Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel S. Murphy, Judge. Affirmed in part; reversed and remanded in part. Los Angeles County Super. Ct. No. VA086169.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant and his fellow gang member, Carlos Nava, stood in the street and blocked the vehicle driven by Louis Alberto Zamora. They challenged Zamora to fight them. As Zamora watched appellant throw gang signs, Nava pulled out a gun and shot Zamora in the head and body. Zamora was severely injured but survived. We recently affirmed Nava’s conviction. Appellant had a separate trial. He was convicted of attempted premeditated murder (count 1) and shooting at an occupied motor vehicle (count 2), with findings that the offense was committed for the benefit of a criminal street gang, and a principal intentionally discharged a firearm, causing great bodily injury. He was sentenced on count 1 to life with the possibility of parole, plus 25 years to life for the firearms enhancement. Count 2 was stayed (Pen. Code, § 654). One of the court’s orders requires appellant to pay $2,543.13 in attorney fees.
Subsequent statutory references are to the Penal Code unless otherwise stated.
Appellant contends: (1) His constitutional right to a public trial was violated when the trial court excluded his two male cousins from the courtroom during the testimony of an eyewitness. (2) If that issue was waived for lack of an objection, he received ineffective assistance of counsel. (3) There were prejudicial errors in the instructions on aiding and abetting. (4) The evidence was insufficient to support his conviction. (5) The trial court erroneously denied his posttrial motion to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). (6) This court must review for error the in camera proceedings that occurred pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). (7) He should not have been ordered to reimburse the cost of his defense.
Respondent concedes the need for a remand for a hearing on appellant’s ability to pay for counsel. We remand on that issue, and otherwise affirm.
FACTS
Appellant and Nava belonged to the Little Rascals 87th Street clique of the Florencia 13 gang. Members of that clique frequently congregated at the home of a gang member named Ricky G. He lived at the third building from the corner of 83rd Street and Maie Avenue.
On the afternoon of November 3, 2004, appellant, Nava and other members of the gang attended a meeting at Ricky’s house.
Jessica A. was outside that afternoon, on the steps of the apartment building next to Ricky’s house, one building closer to the intersection. Jessica had previously lived in the area for years but was visiting relatives on this particular day, as she had moved away. She observed that appellant, Ricky, and a few other “guys” were “hanging out” at Ricky’s house. She was aware that Ricky was a gang member. She did not know appellant’s real name but knew him by his gang moniker, “Boxer.” She and appellant had previously said “hi” and “bye” to each other. He once asked her out for a date but she declined.
Jessica saw the group of guys move from Ricky’s house to the corner of 83rd and Maie. Appellant and another guy separated from the others and proceeded on toward the street.
Zamora was in the intersection, driving home from work, as appellant and Nava approached. Zamora was 23 years old, appellant was 18 years old, and Nava was 16 years old. He was not a gang member and did not know either appellant or Nava. On two previous occasions, appellant had waved his hands at him, as if wanting to fight. This time he saw appellant and Nava on his right, standing in the street, holding bicycles. They moved in front of his car and gestured with their hands, as if wanting to fight. Appellant displayed gang signs. Nava then fired multiple gunshots, hitting Zamora in the head and body, and causing his car to crash.
Jessica looked toward the intersection when she heard gunshots. She saw one of the two guys with his arm extended. She mistakenly thought that person was the appellant, as all the other evidence indicated that Nava was the shooter. She saw appellant and Nava run back to Ricky’s house. When the police arrived, she told them what she had observed. She later selected appellant’s photo from a photographic lineup.
Appellant was arrested on November 22, 2004. He told police detective Frank Bravo that he was “Boxer” of the “Florencia Trece [13] Little Rascal[s].” He initially denied being present when the shooting occurred. Bravo told him that witnesses identified him as the shooter. He then said he was present but was not the shooter. He was reluctant to disclose the shooter’s identity, but then decided that he did not want to take the blame for another person’s acts. He told Bravo that Nava was the shooter and gave this description of the crime:
After the meeting at Ricky’s house, appellant and Nava decided to go to the store on their bicycles. When they were at the intersection, they saw a white car. The car made a U-turn and came back. Appellant flashed gang signs, believing that the driver was a rival gang member. He thought he had seen the driver before. He was not sure the driver threw gang signs, “but he believed the driver had flipped him off.” Nava pulled a gun from his waistband. Appellant heard shots and saw Nava fire at the car. He then returned to Ricky’s house.
Appellant showed Bravo where Nava lived. He also telephoned Nava from Bravo’s desk. That call was tape recorded, and the jury heard it at the trial. Appellant complained to Nava that the police were blaming him for the shooting and did not know about Nava. He asked Nava to do the right thing. They discussed the incident. Nava said he stopped traffic while appellant was in the middle of the street. Nava thought a lady watched him while he was “doing that shit.” Appellant asked Nava how many times he fired when he “shot that fool.” Nava was evasive. Appellant told him to make sure the gun was gone. Nava assured appellant that he had given the gun to appellant’s brother, who disposed of it.
Appellant also called his brother from Bravo’s desk. He told his brother that he had been arrested. His brother advised him to say only that he was present, heard shots, and ran. Appellant said that was what he had told the police. He wanted to know who “did it.” His brother told him not to give any names. He also told him that the police had no case without fingerprints on the gun.
Detective Hector Velasquez interviewed appellant the following day. Appellant said he belonged to the Little Rascals 87th Street clique of the Florencia 13 gang, which claimed that area as its turf. This time he said he had never seen the man in the white car before. When he identified his gang to the man, the man looked at him and said, “Fuck you-all fools.” To appellant, those words meant the man “was just up to no good.” Appellant motioned to the man to get out of the car and fight. The man started to drive off. Appellant picked up his bicycle and then heard gunshots.
At the trial, Detective Velasquez also testified as a gang expert. He discussed the territory and history of the Florencia 13 gang and the Little Rascals clique. He described the activities of the Little Rascals 87th Street clique of the Florencia 13 gang and specific crimes its members had committed. Gang members must “put[] in work” to acquire more respect in the gang, which means they must commit criminal acts that benefit the gang. They use hand signs to identify themselves. Activities of the Little Rascals 87th Street clique of the Florencia 13 gang included writing graffiti, protecting its turf, challenging outsiders, and violently assaulting rivals.
Velasquez further explained that an unknown person who drove through a gang’s territory could be challenged and attacked, to establish respect for the gang and to prevent other gangs from coming into the area. A gang member who made such a challenge would acquire respect in the gang, particularly if the challenge occurred in front of other gang members. Gang members tended to commit such crimes in groups. One or more members of the group would be armed. The gang member who made the actual challenge would know which gang members had weapons. The person who challenged the perceived rival gang member could expect that a shooting would occur, as he would think the rival gang member had come to the area to do harm. If two gang members walked away from a group of other members of their gang and approached an unknown car, and one of them threw gang signs, and the other shot the driver, the crime would elevate the status of the perpetrators within the gang. It would also benefit the gang’s effort to control the community by increasing fear of the gang.
Finally, there was evidence that appellant had tattoos and had written letters that showed his allegiance to the gang and appeared in a photo throwing a gang sign.
DISCUSSION
1. Exclusion of Appellant’s Two Cousins
Appellant maintains that his constitutional right to a public trial was violated because the trial court excluded two of his cousins from the courtroom during the testimony of Jessica.
A. The Record
Late in the morning on July 6, 2006, during presentation of the People’s case, the prosecutor said that Jessica would be called as a witness that afternoon, and she might recant her previous statement. She feared testifying, and it had been difficult to secure her presence in the courtroom. She had come to court only because she had been personally served and warned that a body attachment would issue if she did not appear. She had previously said that she knew appellant from the neighborhood, he was one of the two people involved in the shooting, and she thought he was the shooter. She had also picked out his photo from a photographic lineup.
When proceedings resumed that afternoon, the court said there had been a discussion off the record about Jessica’s concerns with people who were in the audience. The prosecutor explained that Jessica had family in the area of the shooting and knew many of the gang members. She knew appellant and some members of his family, including his brother. Several weeks before the trial, she had been beaten up by gang members she did not recognize when she was in that area. It had been necessary to physically drive her to court. She said she was afraid that members of appellant’s family would see her and tell other people that she had testified. The prosecutor therefore requested that appellant’s family members be excluded from the courtroom, solely for Jessica’s testimony.
The court asked defense counsel to respond. He said that two of appellant’s male cousins were in the audience. One lived in “the Valley,” and the other in Lynwood. He further indicated that neither cousin was affiliated with a gang. The trial court observed that it did not appear that the men were gang members, as they looked “pretty clean-cut.” The prosecutor responded that the cousin from Lynwood “lives in the area.” The court asked, “Any objection to these two remaining?” Defense counsel did not respond. The prosecutor answered, “We do have an objection based on her fears.” The court ruled: “Based upon her fears and I believe there’s an expression -- the witness expressed credible concerns for her safety and therefore, I request you two wait outside. [¶] You’ll be notified when her testimony is over and come back in and watch the remainder of the testimony.”
“Unidentified persons” then left the courtroom. The record contains nothing further about exclusion of the cousins. We assume they were notified when Jessica’s testimony ended, as the trial court promised.
B. Analysis
“A criminal defendant has a right to a public trial that is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 15 of the California Constitution.” (People v. Prince (2007) 40 Cal.4th 1179, 1276, citing Waller v. Georgia (1984) 467 U.S. 39, 46, & People v. Woodward (1992) 4 Cal.4th 376, 382; see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, §§ 351-359, pp. 511-520.) Appellant maintains that Jessica’s fears were insufficient to justify the infringement of his right to a public trial that occurred when his two cousins were excluded from the courtroom, since his cousins were not gang members, were clean-cut, and had done nothing to disrupt the proceedings or to intimidate Jessica.
Respondent counters that appellant waived the issue because when the discussion ended and the trial court asked if there was an objection, the prosecutor objected to the cousin’s presence, but defense counsel remained silent. We recognize that “the constitutional guarantee of a public trial may be waived by acquiescence of the defendant in an order of exclusion.” (5 Witkin & Epstein, Cal. Criminal Law, supra, § 356, pp. 515-516; see also People v. Bradford (1997) 14 Cal.4th 1005, 1046; People v. Lang (1989) 49 Cal.3d 991, 1028.) We decline to find waiver here because, prior to the time the trial court asked if there was an objection, defense counsel had already protested that the cousins were not gang members and did not live in the area. We construe that protest as an adequate objection. We therefore do not address appellant’s alternate argument that his counsel was ineffective for failing to object. Proceeding to the merits: “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” (Waller v. Georgia, supra, 467 U.S. at p. 45.) Closure of portions of a trial may also be justified, in unusual circumstances, “to promote the interests of justice or for the protection of witnesses or parties.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1308.)
In Waller v. Georgia, supra,467 U.S. at page 48,the Supreme Court held that closure of an entire pretrial suppression hearing was unjustified. To justify complete closure, there must be an overriding interest that is likely to be prejudiced, the closure must be no broader than is necessary to protect that interest, reasonable alternatives to closure must be considered, and there must be adequate findings to support the closure. (Id. at p. 45.)
Subsequent decisions have clarified that Waller v. Georgia’s rules for total closure do not apply to partial closure, including partial closure in which members of the defendant’s family are excluded solely for the testimony of one witness. In partial closure cases, the reviewing court must determine “whether the trial judge had a substantial reason for the closure” and “whether the closure was narrowly tailored to exclude spectators only to the extent necessary to satisfy the purpose for which it was ordered.” (U.S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, 1357; see also Woods v. Kuhlmann (2d Cir. 1992) 977 F.2d 74, 76.)
As respondent points out, exclusion of a defendant’s family members has been previously upheld in:
(1) U.S. v. Sherlock, supra, 962 F.2d at page 1357 (witness was victim of alleged rape; exclusion of defendants’ family members during her testimony was justified by the facts she became emotional soon after her testimony began, she feared speaking before the family members, and some family members made faces and giggled during the testimony);
(2) Woods v. Kuhlmann, supra, 977 F.2d at pages 76 through 78 (witness was afraid to testify in front of the defendant’s family members because at least one of them had previously tried to dissuade her from testifying; exclusion of the entire family was justified as any family member who remained might talk to the others);
(3) Martin v. Bissonnette (1st Cir. 1997) 118 F.3d 871, 875 (defendants’ mother was properly excluded from the courtroom, along with other members of his family who had actually attempted to intimidate the witness); and
(4) People v. Frutos (1984) 158 Cal.App.3d 979, 988 (prosecution witness was the defendant’s uncle; prosecutor’s request to exclude defendant’s family during the witness’s testimony was properly granted because the witness was visibly uncomfortable and reluctant to testify in front of family members).
Appellant stresses language in In re Oliver (1948) 333 U.S. 257, 271-272, which states: “[W]ithout 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.” That statement is only dictum, as Oliver actually was a “one-man grand jury contempt case[]” in which the defendant was “tried, convicted, and sent to jail, when everybody else [was] denied entrance to the court, except the judge and his attach[é]s.” (Id. at p. 271.) Numerous subsequent cases have refused to interpret Oliver to mean that family members can never be excluded, or that there is a special standard for excluding them. (See, e.g., U.S. v. Sherlock, supra, 962 F.2d at p. 1357; Martin v. Bissonette, supra, 118 F.3d at p. 876.)
Appellant’s briefing also cites section 686.2, which lists the findings that must be made before the trial court orders removal of a spectator who is intimidating a witness. That statute is inapposite here, since the problem did not concern intimidation by the cousins.
Here, the prosecutor told the court that Jessica was afraid to testify because she knew and feared members of appellant’s family and had been beaten up, several weeks before the trial, by unknown gang members in that area. Since appellant was a gang member in that area, and Jessica had previously identified him to the police, she could reasonably believe that she had been beaten to prevent her from testifying at the upcoming trial. Even though the perpetrators of the beating were not identified, and appellant’s two cousins did not look like gang members, the unusual fact of the beating, added to the other facts stated by the prosecutor, amply justified temporary exclusion of appellants’ family members, solely while Jessica testified.
In general, we do not condone exclusion of a criminal defendant’s family members from the defendant’s trial. We simply hold that, on the showing made by the prosecutor in this case, no error occurred when the trial court excluded the two cousins from the courtroom, solely for Jessica’s testimony, since there was a substantial reason for the partial closure and it was narrowly tailored to satisfy the purpose for which it was ordered.
Finally, assuming any error regarding temporary exclusion of the cousins, there was no possible prejudice. Unlike erroneous total closure, which is prejudicial per se, erroneous partial closure is reviewable under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Woodward, supra, 4 Cal.4th at p. 387; People v. Feagin (1995) 34 Cal.App.4th 1427, 1439.) The evidence included multiple incriminatory statements by appellant, when he was interviewed by two different detectives, and during the telephone calls he made to Nava and to his brother. He was identified both by the eyewitness Jessica, who knew him, and by Zamora, who miraculously survived to make that identification. Due to the overwhelming evidence of guilt, we are confident that any error in exclusion of the two cousins was harmless beyond a reasonable doubt.
2. Instructions on Aiding and Abetting
Appellant maintains that the jury should not have been instructed on aiding and abetting an attempted murder because there was insufficient evidence to support either of the prosecutor’s theories of aiding and abetting. Those theories were that appellant either (1) knew about Nava’s gun and intended to commit an assault with the gun and attempted murder, or (2) did not know about Nava’s gun, but intended to commit an assault or a breach of the peace (the target crimes), because he ran up to Zamora, threw gang signs, and challenged him to fight, and the shooting was the natural and foreseeable consequence of the target crimes he intended. The jury was instructed on both those theories.
The “natural and probable consequences” doctrine of aiding and abetting was explained in People v. Prettyman (1996) 14 Cal.4th 248, and applied in the context of gang shootings in People v. Montes (1999) 74 Cal.App.4th 1050, 1055-1056, and People v. Hoang (2006) 145 Cal.App.4th 264, 273-274. Under Montes and Hoang, when the defendant was present but another member of his gang was the actual shooter, the defendant’s liability for aiding and abetting an attempted murder could be based on the target offenses of simple assault and breach of the peace (in Montes) or assault with a deadly weapon (in Hoang), due to the high potential that verbal taunting can quickly escalate into violence and gunfire.
Appellant argues that since Zamora testified that he never belonged to a gang “the premise that a verbal confrontation with a rival gang member is likely to result in a shooting is inapplicable.” The contention lacks merit.
The shooting resulted from gang violence, even though Zamora was not a gang member. Indeed, appellant told the detectives he thought Zamora belonged to a rival gang, or at least “was just up to no good.” The evidence showed that the group of gang members walked to the corner together after the gang meeting. Appellant and Nava separated from the group, walked into the street, stopped Zamora’s car, and challenged him to fight. As Zamora watched appellant throw gang signs, Nava pulled out a gun and immediately fired. The nature of the crime, including the fact that other gang members were watching and Nava almost immediately fired his weapon, strongly suggested that appellant and Nava intended a shooting to impress the rest of the gang.
Moreover, according to Detective Velasquez, challenges to unknown vehicles in a gang’s territory are a common way for gangs to assert authority. Gang members who commit such challenges know that violence and shooting may result from them. One or more of their companions is likely to be armed, and they know which of their companions has a gun. By committing such challenges and violent crimes, they enhance their respect within the gang and increase fear of the gang in the community.
From the above evidence, the jury could reasonably infer that appellant was liable as an aider and abettor on the prosecutor’s theories, either because he knew about Nava’s gun and intended that a shooting would occur, or because he intended at least an assault or a breach of the peace by stopping Zamora’s car and challenging him to get out of the car and fight, and the shooting was a natural and probable consequence of the crime he intended. The instructions on aiding and abetting were therefore appropriate.
3. Sufficiency of the Evidence
Applying the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find that there was sufficient evidence to support appellant’s conviction. Indeed, as previously indicated, the evidence of his guilt was overwhelming.
4. The Marsden Issue
After the jury’s verdict, out of the presence of the prosecutor, appellant read aloud his written motion pursuant to Marsden, supra, 2 Cal.3d 118, in which he sought to substitute counsel. We have reviewed the Marsden hearing and find no abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 681.)
5. The Pitchess Issue
In response to appellant’s motion pursuant to Pitchess, supra, 11 Cal.3d 531, the trial court reviewed in chambers the prior complaints regarding Deputy Bravo. We have reviewed the in camera proceedings and find no error in the trial court’s rulings. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
6. Reimbursement of the Cost of the Defense
Pursuant to section 987.8, subdivision (b), if a trial court determines that a defendant has the present ability to pay all or part of the cost for his court-appointed legal assistance, the court shall order the defendant to make that payment. At the sentencing hearing, the trial court ordered appellant to pay attorney fees of $2,543.13, without specifying the source of that figure, or determining appellant’s present financial ability. Both sides agree that we must reverse the order for attorney fees for compliance with the notice and hearing procedures set forth in section 987.8, subdivision (b). (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 (Flores).)
In the reply brief, appellant maintains that remanding for a hearing on his ability to pay would be a waste of time. We recognize that, according to the probation report, at the time of the crime appellant had been working at minimum wage for one month as a cashier at a fast food restaurant, had no assets, and had poor income stability. Even so, we follow the procedure prescribed by our Supreme Court in Flores, supra, 30 Cal.4th at pages 1068-1069.
DISPOSITION
The order requiring appellant to pay attorney fees is reversed and remanded for compliance with the notice and hearing procedures set forth in section 987.8, subdivision (b). In all other respects, the judgment is affirmed.
We concur:
COOPER, P. J., RUBIN, J.