P.3d 950] [256 Cal.Rptr.3d 575] Fourth Appellate District,
Division Two, E064206, Riverside County Superior Court,
RIF1310007 and RIF1403693, David A. Gunn, Judge.
A. Torres, under appointment by the Supreme Court, for
Defendant and Appellant.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Michael Johnson, Deputy State
Solicitor General, Steven T. Oetting, Meredith S. White, A.
Natasha Cortina, Meagan Beale and Annie Featherman Fraser,
Deputy Attorneys General, for Plaintiff and Respondent.
Scheidegger and Kymberlee S. Stapleton for Criminal Justice
Legal Foundation as Amicus Curiae on behalf of Plaintiff and
Cal.Rptr.3d 576] A jury convicted defendant Jason Arredondo
of multiple sex offenses involving several minor victims.
While three of the victims testified, the trial court
positioned a computer monitor so they could not see defendant
and he could not see them. We granted review in this case to
determine whether the trial courts action violated
defendants right of confrontation under the Sixth Amendment
to the United States Constitution. We conclude that, as to
one of the witnesses, the trial court committed reversible
error, and we reverse defendants convictions involving that
witness. Regarding the other two witnesses, we conclude that
defendant forfeited [454 P.3d 951] his claim by failing to
object to the trial courts action, and that defendant has
not shown his attorneys failure to object constituted
ineffective of assistance of counsel.
I. FACTUAL AND PROCEDURAL BACKGROUND
relevant, defendant was charged by information with
committing the following sexual offenses involving F.R.,
Ar.R, An.R, and M.C.: eleven counts of lewd acts upon a child
under the age of 14 (Pen. Code, § 288, subd.
(a)) ; one count of lewd acts upon a child
under the age of 16 (§ 288, subd. (c)(1)); one count of oral
copulation of a person under the age of 14 (§ 288a, subd.
(c)(l)); and one count of sexual penetration of a person
under the age of 14 (§ 289, subd. (j)). The information also
alleged numerous enhancements. All four victims testified at
trial. At that time, F.R. was 18 years of age, M.C. was 16,
Ar.R was 14, and An.R was 13.
F.R. first entered the courtroom to take the witness stand,
the bailiff said, "Right this way, Miss," and the
court added, "[I]f youd just step up here, please, and
follow the instructions of my deputy there. He will tell you
what you need to do." The bailiff then stated,
"Please watch your step as you take the stand. Stay
standing, raise your right hand, and the clerk will swear you
in." F.R. started crying, and the court asked,
"[D]o you need a moment?" F.R. replied, "I
think so." The court then announced, "We will take
short break. Take about five or ten minutes, folks, and we
will attempt to start again at that time. ... We will be in a
short recess." A minute order indicates that the court
took a recess "to allow for witness composure."
the jury left the courtroom, the court said to the
prosecutor, "[A]fter your victim-witness advocate has
spent some time with her, just let me know if she is able to
proceed or ready to proceed and we will resume." The
prosecutor responded, "I am going to inquire of her if
she prefers the advocate sits behind her." The court
replied, "Oh, yes. Right. If theres something like that
that you can do that would make her more comfortable, Im
fine with that. I mean, the law allows it."
proceedings resumed about 30 minutes later, but before the
jury reentered the courtroom, the court stated, "Weve
made some modifications to the witness box to accommodate the
witness." [256 Cal.Rptr.3d 577] After the jurors took
their seats, F.R. entered the courtroom and the bailiff said,
"Right this way. Watch your step as you take the stand.
Please remain standing and raise your right hand, and the
clerk will swear you in." F.R. took the oath standing at
the witness box and then sat down to testify, with her
advocate sitting nearby. After she testified that she knew
someone named Jason Arredondo, and that he was her mothers
boyfriend, the prosecution asked, "Do you see Jason in
court today?" F.R. replied, "[Y]es." The
prosecution then asked, "Can you identify an item of
clothing he is wearing and where, to your left, to your
right, is he seated?" F.R. answered, "To my right
with the blue shirt." The prosecution asked "[i]f
the record could reflect the witness has identified the
defendant," and the court responded, "It may."
45 minutes later, the court took another recess. After the
jurors left the courtroom, it said: "I just want to note
for the record too that I had mentioned earlier that the
witness box had been reconfigured a little bit. Its not a
big change, but the monitor was placed kind of to the
witnesss right, apparently blocking at least some of her
view of possibly [defendant]. And I think that was the only
change thats been made." Addressing defendants
counsel, the court then asked, "Did you have anything
you wanted to say about that?" Defendants counsel
responded, "Yes I did, Your Honor. It does block
[defendants] entire view of the witness." The court
replied, "Well, he is present in court. He can hear the
witness, hear her answers. I think [the accommodation is]
appropriate given her initial reaction. [¶] Again, for the
record when she first came in to take the oath, she was
unable to proceed at that time. We took about a 15-minute
break before she could get her emotions back in order."
Defendants counsel responded, "[F]or the record, I
object to my client being unable to view the witness as the
witness testifies in that his [454 P.3d 952] knowledge of the
witness would be able to assist counsel in her demeanor and
looks, you know, as the quasi parent. He is aware of how the
looks when the witness is maybe not telling the truth or when
the witness is feigning something. I dont have that
knowledge. I have never seen this witness before. And
[defendant] is unable to assist me in that regard because he
is unable to see the witness."
court, commenting that it wanted to make "the record[ ]
clear," then stated: "Its a fairly small computer
monitor thats on the witness stand. Its there for the
witness to be able to view photographs that are shown on the
monitor. Again, it was simply repositioned so that the
witness doesnt have to look at [defendant]. I think —
at best its a small infringement on his confrontation
rights. I think its an allowable infringement on his right
to confrontation, but its a very limited blockage, if you
will." The prosecution, stating that it wanted "to
clarify" the record, then added: "The position of
the monitor in terms of where it is in the witness box is the
exact same as it was for [M.C.]. It was elevated with a Penal
Code as well as one volume of the CALCRIMs." The court
thanked the prosecution "for noting that" and
commented, "I didnt see that." The prosecution
continued, "Given that the witness had indicated that
the defendant looked at her the first time she came in."
The court added, "And whether that happened or didnt, I
think its appropriate."
Defendants counsel responded, "[F]or the record, Your
Honor, when the witness first came in, she began crying
before she was even able to see [defendants] face. So
[defendant] made no effort to look at her, intimidate her, or
make any kind of eye contact or suggestive contact with
her." The court replied: "I understand. Im not
[256 Cal.Rptr.3d 578] casting any aspersions at this point.
But it clearly affected her, and I think its appropriate for
the court to take whatever small efforts it can make to make
the witness more comfortable without infringing on any of
[defendants] constitutional rights, and I dont believe that
his rights have been infringed on at this point." The
court then "note[d]" counsels objection "for
the record" and "overruled" it.
after both sides had rested but before closing arguments, the
prosecution noted on the record that the monitor had been
similarly repositioned during the testimony of Ar.R and An.R.
Defendants counsel did not object to the repositioning with
respect to Ar.R and An.R. The fourth victim, M.C., had
testified without the repositioned monitor.
jury convicted defendant of the 14 charged crimes and found
the enhancement allegations to be true. The court sentenced
him to an indeterminate prison term of 275 years to life,
plus a determinate term of 33 years to run consecutively.
Court of Appeal affirmed defendants convictions but, based
on the parties agreement, remanded for ...