 12022.7(b).) The information additionally alleged as to all counts that a principal personally and intentionally discharged a firearm, thereby causing great bodily injury to the victims (§ 12022.53, subds. (d), (e)(1)); that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)); and that a principal personally used a firearm (§ 12022.53, subds. (b), (e)). The information also alleged that the offenses charged therein were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)

Appellant was tried by a jury and found guilty of willful, deliberate and premeditated attempted murder on four counts (counts, 1, 2, 3, and 5) and guilty of the lesser included offense of assault with a firearm on one count (count 4; § 245, subd. (a)(2)). The jury found to be true the allegations in count 1 that appellant personally inflicted great bodily injury upon the victim, thereby causing the victim to suffer paralysis, and that appellant personally and intentionally discharged a firearm, thereby proximately causing great bodily injury to the victim. The jury further found to be true, as to all five counts, the allegations that in the commission of the crimes, appellant acted for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further or assist in criminal conduct by gang members. With respect to counts 2 through 4, the jury found in the commission of the offenses, appellant personally and intentionally discharged a firearm and that appellant personally used a firearm.

Probation was denied and appellant was sentenced as follows: count 1, life imprisonment, with a minimum term of 15 years on account of the gang allegation, plus 25 years to life for the use of firearm with great bodily injury enhancement, plus five years for the great bodily injury enhancement, for a total of 40 years to life plus five years; count 2, life imprisonment for attempted murder, with a minimum term of 15 years to life on account of the gang allegation, plus 20 years to life for the use of firearm enhancement. The term for count 2 was ordered to run consecutive to count 1. On counts 3 and 5, the trial court imposed concurrent sentences identical to count 2. On count 4, the trial court imposed the upper term of 4 years for assault with a firearm.

Appellant filed a filed a timely notice of appeal on March 11, 2003.³

STATEMENT OF PERTINENT FACTS

The charges against appellant arose from an egregious set of facts, the entire restatement of which is not relevant to the outcome of the appeal. What is relevant is that the charges arose from an incident where a lone gunman came into a public park and shot at a group of adults and children playing in the park. A bullet grazed one of the children. Several adults chased after the shooter, who turned and shot again. One parent [victim in count 1] was shot and paralyzed. Evidence from the incident and expert testimony suggested that the shooting was done for the benefit of a criminal street gang.

The appeal in this case concerns the trial court's decision to exclude two apparent friends of appellant from the courtroom during the examination of a seven year-old boy. The discussion regarding the presence of these spectators began prior to the opening statements in this case. On January 22, 2003, outside of the presence of the jury, the prosecutor informed the trial court that because of the "gang implications" of this case, the mother of a seven-year-old witness was "concerned about retaliation in the neighborhood." The mother asked for several accommodations to limit the possibility that her son would be identified. Specifically, she asked if he could testify under the name of John Doe, instead of his own name. The mother also was concerned about having her son testify in the room while certain persons were in the audience inside the courtroom. The prosecutor explained to the trial judge: "And she's also concerned about having — when the child testifies having audience members in the court, as well. I assured — I don't see any people who appear to be friends of the defendant as far as young males here this morning. And I know his mother who, obviously, has a right to be here. [¶] There is one other person who is present, I think, associated with perhaps a mother or an aunt of some of his fellow gang members. And I'm concerned about her presence during the testimony of the child. And I ask that she be excluded as well as any young male Hispanics that might show up this morning, just for the children's testimony."

The defense counsel indicated that she would object to all of these requests and stated: "And as far as people in the audience coming in to testify [sic], I don't think there has been a showing that there has been any intimidation or any threats by anyone. This is an open proceeding."

Defense counsel explained that the men in question were friends of appellant's family. She stated "just because the witnesses feel that for some reason they may be in danger coming here, I don't think that is a justifiable reason. There is no actual showing of danger to exclude these people from the courtroom."

The trial court indicated it understood the prosecutor was suggesting that the court exclude young Hispanic males during testimony of the child witness in question. The court added that it understood there was "implied intimidation" and that people living in a neighborhood "infested with these gang people" were concerned and frightened. However, the court acknowledged that it had not yet received any information that there was a danger to any witness at that point in time and it would have to see a danger to a witness. The trial court then denied the prosecutor's request.

Later, after her opening statements to the jury, the prosecutor engaged in the following discussion with the court:

"[Prosecutor]: I have the child's mother here. And I want a clarification first on the early ruling. I notice that there are two of the defendant's friends who have appeared since I made my motion this morning. And I would ask that during the child's testimony only that they be excluded for the reason, the reasons that I set forth. It is intimidation factor."

[¶]...[¶]

"The Court: Does the child recognize either of those?"

"[Prosecutor]: Your Honor, the mother's concern is they will recognize the child when they see him in the neighborhood. And that puts the child's life in danger. It's not that the child recognizes them. It is that they will recognize the child."

The trial judge called counsel to side bar and, after some discussion, granted the "People's motion to the court to exclude public from courtroom during minor witness's testimony...." The judge then stated:

"Certainly the Court has to recognize when we have a witness that is a young witness that we have to make certain accommodations for such a witness. I think probably the appropriate thing, if these are friends of the defendant, why don't you just ask them to wait outside for the giving of this one testimony, and they can come back in thereafter. I don't see any harm will be done whatsoever. Certainly, a child is subject to intimidation, as are adults, but a child more so. And I think it would be the appropriate thing to do under these circumstances."

Defense counsel then spoke to the judge:

"Your honor, then what I would ask this person, I have no interest — I could care less if they're here or not.⁴ I did speak with my client. He does know them. I also spoke to his family friend and told them to make sure there is no contact whatsoever between any spectator and the witnesses, no riding the elevator, no looks, nothing that could be mistaken the wrong way."

Defense counsel went on to say she would ask the two individuals to step out of the courtroom during the child witness's testimony, and she asked the trial court to take a break before the witness took the stand so the jury would not see the two individuals coming in and out of the courtroom. Defense counsel then repeated:

"I understand the district attorney's concern and I understand the position. But I just think this is an open proceeding. There has been absolutely no showing of any threats made. Li...