P. v. Johnson

Filed 9/14/06 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, III, Judge. Reversed.

The People filed an information charging Adrian Oakley Johnson with attempted murder (Pen. Code, §§ 644, 187, subd.(a), count 1)^[1]; assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), counts 2 and 7); corporal injury to a spouse and/or roommate (§ 273.5, subd. (a), count 3); dissuading a witness and victim from testifying (§136.1, subd. (a)(1), count 4); kidnapping (§ 207, subd. (a), count 5); making a criminal threat (§ 422, count 6); and battery of a current or former significant other (§ 243, subd. (e)(1), count 8). As to counts 1 through 4, the information alleged he personally inflicted great bodily injury (§ 12022.7, subd. (e)) and committed these counts while on bail for a felony offense (§12022.1, subd (b)). A strike prior also was specially alleged. (§§ 667, subds. (b) -(i), 668, 1170.12.)

Johnson pled guilty to count 8; counts 3 and 7 were dismissed. A jury convicted him of count 2 and its accompanying enhancements, but acquitted him of the other counts. The court struck the enhancement regarding bail because Johnson was on bail for a misdemeanor and not a felony. Johnson admitted his prior strike in bifurcated proceedings. Johnson was sentenced to 12 years in state prison as follows: the upper term of 8 years for count 2, plus 4 years for the great bodily injury enhancement.

Johnson contends, and we agree, the trial court prejudicially erred in excluding his mother and sister from the voir dire stage of the trial in which the jury was selected. Because we reverse the judgment, we do not address Johnson's claims regarding instructional and sentencing errors.

FACTUAL SUMMARY

The facts concerning the underlying conviction are not central to the disposition of this case; accordingly, we omit them. Instead, we focus on the trial court's explanations of its reasons for excluding Johnson's mother and sister from the voir dire stage of jury selection. Before the start of voir dire, the court and the parties discussed the matter off the record. Later, on the record, the court separately explained its reasoning to the parties, Johnson's mother, and his sister. We reproduce in toto each explanation.

First, the court stated to counsel, "As to the issue of a family member coming into court, I made a quick inquiry for several issues related to confidentiality because we're operating under, for all practical terms, anonymity related to the witness list and the names that are on the random list.

"You've asked to bring in the family members of the defendant. While it is a public courtroom and there hasn't been an order to close this courtroom from the public, and there really isn't any good cause to do that, the issue remains: Jury selection, confidentiality related to their names, not the information but to their names, the only way to allow that family member in is if we switch gears and go straight by numbers. However, we can't do that because all the seats in this courtroom are not numbered and there's no way to fill the panel on numbers alone.

"[Johnson's counsel]: I understand that, your honor. I'm not sure what confidentiality we're talking about. The jurors' --

"[The Court]: Confidentiality related to their names. It doesn't extend to all their information that is on the record. But their names are technically supposed to be confidential, supposed to be a completely anonymous process, jury selection. And so we're in a situation where we have serious charges with allegations of, at least as far as the background of the defendant is concerned, gang allegations. Those are exactly the types of situations that jurors become concerned about their names.

"And I'm not saying that the defendant will not have access to him hearing them. The point is that we are breaching that confidentiality related to their names by calling them out with family members present.

"[Johnson's counsel]: Your honor, I know that they do this in federal case where the mafia cases are tried in New York and nobody even knows their names. And I wouldn't know their names, either. And I don't know whether there's a special procedure that you have to go through --

"[The court]: Well, our local rules are that we are supposed to preserve that issue, the confidentiality, by pulling back the random list and sealing those so that nobody has access to them.

"[Johnson's counsel]: Is that in any case?

"[The court]: Yes." [Emphasis added.]

Second, the court told Johnson's mother, "I made an error. I instructed your attorney that it would be all right for you and the family members to be here during jury selection. That was an error.

"Based on our local rules related to confidentiality in the jury selection process, the names of the jurors are, by our local rules, not available to the public in any way, shape or form. By having you in the courtroom during the jury selection, coupled with the nature of the charges and at least the allegations of gang-related background of the defendant in this case, it gives me a great deal of concern. And therefore, I am instructing you at this time, due to the limited seating, our rules of confidentiality, that I will not allow family members in the courtroom during the jury selection process because I have no way of keeping the names of the jurors confidential.

"So you will be allowed in as soon as we complete the jury selection process, all right? That is against your attorney's objection, and I'm noting that on the record. He wants you here; Mr. Johnson wants you here. But I cannot, under the local rules and that sense of anonymity that the jurors are entitled to, allow you or the family members to be here during the selection process." [Emphasis added.]

Third, the court explained to Johnson's sister: "[T]he reason you're not in this court is because I made a decision. We have rules of court related to the confidentiality issues, and I felt, based on the nature of the charges in this case, some of the underlying character-type evidence that may come in, that coupled with the confidentiality issues related to prospective jurors that it was best to exclude you from the courtroom during the jury process. And that is only for the jury selection process.

"That is, again, against your -- Mr. Johnson's attorney's wishes. He wants you here, present in this courtroom, but I have ruled that due to those confidentiality issues, while the jury selection is going on and their names are referred to and things of that nature, you are not to be present in the court." [Emphasis added.] The following discussion ensued:

"[Johnson's sister]: Okay. Is there a motion -- I mean, is there a basis on that? Do you feel that we will be --

"The Court: Notice^[2] doesn't have anything to do with what I feel towards you or your mother. It's what I feel about the facts of this case and my need to comply with the rules of confidentiality related to the names of the jurors.

"[Johnson's sister]: Okay.

"The Court: If ahead of time -- this court cannot handle numbering each and every juror. Only 24. We can only go up to no. 24. If I could handle giving each juror a number, all prospective jurors, that would have been different. But I cannot handle that. I can only number 24 people. The rest have to be referred to by their name. So that causes that issue to arise. All right?

"It has nothing to do with whether or not I believe somebody will jot down their name or anything of that nature.

"[Johnson's sister]: I just feel that we're his family members; we have a right to be there. And unless there was a motion by the D.A. to exclude us from being present during his trial or any proceedings for that matter, I just feel that we have a right to be here.

"The Court: You do have a right, but I also have the discretion to close the courtroom if there is an issue of confidentiality related to jurors, and I've done that."

DISCUSSION

A criminal defendant has a right to a public trial under both the Sixth Amendment of the United States Constitution, made applicable to the states under the Fourteenth Amendment, and the California Constitution. (Cal. Const., art. I, § 15.) The First and Sixth Amendments of the United States Constitution protect the public's right to attend voir dire proceedings. (Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501, 511 (Press-Enterprise); Waller v. Georgia (1984) 467 U.S. 39, 46 (Waller) ["[T]here can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public"]; Richmond Newspapers v. Virginia (1980) 448 U.S. 555, 580 (Richmond Newspapers).)

The right to a public trial is longstanding. "This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage." (In re Oliver (1948) 333 U.S. 257, 266.) "By the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant." (Gannett Co. v. DePasquale (1979) 443 U.S. 368, 387, footnote omitted.)

The several protections afforded by the right to a public trial have been explained in the following ways: "No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." (Press-Enterprise, supra, 464 U.S. at p. 508.) "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their function." (In re Oliver, supra, 333 U.S. at p. 257, fn. 25.) "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case: 'The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.' " (Richmond Newspapers, supra, 448 U.S. at p. 572.)

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." (Press-Enterprise Co. v. Superior Court of California, supra, 464 U.S. at p. 510.) The right to a public trial is not absolute, and it may be abridged in certain circumstances not applicable here. (Richmond Newspapers, supra, 448 U.S. at p. 581 and fn. 18.)

The People acknowledge Johnson objected to the exclusion order at trial, but contend he waived his claim of error because he did not specifically object that the order violated his constitutional right to a public trial, or was based on the excluded persons' status as his family members. However, as Johnson points out, the record is incomplete regarding Johnson's objections in off-the-record discussions. "Given the fact that defense counsel made a specific objection to the precise judicial procedure in question, we are not inclined to find a waiver of a fundamental constitutional right based upon suppositions, speculation and conjectural inferences drawn from . . . the record." (People v. Harris (1992) 10 Cal.App.4th 672, 683 (Harris).)^[3]

The trial court's reason for the exclusion order, reduced to its essence, was that under the court's local rules, prospective jurors were entitled to remain anonymous; the presence of Johnson's mother and sister somehow threatened that anonymity; and, the court had no other recourse for preventing that outcome.^[4] However, the court presented no valid reason for the exclusion.^[5] No specific findings supported it. The court's order was not narrowly tailored to accomplish its stated goal.

Important to the resolution of this case is that the data the trial court sought to maintain confidential was merely the names of prospective jurors, and not highly personal or embarrassing information that, in a particular case, they would have a valid interest in not disclosing. "The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain." (Press-Enterprise, supra, 464 U.S. at p. 511.) Code of Civil Procedure section 237, subdivision (a)(2)^[6] does not contemplate confidentiality in jurors' identifying information prior to the verdict. We also agree that, "As to most of the information sought during voir dire, it is difficult to believe that when a prospective juror receives notice that he is called to serve, he has an expectation, either actual or reasonable, that what he says in court will be kept private. Despite the fact that a juror does not put himself voluntarily into the public eye, a trial is a public event. [Citations.] And, as the [c]ourt makes clear today, voir dire, like the trial itself, is presumptively a public proceeding. The historical evidence indicates that voir dire has been conducted in public and most prospective jurors are aware that they will be asked questions during voir dire to determine whether they can judge impartially." (Press-Enterprise, supra, at p. 514, fn 1, Blackmun, J. concurring.)^[7] At any rate, here, whatever right the prospective jurors had to confidentiality of their names could not be elevated above a defendant's right to a public trial guaranteed by the United States Constitution.

The trial court made no specific findings that exclusion was necessary. It specifically disavowed any claim it believed Johnson's family would engage in wrongdoing when it stated, "It has nothing to do with whether or not I believe somebody will jot down their name or anything of that nature." As the court noted, the prosecutor did not file a motion for exclusion, as he or she was permitted to do. Instead, the court apparently decided the issue on its own, relying on its understanding "allegations of gang-related background of the defendant" were involved in this case. Significantly, the information did not charge Johnson with any gang enhancement. The court justified its decision in part by declaring, "we're operating under, for all practical terms, anonymity related to the witness list and the names that are on the random list." The court's assertions regarding Johnson's gang-related background did not qualify as findings under the applicable standard because they did not identify a demonstrable history or likelihood of obstruction of justice on the part of the defendant or others acting on his behalf or a showing that trial evidence would depict a pattern of violence by the defendants and his associates such as would cause a juror to reasonably fear for his or her own safety.

Even assuming that in this case the jurors had a protectable interest in the confidentiality of their names, the exclusion order was not narrowly tailored to safeguard that interest. Lesser restrictive alternatives to exclusion that were readily available included admonishment of Johnson's family by the court, under pain of contempt, to keep the names of the prospective jurors and jurors confidential and not threaten the jury in any way. Also, the court could have assigned each juror a number and kept a master list of the prospective jurors' names that only the court, counsel and the defendant would be able to consult. As a last resort, it might have been permissible to exclude Johnson's family from the portion of the voir dire in which the prospective jurors stated their names, and before the start of substantive questioning.

When the court claimed it could not handle identifying more than 24 prospective jurors using numbers, it was referring to a mere logistical or administrative inconvenience. Even if only 24 seats were numbered, the other seats or the remaining prospective jurors could have been assigned numbers in some fashion. Whatever difficulty the trial court faced, it was not "beyond the realm of the manageable." (Richmond Newspapers, supra, 448 U.S. at p. 581.) No administrative inconvenience that might have resulted from a less restrictive alternative to exclusion implicated any

" 'higher values' than that of a criminal defendant's constitutional right to a public trial." (Harris, supra, 10 Cal.App. 4th at p. 686.) Thus, the trial court's exclusion order was not justified under the test enunciated in Press-Enterprise and Waller.

The court singled out Johnson's mother and sister for exclusion without any particularized finding they would misuse jury identifying information; pose a realistic threat of violence to the jury; or engage in obstruction of justice or jury tampering. The record does not specify whether other spectators were in the courtroom, but any other individuals present might have jeopardized the interest the court sought to protect. The court tacitly acknowledged that, as a practical matter, the exclusion order was of limited usefulness because the defendant would be present during voir dire and learn the names. Separately, we note that if the exclusion was based on the persons' status as the defendant's family members it was impermissible. (People v. Cummings (1993) 4 Cal.4th 1233, 1299 [finding that police officers may not be excluded from a trial based on their profession].)

The People contend, regarding the appropriate remedy in this case, "Assuming arguendo the trial court erred by excluding appellant's mother and sister from jury voir dire, reversal is unwarranted because the error was a trial error which was harmless beyond a reasonable doubt." The People add, "Appellant's jury voir dire, like the rest of his trial, remained open to the public. The trial court did not prevent appellant's mother and sister from attending the rest of the trial. As two more spectators to the jury voir dire, appellant's [mother and sister] would have contributed nothing to the voir dire process."

The United States Supreme Court has held that a defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee. "While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real. [Citations.] . . . 'The harmless error rule is no way to gauge the great, though intangible societal loss that flows' from closing courthouse doors." (Waller, supra, 467 U.S. at p. 49 and fn. 9 [cited approvingly in U.S. v. Gonzalez-Lopez (2006) 548 U.S. ___ (2006) [126 S.Ct. 2557]].)

California authority is in accord. (People v. Byrne (1948) 84 Cal.App.2d 72, 78-79, expressly approved in People v. Pompa-Ortiz (1980) 27 Cal.3d. 519, 527.) "The question whether the trial was public and the question whether actual prejudice was shown have occasionally been considered together as if the latter were controlling as to the former, and some courts have reached the conclusion that if the presence of a few spectators is permitted this gives the trial a public character, if no actual prejudice be shown. This, as we have pointed out, is merely to hold that the accused is not entitled to a public trial in the true sense." (People v. Byrne, supra, at pp. 78-79.) "We have not found any case in which the court has pointed out how a defendant would go about proving actual prejudice." (Id., at p. 79.) The analysis in People v. Feagin (1995) 34 Cal.App.4th 1427, 1439-1440, which applied the harmless error standard enunciated in California v. Chapman (1967) 386 U.S. 18, 24 to a violation of the right to a public trial, was dicta because the court found the defendant waived his right to an in camera hearing regarding juror misconduct by failing to timely object. The court also found such a hearing was not one which the public or the defendant had a right to attend. (Feagin, supra, at p. 1438.) The People's reliance on Feagin is unavailing to the extent it conflicts with the holding in Waller, supra, 467 U.S. 39.

DISPOSITION

The judgment is reversed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.

^[2] Johnson claims that although the reporter's transcript states "Notice," it was a transcription error and the court actually said, "No, this."

^[3] It also is obvious, based on the court's triple recitation of its reasons for the order, that Johnson's further objection would have been futile and possibly counterproductive. (Accord People v. Hill (1998) 17 Cal.4th 800, 821 [finding that a defendant preserved his right to appellate review of claims of prosecutorial misconduct although he did not properly object to each instance of misconduct].)

^[4] The court also mentioned in passing that the courtroom could not accommodate everyone there. That concern has been recognized as a proper basis for excluding certain persons. "[S]ince courtrooms have limited capacity, there may be occasions when not every person who wishes to attend can be accommodated. In such situations, reasonable restrictions on general access are traditionally imposed." (Richmond Newspapers, supra, 448 U.S. at p. 581, fn. 18.) However, "without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged." (In re Oliver, supra, 333 U.S. at p. 271-272.)

^[5] The court did not specify the local court rule that required it to preserve confidential the names of the prospective jurors, and the parties have not provided us any citation to it.

^[6] Code of Civil Procedure section 237, subdivision (a)(2) states: "Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors, as defined in Section 194, consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section."

^[7] We do not imply that the names of prospective jurors always must be used in voir dire. It has been held that, "a procedure which does not use jurors' names aloud in court and uses instead juror identification numbers does not deny appellant his right to a public trial. There is no constitutional requirement that the jurors' names be spoken in the courtroom." (People v. Goodwin (1997) 59 Cal.App.4th 1084, 1092.) However, to avoid violation of the prohibition on anonymous juries, the names of the prospective jurors may not be withheld from the trial counsel. (Cf. People v. Phillips (1997) 56 Cal.App.4th 1307, 1309, [holding that although the trial court kept the identities of the prospective jurors confidential even from trial counsel, any error was harmless because defense counsel was provided sufficient information about the jurors to conduct an effective voir dire].)