Opinion
D073594
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN RICHARD SHEPLER, Defendant and Appellant.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR003382) APPEAL from a judgment of the Superior Court of San Bernardino County, J. David Mazurek, Judge. Affirmed. Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Kevin Richard Shepler of three counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a); counts 1-3) and one count of continuous sexual abuse of a child (§ 288.5, subd. (a); count 8). The court sentenced Shepler to a total term of 28 years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
The jury was unable to reach a verdict on counts 4 through 7 and those counts were dismissed.
Shepler contends: (1) the court erred in denying a mistrial when two jurors inadvertently read redacted portions of an interview transcript; (2) the court erred in allowing the minor victim to testify with a support dog present; and (3) the court erred in excluding a friend of Shepler from the courtroom during the minor victim's testimony. We disagree with each of these contentions and, therefore, affirm the judgment.
DISCUSSION
Because the factual details of the conviction are not pertinent to the issues raised on appeal, we confine our discussion to the factual and procedural background necessary to resolve each issue.
I
Motion for Mistrial
Shepler first contends the court erred in denying his motion for mistrial because some jurors inadvertently saw redacted portions of a transcript of an interview of the minor victim. We disagree.
"In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
Shortly after a videotaped interview of the minor victim began playing for the jury, the prosecutor advised the court the wrong transcript was provided and indicated there were problems with two pages. The court immediately advised the jury not to turn to the pages and to pass the transcripts back quickly. One juror and an alternate indicated they had seen the pages.
The prosecutor intended to redact from the transcript hearsay statements in which the minor relayed information the minor had heard about Shepler punching one of the minor's brothers in the chest, causing bruises. The portions of the testimony were lined out, but were still legible. Defense counsel moved for a mistrial.
The court stated the transcript should have been redacted and the excluded information showed more than physical discipline. When the court inquired, two jurors stated they read portions of the transcript that had lines through them. Both jurors stated they would have no trouble following the court's instruction not to consider any portion of what they read that was lined out. The court instructed the jury, "So if you read it, disregard it and consider it as if it didn't exist."
We presume the jury followed the instructions of the court absent any contrary indication. (People v. Gray (2005) 37 Cal.4th 168, 217.) In People v. McNally (2015) 236 Cal.App.4th 1419 the trial court's instruction to disregard unredacted video was sufficient to cure any potential prejudice. (Id. at pp. 1428-1429.) " 'Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured.' " (Ibid.) " 'It is only in the exceptional case that "the improper subject matter is of such a character that its effect ... cannot be removed by the court's admonitions." ' " (Id. at p. 1429.)
This is not an exceptional case. The jurors had already heard testimony about a chaotic household and physical altercations. One of the minor's siblings testified there were problems between Shepler and his oldest son. The child also said Shepler would get angry and slam doors and dishes. The child said Shepler would hit family members. A neighbor called the police once because Shepler was yelling so loudly. Another sibling testified after Shepler married their mother, he began physically disciplining the children, including slapping. We conclude, considering the totality of the evidence, the court did not abuse its discretion in denying the motion for mistrial.
II
Presence of Support Dog
Shepler next contends his constitutional rights were violated because the court allowed a support dog to be present when the minor victim testified. Again, we disagree.
Prior to trial, the prosecutor filed a motion stating the minor victim requested a support canine and the child would benefit from a support canine since the defendant was related to the minor victim by marriage and disciplined the child from a young age. The minor victim also had an unrelated brain injury, which made the minor vulnerable. Defense counsel objected stating the presence of a dog would evoke such emotion and sympathy for the victim it could cause a juror to base a verdict on emotion.
The court granted the request for both a support person and a support dog commenting it thought the request was appropriate considering the victim's age, the nature of the case, and the fact the child had some cognitive impairment due to a prior unrelated brain injury which caused the child to have some trouble communicating and tire easily. The court noted the jury would not know if the dog was for the support person or the child and the dog would not be visible to the jurors from the witness stand based on the configuration of the courtroom.
A court is required by statute to "exercise reasonable control over the mode of interrogation of a witness" (Evid. Code, § 765, subd. (a)) and, with a witness under the age of 14, to take "special care to protect him or her from undue harassment or embarrassment." (Id., subd. (b).) "On appeal, we apply the abuse of discretion standard in reviewing a trial court's exercise of its authority under Evidence Code section 765." (People v. Chenault (2014) 227 Cal.App.4th 1503, 1514 (Chenault).)
In Chenault we rejected the arguments raised by Shepler in this appeal and concluded "the presence of a support dog pursuant to a trial court's authority under Evidence Code section 765 ... is not inherently prejudicial and does not, as a matter of law, violate a criminal defendant's federal constitutional rights to a fair trial and to confront witnesses against him or her." (Chenault, supra, 227 Cal.App.4th at pp. 1515-1516.) We held a trial court exercising its discretion should consider the particular facts of the case and the circumstances of the witness to determine whether the presence of a support dog "would likely assist or enable the individual witness to give complete and truthful testimony by reducing the stress or trauma the witness may experience while testifying in court or otherwise minimizing undue harassment or embarrassment." (Id. at p. 1517.) We also concluded the court should "take appropriate measures to reduce, if not eliminate, any prejudice to the defendant possibly caused by the presence of the support dog during the witness's testimony." (Ibid.)
The court properly exercised its discretion in this case. The court considered the facts of the case as well as the individualized characteristics of the minor victim and concluded a support dog would assist the minor victim in giving testimony. The court also properly considered potential prejudicial impact to the defendant by noting the courtroom was arranged in such a way as to obscure the jury's ability to observe the dog and, if the jury did observe the dog, the jury would not necessarily know for whom the dog was present. Additionally, the dog was brought to the witness box outside the presence of the jury. Therefore, any prejudicial impact was minimized or eliminated.
III
Spectator Exclusion
Finally, Shepler contends the court improperly excluded a member of the public from the courtroom during the minor victim's testimony. We disagree.
Although "[e]very person charged with a criminal offense has a constitutional right to a public trial ... open to the general public at all times" (People v. Woodward (1992) 4 Cal.4th 376, 382), this right is not without limitation. 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.' " (Waller v. Ga. (1984) 467 U.S. 39, 45.)
Section 859.1, subdivision (a) provides, "In any criminal proceeding in which the defendant is charged with [certain specified sexual offenses] on a minor under the age of 16 years, ... the court shall, upon motion of the prosecuting attorney, conduct a hearing to determine whether the testimony of, and testimony relating to, a minor ... shall be closed to the public in order to protect the minor's ... reputation." Subdivision (b) lists the factors the court should take into account in making this determination: (1) "[t]he nature and seriousness of the offense"; (2) "[t]he age of the minor, or the level of cognitive development of the dependent person"; (3) "[t]he extent to which the size of the community would preclude the anonymity of the victim"; (4) "[t]he likelihood of public opprobrium due to the status of the victim"; (5) "[w]hether there is an overriding public interest in having an open hearing"; (6) "[w]hether the prosecution has demonstrated a substantial probability that the identity of the witness would otherwise be disclosed to the public during that proceeding, and demonstrated a substantial probability that the disclosure of his or her identity would cause serious harm to the witness"; (7) "[w]hether the witness has disclosed information concerning the case to the public through press conferences, public meetings, or other means"; and (8) "[o]ther factors the court may deem necessary to protect the interests of justice."
Prior to trial, the prosecutor informed the court a third party was possibly dissuading a witness. Thereafter, before minor victim testified, the prosecutor requested the court exclude one individual who had been talking to people in the community where the family lived. The person reportedly was trying to get "dirt on the family." The prosecutor stated the person was a family friend until this incident, but had been talking in the family's small community about the family and the case. The prosecutor expressed concern minor victim would be intimidated or reluctant to talk if the person was in the courtroom. Defense counsel objected stating the person had Shepler's financial power of attorney and had no contact with minor victim for over a year and a half.
Citing section 859.1, the court noted it had the power to exclude the public entirely during the minor's testimony regarding certain sex crimes. The court considered the factors provided in the statute. These factors included the nature and seriousness of the charged offenses involving allegations of sexual penetration and oral copulation, the age of the minor victim talking about things that happened when the child was even younger, the minor's ability to understand and convey thoughts and feelings based on the child's prior brain injury, the small size of the community where the family lived, and the fact the individual had been discussing the case in the community and looking for information about the family. Based on these considerations, the court excluded the one individual from the courtroom during the minor victim's testimony. The court allowed the person to be present for the rest of the proceeding.
We conclude the court properly exercised its discretion in making the limited exclusion of one witness not only to protect the reputation of the witness, but also to avoid intimidation of the minor victim. Although the individual apparently had Shepler's financial power of attorney, there was no showing this individual had such a special relationship with him that the exclusion of the individual from the testimony of one witness was prejudicial or otherwise deprived him of support. (People v. Esquibel (2008) 166 Cal.App.4th 539, 554 [exclusion of two spectators from the courtroom during testimony of a witness did not violate the right to a public trial].)
We note another spectator or supporter of Shepler, who knew him from work, was present throughout the trial and talked to a juror during the trial.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.