PEOPLE v. RAMER

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jim Dwayne RAMER, Defendant and Appellant.

No. F017829.

Decided: July 29, 1993

Linda J. Zachritz, Fresno, under Appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., W. Scott Thorpe and Clayton S. Tanaka, Deputy, Sacramento, for plaintiff and respondent.

OPINION

Appellant Jim Dwayne Ramer was convicted, after a jury trial, of four counts of committing a lewd or lascivious act upon a child under the age of 14 years (Pen.Code § 288, subd. (a)), and was sentenced to six years in prison.

FACTS

The victim, Michelle [S.] (born August 23, 1978), was appellant's stepdaughter.   The four acts for which appellant was convicted all occurred during the period from approximately December of 1988 to December of 1989, when Michelle was 10 or 11 years old.   She was 13 years old at the time of appellant's trial.   We affirm.

For purposes of this appeal we need not set forth in great detail the acts which led to appellant's conviction.   It will suffice to say that the jury was persuaded of the truth of Michelle's testimony that on several occasions appellant touched her vaginal area with his hand, and that the jury rejected appellant's denial that these incidents occurred.

The prosecution's case was based primarily on the testimony of Michelle herself.   Nichole Robinson, a school friend of Michelle, also testified that Michelle had confided to her that appellant had touched her vagina.   Charity Faith Phillips, the sister of Michelle's deceased father, testified that she had a conversation with appellant during which appellant admitted that “I did do it once, but I was drunk and I didn't know what I was doing.”

Appellant, in addition to denying that he had molested Michelle, denied that he had made any admission of guilt to Charity Faith Phillips.   The victim's mother, Cheryl Ramer, testified that she had “drilled” Michelle to tell the police that appellant had touched her vaginal area.   Cheryl Ramer said that after a series of fights she had had with appellant, during which time she drank alcohol to excess, she was afraid that appellant would leave her and would obtain custody of Michelle's two younger half-sisters, who had been fathered by appellant.   Cheryl Ramer stated, talking about appellant, that she “was going to get him before he got me.”

At the time of trial, Cheryl Ramer had reconciled with appellant and was living with appellant, their two younger daughters, and appellant's mother.   After the lewd touching had been reported to the police, Michelle went to live with her paternal grandparents, and she continued to live there at the time of trial.   Michelle's mother visited her on Michelle's 12th birthday in August of 1990.   Between that time and appellant's trial in March of 1992, Michelle saw her mother only twice:  once during a visit at school sometime after Michelle had turned 13, and then at the preliminary hearing in this case in October of 1991.

After Michelle finished giving her testimony at the trial, the following occurred:

“THE COURT:  Thank you, Michelle.   If either attorney should ask you to return, you are to return without further subpoena, but you are excused at this time.

“We'll take a ten-minute recess.

“MR. FRANCIS:  Your Honor, [m]ay we take up something outside the presence of the jury?

“THE COURT:  Yes.   We'll remain in session after the jurors leave.

“(Whereupon, the jury left the courtroom.)

“THE COURT:  All right.   The jurors have left the courtroom.   We remain in session with all counsel present and Mr. Ramer present.

“Yes, Mr. Francis?

“MR. FRANCIS:  Thank you, Your Honor.   I believe under Penal Code Section 1102.6, the victim in this sort of crime has a right to be present subject to the only limitation that she possibly be forced to testify first.   And the victim, Michelle, has expressed a desire to witness the proceedings.   And at this point I would think that it would be all right for her to see the rest of the witnesses testify.

“THE COURT:  Mr. Avila?

“MR. AVILA:  A couple seconds, Your Honor.

“THE COURT:  Sure.

“MR. AVILA:  We do not oppose the request, Your Honor.

“THE COURT:  All right.   She may remain.

“MR. FRANCIS:  All right, Your Honor.   May she sit next to me?

“MR. AVILA:  Your Honor, I think it would be—

“THE COURT:  No.   Well, let me—ordinarily all witnesses are required—not allowed to sit at counsel table.   However, I can't deny the request of counsel to have an interested party sit at counsel table to assist him.

“MR. FRANCIS:  Thank you, Your Honor.

“MR. AVILA:  For the record, we object to that.   I think that the witness is being afforded a person who's in the courtroom to provide moral support.   And I think if such is the case, they should be together in the audience.

“THE COURT:  Well, the person who's here to provide moral support won't sit at the counsel table. 1

“I don't think I've—the—I can't recall having a similar request in a case of this type.   But counsel—let's see.   No one has been designated as a chief investigating officer and counsel is entitled to have a person who might assist him in the sense of being able to provide information.   I mean, certainly, she's not going to assist in tactical decisions but in providing information.

“So—although I haven't run into this before, I see no reason in principal why it shouldn't be granted.   For example, I don't know of any rule of law rather than custom that requires the defendant to sit at the counsel table.   I have never seen any statute or other—in contrast to the chair behind counsel table or in the first row.   But I think it is—it's customary.   So similarly, if Michelle [S.] wishes to sit there and maintains her composure, why, I don't see any reason in principal why it shouldn't be granted.

“So the objection is overruled.   She can sit at the counsel table to be of assistance.

“MR. FRANCIS:  Thank you, Your Honor.”

APPELLANT'S CONTENTION ON APPEAL

Appellant now contends that although it was proper for Michelle to remain in the courtroom after giving her testimony, the court erred in permitting her to be seated at the counsel table next to the prosecutor, and should have required her to sit “in the audience.”

DISCUSSION

 In 1986 the Legislature enacted Penal Code section 1102.6, which states:

“(a) The victim shall be entitled to be present and seated at the trial.   If the court finds that the presence of the victim would pose a substantial risk of influencing or affecting the content of any testimony, the court shall exclude the victim from the trial entirely or in part so as to effect the purposes of this section.

“(b) Upon the court's granting of the victim's request, the defendant may object to the order of the victim's testimony, in which case the victim shall testify first, subject to exclusion if the foundation or corpus delicti is not later established by the testimony of other prosecuting witnesses.

“(c) Upon the request of either party or upon the court's own motion, the victim shall be excluded from any hearing on a motion pursuant to this section.

“(d) The court, on its own motion or on the motion of either party, may remove a victim from the trial or any portion of it for the same causes and in the same manner as is provided for the exclusion or removal of the defendant, pursuant to paragraph (1) of subdivision (b) of Section 1043 and paragraph (1) of subdivision (b) of Section 1043.5.   The prosecution may request the removal of the victim at any time and, upon that request, the court shall require the removal of the victim.

“(e) As used in this section, ‘victim’ means (1) the alleged victim of the offense and one member of the victim's immediate family and (2) in the event that the victim is unable to attend the trial, up to two members of the victim's immediate family who are actual or potential witnesses.

“(f) The failure of a victim to exercise any right granted under this section is not a cause or ground for an appeal by the defendant of a conviction or for any court to set aside, reverse, or remand the criminal conviction.”  (Emphasis added.)

The Legislature declared the purpose of the statute to be as follows:

“(a) The Legislature hereby finds and declares that it is essential to the fair and impartial administration of justice that a victim of a criminal offense be afforded a reasonable opportunity to attend any criminal trial for that offense.

“(b) Further, the Legislature hereby finds and declares that it is essential to the fair and impartial administration of justice that a victim of a criminal offense not be excluded from any trial or any portion thereof conducted by any court that in any way pertains to the offense, merely because the victim has been or may be subpoenaed to testify at the trial, or because of any arbitrary or invidious reason.

“(c) This act shall be construed so as to accomplish and promote these purposes which are hereby declared to be the public policy of this state.

“(d) This act shall be known and may be cited as the California Crime Victims Trial Attendance Act.”  (Stats.1986, C. 1273, § 1.)

Appellant argues that the words “present and seated at the trial” in section 1102.6 must be construed to mean “present and seated in the audience at the trial, and not at the counsel table.”   We do not agree, however, that there is any ambiguity in this portion of the statute that needs to be construed.   The statute entitles the victim to be “present and seated.” 2  It does not attempt to address the question of where at the trial the seat occupied by the victim should be located.   Nor does it attempt to address the design or furnishing of the location at which the trial is held.   Appellant cites no authority, for example, which would require the presence of a “counsel table” in the first place.   Although we are aware that it is common in the courtrooms of this state for a spectator area to be separated from an attorney and client area by a small barrier, and for the attorney and client area to be equipped with two large tables, it is not beyond the realm of reasonable possibility that an unusual circumstance, such as the occurrence of a natural disaster or an act of war, might necessitate the holding of trials in what might be called makeshift courtrooms, with less than ideal accommodations.   We are aware of no statute which requires a barrier to separate the attorneys and their clients from the “audience.”   If a trial were held with no such barrier, how far away from the prosecutor would the victim have to be seated in order to be in the “audience”?   We agree with the view expressed by the trial court that the statute requires only that the victim be seated “at the trial” and does not attempt to dictate with any further specificity where that seat should be, or how far away from the prosecutor the victim should be.   The statute therefore was not violated.   However, the court's statement that it “[could not] deny the request of counsel to have an interested party sit at counsel table to assist him” implies a lack of discretion.   Certainly, the statutory provisions of 1102.6 which allow the court to exclude the victim from the courtroom include the ability to control where the victim sits.

Notwithstanding our conclusion that section 1102.6 was not violated in this case, we do not wish this opinion to be viewed as approving of the practice of permitting a victim to sit with a prosecutor at the counsel table.   At a criminal trial at which the victim testifies, the victim is a witness and not a party to the case.

 A prosecutor in this state represents the People of the State of California and not one particular individual.   The court should not, in our view, allow a seating arrangement which treats a witness, even a key witness, as if the witness were a party to the case.   The statute, itself, implicitly addresses concerns about possible undue influence occasioned by the presence of the victim.   This is not to ignore the significant interest to be advanced by allowing the person allegedly “victimized” to see the trial about that “victimization.”   Rather, the statute concerns the presence of a person who “would pose a substantial risk of influencing or affecting the content of any testimony.”   In other words, the concern is the possibility of undermining the truth-finding process.   In the usual case, we do not perceive that the presence of the victim in the courtroom would have any untoward effect.   Further, as the statute recognized and as we likewise conclude, there is nothing inherently prejudicial in the presence of the victim.   The fact that a defendant may not want the reminder of the crime to be a real presence, we do not see of itself, as an interference with the defendant's right to a fair trial.   We do recognize, that the presence of the victim at the counsel table does increase the possibility of both emotion and jury focus on factors which may not be consistent with the jury trial process involved in assessing criminal guilt.

Furthermore, we do not wish this opinion to be viewed as ruling out the possibility that, under some circumstances, the seating of a victim next to the prosecutor at the counsel table might result in a denial of a defendant's due process right to a fair trial.   We need not here speculate as to what those circumstances might be.   In the present case, the record contains no indication that Michelle [S.]'s presence at the counsel table, as opposed to “in the audience”, had or could have had any prejudicial effect whatsoever on the outcome of appellant's trial.   There is no hint in the record of any inappropriate behavior on her part.   Nor was this a case in which the crimes resulted in any lasting physical scarring that could be emphasized by placing the victim next to the prosecutor.   Appellant argues that the seating of the victim next to the prosecutor “magnified the youth of the alleged victim and the seriousness of the crime.”   In this case, however, the issue was whether the alleged crimes actually occurred, and whether the testimony of the youthful victim was truthful.   If the jury had not found her testimony to be truthful, the sight of her sitting at the counsel table would not have prejudiced appellant.   Similarly, the level of seriousness of the allegations did not increase simply because the person making them was sitting at the counsel table rather than elsewhere at the trial.

The judgment is affirmed.

FOOTNOTES

1.   Nothing in the record indicates who Michelle [S.]'s “support” person was.   See subdivision (e) of Penal Code section 1102.6, quoted infra.

2.   By “victim” we of course mean the alleged victim of a defendant's alleged crime.   See also subdivision (e)(1) of Penal Code section 1102.6, supra.

ARDAIZ, Acting Presiding Judge.

VARTABEDIAN, J., and GEO. A. BROWN, P.J.,* Sitting by Assignment, concur.