PEOPLE v. SERNA (1989)

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald Ralph SERNA, Defendant and Appellant.

3 Crim. C004013.

Decided: September 26, 1989

Harvey R. Zall, Jr., State Public Defender, Julia Cline Newcomb and Paul M. Gerowitz, Deputy State Public Defenders, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Michael J. Weinberger and Robert D. Marshall, Deputy Attys. Gen., for plaintiff and respondent.

The central question in this case is whether the rearranging of the courtroom so that the prosecuting witness did not face the defendant deprived him of his Sixth Amendment right to confront the witnesses against him.   We hold that this procedure whereby defendant was seated outside of the victim's view violated his right to confront witnesses as established in Coy v. Iowa (1988) 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857.   We further hold, however, that in light of defendant's damning admissions, the error was harmless beyond a reasonable doubt.

Defendant Ronald Ralph Serna was sentenced to a 10–year prison term after a jury found him to be guilty of two counts of lewd and lascivious conduct with a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a).   In addition to his constitutional claim, defendant contends the trial court erred in admitting evidence of his prior sex offenses against the victim and in admitting the victim's hearsay responses to her mother's questioning.   We consider and reject these two evidentiary contentions in the unpublished portion of our opinion.   Finding no reversible error, we shall affirm the judgment.

THE CRIMES

On the evening of July 17, 1987, defendant's wife, Wanda, decided to go to a yard sale with a friend.   Defendant agreed to put to their three children to bed.   Wanda stayed at the yard sale for about an hour.   When she returned home defendant told her that their six-year-old daughter, E., needed an extra hug.   Wanda hugged E. and put her to bed.   E., however, kept peeking around the corner of the bedroom into the living room.   Eventually E. went to sleep.

The next day Wanda asked E. if she liked staying with defendant.   Wanda replied she did but that he hurts her feelings.   The following discussion ensued (with paragraphing deleted):  “I asked her, ‘What do you mean he hurts your feelings?’   And she said, ‘Well, he does bad things.’   I says, ‘I don't understand what you are saying.’   And she said, ‘Well, he makes me touch him—the part of him between his legs.’   And I says, ‘Are you sure?’   I mean, I—‘What else does he do?’   And she goes, ‘He also made my head go off the bed and put put [sic ] the part between his legs in my mouth.’   And I asked him—asked her, ‘Is there anything else that he did?’   And she said, ‘No.’ ”

Angered and upset by these revelations, Wanda telephoned defendant at work and told him that E. had disclosed what had happened the night before.   She asked whether he would deny it and he said, “No.”   She asked how many times this had been going on and defendant said it had happened one other time in the summer.   Wanda told defendant not to bother coming home and that she would pack his bags and tell him when he could pick them up.   Defendant retorted, “If that's what you want.”   Wanda countered:  “It's not what I want, this is what you want.   You are the one that has offended our daughter.”   Defendant then meekly replied, “Okay.”   Thereafter, Wanda reported the incident to the authorities and this prosecution resulted.

Evidence was introduced to show that defendant had sexually molested E. in the past.   Wanda testified that the family lived in Germany while defendant was in the military.   E. was then under three years old.   At one occasion during that period Wanda entered a room and observed defendant with his pants down and penis exposed.   E. was kneeling in front of him with her head near his crotch.   Defendant admitted that he had inserted his penis into E.'s mouth.   This incident was not reported to the authorities.   Later, when the family was living in Tacoma, Washington, the same thing occurred again.   On this occasion Wanda reported the incident and defendant was criminally charged and ultimately entered a guilty plea to incest.   Although he was out of the family home for about a year, the family was reunited after defendant underwent therapy.   The family lived together in Cottonwood in Shasta County from November 1986 until the discovery of the current offense.

On August 21, 1987, some five weeks after the last incident, Dr. Perry Pugno conducted a physical examination of E.   He discovered scarring and alteration of the hymenal ring which he believed to be clear medical evidence of vaginal penetration.   The condition of the hymenal ring was consistent with penetration by an adult penis, and the doctor felt that a minimum of at least six penetrations over an extended period of time would be required for such a condition.   The trauma was completely healed, which indicated it occurred at least three to four weeks before, but had not been built back up through the normal growing process, which indicated it was probably not more than a year old.

E. was an extremely reluctant witness at trial.   When she was first called to testify she would not respond to most questioning and did not answer questions concerning the charges.   Eventually, over defendant's objection, the courtroom was rearranged so that defendant was behind E.'s back where she could not see him and he could not see her face.

When E. was called to testify in the rearranged courtroom she was still a rather reluctant witness.   At that time she brought with her a puppet-dog named “Wrinkles.”   Although E. still refused to answer questions directed to her, she would answer questions in the third person through Wrinkles.   Through careful questioning of Wrinkles the prosecutor was able to bring out that defendant had touched E.'s mouth with the part between his leg and white stuff came out.   This happened more than four times.   Wrinkles said that it happened in E.'s mother's room, in her room, in the living room, and in the car.

Defendant admitted sexually molesting E. in Germany and in Washington.   In Germany, the acts consisted of oral copulation and in Washington there was oral copulation and slight vaginal penetration.   He would have E. masturbate him.   After the Washington incident he received therapy, and he denied that he has committed molestations since then.   He expressly denied that he committed any sexual acts in California.   As defendant explained it, during the summer of 1987 he and Wanda had been fighting constantly and on July 18th they decided to separate, but molestation of E. was not involved in that decision.   The jury obviously disbelieved him and returned guilty verdicts.

DISCUSSION

I–II ***

III

 Defendant contends that his constitutional right to confront witnesses was violated when the courtroom was rearranged so that the victim could testify without seeing him.⁵  The trial court described the rearranged courtroom for the record in this fashion:  “The record should reflect we have moved into the well, our Reporter has moved to the opposite side of the witness box so that he is now between the witness box and the jury box, that a chair has been positioned roughly in the center of the well for the witness.   That chair has been positioned immediately behind and to the right of that chair for the support person, in that case, the grandmother.   That a third chair has been positioned at a 90–degree angle to the youngster's chair and placed toward the back of the courtroom or in the direction toward the back of the courtroom approximately three feet from the witness's chair and that another chair has been placed to the right or toward the jury box of that chair.   The last two chairs described will be used by Ms. Daly [the prosecutor] and Mr. Osborne [defense counsel], respectively.   The defendant will remain where he has been seated at counsel table, which is behind and to the right of the chair to be occupied by the minor witness, approximately eight to ten feet at an angle behind that chair of approximately 45 degrees and as I mentioned before, the therapist for the youngster will be permitted to sit at counsel table, which position is roughly four feet behind the chair to be occupied by Ms. Daly.”   The court accepted, without refutation, defense counsel's assertion that this left the therapist in the witness's view but “defendant is behind her back and cannot see her at all.”

In view of the United States Supreme Court decision in Coy v. Iowa, supra, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857, we are compelled to agree that this procedure violated defendant's constitutional right to confront witnesses.   In that case, a screen was placed between the witness stand and the defendant which, with lighting adjustments, allowed the defendant to dimly perceive the witnesses, but did not permit the witnesses to see the defendant.   The court held that the confrontation clause of the Sixth Amendment of the United States Constitution guarantees the accused a face-to-face meeting with witnesses.   Such a visual encounter is, in fact, the very essence of the confrontation clause.  (487 U.S. at p. ––––, 108 S.Ct. at p. 2800, 101 L.Ed.2d at p. 864.)   The procedure utilized in that case enabled the prosecuting witnesses to avoid viewing the defendant while giving their testimony.  “It is difficult to imagine,” the court observed, “a more obvious or damaging violation of the defendant's right to a face-to-face encounter.”   (Id. at p. ––––, 108 S.Ct. at p. 2802, 101 L.Ed.2d at p. 866.)

Contrary to the Attorney General's assertion, the circumstances of this case bring it squarely within the holding of Coy.   Defendant was forced to sit behind the witness so that she could not see him and he could not see her face.   It is true that the court in Coy indicated that the witness need not fix her gaze upon the defendant and may studiously look elsewhere.  (Ibid.)  Yet it is equally clear that the witness must be in a position to see the defendant, or the right to confront witnesses is violated.

It is also true that the Coy court left for another day the question whether there may be permissible exceptions to the right of a face-to-face confrontation.   But whatever exceptions there may be, they must be necessary to further an important governmental interest and cannot be based upon generalized findings underlying a statutory enactment.  (Id. at p. ––––, 108 S.Ct. at p. 2803, 101 L.Ed.2d at p. 867.)   In a concurring opinion, two justices indicated that section 1347 of our Penal Code, permitting testimony to be given outside of the presence of the defendant via two-way closed circuit television in certain cases involving victims of sex crimes who are 10 years of age or younger, would be such an exception.   That does not avail the Attorney General, however, because the procedure in this case was not adopted pursuant to Penal Code section 1347, and the findings required by that section were neither made nor supported by the record.   The procedure here was followed solely because the child witness was reluctant to testify in defendant's presence.   As the Coy majority made clear, the confrontation clause is intended to have a profound effect on a witness who is required to testify face-to-face with the accused and that effect cannot, by itself, justify curtailment of the constitutional right.  (487 U.S. at p. ––––, 108 S.Ct. at p. 2802, 101 L.Ed.2d at p. 866.)   Consequently, the lack of a face-to-face encounter with the victim here violated defendant's Sixth Amendment right to confront the witness against him.

 A violation of the right to confront witnesses requires reversal unless it appears the error was harmless beyond a reasonable doubt.  (Coy, supra, 487 U.S. at p. ––––, 108 S.Ct. at p. 2803, 101 L.Ed.2d at p. 867.)   Our assessment of harmlessness requires that we disregard the child-witness's testimony and determine he issue on the basis of the remaining evidence.  “An assessment of harmlessness cannot include consideration of whether the witness's testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation;  such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.”  (Ibid.)

But even under this restricted method of assessment, we nevertheless conclude that the error in this case was harmless beyond a reasonable doubt.   This is a case, after all, where the defendant had previously molested his daughter and been charged and convicted of incest.   And yet when accused by his wife the day after the incident of a new sexual offense with his daughter, defendant did not deny the damning accusation.   Indeed, he implicitly admitted the crime when he further confessed to committing a similar offense with his daughter earlier that summer.   No rational juror could have believed that an innocent father would have made such devastating and ruinous admissions had they been untrue.   This virtual confession of the crime, when coupled with the medical evidence and the daughter's fresh complaint, could lead the jury to only one conclusion, that defendant was guilty as charged.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

5.   The Sixth Amendment to the United States Constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him;  ․” The California constitutional counterpart provides that “[t]he defendant in a criminal cause has the right ․ to be confronted with the witnesses against the defendant.”  (Cal. Const., art. I, § 15;  see also Pen.Code, § 1043.)

SPARKS, Associate Justice.

PUGLIA, P.J., and MARLER, J., concur.