APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 09F07723)
The opinion of the court was delivered by: Hoch, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Joe Lynn McCoy physically and sexually assaulted his girlfriend, Cindy H., fracturing her spine during the attack and rendering her a quadriplegic. Because Cindy H.'s medical condition provided reasonable grounds to fear she would be unable to testify at trial, she was examined conditionally during the preliminary hearing via two-way video. At trial, as anticipated, the video of this examination was played for the jury because Cindy H. was unable to testify. Defendant was convicted of torture (count 2), inflicting corporal injury on a cohabitant (count 3), and unlawful sexual penetration with a foreign object (count 4). With respect to count 3, the jury found defendant personally inflicted great bodily injury causing paralysis. With respect to count 4, the jury found defendant personally inflicted torture.*fn2 The trial court sentenced defendant to state prison for a term of 25 years to life and imposed other orders.
On appeal, defendant asserts: (1) the introduction of Cindy H.'s conditional examination violated his Sixth Amendment right of confrontation because (a) the video equipment used during the conditional examination was not set up to allow him to confront his accuser "face-to-face," and (b) he possessed a substantially different interest and motive in cross-examining Cindy H. during the conditional examination than he did at trial; (2) the trial court further violated defendant's Sixth Amendment right of confrontation, as well as his Fourteenth Amendment right to due process, by allowing the prosecution to amend the information to add a one-strike torture allegation to count 4 after the conditional examination; (3) the trial court prejudicially erred when it denied defendant's motion for a continuance rather than construe that motion as a request to discharge the jury and declare a mistrial; (4) the trial court prejudicially erred in admitting into evidence a prior act of domestic violence under Evidence Code section 1109; (5) defendant's conviction in count 4 for unlawful sexual penetration must be reversed because of instructional error; (6) the trial court "mishandled" defendant's motion to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and (7) the abstract of judgment must be corrected.
The Attorney General concedes there is an error in the abstract of judgment and also points out that the trial court neglected to impose sentence on counts 2 and 3 before staying their execution pursuant to Penal Code section 654,*fn3 resulting in an unauthorized absence of sentence. We accept the concession, agree that sentence must be imposed on counts 2 and 3, and remand the matter to the trial court for this limited purpose.
Turning to defendant's remaining contentions, the first is forfeited and the remainder fail on the merits. As we explain, defendant's failure to object to the manner in which the video equipment was set up during the conditional examination has forfeited the claim that he was deprived of the ability to confront his accuser "face-to-face." Had an objection been made, any error in failing to turn the camera to show defendant to Cindy H. during her testimony could easily have been remedied. And because defendant did not possess a substantially different interest and motive in cross-examining Cindy H. during the conditional examination than he did at trial, we cannot conclude that playing this examination for the jury violated his confrontation rights. Nor did the trial court abuse its discretion or violate defendant's constitutional rights by allowing the prosecution to amend the information to add the one-strike torture allegation to count 4 or by denying his request for a continuance. We also conclude the trial court did not err in admitting into evidence the prior incident of domestic violence. As we explain, while this particular incident took place more than 10 years before the charged crimes, the trial court did not abuse its discretion in concluding that admission of this evidence was in the interest of justice. Nor was the jury improperly instructed with respect to the crime of unlawful sexual penetration. Finally, we disagree that the trial court mishandled defendant's Marsden motion.
In September 2006, defendant and Cindy H. began dating. At the time, Cindy H. lived in an apartment on La Riviera Drive in Sacramento with her two teenage sons. In March 2007, defendant moved into the apartment. By the following March, both of Cindy H.'s sons had moved out of the apartment. Defendant's violence against Cindy H. began three months later.
The first violent incident occurred in June 2008. Cindy H. was drinking with defendant at a bar when she told him she wanted to go home. Defendant refused to leave. Cindy H. left the bar and started to walk home. Defendant then called a cab and was the first to reach the apartment. When Cindy H. walked through the door, defendant "backhanded" her and told her to take off her clothes. While yelling, defendant then ripped her shirt off and hit her several times on the side of her leg. Two days later, Cindy H. went to work with a black eye and bruises on her leg. A co-worker took pictures of the injuries.
Between June 2008 and September 2009, defendant physically assaulted Cindy H. "four or five" times in the apartment, each time causing black eyes. On one of these occasions, he hit her in the head with something that caused two cuts and resulted in "quite a bit of blood on the carpet." Each time, defendant had been drinking. And each time, he stood between Cindy H. and the door and "would either tell [her] to take [her] clothes off or he would force -- forcefully remove [her] clothes." As Cindy H. described the impetus for these assaults, "[h]e would get it in his head that [she] was cheating on him or that [she] was with somebody else."
The last violent incident continued this theme and resulted in Cindy H.'s quadriplegia. On September 15, 2009, she and defendant looked at houses with a realtor. At some point, they began to argue and returned to the apartment. Cindy H. changed into a bathing suit and went to a place along the American River she and defendant frequented. She brought a CD player, a book, a bottle of wine, and some lemon-lime soda. She did not invite defendant to come along. While at the river, she talked to defendant on the phone and asked if he was going to "come down and meet [her] at the river." Defendant seemed "irritated" and said that "he would be going the next day without [her]."
Defendant drank alcohol at the apartment while Cindy H. was at the river. When she returned to the apartment, defendant "accused [her] of getting out of somebody's truck." She responded that "he was seeing things." Defendant "became angry," ripped the top half of her bathing suit, took her CD player and "stomped" on it, emptied her purse onto the floor, and then told her to "clean up the mess." Cindy H. removed the entire bathing suit, placed it in the trash, and started picking up defendant's mess. As she did so, defendant hit her in the head with either his palm or the back of his hand and told her to "hurry up." She ended up lying face down on the carpet near the front door. Defendant then grabbed both of her legs and forced them up and forward towards her head. Cindy H. felt a "pop" and a "burst of heat," and "still [lying] face down, [she could] see [her] legs in front of [her head]." Realizing she could not move her limbs, Cindy H. told defendant he had broken her back. He responded that she "wasn't hurt that bad." Defendant then turned her over and kicked her several times in the vaginal area, uttering vile epithets as he did so. As a final insult to her human dignity, defendant "inserted three double A batteries into [Cindy H.'s] rectum," and then removed the third battery, which was "now covered with fecal matter, and he smear[ed] it on [her] face."
At some point, defendant dragged Cindy H. into the hallway and called Anthony Colding, the maintenance man at the apartment complex. Defendant told Colding he "needed help" with Cindy H., but did not offer any details. Colding and his wife, Shelonar Ballard, drove from their home in South Sacramento to defendant's apartment complex and arrived about 30 minutes later. In the meantime, Cindy H. pleaded with defendant to call for an ambulance. He continued to insist she was not seriously hurt. When Colding and Ballard arrived at the complex, Colding went to the apartment and Ballard remained in the car. The lights in the apartment were turned off. After knocking on the door and receiving no answer, Colding called defendant and said he was at the front door. The door opened and defendant let him inside.
Colding found Cindy H. lying naked in the hallway where defendant had left her. She was asking for help. Colding asked defendant: "What happened to her?" Defendant answered that he "stuck some batteries up in her butt." Defendant and Colding then picked her up, carried her to the bedroom, and placed her on the bed. As they did so, Cindy H. begged them not to move her. Realizing Cindy H. was seriously injured, Colding told defendant he "need[ed] to call the ambulance." His response: "That B[itch] don't need no help." Defendant then offered Colding a beer. Colding declined and returned to Ballard, who was still in the car. After Colding told Ballard what he had seen inside the apartment, he again called defendant, this time to allow Ballard to talk to Cindy H. on the phone. Ballard told her to say "rock" as a code word to indicate she needed help. Cindy H. did so. Ballard hung up and called 911.
Sheriff's deputies arrived at the apartment during the early morning hours of September 16, 2009, about 40 minutes after the 911 call. They knocked repeatedly and announced their presence, but no one answered the door. Again, the lights in the apartment had been turned off. There were no sounds coming from the apartment. Eventually, they left. Cindy H. explained she did not call out to the deputies for help because, based on prior experience, she was afraid defendant would strangle her if she made a sound.
After the deputies left, defendant fell asleep. Cindy H. woke him up at some point, told him she was in pain, and asked to be taken to the hospital. Defendant told her to "leave him alone so he could go back to sleep." Later in the morning, she told defendant she needed to call in sick to work. Defendant made the phone call and held the phone for her while she told her manager she was in a car accident and would not be coming in. She then told defendant several more times she was in pain and needed help. Each time, he refused to call for help. Instead, he placed hot towels on her arms and told her taking a hot bath would help. When defendant tried to help her to stand beside the bed, her legs "folded" under her weight. Defendant told her to "put [her] arms around him and help him." She responded: "I can't, you broke my back. I can't move my arms, I can't move my legs." Defendant lowered her to the ground next to the bed.
At this point, defendant suggested taking Cindy H. to the hospital in the back of his pickup truck, saying he did not want to call an ambulance because he "couldn't go to jail." Defendant then started packing a bag as if he were getting ready to leave. Cindy H. asked if she would ever see him again. Defendant responded: "What do you think?" She then suggested he call 911 and leave the front door unlocked for the paramedics. Defendant decided to call an ambulance company directly rather than dialing 911. Cindy H. promised to tell medical personnel and law enforcement that she was attacked while at the river the night before, and she managed to drive home before losing the ability to move. At Cindy H.'s direction, defendant made sure the ambulance company carried a backboard. He also told them lights and sirens would not be necessary. While waiting for the ambulance to arrive, defendant partially dressed Cindy H. and placed a cervical collar, which she had from a previous injury, around her neck.
True to her word, Cindy H. told paramedics she was attacked by a woman the night before while partying at the river, she felt "minor pain" when she got home, put on the cervical collar, and woke up unable to move. She was taken to Mercy San Juan Medical Center. Doctors diagnosed a fracture and dislocation of the cervical spine at the C5/C6 location, which rendered her permanently paralyzed below her chest. She had bruises on her lower abdomen, legs, and arms. The two batteries that remained in her rectum were removed. She was then placed in traction to realign the spine before being taken to the operating room where spinal surgery was performed. When the surgeon asked how she received the spinal injury, she again claimed to have been attacked by a woman the night before.
Defendant was arrested about three weeks later at a Motel 6 in South Sacramento.
Admission of the Conditional Examination
Defendant contends the trial court violated his Sixth Amendment right of confrontation by admitting into evidence Cindy H.'s conditional examination. Specifically, he argues: (1) the video equipment used during the conditional examination was not set up to allow him to confront his accuser "face-to-face," and (2) he possessed a substantially different interest and motive in cross-examining Cindy H. during the conditional examination than he did at trial because a one-strike torture allegation was added to count 4 after the conditional examination was conducted. The first of these contentions has been forfeited. The second fails on the merits.
In order to place defendant's contentions in context, we begin with a brief overview of the statutory scheme governing conditional examinations.
In all criminal cases, "other than those for which the punishment may be death" (§ 1335, subd. (a)), the prosecution may apply for a court order compelling a material witness to submit to a conditional examination if the witness "is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, or is a person 65 years of age or older, or a dependent adult." (§ 1336, subd. (a).) The prosecution may also apply for such an order in cases in which the "defendant has been charged with a serious felony or in a case of domestic violence," even where the punishment may be death, "if there is evidence that the life of the witness is in jeopardy." (§§ 1335, subd. (b), 1336, subd. (b); People v. Jurado (2006) 38 Cal.4th 72, 113 ["conditional examination of a prosecution witness is permitted in a capital case when the witness's life is in jeopardy"].)
The application for a conditional examination "may be made to the court or a judge thereof, and must be made upon three days' notice to the opposite party." (§ 1338; but see People v. Frank (1933) 132 Cal.App. 360, 363 [order shortening time may issue upon a proper showing that the exigencies of a given case require notice of less than three days].) "If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and before a magistrate designated therein." (§ 1339.) "The defendant has the right to be present in person and with counsel at the examination." (§ 1340, subd. (a).) However, "[i]f the court determines that the witness to be examined is so sick or infirm as to be unable to participate in the examination in person, the court may allow the examination to be conducted by a contemporaneous, two-way video conference system, in which the parties and the witness can see and hear each other via electronic communication." (§ 1340, subd. (b).)
At the conditional examination, "[t]he testimony given by the witness shall be reduced to writing and authenticated in the same manner as the testimony of a witness taken in support of an information. Additionally, the testimony may be video-recorded." (§ 1343.) "[I]f the examination was video-recorded, that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240 of the Evidence Code. The same objections may be taken to a question or answer contained in the . . . video-recording as if the witness had been examined orally in court." (§ 1345.) Among other statutory conditions, a witness is "unavailable as a witness" if he or she is "unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity." (Evid. Code, § 240, subd. (a)(3).)
On March 3, 2010, the date set for the preliminary hearing, the prosecution applied for an order directing that Cindy H. be conditionally examined the following day via two-way video conference system. As the prosecutor explained: "I learned after being assigned to this courtroom that [Cindy H.], who is a quadriplegic as a result of this crime and who is currently in a care facility, became ill with pneumonia. We had learned that she was ill with pneumonia yesterday, however, [Cindy H.] indicated to me she felt she'd be well enough to attend today's hearing. [¶] What I learned this morning was from the actual care facility who indicated [Cindy H.], her pneumonia [sic] had become worse, she was not going to be able to travel. And they were carefully monitoring her condition in the hopes that the medication or prescription she was on would help alleviate her symptoms. [¶] The People became concerned that [Cindy H.] would not be able to travel for some time or may even get worse, her condition may even get worse, so we chose to petition the Court requesting that we conduct a conditional examination of [Cindy H.] given that at this point in time she is unable to travel from her care facility."
Defendant's attorney pointed out that section 1338 required the prosecution to provide him with "three days notice on the issue," and stated: "I may be willing to waive that and proceed tomorrow, but I'm going to ask the Court to allow me overnight to conduct legal research on this." The magistrate, Judge David I. Brown, found good cause to continue the preliminary hearing for one day and directed defendant's attorney to People v. Frank, supra, 132 Cal.App. 360, explaining that the Court of Appeal in that case held a deposition taken under section 1336 was admissible even though the deposition was taken the same day the application was filed rather than on three days' notice.
On March 4, 2010, the preliminary hearing resumed and the same magistrate explained he was treating the prosecution's application for a conditional examination upon less than the statutorily required three days' notice as an application for an order shortening time to conduct the requested examination. Defendant's attorney objected to the lack of notice and further objected that conducting the examination via two-way video conference would violate defendant's Sixth Amendment right to confront his accuser, arguing that "there could be some distinctions and some differences in my ability to cross-examine her today by video conference as compared to her live testimony in the sense that I won't have a chance to look at body language, it may be difficult for me to understand some of her answers or questions, and you would lose the ability to interact with each other in a live format."
The prosecutor responded: "Our concern is, based on what the medical staff is telling us, that pneumonia can be very detrimental to somebody who is a quadriplegic and, therefore, not only was she unable to travel due to her illness but our concern was getting her testimony documented should she become more severely ill." The magistrate interjected: "Or die?" The prosecutor answered: "Yes." The magistrate then granted the application and addressed defendant's attorney: "I believe that you'll have the appropriate opportunity to cross-examine the witness. Admittedly, she won't be present here in the flesh, but she will be present in the flesh in another location where a video conferencing setup will allow us to be able to cross-examine her and ask her questions regarding her recollection of what occurred and her statements relating to her condition. [¶] I assume, of course, that those are going to be the areas that are going to be addressed primarily, as well as her relationship to the defendant, so that we can make a determination based on the witness's own statements."
The conditional examination was conducted during the afternoon session. A two-way video conference system was set up connecting Cindy H. at the care facility with the magistrate, defendant, defense counsel, and the prosecutor in the courtroom. The system enabled the parties to see and hear Cindy H. while she testified and enabled Cindy H. to see and hear each attorney who asked her questions. When the prosecutor finished her examination of Cindy H., the camera was moved to show defendant's attorney during his cross-examination of the witness. The camera was not moved to show defendant to Cindy H. during her testimony, except when she identified him as her attacker. Defendant's attorney did not object to the manner in which the system was set up. Following the preliminary hearing, defendant was held to answer.
On November 9, 2010, the prosecution moved to amend the information to add two one-strike allegations to count 4. The amendment sought to allege defendant inflicted aggravated mayhem or torture during the commission of the sex offense within the meaning of section 667.61, subdivision (d)(3), and that he also personally inflicted great bodily injury during the commission of this crime within the meaning of section 667.61, former subdivision (e)(3).*fn4 Defendant objected to the amendment, arguing the prosecution introduced "absolutely no evidence" during the preliminary hearing that he inflicted mayhem, torture, or great bodily injury while inserting the batteries into Cindy H.'s rectum. On November 18, 2010, the trial court entertained argument on the proposed amendment and deferred ruling on the motion.
On November 29, 2010, prior to opening statements, the prosecutor advised the trial court Cindy H. was unable to come to court because she was hospitalized due to a bladder infection. The parties agreed to hold opening statements in abeyance until they received further information concerning her condition. That afternoon, the prosecutor informed the trial court Cindy H. was in the intensive care unit due to both a urinary tract infection and pneumonia, she was non-responsive, her breathing was being assisted by a breathing tube, and the doctors would know more about her condition in two or three days. The trial court indicated the trial would proceed the following day with opening statements and prosecution witnesses, followed the next day by a hearing on whether the conditional examination would be played for the jury. Defense counsel objected to playing the conditional examination for the jury and explained: "My concern at this point would really be compounding of the conditional examination with the amended information. [¶] The Court is aware that we would have three days notice as required by law. The Court found a reason at the time of the preliminary hearing to allow the District Attorney to not have to comply with that requirement. But now [defendant] is in a position where the conditional exam[ination] is held over his objection without adequate notice, and since that time now an amended information has been filed adding two rather substantial enhancements. One 15 years to life, one 25 [years] to life, which he did not have an opportunity to cross-examine on at the time of the preliminary hearing and conditional exam[ination]." The trial court then entertained further argument regarding the prosecution's motion to amend the information and granted the motion.
On December 1, 2010, the trial court held a hearing outside the presence of the jury concerning whether Cindy H. was unable to testify because of physical illness within the meaning of Evidence Code section 240, subdivision (a)(3). Dr. Daniel Yuen testified concerning her medical condition. He explained that while Cindy H. was being treated for a urinary tract infection, she became unresponsive due to a lack of oxygen and had to be placed on a respirator. A chest x-ray revealed she also had pneumonia. The pneumonia had become worse in the previous two days and Cindy H. was under sedation. Dr. Yuen did not believe she would be able to have the breathing tube removed within a week in order to testify. Dr. Yuen also expressed doubt about whether she would be able to nod her head in response to questions because of her neck injury. In response to a question by defendant's attorney, Dr. Yuen clarified that because quadriplegia makes it difficult to recover from pneumonia, "it may be a long, long time" before Cindy H. would be able to be taken off of the respirator. Indeed, a tracheotomy may be required. The best case scenario was that it would take "at least a month" for her to be able to come into court to testify. The worst case scenario was that she might not survive.
Prior to ruling on the prosecution's request to play the conditional examination for the jury, the trial court allowed both sides to argue the matter. Defense counsel again expressed concern that he did not have an opportunity to cross-examine Cindy H. about the one-strike allegations that were added to the information after the conditional examination. He argued that, because of this, playing the conditional examination for the jury would violate defendant's Sixth Amendment right to confront his accuser. Defense counsel then requested a continuance of an unspecified duration, as he put it, "to see if we can obtain [Cindy H.'s] testimony either live or by video conference." In response, the prosecutor pointed out that the initial information contained a charge of attempted murder with a great bodily injury enhancement and a charge of torture. Thus, argued the prosecutor, during the conditional examination, defense counsel was given an opportunity to cross-examine Cindy H. concerning whether defendant inflicted great bodily injury and torture during his violent assault. Defense counsel responded by reminding the trial court that "this was a situation where the three-day notice requirement was not met and that aggravates."
The trial court granted the request to play the conditional examination for the jury. Citing People v. Frank, supra, 132 Cal.App. 360, the trial court confirmed the magistrate's ruling with respect to allowing the conditional examination to take place on less than three days' notice. The trial court then reviewed Dr. Yuen's testimony concerning Cindy H.'s medical condition and ruled she was "unavailable as a witness" within the meaning of Evidence Code section 240. The trial court also pointed out that, although notice was shortened, defense counsel had "effectively a full day notice" Cindy H. would be examined conditionally during the preliminary hearing. Moreover, "the initial charges as they existed prior to the preliminary hearing and at the time of the preliminary hearing encompass the fundamental enhancements as they were later sought and amended . . . . [¶] The notable great bodily injury here was the spinal injury which would be consistent with the facts used by the mayhem enhancements, which is pled in the alternative to the torture. As to the torture itself, the violation of . . . Section 206 was asserted at that time in the Information. [¶] So the issue of torture and great bodily injury specifically by way of factual background including the spinal injury were directly immediately at issue in the context of the preliminary hearing."
The conditional examination was played for the jury later that day. As mentioned, the jury convicted defendant of torture, inflicting corporal injury on a cohabitant (with a great bodily injury enhancement), and unlawful sexual penetration with a foreign object (with a one-strike torture enhancement). Defendant's new trial motion, arguing in part that his Sixth Amendment right of confrontation was violated by the trial court's decision to allow the conditional examination to be played for the jury, was denied.
Defendant's Right to Face-to-face Confrontation
Defendant argues the introduction of Cindy H.'s conditional examination violated his Sixth Amendment right to confront his accuser face-to-face because "the camera equipment was not set up to show [defendant] to [Cindy H.] as she testified." Defendant's failure to object on this ground at a time when the purported error could have been remedied by the magistrate forfeits the issue on appeal.
The failure to raise a claim of federal constitutional error before the trial court forfeits the issue on appeal unless " 'it appears that (1) the appellate claim is the kind that required no trial court action to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court's act or omission, in addition to being wrong for the reasons actually presented to that court, had the legal consequence of violating the Constitution.' " (People v. Gutierrez (2009) 45 Cal.4th 789, 809, quoting People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Riccardi (2012) 54 Cal.4th 758, 801; People v. Redd (2010) 48 Cal.4th 691, 730 [failure to raise objection based on confrontation clause forfeited claim on appeal].) Moreover, in order to avoid forfeiture, the defendant must have objected on the "specific grounds" asserted as error on appeal. (People v. Fuiava (2012) 53 Cal.4th 622, 689.)
Here, as mentioned, defendant objected to the taking of the conditional examination based on the lack of three days' notice and further objected that conducting the examination via two-way video conference would violate his Sixth Amendment right to confront Cindy H. because "there could be some distinctions and some differences in [defense counsel's] ability to cross-examine [Cindy H.] by video conference as compared to her live testimony in the sense that [counsel] won't have a chance to look at body language, it may be difficult for [counsel] to understand some of her answers or questions, and [they] would lose the ability to interact with each other in a live format." Thus, the constitutional objection went to whether the conditional examination should be conducted in person as opposed to through video conference. We first note "the right to confrontation is ' "basically a trial right." ' " (People v. Miranda (2000) 23 Cal.4th 340, 350-351 [use of hearsay at preliminary hearing does not violate the confrontation clause], quoting Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1079, italics omitted.) Accordingly, defendant did not have a constitutional right to confront Cindy H. at the conditional examination. However, it was anticipated by all parties that Cindy H.'s conditional examination testimony could be used at trial. Defense counsel's objection may therefore be construed to be that if the conditional examination was held via video conference, then its subsequent admission at trial would violate defendant's confrontation rights. The magistrate (Judge Brown) overruled the objection and allowed the conditional examination to be conducted via video conference.
Later in the day, the video conference system was set up and the conditional examination was conducted. All parties could see and hear Cindy H. while she testified and Cindy H. could see and hear each attorney who asked her questions. Defendant never objected to the fact that the camera equipment was not set up to allow Cindy H. to see him on the screen while she testified. Again, while the confrontation clause generally "guarantees a criminal defendant 'a face-to-face meeting with witnesses appearing before the trier of fact'" (People v. Lujan (2012) 211 Cal.App.4th 1499, 1504-1505, quoting Coy v. Iowa (1988) 487 U.S. 1012, 1016 [101 L.Ed.2d 857]), this right attaches at trial. However, defense counsel could have objected that if the video conference system did not allow for a face-to-face confrontation, then the subsequent admission of the conditional examination at trial would violate defendant's confrontation rights. Defendant could also have objected that such a system would violate section 1340, subdivision (b), requiring a video conference system "in which the parties and the witness can see and hear each other via electronic communication." No such objection was made. Had either objection been made, the magistrate could have ruled on whether to turn the camera during Cindy H.'s testimony to allow her to see defendant.
Moreover, at no time during trial did defendant object to the playing of the conditional examination based on the position of the camera equipment during the examination. While defendant objected on confrontation grounds, his objection was based on the argument that he did not have an opportunity to cross-examine Cindy H. about the one-strike allegations added to the information after the conditional examination.
Anticipating forfeiture, defendant argues his failure to object "should be excused as futile." We are not persuaded. The magistrate addressed the logistics of setting up the video conference system and stated: "It's not required that [Cindy H.] sees us, but it certainly is required that we see her. [¶] . . . [¶] And that we have a full and complete opportunity to, you know, examine and cross-examine her. [¶] . . . [¶] It would be preferable if she could see us as well, and there may well be a camera that allows her to do that." Defendant quotes only the first sentence and argues: "Clearly, the magistrate had already made up his mind." We disagree for two reasons. First, the sentence defendant relies upon was in response to the prosecutor's statement she did not believe "the code" required Cindy H. to be able to see the parties while she testified. Thus, the magistrate's response had nothing to do with the requirements of the confrontation clause. Second, immediately thereafter, the magistrate expressed a preference for a video conference system that enabled Cindy H. to see the parties while she testified, which is exactly the system that was set up. And while this system did not show defendant to Cindy H. while she testified, defendant should have made a specific objection based on his right to face-to-face confrontation and given the magistrate the opportunity to rule on the matter.
Finally, we decline defendant's request to address the claim on the merits in order to "forestall a claim of ineffective assistance of counsel." The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) And when, as here, counsel has not had the opportunity to explain his conduct, we will not find ineffective assistance of counsel unless there could be no satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Here, as the Attorney General argues, defense counsel could have determined that having the camera focus on defendant's face during the conditional examination might have made her "emotional and upset," which may have made her more sympathetic to the jury who ultimately would be viewing the video of the examination later at trial. Defendant's only response is that this explanation "fails to explain why counsel would later object at trial, . . . but do so inadequately." But, as we have explained, counsel's objection to the playing of the conditional examination at trial did not include any argument that the placement of the camera equipment prevented defendant from confronting Cindy H. face-to-face. A satisfactory explanation for this would lie in counsel's belief the trial court would have considered the issue forfeited by his failure to object on these grounds at a time when the magistrate could have corrected the purported error.
We conclude defendant has forfeited the contention that playing the conditional examination for the jury violated his Sixth Amendment right to confront his accuser face-to-face because the camera equipment was not ...