THE PEOPLE v. ANDREW FREDERIC POTVIN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Andrew Frederic Potvin appeals from the judgment entered after a jury convicted him of three counts of lewd conduct on a child under the age of 14.   Potvin contends the trial court violated his constitutional right to a public trial by excluding his brother and friend from the courtroom for the last few minutes of the prosecutor's rebuttal closing argument and the instruction to the bailiff to take charge of the jury.   We conclude the limited exclusion did not violate Potvin's public trial right and thus affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An information, dated December 7, 2009, charged Potvin with three counts of committing a lewd act on a child under the age of 14, pursuant to Penal Code section 288, subdivision (a), one count occurring in February 2009, one in March 2009 and one in April 2009, all upon the same victim.¹

2. The Evidence Presented at Trial

Potvin's initial trial in March 2010 resulted in a mistrial because the jury was unable to reach a verdict.   The People retried Potvin in May 2010.

At the second trial, the People presented evidence that Susan, then 13 years old, used to live with her mother, twin brother and grandfather in a house in Temple City. Her mother and Potvin, who worked together, began dating.   In 2007, when Susan was in sixth grade, her mother and Potvin moved into an apartment in Arcadia.   To be close to school, Susan and her brother lived in the Temple City house with their grandfather during the week and stayed at the Arcadia apartment on the weekends.   According to Susan, when she spent the night in Arcadia, she sometimes would become scared and go into the bed that her mother shared with Potvin.   Susan did not see her father, and she viewed Potvin as a “father figure.”  (RT 606)

Around the end of Susan's sixth-grade year, Susan's mother and Potvin broke up, and Susan's mother purchased a house in Glendora.   Susan, her mother, brother and grandfather all moved to the Glendora house, and Potvin moved to an apartment in Torrance.   Although Susan's mother and Potvin no longer were dating, he still came to the house several times a week.

Susan started at a new middle school in Glendora.   She felt stereotyped because she was only one of several Asian students in her grade, and some of the kids made disparaging comments to her.   She did not like going to school and was upset, feeling like neither her mother nor her brother understood her.   On a couple of occasions, she experimented with cutting herself and vomiting to try to cope with her unhappiness.

In January or February 2009, Susan's grandfather returned to China.   Susan also began an honors algebra class and asked Potvin to tutor her.   Potvin came over some nights after school to work on math with her, and when he did, now that her grandfather was away, he spent the night in her brother's room.   Susan slept in her mother's room, either on her mother's bed, or on a twin bed, which was in the room to help wean Susan from sleeping with her mother, as she was having trouble sleeping on her own.   Potvin sometimes took Susan to dance class on Saturdays if he had spent the night before and was at the house, and he took Susan, and once in a while her brother, to get ice cream, go miniature golfing and shop for household items.   Susan liked Potvin and was happy that he was in her life because he seemed to understand her better than her mother did.

One morning in February 2009, after her mother had left for work, Susan awoke about 6:00 a.m. or 7:00 a.m. to find Potvin in her mother's bed with her.   Potvin was facing her back, and his arm was “across [her] shoulder, almost, like, a hug.”  (RT 616) His hand was between her thighs, on top of her underwear and over her vagina.   Susan moved, turned on her stomach and went back to sleep.   She did not say anything to Potvin or her mother and told herself that his putting his hand on her was “probably just an accident.”  (RT 620) Later that month, she again awoke in her mother's bed to find Potvin next to her with his hand in between her thighs and over her underwear.   That time, Susan also moved away from Potvin.

The next month, in March 2009, Susan was in her mother's bed one morning when she felt Potvin's hand between her thighs and over her underwear.   Another time that month she was sleeping in the twin bed in her mother's room when she felt Potvin in bed with her.   His arm was over Susan, “almost hugging, and then his hand was between [her] thighs.”  (RT 622) Susan “told [her] mom that [Potvin] was coming over to [her] room and that he's sleeping next to [her] with his hands between [her] thighs and over [her] underwear, like, around [her] vagina area.”  (RT 623) Susan's mother “just looked at [her] funny․”  (RT 623) Susan asked her mother to wake her up before leaving for work so that Susan could lock the bedroom door from the inside to prevent Potvin from coming into the room.   Susan's mother, however, never woke her.

After Susan's talk with her mother, Potvin brought Susan to sit on his lap one day while at her brother's baseball practice and told her, “ ‘Your mom had a talk with me.’  ․ ‘If it's okay with you, it's okay to show affection towards me.’ ”  (RT 628) Susan was afraid to lose Potvin as a “father figure” because “he seemed more to understand when [she] had issues than [her] mom and [her mom] wouldn't understand and he would.   He would listen and almost, like, come up with ideas for [her].”  (RT 633)

During April 2009, when Susan was on spring break from school, Susan's family stayed at Potvin's apartment.   Susan and her mother slept on one mattress, and Potvin and her brother slept on another mattress.   On Thursday morning of that week, April 9, 2009, Susan woke up to find Potvin on one side of her and her brother on the other side of her in the bed in which she and her mother had slept.   Her mother was not there.   Susan's brother was asleep, and Potvin was facing her back and “fidgeting with [her] underwear.”  (RT 640) He put his hand inside her underwear, stuck his finger inside her vagina and wiggled it.   Susan “moved because [she] knew that was wrong, and he did it again.”  (RT 641) She moved again, pretending she was still asleep, and Potvin withdrew his hand.   Potvin then got up and, before he left for work, woke Susan and her brother and told them that either he or their mother would pick them up for lunch.

After Potvin left the apartment, Susan, now convinced that she had not been mistaken and that Potvin had not before touched her by accident, called her mother and told her, “ ‘There's something wrong with [Potvin] and you need to come and pick me up.   I need to talk to you.’ ”  (RT 643) Susan did not want to tell the police about Potvin's actions because she found them “really embarrassing.”  (RT 645) That day, Susan's family left Potvin's apartment.

After being back at school for a week or two and crying while there, Susan went to see her school counselor.   At first Susan told the counselor about the problems she was having at school and about feeling uncomfortable there, but after meeting with the counselor a few times Susan called her mother for permission to tell the counselor what had happened with Potvin.   Susan's mother gave her permission, and Susan then talked to the counselor about the incidents with Potvin.   Susan knew that by telling her counselor the police might be called.   After the counselor did call the police and report what Susan had told her, Susan spoke to the police regarding the incidents with Potvin.

Potvin testified in his defense.   He denied that he got into bed with Susan after her mother had left for work and that he touched Susan sexually.   He denied putting his hand between her legs and touching the area of her vagina, testifying that he “absolutely [did] not” put his finger inside her vagina.   (RT 1023–1024) Potvin also called as witnesses a police detective and Susan's mother and brother, attempting to contradict Susan's story.

3. The Jury's Verdict and Sentencing

The jury found Potvin guilty of three counts of committing a lewd act on a child under the age of 14 as charged in the information.  (CT 239–241) The trial court suspended imposition of sentence on all three counts and placed Potvin on formal probation for five years.  (CT 316–319)

DISCUSSION

Both the United States and California Constitutions guarantee the accused the right to a public trial.  (U.S. Const., 6th Amend.;   Cal. Const., art.   I, §§ 15, 29.)  “The observance of the right to a public trial precludes the closure of substantive courtroom proceedings in criminal cases” (People v. Esquibel (2008) 166 Cal.App.4th 539, 551), including “the closing argument phase of the trial” (People v. Woodward (1992) 4 Cal.4th 376, 381).   Nevertheless, “the partial closure of a trial by the temporary exclusion of select supporters of the accused does not create an automatic violation of the constitutional right to a public trial.”  (People v. Esquibel, at p. 554.)   When the temporary exclusion of certain individuals from a limited portion of the trial is de minimis, the accused does not suffer a violation of his public trial right.  (People v. Bui (2010) 183 Cal.App.4th 675, 688–689 (Bui ), citing People v. Woodward, at p. 379;  see also People v. Virgil (2011) 51 Cal.4th 1210, 1237 [“even a partial or temporary exclusion of the public from certain proceedings, if justified, imposes no more than a de minimis restriction on the constitutional right to a public trial”].)  “[T]he issue whether an accused has been denied his constitutional right to a public trial cannot be determined in the abstract, but must be determined by reference to the facts of the particular case.”  (People v. Esquibel, at p. 553.)

Potvin contends that the trial court violated his right to a public trial by excluding his brother and friend from the courtroom during the conclusion of the prosecutor's rebuttal closing argument and the instruction to the bailiff to take charge of the jury.   According to Potvin, the violation constitutes structural error and thus the judgment is reversible without a showing of prejudice.   We disagree with Potvin that he suffered a violation of his public trial right.

During the conclusion of the prosecutor's rebuttal closing argument, the trial court interrupted and said, “[W]ould the two people in the audience please leave?”   The “audience members exit[ed] the courtroom.”  (RT 1281) The prosecutor finished her rebuttal closing argument, and the clerk instructed the bailiff to take charge of the jury.   After the jury left the courtroom, the court explained, “I asked the two spectators to leave the courtroom because it was very evident that they were demonstrating their disagreement and displeasure with the comments of counsel and they were right on the line of the jurors' sight.”   Defense counsel “apologize[d] on their behalf for a lack of decorum.”   The court continued, “They have behaved themselves well for this trial, and I regret not cautioning them because sometimes they can be subconscious, but I don't want this jury to be influenced one way or the other because the inferences drawn can be obviously to your client's benefit or to his disadvantage and that's why I did that.”  (RT 1283) Defense counsel responded, “I appreciate[ ] that, your honor.”  (RT 1284)

After the jury reached its guilty verdicts, Potvin moved for a new trial arguing, among other grounds, that the trial court had violated his public trial right by removing the two spectators from the courtroom.   According to Potvin, those spectators were his brother and his friend, and he had a right to have them present during trial.   The trial court denied the new trial motion, explaining that “[t]he court's order to the two spectators and the reasons for it I will leave as I stated earlier.   I don't think it's appropriate for me to try to defend my actions any more or less at this point in the face of a motion, but the court's comments at the time speak for themselves.   In terms of what I saw and in terms of the concerns that I had at the time, again, the record is clear.   The court is of the view that there was no closure of the courtroom as in Bui [, supra, 183 Cal.App.4th 675] where, essentially, the public was removed to accommodate the number of prospective jurors․  In the Bui case ․ [the appellate court] talks about the exclusion of disruptive spectators and how disruptive spectators' removal doesn't reach the dimension of a deprivation of a public trial.   In retrospect, I could have, and I have thought of other steps that could have been taken.   I could have immediately stopped the argument, excluded the jury, and addressed it out of the presence of the jury.   I could have cautioned them, warned them ․ but I didn't, and that's a fact.   But if there was a perception that Mr. Potvin's constitutional rights were being affected by the court's action, I think it was incumbent upon the defense to raise the objection, ask[ ] to be heard, ask[ ] to suggest alternatives to the immediate removal;  and there were none.   In Bui, there was a 42–minute period of time where spectators were removed․  I have gone back to the record to determine the length of time that the argument continued after the departure of these two individuals and that was approximately three minutes.   My recollection is that the spectators were there throughout the entire proceeding;  and the denial of their opportunity to witness the proceeding for a three-minute period is, in my humble view, de minimis.”  (RT 1807–1809)

These circumstances—where Potvin's brother and friend were excluded from the courtroom for three minutes during the conclusion of the rebuttal closing argument and the instruction to the bailiff to take charge of the jury because they were showing “disagreement and displeasure” with the prosecutor's remarks in front of the jury—are in line with cases in which the appellate courts have concluded that a temporary exclusion of certain spectators from a limited portion of the trial was de minimis and thus that the defendant did not suffer a violation of a his public trial right.  (RT 1283) (People v. Holloway (2004) 33 Cal.4th 96, 147–148 [exclusion of defense investigator from courtroom for remainder of the day's proceedings over objection did not violate defendant's public trial right because she was noticed twice reacting to the testimony and “temporary exclusion of a single spectator, intended to prevent potentially disruptive displays, did not constitute a cognizable deprivation of the public trial right”];  People v. Woodward, supra, 4 Cal.4th at p. 381 [“closure of the courtroom doors to additional spectators during part of the prosecutor's arguments, being both temporary in duration and motivated by legitimate concerns to maintain security and prevent continuous interruptions of closings arguments, and not involving the exclusion of preexisting spectators, did not constitute a denial of defendant's public trial right”];  Bui, supra, 183 Cal.App.4th at pp. 688–689 [exclusion of three spectators, including two of defendant's family members, for about 40 minutes during jury selection did not violate defendant's right to a public trial “[g]iven ․ the de minimis nature of the temporary exclusion of these individuals from only a limited portion of voir dire”];  People v. Esquibel, supra, 166 Cal.App.4th at p. 554 [exclusion of two of defendant's friends from the trial during examination of minor witness based on concern that friends might be gang members and would recognize minor witness in the neighborhood did not violate defendant's public trial right, as exclusion was for “a minimal amount of time and [defendant's] family supporters remained in the courtroom”].)

Contrary to Potvin's suggestion, the trial court's comments after the exclusion that the two spectators had behaved well throughout the trial and that it could have admonished them before asking them to leave the courtroom, in or out of the jury's presence, do not change this result.   The three-minute exclusion at the conclusion of the proceedings was very brief and justifiably based on the spectators' potentially disruptive displays of “disagreement and displeasure” with the prosecutor's remarks.  (RT 1283) The court's after-the-fact recognition that perhaps it could have reacted in a different manner does not transform the limited exclusion into a constitutional violation.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code. Section 288, subdivision (a), makes it unlawful for “any person ․ [to] willfully and lewdly commit[ ] any lewd or lascivious act ․ upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child․”  The information also charged Potvin with one count of sexual penetration by foreign object under section 289, subdivision (j), which makes it unlawful for “[a]ny person [to] participate[ ] in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she․”  (CT 82) The trial court dismissed that count before trial.  (CT 97).  FN1. Statutory references are to the Penal Code. Section 288, subdivision (a), makes it unlawful for “any person ․ [to] willfully and lewdly commit[ ] any lewd or lascivious act ․ upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child․”  The information also charged Potvin with one count of sexual penetration by foreign object under section 289, subdivision (j), which makes it unlawful for “[a]ny person [to] participate[ ] in an act of sexual penetration with another person who is under 14 years of age and who is more than 10 years younger than he or she․”  (CT 82) The trial court dismissed that count before trial.  (CT 97)

MALLANO, P. J. JOHNSON, J.