(Super. Ct. No. 1325752) Edward H. Bullard, Judge Superior Court County of Santa Barbara
The opinion of the court was delivered by: Hoffstadt, J.*fn5
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In Maryland v. Craig (1990) 497 U.S. 836 (Craig), the United States Supreme Court held that a child abuse victim could testify by closed-circuit television under certain circumstances without violating the criminal defendant's right to confront witnesses. In the published portion of our decision, we hold that the same rule applies to a child witness who is not a victim. We also hold that California courts have the inherent authority to order remote testimony in these circumstances.
FACTS AND PROCEDURAL HISTORY
In the spring of 2006, Lujan was dating Stacy B. When Lujan, Stacy B. and her 17-month-old daughter Lena started living together in a converted garage, Lena was a "very happy" and healthy toddler. Over the next several weeks, that changed. Lujan's family members and others noticed bruises on Lena's shoulder blades, head, neck and chest. They saw she had a black eye and that her fingertips were burnt and red. Lujan told a friend that the injuries to Lena's shoulder blades looked like they were made with "a fucking stick." Others noticed that Lena seemed frightened of Lujan. They saw him swaddle Lena tightly like a "burrito" and put a blanket over her head. They also saw Lujan put Tobasco sauce on Lena's tongue, which became blistered and swollen.
On the morning of June 12, 2006, Stacy B. left Lena with Lujan. Lujan wanted to go with his brother to a flower show, but could not because he was watching Lena. When his attempts to reach Stacy B. failed, Lujan said he became "frustrated" and "hella mad." When Stacy B. returned that afternoon, Lena had a seizure and difficulty breathing. Responding emergency paramedics dislodged an almond from Lena's throat, but she still struggled to breathe.
By the time she arrived at the emergency room, Lena was "near death." The emergency room doctor testified that Lena displayed "classic" symptoms of shaken baby syndrome--namely, bleeding in the brain and bleeding behind the eyes. The injuries had been inflicted within the prior 48 hours. Both of Lena's collarbones were broken, likely caused by a "significant" downward hit directly on those bones.
Three years later, Lujan was living with Meagan D. She had two children, five-year-old Vanessa and four-year-old Diego. Although Lujan was good to Diego at first, by the time they moved into the Budget Motel in Lompoc in mid-July 2009, things had started to deteriorate. Lujan would bite Diego's fingertips and feed him Tobasco sauce. If Diego upset him, Lujan would make Diego stand in the corner with his arms up, head back and knees bent. When the stance became painful and Diego cried, Lujan would call Diego a "little bitch," a "little baby," a "piece of shit." He would also punch him in the sides, back and stomach, and kick him in the back of the legs. These beatings, which both Meagan D. and Vanessa witnessed, occurred on July 16 or 17. By the morning of July 18, Diego displayed flu-like symptoms. Meagan D. called 911. Lujan left the motel as soon as she did so.
Diego died hours later. The cause of death was blunt-force trauma to the abdomen that ruptured the connection between his stomach and small intestine, causing stomach contents to spill into his abdominal cavity. The autopsy also revealed that Diego had 128 bruises all over his body, including his arms, legs, back, chest, stomach, head and penis.
The State charged Lujan with torturing Lena and Diego, in violation of Penal Code section 206.*fn2 As to Diego, the State also charged Lujan with second degree murder, in violation of section 187, subdivision (a), and with child abuse causing death, in violation of section 273ab, subdivision (a).*fn3
III. Procedures Regarding Remote Testimony
The trial court allowed Vanessa, age seven at time of trial, to testify over a two-way, closed-circuit TV. Vanessa sat in a separate room from which Lujan, his attorney, the district attorney. The jury could see her on a video monitor. Vanessa could view a monitor that showed everyone in the courtroom except Lujan. The judge admonished the jury not to place any weight on the use of the closed-circuit TV procedure. Before allowing this procedure, the judge heard testimony from family therapist Virginia Rohen and Lompoc Detective Suzie Aanured. The judge thereafter found that remote testimony was "necessary for the protection of [Vanessa] because she would be unable to testify in front of [Lujan] because of fear or that [she] would suffer emotional trauma from testifying in open court."
IV. Verdict and Sentencing
The jury convicted Lujan of all charges with respect to Lena and Diego. The trial court sentenced him to 64 years to life, plus 11 years.
I. Remote Testimony of Vanessa
Lujan mounts a three-pronged attack on the court's ruling allowing Vanessa to testify by closed-circuit television (TV). First, he argues that Crawford v. Washington (2004) 541 U.S. 36 (Crawford) changed the meaning of the Confrontation Clause and always entitles a criminal defendant to face his accusers. Second, Lujan contends that, even if Crawford does not confer an absolute right to face-to-face confrontation, the United States Supreme Court has at most tolerated remote testimony by child witnesses who are victims of a crime. (Maryland v. Craig, supra, 497 U.S. 836.) Extending Craig to children who are merely witnesses, Lujan posits, goes too far. Lastly, Lujan asserts that the trial court lacked authority to order two-way, video testimony because the statutory procedures for remote testimony by children set forth in section 1347 apply only to child witnesses who are victims of certain crimes.
A. Crawford Did Not Overrule Precedent Governing When In-Court Testimony Is Required
Our Supreme Court recently rejected the argument that Crawford modified the United States Supreme Court's approach to determining when face-to-face testimony is required. (People v. Gonzalez (2012) 54 Cal.4th 1234.) The Court reasoned that "Crawford and its progeny are limited to 'testimonial' hearsay statements, and say nothing about whether a witness who testifies in person must face the defendant." (Id. at p. 1266.)
B. When Necessary, Non-Victim Child Witnesses May Testify Remotely
In general, the Confrontation Clause guarantees a criminal defendant "a face-to-face meeting with witnesses appearing before the trier of fact. [Citation.]" (Coy v. Iowa (1988) 487 U.S. 1012, 1016 (Coy).) But this rule has never been absolute. (Id., at pp. 1020-1021.) Coy itself recognized that face-to-face testimony would not be required when alternate procedures, such as testimony from a remote location, are necessary to further an important government public policy. (Id., at p. 1021; Craig, 497 U.S. at pp. 844-845.)
So far, the United States Supreme Court has been called upon to apply Coy's exception in only one case. In Craig, the Court upheld a Maryland statute that authorized underage victims of child abuse to testify by one-way, closed-circuit TV upon a witness-specific showing that face-to-face testimony would be traumatic to the child.*fn4 Tracking Coy's exception, the Court in Craig viewed Maryland's interest in "'the protection of minor victims of sex crimes from further trauma and embarrassment,'" as not only important, but "'compelling.'" (Craig, supra, 497 U.S. at p. 852.) By requiring a witness-specific showing of ...