California Court of Appeals, Second District, First Division
from a judgment of the Superior Court of Los Angeles County,
No. TA136977 John T. Doyle, Judge.
D. Sheehy, under appointment by the Court of Appeal, for
Defendant and Appellant.
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
ROTHSCHILD, P. J.
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
AND PROCEDURAL BACKGROUND
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.
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. 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.
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.
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.
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. 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.
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