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People v. Scott

California Court of Appeals, Second District, First Division

April 4, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
MARK MALIK SCOTT, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA136977 John T. Doyle, Judge.

          Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Colleen M. Tiedemann and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

          ROTHSCHILD, P. J.

         Appellant Mark Malik Scott appeals from the judgment entered on his two convictions of second degree attempted robbery and four convictions of second degree robbery. Appellant asserts that the court violated his constitutional right to a public trial when the court excluded his family members from the courtroom during a portion of the trial and that such violation requires reversal of all the convictions. Although we agree that the court erred in granting the exclusion order, we reject the request to reverse all the convictions. Rather, we tailor the remedy to fit the violations and accordingly reverse the judgment only on those counts where the victims testified while appellant's family was excluded from the courtroom.

         FACTUAL AND PROCEDURAL BACKGROUND

         On April 7, 2015, near 109th Street and San Pedro Street in Los Angeles, appellant approached two juveniles, A.S. and J.G., as they were walking to their high school. After asking them for the time, appellant lifted his shirt to reveal the handle of a black gun in the waistband of his pants. He demanded that A.S. and J.G. hand over their cellular phones, and they complied. The next day, appellant approached 12 year-old J.V., who was riding her bicycle. Appellant asked her the time, showed that he had a gun, and demanded J.V.'s bicycle and cellular phone, which she gave him.

         At about 7:25 a.m. on April 9, 2015, appellant approached teenage middle schoolers L.T. and E.J., reached into his clothing as though he had a gun, and demanded their cellular phones.[1] E.J. handed over her phone, but L.T. refused to do so. Appellant pursued L.T. into a convenience store. When the store clerk intervened, appellant returned E.J.'s phone to her and fled. About 10 minutes later, appellant approached a woman, K.M., who was waiting at a bus stop and attempted to rob her of her cellular phone.

         An information charged appellant with six counts-one count for each victim. In counts 1 and 2 the information charged appellant with second degree robbery arising from the incident involving A.S. and J.G. Count 3 alleged second degree robbery based on the incident with J.V. Count 4 alleged the attempted robbery of K.M. Counts 5 and 6 alleged second degree robbery of E.J. and attempted second degree robbery of L.T., respectively. The information further alleged gang and weapons enhancements.

         At the outset of the trial, the court admonished everyone in the courtroom, including members of appellant's family who were present, not to have any contact with the prospective jurors. The next morning, at a break during jury selection, prospective juror No. 2 advised the trial court that while she was riding in the elevator at the courthouse with appellant and his father, after the first day of jury selection, appellant's father made a comment to her. Appellant's father observed that the juror worked as a nurse and he asked whether she had been excused. After prospective juror No. 2 said that she had not been excused, the conversation ended. The court excused her from the panel after the prospective juror indicated that the interaction could affect her ability to perform her duty as a juror. The prosecutor characterized appellant's father's contact with prospective juror No. 2 as an attempt at “manipulation by the family” in direct violation of the court's order not to have any contact with the jurors. The prosecutor further argued that appellant's father should be found in contempt or excluded from the proceedings. Appellant's counsel asked the court to wait until the completion of the trial before deciding whether to initiate contempt proceedings against appellant's father and acknowledged the court's right to exclude appellant's father from the courtroom proceedings if the court believed he would engage in further disruptive conduct. The court advised appellant's father that the alleged incident was serious and that contempt proceedings were pending against him.

         Later in the trial, on the morning of January 15, 2016, the court excluded appellant's family members from the proceedings during the testimony of several witnesses including three of the minor victims based on the prosecutor's claim that the victims did not want to testify because they had been threatened and felt intimidated. The jury found appellant guilty on all six counts and found the weapons allegations true.[2] The trial court sentenced appellant to an aggregate determinate term of 20 years 8 months in state prison. Appellant filed a timely notice of appeal.

         DISCUSSION

         Appellant claims that the trial court violated his constitutional right to a public trial when it excluded his family members from attending the trial during the entirety of the morning ...


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