No. _______________
IN THE
SUPREME COURT OF THE UNITED STATES
PETER ESQUIBEL -- PETITIONER
vs.
PEOPLE OF THE STATE OF CALIFORNIA -- RESPONDENT
ON PETITION FOR WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION EIGHT
MARTIN KASSMAN
(Counsel of Record)
1032 Irving St., PMB 704
San Francisco, CA 94122
(415) 564-6732
Attorney for Petitioner
PETER ESQUIBEL
1. Do the Sixth Amendment requirements which must be satisfied before a court can exclude spectators from a criminal defendant's trial, as set forth by this court in Waller v. Georgia, 467 U.S. 39, 48 (1984), apply in a case where only selected spectators, rather than the entire general public, are excluded and where the exclusion is limited to the testimony of one witness?
2. Does imposition of an upper term under California's Determinate Sentencing Law violate a criminal defendant's Sixth and Fourteenth Amendment rights to jury trial and proof beyond a reasonable doubt, when the upper term is based on judicial fact-finding, by a preponderance of the evidence, of aggravating factors that were neither found true by the jury nor admitted by the defendant? (This question was answered by this Court in Cunningham v. California, 127 S.Ct. 856 (2007). It is presented in this petition as a basis for alternative relief in the event that this Court does not grant relief on question 1.)
All parties appear in the caption of the case on the cover page.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
REASONS FOR GRANTING THE PETITION
B. Constitutional Prerequisites to Exclusion of Spectators from a Courtroom During Trial
(omitted from Web version)
(omitted from Web version)
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
The opinion of the highest state court to review the merits appears at Appendices A and B to the petition and is reported at 49 Cal. Rptr. 3d 393 and 143 Cal. App. 4th 645.
The date on which the highest state court decided this case was December 20, 2006. A copy of that decision appears at Appendix C.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).
U.S. Const. amend. VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
I. The Charges Against Mr. Esquibel
As the California Court of Appeal below noted, the facts underlying the charges brought against petitioner Peter Esquibel (hereafter Mr. Esquibel) are largely irrelevant to the issues presented on appeal. (Opn.(1) 4.) "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." (Opn. 4.) The incident occurred in Carson, California, on May 18, 2002. (RT(2) 125-26, 177, 446, 606.)
The prosecution filed an information in Los Angeles County Superior Court on October 7, 2002, charging Mr. Esquibel with five counts of attempted murder (Cal. Penal Code §§ 187(a), 664). Each count alleged that the attempted murder was committed willfully, deliberately and with premeditation (Cal. Penal Code § 664(a)). (CT(3) 54-57.)
The information alleged, as to all five counts, that "a principal personally and intentionally discharged a firearm," causing "great bodily injury and death" to all five victims, "within the meaning of Penal Code section 12022.53(d) and (e)(1)"; that "a principal personally and intentionally discharged a firearm . . . within the meaning of Penal Code section 12022.53(c) and (e)(1)"; and that "a principal personally used a firearm . . . within the meaning of Penal Code sections 12022.53(b) and (e)." (CT 57.)
The information also alleged, as to all five counts, that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members (Cal. Penal Code § 186.22(b)(1)). (CT 57.)
As to count 1, the information further alleged under California Penal Code section 12022.7(b) that Mr. Esquibel had personally inflicted great bodily injury on a person who was not an accomplice, causing the person "to become comatose due to brain injury and to suffer paralysis." (CT 55.)
Mr. Esquibel pled not guilty and denied the special allegations. (CT 59.)
II. The Prosecutor's Request to Exclude Spectators, the Defense Objection, and the
Trial Court's Ruling
Jury trial commenced on January 21, 2003. (CT 82.) Before testimony began on
January 22, 2003, the prosecutor informed the trial court of what she said were concerns
expressed by the mother of a six- or seven-year-old boy who was going to testify. The
mother was "concerned about retaliation in the neighborhood" in light of "the gang
implications" of this case. She wanted the boy to testify as "John Doe." (RT 28-29.) The
prosecutor went on:
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 child's testimony.
(RT 30, emphasis added.)
Defense counsel responded that she "would object to all of it." After addressing the "John Doe" issue, counsel argued: "I don't think there has been a showing there has been any intimidation or any threats by anyone. This is an open proceeding." (RT 30.) She explained that the woman to whom the prosecutor had referred was a friend of Mr. Esquibel's family. (RT 31.)(4) She then reiterated that there had been no showing of intimidation or threats. "And 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." (RT 32.)
The trial court's initial ruling was "that essentially the statements of the defense counsel are correct." The court denied the prosecution's requests. (RT 33-34.) After opening statements, however, the prosecutor broached the subject of exclusion again:
I have the child's mother here. And I wanted a clarification, first, on the earlier ruling. I noticed 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 they be excluded for the reasons that I set forth. It is intimidation factor. [¶] . . . [¶]
THE COURT: Does the child recognize either of those?
MS. DIESMAN [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.
(RT 46-47, emphasis added.)
After calling counsel to a sidebar, the trial court did not ask defense counsel to respond; instead, the court abruptly reversed its earlier ruling and granted what the clerk called the "People's motion to the court to exclude public from courtroom during minor witness's testimony." (CT 85.) The court explained:
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 the circumstances.
(RT 47, emphasis added.)
Mr. Esquibel's counsel acknowledged that Mr. Esquibel "does know" the spectators in question and stated that she would "ask them to step out" as the court had ordered. She requested that a break be taken between witnesses so that the jury would not see Mr. Esquibel's friends coming in and out. She went on to argue the merits of the court's ruling:
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. Like the court indicated, I mean, are these people that the child even recognizes? And if so, how is the witness being intimidated?
THE COURT: Well, again, we are dealing with a very youthful witness. And I'm sure it is a traumatic thing for a witness that age to come into court, anyway, is intimidating. Just in the interest of being sure that the child can relax as much as possible, it would be appropriate for these two gentlemen to leave just during this witness's testimony. Thereafter they can come back as long as they conduct themselves in the proper fashion.
(RT 48.)
After defense counsel again stated that she would obey the court by asking Mr. Esquibel's friends to leave and reiterated her request for a break, the prosecutor recapitulated: "Just so the mother is here she understands that the court is going to exclude those young men during the child's testimony." (RT 48-49.)
On January 30, 2003, the jury found Mr. Esquibel guilty of attempted murder in counts 1, 2, 3 and 5, with a finding on each count that the attempt was willful, deliberate and premeditated. (CT 158, 160, 162, 167.) As to count 4, the jury found Mr. Esquibel not guilty of attempted murder but guilty of the lesser included offense of assault with a firearm (Cal. Penal Code § 245(a)(2)). (CT 164-65.)
With respect to the firearm allegations, the jury found in count 1 that Mr. Esquibel personally discharged a handgun and caused great bodily injury to Taalefuli Ryan (Cal. Penal Code § 12022.53(d)). (CT 158.) As to counts 2, 3, 4 and 5, the jury found that Mr. Esquibel both personally discharged a firearm (Cal. Penal Code § 12022.53(c)) and personally used a firearm (Cal. Penal Code § 12022.53(b)). (CT 160, 162, 165, 167.)
The jury found the California Penal Code section 186.22 gang allegation true as to all five counts. (CT 159, 161, 163, 166, 168.) Regarding the California Penal Code section 12022.7 allegation as to count 1, the jury found that Mr. Esquibel personally inflicted great bodily injury on a person who was not an accomplice, causing that person to suffer paralysis. (CT 158.)
The trial court sentenced Mr. Esquibel on March 11, 2003. On count 1, the court sentenced Mr. Esquibel to life imprisonment for attempted murder, with a minimum term of fifteen years on account of the gang crime allegation, plus twenty-five 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 on count 1 of forty years to life plus five years. On count 2, the court sentenced Mr. Esquibel to life imprisonment for attempted murder, with a minimum term of fifteen years on account of the gang allegation, plus twenty years for the use of firearm enhancement. This term was ordered to run consecutive to count 1. On counts 3 and 5, the trial court imposed concurrent terms identical to count 2. On count 4, the trial court imposed the upper term(5) of four years for assault with a firearm. (RT 1501, 1517-23; CT 189-96.)(6)
Mr. Esquibel filed a notice of appeal on March 11, 2003. (CT 197.) On appeal, he argued that (1) the trial court's exclusion of his friends from the courtroom during trial testimony violated his right to a public trial as guaranteed by the Sixth and Fourteenth Amendments and by the California constitution and statutes (Appellant's Opening Br. 13-26); (2) the trial court erred by imposing two different enhancements for the infliction of great bodily injury on the same person in count 1 (Appellant's Opening Br. 26-27); and (3) the trial court violated his Sixth Amendment right to jury trial when it imposed an upper term based on aggravating factors that were neither found true by a jury nor found true beyond a reasonable doubt (Appellant's Supplemental Opening Br.(7) 1-15).
The Court of Appeal originally decided this case with an unpublished opinion on December 30, 2004. The California Supreme Court granted the prosecution's petition for review (and denied Mr. Esquibel's) on March 16, 2005 (case no. S131042). On September 7, 2005, the state supreme court transferred the case back to the Court of Appeal with directions to vacate its prior decision and reconsider the cause. (See Opn. 3, n.3; Ord. Mod.(8) 3.)
The Court of Appeal issued a published opinion on September 28, 2006. The court affirmed Mr. Esquibel's conviction but granted relief with respect to the duplicative sentence enhancements mistakenly imposed by the trial court. (Opn. 17; Ord. Mod. 4.) Regarding the public trial issue, the Court of Appeal held that, even though there was "no evidence of any intimidation," the exclusion of Mr. Esquibel's friends from the courtroom during trial testimony did not violate Mr. Esquibel's constitutional right to a public trial, because "the exclusion of the spectators was for a minimal amount of time and appellant's family supporters remained in the courtroom." (Opn. 14-15.) Under compulsion of the California Supreme Court's decision in People v. Black, 113 P.3d 534, 35 Cal. 4th 1238 (2005), vacated sub nom. Black v. California, 75 U.S.L.W. 3429 (2007), the Court of Appeal also rejected Mr. Esquibel's argument that the trial court violated his Sixth Amendment right to jury trial when it imposed an upper term based on aggravating factors that were neither found true by a jury nor found true beyond a reasonable doubt. (Opn. 16.)
Mr. Esquibel filed a petition for rehearing, which the Court of Appeal denied on October 30, 2006. (Ord. Mod. 4.) He then filed a petition for review in the California Supreme Court, which that court denied on December 20, 2006 (case no. S148577).(9)
I. This Case Presents an Important Question of Sixth Amendment Law That the Court of Appeal below Decided in a Way That Conflicts With Decisions of Other State and Federal Appellate Courts.
A. Introduction
The Court of Appeal's opinion represents one of the two conflicting approaches taken by state and federal appellate courts to "partial closure" cases; i.e., cases in which specific persons, but not the public at large, are excluded from the courtroom, and/or the courtroom is closed for only a small portion of a trial. As Mr. Esquibel will demonstrate, some courts faithfully apply the four-part test set forth by this Court in Waller v. Georgia, 467 U.S. 39, 48 (1984) and, if a violation of the right to a public trial is found, reverse the judgment without harmless-error analysis, as this Court's precedents require. Id. at 49-50; United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2564 (2006). Other courts, including the Court of Appeal below, avoid what they apparently see as the undesirable effect of a reversible-per-se error by holding that the public trial deprivation in question is "trivial" or "de minimis" and that, therefore, it doesn't matter whether or not the Waller requirements are satisfied.
B. Constitutional Prerequisites to Exclusion of Spectators from a Courtroom During Trial
A criminal defendant's right to a public trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Waller, 467 U.S. at 41. The right to a public trial is not absolute, but the legal burden on a party and/or trial court proposing to exclude one or more spectators from a courtroom is a heavy one. This Court has described four constitutional requirements:
[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
Waller, 467 U.S. at 48; see also State v. Ortiz, 981 P.2d 1127, 1137-1139, 91 Haw. 181 (1999) (describing four Waller "prongs" and applying them to facts of that case).
"Under normal conditions a public trial is one which is open to the general public at all times." People v. Byrnes, 190 P.2d 290, 84 Cal. App. 2d 72, 73 (1948). Thus, one type of violation of the right to a public trial is that which arises from a closed proceeding; i.e., a proceeding from which the general public is excluded but to which selected persons are admitted. See id. (defendant's right to public trial violated by trial court's order that "all persons, except the defendants, counsel, officers of the Court, jurors and those having business with and in the court will be excluded"); People v. Hartman, 37 P. 153, 103 Cal. 242, 243-244 (1894) (defendant's right to public trial violated where "the court made an order excluding from the courtroom, during the trial of the case, all persons except the officers of the court and the defendant").
A second type of violation of the right to a public trial arises from a proceeding that is open to the public generally but from which certain persons, who have a right to attend, are excluded. For example, in State v. Ortiz, the trial court excluded the defendant's family and girlfriend from the courtroom. Ortiz, 981 P.2d at 1132, 1138. The Hawaii Supreme Court held that the manner in which the trial court did this violated the defendant's Sixth Amendment right to a public trial. Id. at 1136-1139. The California Supreme Court likewise has recognized that the unjustified exclusion of selected spectators violates the public trial guarantee, just as the unjustified exclusion of all spectators violates it. People v. Cummings, 850 P.2d 1, 4 Cal. 4th 1233, 1298-1299 (1993).
When the persons excluded from the courtroom are friends or family members of the defendant, it is especially likely that an appellate court will find that the defendant's right to a public trial has been violated. See, e.g., People v. Nieves, 683 N.E.2d 764, 767, 90 N.Y.2d 426, 430 (1997) ("While the trial court may have been justified in excluding the general public from the courtroom during the officer's testimony [citations], it was [Sixth Amendment] error to exclude defendant's family members"), cited in People v. Nazario, 823 N.E.2d 1274, 1276, 4 N.Y.3d 70, 73 (2005). This is because one of the core purposes of the public trial guarantee is to preserve the ability of a defendant to have his friends and other supporters attend his trial. As this Court observed in 1948, "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, 333 U.S. 257, 271-272 (1948).
Mr. Esquibel acknowledges that some circumstances -- which the Court of Appeal acknowledged did not exist in the instant case (Opn. 13, 15) -- can justify excluding a criminal defendant's supporters from the courtroom during his or her trial. If a friend or relative of a defendant were making disruptive noises or gestures, for example, that person could be excluded. See, e.g., United States v. Sherlock, 962 F.2d 1349, 1352, 1356, 1359 (9th Cir. 1989) (public trial guarantee not violated by exclusion of defendants' family members from courtroom during testimony of rape victim, where trial court made factual findings "that some of the defendants' family members peered and giggled at the witnesses and that their presence during [the victim's] testimony would cause her trauma and embarrassment").
Mr. Esquibel further acknowledges that the reason for exclusion offered by the trial court in the instant case -- preventing spectators from intimidating a witness -- could, on an appropriate set of facts, constitute an "overriding interest" so as to satisfy the first prong of the four-part Waller v. Georgia test.(10) If the other three prongs also were satisfied, the spectator (or spectators) in question could be excluded. See Waller, 467 U.S. at 48, quoted supra p. 12.) As Mr. Esquibel now explains, however, none of the four Waller prongs were satisfied in this case, and the Court of Appeal did not conclude otherwise.
C. As the Court of Appeal Implicitly Acknowledged, None of the Four Constitutional Requirements for Exclusion of Spectators Was Satisfied in the Instant Case.
The first requirement set forth in Waller is that "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced." Waller, 467 U.S. at 48. Where a "partial exclusion" is involved, some courts -- including several federal courts of appeals -- have applied the "less exacting 'substantial reason' standard." People v. Woodward, 841 P.2d 954, 4 Cal. 4th 376, 384 (1992) (citing cases from Ninth, Tenth and Eleventh Circuits). This Court has neither endorsed nor explicitly rejected the "substantial reason" standard for "partial closure" cases.
In the instant case, this first requirement -- which the Court of Appeal called the "'higher value'" requirement (Opn. 11) -- was not met under either standard. The record does not show that either an "overriding interest" or a "substantial" interest was likely to be prejudiced if Mr. Esquibel's friends were allowed to remain in the courtroom, and the Court of Appeal did not assert that such an interest existed; indeed, its opinion acknowledged, albeit somewhat obscurely, that none did. (Opn. 13 ["nor did the procedure attempt to meet the test suggested by U.S. v. Sherlock"].) Although the trial court indicated that the reason for the exclusion was to prevent intimidation of the child witness Shawbaz (RT 47-48), the Court of Appeal correctly rejected this justification, because there was "no evidence of intimidation or harassment" and "no evidence of any conduct, act or attitude by the spectators" that could have intimidated the witness. (Opn. 13, 15; see also RT 30-32, 48 [arguments by defense counsel against exclusion].)(11)
The second constitutional requirement for exclusion of spectators is that "the closure must be no broader than necessary to protect" the interest that satisfies the first requirement. (Waller v. Georgia, supra, 467 U.S. at p. 48.) The Court of Appeal below acknowledged this second requirement in passing (Opn. 11) but made no explicit comment on whether it was satisfied in the instant case. Since there was no evidence that the witness was intimidated or that the spectators behaved inappropriately (as the Court of Appeal noted), no closure was necessary at all; therefore, the exclusion of Mr. Esquibel's friends went farther than was necessary to protect the witness from intimidation.
The third Waller requirement is that "the trial court must consider reasonable alternatives to closing the proceeding." Waller, 467 U.S. at 48.(12) In the instant case, the trial court initially rejected the prosecutor's request for exclusion of "any young male Hispanics that might show up" (RT 30, 33-34); however, when the prosecutor renewed her request after two of Mr. Esquibel's friends did show up, the trial court abruptly changed its mind and ordered them excluded (RT 46-47). The court did not consider any other available measures; for example, it could have ordered Mr. Esquibel's friends to refrain from speaking or making any gestures in the presence of the witness.(13)
The fourth constitutional prerequisite to excluding spectators from a courtroom is that the trial court "must make findings adequate to support the closure." Waller, 467 U.S. at 48. In the instant case, the trial court made no findings whatsoever to support its exclusion of Mr. Esquibel's friends, unless one counts as "findings" the court's observation that "we are dealing with a very youthful witness" and its generalization that "a child is subject to intimidation, as are adults, but a child more so" (RT 47-48) -- and those statements do not support the exclusion of Mr. Esquibel's friends, because there was no evidence or finding that they (or anyone else) intimidated or sought to intimidate the witness.(14)
Thus, none of the four Sixth Amendment requirements for exclusion of spectators from a criminal defendant's trial were satisfied in Mr. Esquibel's case, and the Court of Appeal did not contend otherwise. That should have been the end of the matter, but the Court of Appeal apparently concluded that the requirements set forth in Waller were inapplicable because of what that court considered the "deminimus" (sic) nature of the violation of Mr. Esquibel's right to a public trial. (Opn. 9, 14.) As Mr. Esquibel next explains, the Court of Appeal's approach conflicts with the approach taken by other state and federal appellate courts.
D. Other Published Cases Have Held That Neither the Temporary Nature of an Exclusion Nor the Fact That Only Selected Spectators Were Excluded Negates a Violation of the Right to a Public Trial.
The Court of Appeal explained its conclusion that Mr. Esquibel's constitutional right to a public trial was not violated as follows:
There was no order excluding the press or the public in general. Except for these two spectators, no one else connected with appellant was excluded from the courtroom and the exclusion was only for the testimony of the single witness. Members of appellant's family remained in the courtroom. There was no showing that the excluded individuals had any special relationship to appellant or were needed to provide him support during the trial.
We conclude the partial closure of a trial by the temporary exclusion of select supporters of the accused does not create an automatic violation of the constitutional right to a public trial. Furthermore, on the facts of this case, we conclude there was no constitutional violation of appellant's rights. To hold otherwise would not serve the purposes of the public trial right. Here, the exclusion of the spectators was for a minimal amount of time and appellant's family supporters remained in the courtroom.
(Opn. 14, emphasis added.)(15)
As Mr. Esquibel explained in the previous section of this argument, the Court of Appeal did not assert that the four constitutional requirements for excluding spectators were met; in fact, it implicitly conceded that they were not. In the Court of Appeal's view, those requirements did not have to be met in this case, because the exclusion was only for one witness's testimony and applied only to Mr. Esquibel's two friends, not to the public at large. In other words, although the trial court may have violated the letter of the Sixth Amendment right to a public trial, it did not violate the purpose of that right, because the Court of Appeal could not see how the presence of Mr. Esquibel's friends during the witness's testimony would have helped Mr. Esquibel. Prosecutorial agencies have urged similar reasoning upon this Court in other Sixth Amendment contexts (the right of confrontation and the right to counsel of choice) -- "a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.'" United States v. Gonzalez-Lopez, 126 S. Ct. at 2562 (quoting Maryland v. Craig, 497 U.S. 836, 862 (1990) (Scalia, J., dissenting)).
The Court of Appeal below is, unfortunately, not alone in adopting this "no harm, no foul" approach to the Sixth Amendment right to a public trial. In Carson v. Fischer, 421 F.3d 83 (2d Cir. 2005), for example, the Second Circuit employed what it called "triviality analysis" in holding, as to a trial court's error in excluding a criminal defendant's former mother-in-law from the courtroom during a witness's testimony, that "the error was not substantial enough to undermine the values furthered by the Sixth Amendment's public trial guarantee." Id. at 85, 92. The court explained that "the question of whether a particular closure implicates the Sixth Amendment turns on whether it undermines the values the Amendment is aimed to protect," such as ensuring a fair trial and encouraging witnesses to come forward. Id. at 92-93; see also Braun v. Powell, 227 F.3d 908, 919 (7th Cir. 2000) ("There is no reason to believe that Ms. Braun's trial was any less fair, or that the court officers or witnesses took their roles any less seriously, because of the exclusion of this one spectator.").(16) As to the latter "value," the Carson court noted that the former mother-in-law, Broome, could have learned the substance of witness Sanchez's testimony by listening to counsel's summations. "We believe it is unlikely, therefore, that Broome's exclusion from Sanchez's testimony discouraged any witnesses from coming forward." Carson, 421 F.3d at 93.(17)
On the other hand, the approach to "partial closure" employed by the Court of Appeal below, and by the Second and Seventh Circuits in Carson v. Fischer and Braun v. Powell, conflicts with the approach taken by many other courts, even within California. For example, in People v. Baldwin, 48 Cal. Rptr. 3d 792, 142 Cal. App. 4th 1416 (2006) (decided 13 days before the instant case), California's Third District Court of Appeal addressed a criminal defendant's assertion that the trial court violated his Sixth Amendment right to a public trial when it closed the courtroom during the testimony of a 14-year-old molestation victim (one of 16 witnesses in the case) based on the prosecutor's assertion that the victim would have difficulty testifying. Id. at 1419-20. The court reviewed the four requirements set forth in Waller v. Georgia and found that they were not satisfied in the case before it. Id. at 1421-24.
Specifically, the Baldwin court held (1) that "the record fails to establish an overriding interest or a substantial reason warranting closure," id. at 1422; (2) that "[o]n this record, we cannot say the court balanced the competing interests and fashioned an order narrowly tailored to infringe on the competing interests as little as possible," id. at 1423; (3) that "[t]here is also no indication the trial court attempted to meet the third requirement for closing the courtroom -- considering reasonable alternatives to closure," id. at 1423; and (4) that "the trial court's conclusory justification for excluding all spectators from the courtroom during [the 14-year-old's] testimony failed to satisfy the fourth requirement of findings adequate to support the closure," id. at 1424.
Thus, the Third District Court of Appeal in Baldwin, unlike the Court of Appeal below, shared Mr. Esquibel's view that the four Sixth Amendment requirements for exclusion of spectators must be satisfied even when the exclusion is only for the testimony of a single witness. Two "partial closure" cases from the federal appellate courts are in accord. Guzman v. Scully, 80 F.3d 772, 775-76 (Second Circuit(18) applied four Waller tests where selected spectators were excluded for part of testimony of one witness; court concluded partial closure violated defendant's right to public trial); United States v. Sherlock, 962 F.2d 1349, 1356-59 (Ninth Circuit applied four Waller tests to defendants' claim that exclusion of their family members during testimony of one witness violated their right to public trial; two-to-one panel majority held no violation of public trial rights).
Likewise, contrary to the Court of Appeal below, other courts have held that the fact that a trial court does not entirely clear the courtroom of spectators does not mean that its exclusion of selected spectators can escape Sixth Amendment scrutiny. The Second Circuit in Guzman v. Scully found a Sixth Amendment violation, and ordered the issuance of a writ of habeas corpus to vacate a defendant's conviction, based on the temporary exclusion of four persons. Guzman, 80 F.3d at 773-74, 776-77. New York's highest court in People v. Nieves, 683 N.E.2d 764, found a Sixth Amendment violation and reversed a defendant's conviction based on the temporary exclusion of the defendant's wife and children during an undercover officer's testimony, even though "the trial court may have been justified in excluding the general public from the courtroom" during that testimony. Id. at 765, 767 (emphasis added).
The Court of Appeal's notion that the Sixth Amendment permits excluding some of a defendant's family or friends from the courtroom so long as others are allowed to remain also is contradicted by cases from other jurisdictions.(19) In People v. Nazario, 823 N.E.2d 1274, New York's high court held that a defendant's right to a public trial was violated when his drug counselor was excluded from the courtroom during the testimony of two undercover officers, even though the defendant's brother was allowed to remain. Id. at 1275.(20)
For the foregoing reasons, the Court of Appeal's approach conflicts with those of other state and federal courts. Whether or not an asserted public trial violation based on the temporary exclusion of selected spectators calls for application of the four Waller v. Georgia tests is "an important question of federal law that has not been, but should be, settled by this Court." Sup. Ct. R. 10(c). This court should grant certiorari and ultimately reverse the judgment of the California Court of Appeal.
II. This Court's Recent Decision in Cunningham v. California Negates the Authority on Which the Court of Appeal Relied in Holding That The Trial Court Did Not Violate Mr. Esquibel's Sixth Amendment Right to Jury Trial and Fourteenth Amendment Right to Due Process When it Imposed an Upper Term Based on Aggravating Factors That Were Neither Found True by a Jury Nor Found True Beyond a Reasonable Doubt.
In the event that this Court does not grant certiorari and ultimately reverse the judgment, Mr. Esquibel alternatively requests that the Court vacate the judgment and remand this case to the Court of Appeal for reconsideration in light of Cunningham v. California, 127 S. Ct. 856 (2007), which was decided both after the Court of Appeal decided this case and after the California Supreme Court denied review.
With regard to count 4, the jury found Mr. Esquibel not guilty of attempted murder but guilty of the lesser included offense of assault with a firearm. (CT 164-165.) That offense is punishable "by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment." Cal. Penal Code § 245(a)(2).
At Mr. Esquibel's sentencing hearing, the trial court announced its decision to impose the upper term of four years in prison:
So as to count 4, the conviction of assault with a firearm, the sentencing choices are two, three and four. That is, two, three and four years. I find that the event involved great violence, that the victims were vulnerable, that the acts reflected a high degree of cruelty and callousness as aggravating factors.
I found that the victim in this particular count did not suffer a physical injury to [be] a mitigating circumstance, and the defendant did not commit other violent crimes in the past to be mitigating circumstances.
However, I find the aggravating circumstances outweigh the mitigating circumstances; therefore, it is appropriate to apply the high term of four years in state prison. And that will be the sentence.
(RT 1517-1518.)
The trial court imposed a combination of indeterminate and determinate terms on counts 1, 2, 3, and 5, but none of those involved selection of an upper, middle or lower term. (RT 1518-1521; AOB 4-5.)
B. The Imposition of an Upper Term on Count 4 Violated Mr. Esquibel's Federal Constitutional Rights to a Jury Trial (Sixth Amendment) and Due Process (Fourteenth Amendment).
As with many sentences now pending on appeal in California, the imposition of the aggravated term in this case violated the Sixth Amendment right to jury trial and the Fourteenth Amendment right to due process of law, as interpreted in Blakely v. Washington, 542 U.S. 296 (2004). Nevertheless, compelled by the authority of People v. Black, 113 P.3d 534, 35 Cal. 4th 1238 (2005), vacated sub nom. Black v. California, 75 U.S.L.W. 3429 (2007), the Court of Appeal rejected Mr. Esquibel's assertion that the trial court violated his constitutional rights when it imposed an upper term based on aggravating factors that were neither found true by a jury nor found true beyond a reasonable doubt. (Opn. 16.) In January 2007, this Court overruled People v. Black and held that the Sixth Amendment encompasses a right to a jury trial on fact-finding relating to aggravating factors used to impose the upper term under California's Determinate Sentencing Law. Cunningham v. California, 127 S.Ct. 856, 868-71.
The trial court in the instant case violated the Sixth Amendment by imposing an upper term based on its own findings of aggravating facts by a preponderance of the evidence. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also Cunningham, 127 S.Ct. at 860. In this case, the trial court found, as aggravating factors, "that the event involved great violence, that the victims were vulnerable, [and] that the acts reflected a high degree of cruelty and callousness." (RT 1517-1518.) The jury's verdict did not encompass any of these aggravating circumstances.
The aggravating factors found by the trial court are exactly the kind of offense-related aggravating factors which Apprendi, Blakely and Cunningham entrust to a jury. In view of the trial court's finding of aggravating factors, the court's selection of the upper term was tainted by Sixth Amendment error. Since the Court of Appeal held otherwise, in the event Mr. Esquibel's conviction is not reversed by this Court, the case should be remanded to the Court of Appeal for further proceedings in light of Cunningham.
The petition for a writ of certiorari should be granted.
Respectfully submitted,
MARTIN KASSMAN
(Counsel of Record)
(original signed)
Attorney for Petitioner
PETER ESQUIBEL
Date: March 20, 2007
1. "Opn." refers to the Court of Appeal's opinion (filed Sept. 28, 2006), which is Appendix A to this petition.
2. "RT" refers to the Reporters' Transcript on Appeal.
3. "CT" refers to the Clerk's Transcript.
4. The Court of Appeal referred to this woman as "the men in question." (Opn. 5.) Mr. Esquibel pointed out the error in the petition for rehearing he filed on October 18, 2006. (Petn. for Rehg. 2, n.2.)
5. The trial court's remarks as to why it chose the upper term are set forth in part II-A of the Reasons for Granting the Petition, infra p. 25.
6. The prosecution acknowledged, and the trial court agreed, that enhancements under California Penal Code section 12022.53 were inapplicable to the offense of assault with a firearm. (CT 180; RT 1508, 1518.)
7. Mr. Esquibel's supplemental opening brief, which was filed on September 21, 2004, relied on this Court's then-new decision in Blakely v. Washington, 542 U.S. 296 (2004).
8. "Ord. Mod." refers to the Order Modifying Opinion and Denying Rehearing (filed Oct. 30, 2006), which is Appendix B to this petition.
9. The order denying review is Appendix C to this petition. With regard to the issue under Blakely v. Washington, the order specified that the denial of review was without prejudice to any relief to which Mr. Esquibel might be entitled after this Court decided Cunningham v. California, no. 05-6551, which then was pending in this Court and was decided on January 22, 2007.
10. As the Hawaii Supreme Court noted in State v. Ortiz, "many courts have placed a gloss on the Waller analysis in cases involving partial closure, holding that a 'substantial' interest, rather than a 'compelling' interest, is all that is constitutionally required to satisfy the first prong of the Waller test." Ortiz, 981 P.2d at 1137 n.11; see, e.g., Guzman v. Scully, 80 F.3d 772, 775 (2d Cir. 1996); United States v. Sherlock, 962 F.2d at 1357. Preventing witness intimidation could, of course, constitute a "substantial" interest in an appropriate case.
11. Ironically, the Court of Appeal cited the lack of any evidence of intimidation or untoward behavior by Mr. Esquibel's friends as the basis for rejecting his argument that his statutory right to a public trial was violated. Mr. Esquibel pointed out that California Penal Code section 686 guarantees a "public trial" and that section 686.2 sets forth an exception to that public trial right, prescribing how a trial court must proceed when it proposes to remove a spectator who is intimidating a witness. The Court of Appeal agreed with Mr. Esquibel that "the exclusion of the spectators in this case was not in compliance with section 686.2." (Opn. 15.) It went on to hold, however, that "section 686.2 has no application to the facts of this case," because there was "no evidence of any intimidation by the spectators in this case" and "no evidence of any conduct, act or attitude by the spectators which would call for the application of section 686.2." (Opn. 15.) Apparently, in the Court of Appeal's view, a California trial court may freely exclude spectators on the ground that they are intimidating witnesses, so long as there is no basis in reality for the trial court's action; however, if the spectators actually are intimidating witnesses, then the trial court must comply with the procedures prescribed in section 686.2 before it may exclude them. In other words, Mr. Esquibel lost the protection of section 686.2 because his friends failed to misbehave.
12. The Court of Appeal below did not mention this third requirement at all in its constitutional discussion.
13. Mr. Esquibel's trial counsel was not required to suggest this specific alternative to the trial court in order to preserve the issue for appeal. See State v. Dixon, 112 P.3d 883, 906-907, 910 (Kan. 2005).
14. The Court of Appeal acknowledged the requirement of "[s]pecfic written findings" (Opn. 11) but did not explicitly comment on whether that requirement was satisfied in the instant case.
15. As Mr. Esquibel pointed out in his petition for rehearing, the record does not support the Court of Appeal's assertions that "family members" or "family supporters" of Mr. Esquibel were in the courtroom during the testimony from which the trial court excluded Mr. Esquibel's two friends. (Petn. for Rehg. 1-3.)
16. This reasoning strongly resembles the argument this Court rejected in United States v. Gonzalez-Lopez as to the Sixth Amendment right to counsel of choice. As the Court noted, "the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation 'complete.'" Gonzalez-Lopez, 126 S. Ct. at 2562.
17. Ironically, the Second Circuit in Carson went on to criticize the district court for employing harmless-error analysis. Id. at 94-95. According to the Second Circuit, "finding that an unjustified closure was too trivial to amount to a violation of the Sixth Amendment is 'very different from a harmless error inquiry.'" Id. at 94 (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996)). The court added: "The distinction is not semantical." Id. In light of the court's reliance on the supposed unlikelihood that the exclusion of the defendant's former mother-in-law prevented any witnesses from coming forward (quoted in the text), Mr. Esquibel respectfully submits that the Carson opinion protests too much.
18. In its later Carson v. Fischer opinion, the Second Circuit repeatedly cited Guzman v. Scully, noting that it was a "pre-AEDPA" case. Carson, 421 F.3d at 91, 95.
19. Moreover, in the instant case, the record does not show that any family member or friend of Mr. Esquibel was present during the testimony of the child witness Shawbaz, the part of the trial from which Mr. Esquibel's friends were excluded at the prosecutor's request. (RT 96-113.) The prosecutor's and defense counsel's remarks reflect that Mr. Esquibel's mother and a female friend of the family were in the courtroom earlier in the day, when the prosecutor first asked that the family friend and "any young male Hispanics that might show up this morning" be excluded. (RT 30-31.)
20. The trial court in Nazario excluded the general public during the undercover officers' testimony to protect their safety. The defendant did not challenge on appeal the general public's exclusion; he complained only of the trial court's refusal to let the drug counselor remain. Id. at 1275.