PEOPLE v. WOODWARD (1992)

On July 10, 1989, defendant Johnie Monroe Woodward, Jr., was charged with one count of murder, two counts of possession of a concealable firearm, one count of grand theft, one count of assault with a deadly weapon, and related enhancements.   Following a trial, the jury found defendant guilty of second degree murder and guilty as charged on the remaining counts and enhancements.   Defendant raises several contentions of error on this appeal, including the contention he was denied his constitutional right to a public trial.   We agree defendant was denied his constitutional right to a public trial and, therefore, reverse and remand for a new trial.   In light of our resolution of this issue, we need not address the other contentions of error raised by defendant on this appeal.

DISCUSSION

I. The Constitutional Right To A Public Trial

A person charged with a criminal offense enjoys a right to a public trial under both the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution.   (Waller v. Georgia (1984) 467 U.S. 39, 41, 104 S.Ct. 2210, 2212, 81 L.Ed.2d 31;  People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 525, 165 Cal.Rptr. 851, 612 P.2d 941.)  “Under normal conditions a public trial is one which is open to the general public at all times.”  (People v. Byrnes (1948) 84 Cal.App.2d 72, 73, 190 P.2d 290.   See also People v. Hartman (1894) 103 Cal. 242, 245, 37 P. 153.)  “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.   The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”  (Waller v. Georgia, supra, 467 U.S. at p. 45, 104 S.Ct. at p. 2215, citations and internal quotation marks omitted.)

“The requirement of a public trial is for the benefit of the accused;  that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions․  In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.”  (Waller v. Georgia, supra, 467 U.S. at p. 46, 104 S.Ct. at p. 2215, citations and internal quotation marks omitted.   See also People v. Pompa–Ortiz, supra, 27 Cal.3d at p. 530, 165 Cal.Rptr. 851, 612 P.2d 941;  People v. Hartman, supra, 103 Cal. at p. 244, 37 P. 153.)

The right of the accused to a public trial is comparable to the rights of trial by jury and assistance of counsel.  (People v. Byrnes, supra, 84 Cal.App.2d at p. 80, 190 P.2d 290.)   Given the “near impossibility” of establishing prejudice (People v. Pompa–Ortiz, supra, 27 Cal.3d at p. 527, 165 Cal.Rptr. 851, 612 P.2d 941), the accused “should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.”  (Waller v. Georgia, supra, 467 U.S. at pp. 49–50, 104 S.Ct. at p. 2217.)   In the context of a trial, the denial of the accused's right to a public trial is per se reversible error.  (Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302;  People v. Pompa–Ortiz, supra, 27 Cal.3d at p. 527, 165 Cal.Rptr. 851, 612 P.2d 941;  People v. Byrnes, supra, 84 Cal.App.2d at p. 80, 190 P.2d 290.   See also Arizona v. Fulminante, supra, 111 S.Ct. at p. 1257 (dis. opn. of White, J.) [dissenting for four justices on a different harmless error issue and noting in the public trial context “violation of the guarantee of a public trial require [s] reversal without any showing of prejudice and even though the values of a public trial may be intangible and unprovable in any particular case”].)

The issue of whether the accused has been denied his constitutional right to a public trial cannot be determined in the abstract but rather must be determined with reference to the facts of a particular case.  (People v. Cash (1959) 52 Cal.2d 841, 847, 345 P.2d 462.)   Accordingly, we now set forth the facts giving rise to defendant's contention he was denied his constitutional right to a public trial in detail.

II. Defendant's Motion For A Mistrial And Motion For A New Trial

On March 13, 1990, after the prosecutor had finished his closing argument in this case, the trial court held its afternoon recess.   Upon returning from the recess, defense counsel noticed a sign on the courtroom doors;  he had not noticed the sign prior to this time.   The sign read as follows:

The sign contained a small arrow pointing towards room 221, which the court later explained was the chambers area of the courtroom.¹  After discovering the sign, defense counsel immediately moved for a mistrial on the grounds defendant had been denied his constitutional right to a public trial.

In responding to defendant's motion for a mistrial, the trial court indicated that not only had the sign been placed on the doors leading directly into the courtroom, but the doors had actually been locked.   The court explained why the doors had been locked, ultimately denying defendant's motion for a mistrial:

“THE COURT:  ․ As far as the sign that we have just referred to, that is now Defendant's I believe [Exhibit] 5.

“For the record, as you know, we are the Probate Department, we have constant interruptions with attorneys coming in and the phone ringing, most of those relating to ex parte orders.

“And it's my understanding that the bailiff did place that sign out there sometime probably at lunch in order not to interrupt argument with the attorneys coming in and out.

“So it is also my knowledge that the sign indicates that people can come through the chambers door in order to come into the courtroom.

“But again, that may be a subject matter of interpretation.   The sign has been placed into evidence, and I'll receive it in evidence.

“And if you wish to take this up further at a later time, I would allow you to, including the taking of evidence on the issue, if you wish to do that․

“But at this point in time, based upon the reasons for the sign being placed there, which as I indicated is to prevent the constant interruptions by the attorneys coming into and out during argument, the motion will be denied.

“If you request a sign be taken down at this point in time, I'll take it down.   We'll leave those doors unlocked, and allow the interruptions to continue.

“[DEFENSE COUNSEL]:  Well, Judge, I absolutely want the sign down.

“Mr. Woodward is entitled to have anybody who wants to come into the courtroom come into this courtroom and watch this trial.

“THE COURT:  I understand that.

“[DEFENSE COUNSEL]:  That is not what has happened.

“THE COURT:  Well, that is not what we are preventing.

“But again at this point in time, the motion is denied.   If you wish to put more on the record later, I will allow you to do so.   The sign will be taken down, the door will be left unlocked at this point in time.” ²

After this dialogue, the jury returned to the courtroom, and defense counsel delivered his closing argument.

The next day, the trial court sua sponte elaborated on the reasons the doors leading directly into the courtroom had been locked during approximately one and a half hours of the prosecutor's closing argument the previous day:

“THE COURT:  ․ I would like to make it clear to you and for the record as it relates to your motion yesterday precisely why the courtroom doors were locked yesterday and why the sign that was posted yesterday was there.

“The purpose is not only a desire not to distract the jurors, either yesterday during argument or today during instructions, but also and probably more importantly to courtroom security.

“For the record, you should be aware and the record obviously will reflect here that from early on in this case both the Court and my bailiff were made aware by transportation deputies that your client was a bit of a problem, in that he was classified because of his acting out behavior and other problems in the jail.

“Add [sic] secondly, he was also classified—or it was noted on his card that he was violent.   He had a list of approximately seven enemies on his card relating to people in the jail.

“It was also related to me that he was indicated as an escape risk.   We have had at least one incident in this court before yesterday where your client initiated a confrontation which could very easily have turned violent with the witness who was testifying.

“It should also be noted that obviously your client is charged with both murder and another violent assault with a firearm in this current case.   And that he has a prior conviction for which he went to state prison, which is also a violent felony.   And it was also known to both the Court and to my bailiff before yesterday that your client is a kick-boxer, or at least claims to be a kick-boxer and somewhat proficient in that area.

“Because of that, the Court was made aware prior to yesterday that it was the intent of the jail to always send your client to court with at least two deputies in his presence.   And that only if an extreme shortage of deputies required it would he ever be sent here with only one deputy.

“Yesterday the record should reflect there was only one transportation deputy present.

“Also the record should reflect that the victim in this case, as the evidence has shown and the Court was aware before yesterday, was involved rather heavily in the methamphetamine culture, and as your own expert testified yesterday and the Court was certainly aware before yesterday that culture tends to be violent.

“There have been since the in limine motions people present in this courtroom who are either related to or friends of the victim in the case.   Because of that involvement of the victim in that type of a culture, I have ordered my bailiff since the first day of in limine motions to search with a metal detector everyone who comes into the courtroom other than people that [sic] are recognized as being attorneys or rather courtroom staff.

“And that has been done on a regular basis.

“I had directed my bailiff again from the beginning of the trial to seat himself back by the back doors into the courtroom for that purpose so that he could intercept people coming into the audience.

“It should also be noted that your client has indicated to my bailiff on several occasions his particular fear of being killed by people present in the courtroom.

“For those reasons, again my bailiff has tried to stay stationed by the back doors to the courtroom.   Those are the doors that were locked yesterday.   However, when there is only one transportation deputy available to be near your client, it requires my bailiff to station himself up here away from those doors by your client.   That is what happened yesterday.

“During the morning session the number of people coming in and out was such that the bailiff did express the desire to close those doors, to place the sign on them directing people to come through the doors into chambers which would lead them directly by him so that he could for security reasons as well as to prevent the constant interruptions of argument be able to control the flow of people in and out of the courtroom.

“And the record should reflect that that sign was placed on the door and the doors directly into the courtroom were locked only after the beginning of the afternoon session at approximately 1:35.

“The record should also reflect that during that entire afternoon session there were in fact people in the audience in this courtroom, and that people were not prevented from coming in and being spectators.

“We have already introduced into evidence the sign that was placed on the door at that time, and it should also be noted that during the course even of your motion for a mistrial yesterday there were people seated in the audience.

“It is the Court's position as I indicated yesterday that your client has not been denied his right to a public trial.   That was the basis for the denial of your motion for a mistrial.

“․

“[DEFENSE COUNSEL]:  I would make a request of the Court to know if the Court had taken a look at the sign that was placed there yesterday before it was placed there?

“THE COURT:  Physically looking at the sign, no.

“[DEFENSE COUNSEL]:  Did the Court direct that it be written in the words that it was written in?

“THE COURT:  No.

“I knew the general content of what the sign was going to say.”

Defendant subsequently took up the trial court's invitation to submit evidence on his claim he had been denied his constitutional right to a public trial.   In connection with a motion for a new trial, defendant submitted the declaration of Daniel Cousineau.   In his declaration, Mr. Cousineau stated as follows:

“1. That I and Janson Fowers came to the Contra Costa County Courthouse on March 13, 1990 at approximately 1:45 p.m. for the purpose of seeing the trial of Johnie M. Woodward;

“2. That it was our desire to provide support for the defendant Johnie M. Woodward;

“3. That when we attempted to enter the courtroom of Department 16, where the trial was being held, there was a sign on the door prohibiting entry;

“4. That we then left without seeing the court or the trial [of] the defendant, Mr. Woodward.” ³

The trial court denied defendant's motion for a new trial, making the following remarks:

“THE COURT:  We have discussed this issue at length at a prior time, and prior proceeding, as [defense counsel] indicated.

“The full sign itself is in evidence, and a court can certainly look at that on review.

“This Court feels that the time period which that sign was posted on the door, which was during closing argument, was within the Court's discretion and purview for controlling its own proceedings.

“It should be noted that the sign was put on the door, and was there from the beginning of the afternoon proceedings at approximately 1:30, until whatever time it was that [defense counsel] raised his objection to it.

“I believe the declaration attached to motion for new trial case [sic] that these two individuals who were trying to come into the courtroom, came at about quarter of two, and I'm not sure of that, but the Court feels that at this point in the trial, the Court did have the discretion to control the courtroom.

“As I put on the record at the time [defense counsel] raised his objections, this Court had a lot of traffic in terms of people coming in and out for probate matters, and other matters.

“And as I indicated later, every court in this County, as far as I know, simply controls the proceedings as far as the reading of jury instruction, and this is not—although [defense counsel] said this was done without chance for argument, and it's not done with chance for argument during those times, either, and indeed in this case, I offered [defense counsel] the opportunity to object to that very similar sign being placed on the door during reading of jury instructions and there was no objection.

“The Court fails to see how the sign being on the door for that brief period of time, in light of the Court's opinion that it was needed to control the courtroom in terms of making the presence, or the circumstances here during argument be such that it would not be interrupted, deprived the Defendant of his right to a public trial.

“As [defense counsel] indicated the case law goes to situations where either the People or the defense are attempting to close the courtroom during the actual trial or hearing, as opposed to during the closing stage he's [sic] of closing arguments.

“For those reasons, and the other reasons put on the record at the time the objection was raised, the motion for new trial on that basis is denied.”

III. Under The Circumstances Of This Case, Defendant Was Denied His Constitutional Right To A Public Trial

 From the above dialogue, it is clear the doors leading directly into the courtroom were locked with the knowledge of the trial court and without defendant's knowledge or consent for approximately one and a half hours during the prosecutor's closing argument.   What remains to be determined is whether this deprived defendant of his constitutional right to a public trial.   Under the circumstances of this case, we conclude it did.

The Attorney General argues “[a]ppellant's claim exaggerates the facts in this case,” that “the sign direct[ed] people to chambers,” and that “the sign did not prevent people from entering the courtroom as spectators.”   In support of this argument, the Attorney General relies on the trial court's suggestion “the sign indicates that people can come through the chambers door in order to come into the courtroom.”   But even the court acknowledged “that may be a subject matter of interpretation.”

Moreover, the trial court's remarks were made prior to the receipt of declarations from Daniel Cousineau and Janson Fowers, evidence the court had previously invited defendant to submit.   The declarations indicate they had interpreted the sign as “prohibiting entry” to the courtroom.⁴  This interpretation was eminently reasonable.   The sign itself stated “TRIAL IN PROGRESS.   PLEASE DO NOT ENTER.”   It went on to list the times of the court's recesses.   Coupled with the locked courtroom doors and the words “TRIAL IN PROGRESS.   PLEASE DO NOT ENTER,” the listing of the times of the court's recesses clearly suggested the only times spectators would be permitted to enter the courtroom was during these recesses.   Only in the event spectators had questions, were they “DIRECT[ED]” to “RM 221.”   The sign contained no indication whatsoever “RM 221” was the chambers area of the courtroom or that spectators would be permitted to enter the courtroom if they went to room 221.   In light of the locked courtroom doors, the “PLEASE DO NOT ENTER” notation on the sign, and the listing of the court's recesses, it is perfectly understandable spectators such as Daniel Cousineau and Janson Fowers had no questions to direct to the bailiff in room 221.   They reasonably interpreted the sign and the locked courtroom doors as prohibiting entry to the courtroom.⁵

The Attorney General next argues the court was justified in locking the courtroom doors based on “necessity”—in particular, courtroom security.   According to the Attorney General, “the trial court imposed a security measure which ‘was eminently reasonable as an aid in law enforcement's endeavor to guard against possible harm to defendant[ ], the officers of the court, and the trial spectators themselves.’  ( [People v. Remiro (1979) 89 Cal.App.3d 809,] 848 [153 Cal.Rptr. 89].)”   This argument is based on the same faulty premise that the sign on the courtroom doors “Direct[ed] People To Enter The Courtroom Through Chambers,” a claim which is belied by both the declarations of Daniel Cousineau and Janson Fowers and the sign itself.

 More importantly, however, the Attorney General's argument does not address the trial court's failure to give the parties any notice whatsoever before unilaterally authorizing that the doors leading directly into the courtroom be locked.   Notice to the defendant, an opportunity to object, and an opportunity to suggest less restrictive alternatives are essential components of a defendant's constitutional right to a public trial.

 As recently noted by a unanimous United States Supreme Court in Waller v. Georgia, supra, 467 U.S. at pp. 47–48, 104 S.Ct. at 2216, “under the Sixth Amendment any closure ․ over the objections of the accused must meet the tests set out in Press–Enterprise [Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629] and its predecessors.   [¶] ․ Under Press–Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”   Even in cases involving only a temporary exclusion of a portion of the public, a court must nevertheless determine whether there is a “substantial” reason for the exclusion, ensure the exclusion is no broader than necessary, and consider less restrictive alternatives.  (U.S. v. Sherlock (9th Cir.1989) 865 F.2d 1069, 1076–1078.   See also Gibson v. Superior Court (1982) 135 Cal.App.3d 774, 780, 185 Cal.Rptr. 741 [“the trial court denied petitioners procedural due process when it failed to utilize procedures reasonably designed to provide petitioners with information about the security needs and a meaningful chance to object to the court's decision”].)

 By our decision, we do not intend to comment on the propriety of the special security measures adopted by the trial court in this case.   The record clearly suggests some special security measures were in order—defendant himself had expressed to the bailiff a fear of being killed by spectators in the courtroom.   Our holding is only that the trial court should have advised the parties before it adopted the special security measures and, in particular, before it authorized that the doors leading directly into the courtroom be locked.⁶  This would have provided defendant with an opportunity to object, to request a hearing, and to suggest less restrictive alternatives.   Waller v. Georgia, supra, 467 U.S. at pp. 47–48, 104 S.Ct. at pp. 2215–2216, and its progeny presuppose the accused will be given such an opportunity to object.   When the accused or his counsel is aware of a proposed or actual exclusion and fails to object promptly, the accused is deemed to have waived his objections to the exclusion.  (See People v. Cash, supra, 52 Cal.2d at p. 846, 345 P.2d 462;  People v. Buck (1941) 46 Cal.App.2d 558, 561–562, 116 P.2d 160;  People v. Tugwell (1917) 32 Cal.App. 520, 524–526, 163 P. 508.)

The importance of notice to the parties is graphically illustrated by the facts of this case.   In explaining why it had adopted special security measures and authorized that the doors leading directly into the courtroom be locked, the trial court stated (1) defendant “was a bit of a problem, in that he was classified because of his acting out behavior and other problems in the jail,” (2) defendant “was violent” and “had a list of approximately seven enemies on his card relating to people in the jail,” (3) defendant was “an escape risk,” (4) defendant had “initiated a confrontation which could very easily have turned violent with [a] witness who was testifying,” (5) defendant was “charged with both murder and another violent assault with a firearm in this current case” and had “a prior conviction for which he went to state prison, which is also a violent felony,” (6) defendant was a “kick-boxer and somewhat proficient in that area,” and (7) the friends and relatives of the victim who were attending the trial might also be involved in “the methamphetamine culture,” which “tends to be violent.”   The court also explained it had authorized that the courtroom doors be locked in order “to prevent the constant interruptions by the attorneys coming into and out” of the courtroom on probate department matters.

Simply put, it is fundamentally unfair for the trial court to have permitted special security measures to be taken and the courtroom doors to be locked based on these elaborate and detailed findings without first giving defendant an opportunity to contest the findings and to suggest less restrictive alternatives.  (See Waller v. Georgia, supra, 467 U.S. at pp. 47–48, 104 S.Ct. at pp. 2215–2216;  Gibson v. Superior Court, supra, 135 Cal.App.3d at p. 780, 185 Cal.Rptr. 741.)   Indeed, had the court advised the parties what it was intending to do, the sign placed on the courtroom doors could have easily been modified to read “Trial in progress.   Please enter through Room 221” or, to the extent the trial court was concerned about probate department interruptions, to read “Please direct all probate department questions to the bailiff in Room 221.” ⁷

 We turn next to two contentions which, although not advanced by the Attorney General as a basis for upholding the conviction in this case, were raised by the trial court.   First, the trial court noted “during that entire afternoon session there were in fact people in the audience in this courtroom.”   As discussed in People v. Byrnes, supra, 84 Cal.App.2d at pp. 76–80, 190 P.2d 290, the presence of spectators in the courtroom during an exclusion goes not to the issue of whether the accused has been denied his right to a public trial but rather to the issue of prejudice, something the accused is not required to prove.   The approach taken in Byrnes, has been endorsed by both the United States and the California Supreme Courts.  (See Waller v. Georgia, supra, 467 U.S. at pp. 49–50, 104 S.Ct. at pp. 2217;  People v. Pompa–Ortiz, supra, 27 Cal.3d at p. 527, 165 Cal.Rptr. 851, 612 P.2d 941.   See also U.S. v. Sherlock, supra, 865 F.2d at pp. 1076–1078 [temporary exclusion of a portion of the public implicates Sixth Amendment concerns].)

 Second, the trial court indicated “[t]his Court feels that the time period which that sign was posted on the door, which was during closing argument, was within the Court's discretion and purview for controlling its own proceedings.”   The court analogized to the reading of jury instructions during which “every court in this County, as far as I know, simply controls the proceedings” by posting a sign on the courtroom doors.

Closure of the courtroom during closing arguments is not analogous to closure of the courtroom during jury instructions.   In People v. Buck, supra, 46 Cal.App.2d at pp. 561–562, 116 P.2d 160, the court held the defendant's right to a public trial had not been infringed when the trial court ordered the courtroom doors be locked while jury instructions were being read.   In finding there had been no constitutional violation, the court specifically noted “the court instructed the jury before the argument of counsel and that the doors of the courtroom were opened during the argument.” (Id. at p. 562, 116 P.2d 160, emphasis added.) ⁸  Similarly, in People v. Teitelbaum (1958) 163 Cal.App.2d 184, 206, 329 P.2d 157 the court held public trial guarantees extend to the closing arguments of counsel.⁹

The suggestion in Buck and the holding in Teitelbaum that public trial guarantees extend to the closing arguments of counsel is in accord with governing United States Supreme Court precedent.   In Press–Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1, the Supreme Court considered whether to extend public trial guarantees beyond the actual trial itself to preliminary hearings.¹⁰  In reaching its decision, the Court considered “two complementary considerations”—first, “whether the place and process have historically been open to the press and general public” and second, “whether public access plays a significant positive role in the functioning of the particular process in question.”  (Id. at p. 8, 106 S.Ct. at p. 2740.)   The Court concluded preliminary hearings met both of these criteria and, accordingly, that public trial guarantees applied to such hearings.  (Id. at pp. 10–15, 106 S.Ct. at pp. 2741–2743.)   The same is true of closing arguments.   Closing arguments have historically been open to the public, and public access to closing arguments “ ‘enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.  [Citation.]’ ”  (Id. at p. 9, 106 S.Ct. at p. 2740.)

DISPOSITION

For the reasons discussed above, we conclude defendant was denied his constitutional right to a public trial.   Accordingly, we reverse and remand for a new trial on second degree murder and on the remaining counts and enhancements.  (See Green v. United States (1957) 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199.)

APPENDIX

FOOTNOTES

1.   A copy of the sign is attached as an appendix to this opinion.

2.   The trial court noted the courtroom doors had been locked on one occasion prior to closing arguments as well.   The court did not state when this occurred, the amount of time the doors were actually locked, or whether a sign was placed on the door.   From our independent review of the trial transcript, we suspect the incident to which the court was referring might have occurred during the testimony of Sergeant George Ward, when the court spontaneously announced “[a]pparently, the door is locked.   Now, we have totally interrupted everything.”   Given the lack of clarity in the record and defendant's failure to object, we cannot conclude this incident deprived defendant of his constitutional right to a public trial.  (See People v. Cash, supra, 52 Cal.2d at pp. 846–847, 345 P.2d 462.)

3.   The record reflects a second handwritten declaration from Janson Fowers, similar in content to Daniel Cousineau's declaration, was submitted to the trial court at the hearing on defendant's motion for a new trial.   Although the trial court indicated its desire to make Janson Fowers' declaration a part of the record in this case, the declaration is not included in the clerk's transcript on appeal.

4.   In spite of the fact defendant cited to the declaration of Daniel Cousineau in his opening brief, the Attorney General failed to address the impact of the declaration in his brief.

5.   The trial court accepted the facts set forth in the declaration of Daniel Cousineau, simply stating its belief it had “discretion to control the courtroom” at the time Mr. Cousineau and Janson Fowers attempted to enter.   As explained below, we reject the trial court's conclusion it had authority to lock the courtroom doors during closing argument without any notice to the parties whatsoever.  (Post at pp. 632–633.)

6.   The cases cited by the Attorney General are not to the contrary.   In People v. Remiro, supra, 89 Cal.App.3d 809, 153 Cal.Rptr. 89, there is no indication the trial court implemented the security measures taken without consulting the parties and without the parties' knowledge.   To the contrary, there were “exchanges between court and counsel” concerning the appropriateness of the security measures, and the security measures were the subject of a writ proceeding during the trial.   (Id. at pp. 847–848, 153 Cal.Rptr. 89.)   Likewise, in People v. Frutos (1984) 158 Cal.App.3d 979, 988, 205 Cal.Rptr. 204, the limited exclusion order was made following a motion by the prosecutor.   In neither Remiro or Frutos were the trial courts' orders made without the knowledge of the accused or his counsel.

7.   This case is distinguishable from cases we have found in other jurisdictions which have upheld convictions in spite of brief exclusions where the exclusions were effected without the active participation of the trial court and were promptly corrected when brought to the attention of the court.  (See, e.g., Snyder v. Coiner (4th Cir.1975) 510 F.2d 224, 230;  York v. State (1978) 177 Ind.App. 568, 380 N.E.2d 1255, 1258–1259;  Watters v. State (Md.App.1990) 578 A.2d 810, 811–814, cert. granted, 321 Md. 633, 584 A.2d 64 (Md.1991).)   This is not such a case.   In this case, the trial court authorized that the doors leading directly into the courtroom be locked and “knew the general content of what the sign was going to say.”   Moreover, we note both Snyder and York were decided prior to the United States Supreme Court's decision in Waller v. Georgia, supra, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31;  the Court of Appeals of Maryland has granted certiorari in Watters.

8.   In addition, prior to locking the courtroom doors, the trial court in Buck expressly announced “ ‘Any one desirous of leaving the courtroom please do so at this time as no one will be permitted to leave or enter the courtroom during these instructions.   All right, mister bailiff, close the door,’ ” to which the accused posed no objection.  (People v. Buck, supra, 46 Cal.App.2d at pp. 561–562, 116 P.2d 160.)   Likewise, prior to instructing the jury in this case, the trial court announced “Ladies and gentlemen, [at this] point I am going to beginning [sic] instructing the jury, so if there are any people in the audience who don't wish to sit through the entire instructions, I would ask you to leave now.”   Defendant here did not object, having previously consented to the posting of a sign during jury instructions.   The court made no such announcement before authorizing that the courtroom doors be locked during the prosecutor's closing argument.

9.   The court in Teitelbaum also held public trial guarantees do, in fact, extend to jury instructions, an issue not presented in this case and which we express no opinion on.  (See People v. Teitelbaum, supra, 163 Cal.App.2d at p. 206, 329 P.2d 157.)

10.   Press–Enterprise arose in the context of the First Amendment right of the press to attend preliminary hearings.   However, the Supreme Court has made it clear “the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and the public.”  (Waller v. Georgia, supra, 467 U.S. at p. 46, 104 S.Ct. at p. 2215.)

BENSON, Associate Justice.

SMITH, Acting P.J., and PETERSON, J., concur.