Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. GA067028
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on August 4, 2009, be modified as follows:
1. On page 17, the second full paragraph, beginning “Moreover, the exclusion” is deleted and the following paragraph is inserted in its place:
Moreover, the exclusion order in the present case was no broader than necessary. The trial court not only heard the representations of the prosecutor, including his representations that threats had been made and he had police reports pertaining to appellant’s family, but read the provided incident reports. Appellant disputed that threats were made, but did not dispute that the incident reports alleged that threats were made. Nor did appellant dispute that the reports alleged that threats were made by family members other than those present in court. It is true that the prosecutor ultimately indicated that the threats were made by two individuals whom the prosecutor did not expressly identify, the prosecutor never said that the police reports referred to the three spectators, and the court, after reading the incident reports, said, “I don’t know anything about the ladies who are present here in court.” However, we note the trial court did not, after reading the reports, dispute the prosecutor’s implied characterization of the reports as alleging threats by a member(s) of appellant’s family.
2. On page 17, first sentence of the third full paragraph, the word “However” is changed to “Further” so the sentence reads:
Further, the court did read the incident reports and was doubtless aware that supporters could communicate to others any information received in the courtroom.
Footnote 8 at the end of that sentence remains.
3. On page 18, the following is inserted immediately below the paragraph that begins on page 17 and ends on page 18 with “to a public trial”:
(3) None of Appellant’s Arguments Compel a Contrary Conclusion.
None of the cases cited by appellant, or his arguments, compel a contrary conclusion. This includes People v. Prince (2007) 40 Cal.4th 1179 (Prince), which concluded no infringement of the defendant’s right to a public trial occurred when the trial court closed the courtroom, excluding all spectators, during a brief portion of a witness’s trial testimony and during that portion of the jury argument pertaining to that testimony. We note appellant’s citations to Prince simply reiterate Woodward principles which we already have discussed.
People v. Esquibel (2008) 166 Cal.App.4th 539 (Esquibel), cited by appellant, does not help him. Esquibel concluded no violation of the defendant’s right to a public trial occurred when the trial court excluded from the courtroom two nonfamily friends of the defendant during the trial testimony of a juvenile witness, where the defendant’s family remained in the courtroom and the court did not order exclusion of the general public. Esquibel actually illuminates our analysis but, in any event, Esquibel certainly did not hold that a trial court’s brief exclusion of three family members from pretrial admissibility proceedings to which the general public was not excluded violated a defendant’s right to a public trial no matter what the circumstances. Moreover, although appellant suggests that Woodward, Prince, and Esquibel reflect a “march away from the basic principles in the decisions of the United States Supreme Court on the right to a public trial,” we are bound to follow Woodward and Prince. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In his petition for rehearing, appellant asserts the record is totally unclear on the point of whether “only specified spectators were excluded from appellant’s hearing and the public at large was not excluded[.]” We note the trial court in the present case expressly ordered only three spectators to leave and did not expressly order anyone else to leave. Nothing in the record of the admissibility proceedings indicates that anyone else in the general public who may have wished to enter the courtroom was barred from doing so. We note that appellant, elsewhere in his petition, asserts that Woodward held that the Sixth Amendment right to a public courtroom was to be analyzed differently “where, as here, a fraction of the public at large was excluded[.]” (Italics added.)
4. On page 24, the second full paragraph, beginning “Here too” is deleted and the following paragraph is inserted in its place:
Here too, the court instructed the jury, using CALJIC No. 2.90, on reasonable doubt, and instructed on the elements of first degree murder and attempted second degree robbery. Moreover, the court, using CALJIC No. 2.50, instructed the jury during the final charge that they were to consider the Roa robbery only on a limited number of issues, including intent. We presume the jury followed the instructions. (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Callahan (1999) 74 Cal.App.4th 356, 372.) To the extent the prosecutor, during jury argument, related the Roa robbery to the issue of identity in the present case, the trial court, using CALJIC No. 1.02, instructed the jury that statements by an attorney were not evidence and, using CALJIC No. 1.00, instructed the jury that if anything concerning the law said by the attorneys in their arguments conflicted with the court’s instructions on the law, the jury was required to follow the court’s instructions. Again, the court instructed on the limited issues for which the jury was to consider the Roa robbery. Fairly read, the instruction indicated identity was not such an issue. The jury is presumed to have followed that instruction. The trial court did not err by admitting evidence of the Roa robbery.
5. On page 26, the following paragraph is inserted immediately below the first full paragraph that ends with “appellant’s bad character”:
People v. Henderson (1976) 58 Cal.App.3d 349 (Henderson), cited by appellant, does not compel a contrary conclusion. In Henderson, a divided panel concluded that a defendant’s mere concurrent possession of two loaded guns, one of specified caliber, the other of unspecified caliber, in his home was irrelevant to the issue of whether the defendant intended to commit assault with a deadly weapon in his home when only the gun of specified caliber was identified as the gun used during the alleged assault. In the present case, there was evidence, from the Roa robbery, the present offenses, and the recovery of the gun on the refrigerator, of appellant’s possession (actual or constructive) of a gun of the same specific nine-millimeter caliber on three different respective dates at three different locations. The present offenses were committed at one of the three locations, and that location was not appellant’s home. Appellant does not claim the gun used in the present offenses was known or identified. The challenged evidence was relevant, not to the issue of whether appellant intended to commit assault with a deadly weapon, but to the issue of whether appellant possessed and used a gun of the same specific caliber to commit the present offenses, and to the issue of Gonzalez’s credibility. (See People v. Riser (1956) 47 Cal.2d 566, 577.)
There is no change in the judgment.
Appellant’s petition for rehearing is denied.