People v. Poe CA1/4 ( 2021 )

Filed 11/30/21 P. v. Poe CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A160102
v.
MARK DAVID POE, (Solano County
Super. Ct. No. FCR340945)
Defendant and Appellant.
After a jury trial Mark David Poe was convicted of committing
domestic violence on his former spouse. Conducting the sentencing
hearing during the COVID-19 pandemic, the trial court barred the
public—including Poe’s family—from the courtroom. Poe’s sole claim on
appeal is that his right to a public trial was violated by that order. We
disagree and affirm.
BACKGROUND
Poe’s claim is limited to the circumstances of the sentencing
hearing and does not identify any trial errors; therefore, we recite the
procedural, and omit the factual, history. An information alleged that
Poe inflicted corporal injury on his former spouse (Penal Code 1 § 273.5,
subd. (a); count one), assaulted her with force likely to produce great
1 All statutory references are to the Penal Code.
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bodily injury (GBI) (§ 245, subd. (a)(4); count two) and, as to both
counts, inflicted GBI on the domestic violence victim (§ 12022.7,
subd. (e)). The information included three prior prison term
enhancements (§ 667.5, subd. (b)), which the court dismissed on the
People’s motion. On March 2, 2020, the jury found Poe guilty of both
counts and found the infliction of GBI allegations to be true.
The court conducted a sentencing hearing on March 27, 2020. The
court received and considered the presentence report, the People’s
sentencing memorandum in aggravation, and Poe’s letters in support of
his request for felony probation. Relevant to this appeal, at the outset of
the hearing, Poe’s counsel advised the court Poe’s “family is in the
hallway” and asked to bring them in. The court replied, “No, I’m not
going to allow anyone in.” Poe’s counsel responded: “Even the spouse,
your Honor?” The court said, “No,” to which counsel replied, “Okay.” The
issue was not addressed further until Poe’s counsel argued in support of
probation and said: “[H]is wife . . . has been here at every court date
since I can imagine and is waiting anxiously outside.”
The court denied probation and sentenced Poe to the three-year
midterm for count one and the four-year midterm for the section
12022.7, subdivision (e) enhancement, for a seven-year prison term.
Pursuant to section 654, the court stayed count two and the 12022.7,
subdivision (e) enhancement, and did not impose sentence.
Poe filed a timely notice of appeal.
DISCUSSION
I. The trial court did not violate Poe’s right to a public trial.
Legal Principles
“Every person charged with a criminal offense has a
constitutional right to a public trial, that is, a trial which is open to the
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general public at all times. (See U.S. Const., amends. VI, XIV; Cal.
Const., art. I, § 15; see also Pen. Code, § 686, subd. 1.)” (People v.
Woodward (1992) 4 Cal.4th 376, 382 (Woodward).) Counsel have not
provided California authority specifically addressing the right to have
the public present at sentencing, but the Eighth and Ninth Circuits
addressed the issue unequivocally. (United States v. Thompson (8th Cir.
2013) 713 F.3d 388, 393–394 [“the Sixth Amendment right to public
access attaches at sentencing”]; United States v. Rivera (9th Cir. 2012)
682 F.3d 1223, 1229 (Rivera) [“we hold that the Sixth Amendment right
to a public trial attaches at sentencing proceedings”].) “The right to a
public trial entitles a criminal defendant ‘at the very least . . . to have
his friends, relatives and counsel present, no matter with what offense
he may be charged.’ [Citations.] Nonetheless, in some circumstances,
exclusion of members of the public from a judicial proceeding does not
implicate the constitutional guarantee.” (Ibid.)
“The Sixth Amendment public trial guarantee creates a
‘presumption of openness’ that can be rebutted only by a showing that
exclusion of the public was necessary to protect some ‘higher value,’
such as the defendant’s right to a fair trial, or the government’s interest
in preserving the confidentiality of the proceedings. [Citation.] When
such a ‘higher value’ is advanced, the trial court must balance the
competing interests and allow a form of exclusion no broader than
needed to protect those interests. [Citation.] Specific written findings
are required to enable a reviewing court to determine the propriety of
the exclusion.” (Woodward, supra, 4 Cal.4th at p. 383.)
The Supreme Court held that the right to public trial may be
forfeited by failing to object. (People v. Virgil (2011) 51 Cal.4th 12103
(Virgil).) “Initially, we note that the claim [of denial of public trial] is
forfeited because defendant failed to object on this ground below. ‘A
defendant “may, by his own acts or acquiescence, waive his right [to a
public trial] and thereby preclude any subsequent challenge by him of
an order excluding the public. Unlike the jury trial right which requires
an express personal waiver [citation], the constitutional guarantee of a
public trial may be waived by acquiescence of the defendant in an order
of exclusion.” ’ ” (Virgil at p. 1237 [jurors questioned at sidebar].)
“Defendant did not assert his right to a public trial below, so the trial
court had no occasion to consider it. That claim of error was forfeited.”
(People v. Gonzales (2012) 54 Cal.4th 1234, 1292, fn. 27 (Gonzales)
[failure to object forfeited the claim where court disallowed minor
children at death penalty phase]; People v. Edwards (1991) 54 Cal.3d
787, 812–813 [right to have public at death-qualifying voir dire forfeited
by failure to assert it timely]; People v. Thompson (1990) 50 Cal.3d 134,
156–157 [public trial claim forfeited by failure to object to conducting
voir dire on jurors’ views on capital punishment in chambers].)
We consider de novo a defendant’s claim that he was denied his
constitutional right to a public trial, but review the trial court’s
underlying factual determinations for substantial evidence. (People v.
Scott (2017) 10 Cal.App.5th 524, 531.) Where a defendant has been
deprived of the right, “no showing of prejudice is required ‘[b]ecause the
right to a public trial protects the defendant from very subtle but very
real injustices,’ and ‘[re]quiring such a defendant to prove actual
prejudice would deprive most defendants of the right to a public trial.’ ”
(Id. at p. 532.)
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Analysis
Poe was in custody on the day of sentencing. Before he was
brought into the courtroom, his counsel asked the court to allow Poe’s
wife and family to enter. The court denied the request, and stated that
it would not “allow anyone in.” Counsel responded, “Okay,” and did not
object at the time or later in the proceedings. The sentencing hearing
occurred on March 27, 2020—at the outset of the COVID-19 pandemic.
Poe’s right to a public trial is protected by the Sixth Amendment
to the United States Constitution and by the California Constitution
and statute. (U.S. Const., amends. VI, XIV; Cal. Const., art. I, § 15; see
Pen. Code, § 686, subd. 1; Rivera, supra, 682 F.3d at p. 1229.) The
parties have not found California authority that expressly extends the
public trial right to the sentencing hearing. In his brief and at
argument, without conceding, the Attorney General has assumed—as
will we—that the public trial right encompasses the sentencing hearing.
Here, however, neither Poe nor his counsel asserted that right.
Therefore, Poe’s reliance on Waller v. Georgia (1984) 467 U.S. 39 is
misplaced. While Waller sets forth the procedures and findings
necessary to close a court proceeding, the prerequisite to initiate that
inquiry is “the objection[ ] of the accused.” (Id. at p. 47.) Accordingly,
Poe’s “failure to object” forfeited “his right [to have his family present at
sentencing] . . . preclud[ing] any subsequent challenge by him of an
order excluding the public.” (Virgil, supra, 51 Cal.4th at p. 1237.) Nor
does the record reflect whether Poe wanted a family member to address
the court or merely sought to have them present.
In any event, were we to reach the claim we would find the court’s
health and safety concerns presented an adequate basis for its decision.
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During the trial, as early as February 28, the court was vigilant about
possible COVID-19 exposure. In response to a juror’s stated discomfort
about a fellow juror’s coughing, the judge individually questioned the
afflicted juror to determine the cause. Then, again outside the presence
of other jurors, the judge assured the worried juror that the coughing
was attributable to allergies and not to COVID-19. Under the
circumstances of the early pandemic, such vigilance was more than
warranted.
“On March 4, 2020, Governor Gavin Newsom declared a state of
emergency in response to the global outbreak of COVID-19, a ‘new
disease, caused by a novel (or new) coronavirus that has not previously
been seen in humans.’ [Citation.] . . . [On March 19] the Governor issued
an executive order requiring all Californians to stay at home except for
limited activities.
“On March 23, 2020, Chief Justice Tani Cantil-Sakauye, in her
capacity as Chairperson of the Judicial Council, issued an emergency
statewide order pursuant to Government Code section 68115
suspending all jury trials and continuing them for a period of 60 days.
. . . In so ordering, the Chief Justice explained: “The [Center[s] for
Disease Control], the California Department of Public Health, and local
county health departments have recommended increasingly stringent
social distancing measures of at least six feet between people, and
encouraged vulnerable individuals to avoid public spaces.” (Stanley v.
Superior Court (2020) 50 Cal.App.5th 164, 167 (Stanley).)
As we held in Stanley, the unprecedented health risks posed by
COVID-19 led our Chief Justice and Governor to exercise the
extraordinary powers afforded them by the Constitution and statute.
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The Chief Justice recognized: “Courts cannot comply with these health
restrictions and continue to operate as they have in the past. Court
proceedings require gatherings of court staff, litigants, attorneys,
witnesses, and juries, well in excess of the numbers allowed for
gathering under current executive and health orders. Many court
facilities in California are ill-equipped to effectively allow the social
distancing and other public health requirements required to protect
people involved in court proceedings and prevent the further spread of
COVID-19.” (Stanley, supra, 50 Cal.App.5th at pp.167.)
Poe’s sentencing occurred in the first days of the pandemic when
courts were beginning to grapple with these unprecedented challenges.
We find protecting the parties, court personnel and the public from
COVID-19 to be a “ ‘higher value’ ” which could justify limiting the
public’s access to a court proceeding. (Woodward, supra, 4 Cal.4th at
p. 383.) Had Poe objected we would have a fuller understanding of how
the court “balance[d] the competing interests” (ibid.), but because the
claim was forfeited we need not reach that issue.
Had Poe asserted the right, it would have been incumbent on him
to demonstrate how the presence of family members “bore a reasonably
substantial relation to his opportunity to defend himself.” (Virgil, supra,
51 Cal.4th at p. 1235.) In his belated objection, Poe does not specify who,
other than his wife, was “in the hallway” nor how their absence deprived
him of the opportunity to mitigate his sentence. He argues that the
court “was precluded from seeing that appellant’s family included two
small children, one of whom was on the autism spectrum and had very
specific needs.” The record does not reflect, nor does Poe argue, that the
children were among those waiting outside, but, if so, “[s]imply seeing
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defendant's small children in the courtroom would not have provided
the [judge] with insight. ” (Gonzales, supra, 54 Cal.4th at p. 1292.)
In addition, Poe’s argument for probation based on his role as a
stepfather was addressed both in the presentence report, and, as he
acknowledges, by counsel at sentencing. He complains he was denied
“the opportunity for any of appellant’s family members to provide
details as to the child’s care and needs, or, as defense counsel phrased it,
‘to speak up for the handicapped child.’ ” Poe did not ask that his wife,
or anyone else, be allowed to enter the courtroom to speak on his behalf.
Nor is there any indication that she wanted to address the court. If the
request for probation was predicated, at least in part, on the care Poe
provided, we would have expected him to address the court on the
benefits to his stepchild if he were granted probation. Instead he was
mute. In the circumstances “ ‘we cannot conclude [his family’s presence]
. . . would have “contribute[d]” to the trial’s “fairness” in any marginal
way, for purposes of the Fourteenth Amendment's due process clause
[citation]; or [that it] bore a “ ‘ “ ‘reasonably substantial relation to the
fullness of his opportunity to defend,’ ” ’ ” for purposes of section 15 of
article I of the California Constitution . . . .’ ” (Virgil, supra, 51 Cal.4th
at p. 1235.)
Poe contends, in his reply brief, that objection would have been
futile. At oral argument counsel reiterated that view and added that the
sentencing hearing was “inadequate” and “truncated.” The record does
not support Poe’s position, and we reject it. The court received and read
the letters defense counsel provided at sentencing and conducted a full
hearing at which defense counsel restated the rationale for probation.
The court did not “find . . . unusual circumstances present here to make
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him eligible for probation,” but rejected the People’s request and the
probation department’s recommendation that Poe be sentenced to a
nine-year prison term. The judge sentenced Poe to the middle term of
three years with the four-year enhancement for a seven-year prison
sentence.
Poe also argues that the court, sua sponte, should have continued
the sentencing hearing or allowed his family to participate remotely.
Poe did not ask to postpone sentencing, which proceeded “on a no-time-
waived basis.” Nor did he request remote access for his family. The court
was not obliged to fashion unsought remedies for unstated concerns.
Accordingly, even had Poe not forfeited the claim we would find no
error.
II. The trial court failed to sentence Poe on count 2.
The Attorney General identifies a sentencing error: Poe was
convicted of section 245, subdivision (a)(4) with the 12022.7, subdivision
(e) enhancement, but the court stayed punishment on it without first
imposing sentence. “[I]f a defendant commits two crimes, punishment
for one of which is precluded by section 654, that section requires the
sentence for one conviction to be imposed, and the other imposed and
then stayed.” (People v. Deloza (1998) 18 Cal.4th 585, 594, italics added.)
The court’s omission results in “an unauthorized absence of sentence.”
(People v. Alford (2010) 180 Cal.App.4th 1463, 1472). The Attorney
General asks us to correct the error by modifying the judgment. We do
not presume to know the sentence the court would have imposed and
remand for that purpose.
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DISPOSITION
The judgment is affirmed. The matter is remanded to the trial
court to correct the sentence.
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_________________________
Ross, J.*
WE CONCUR:
_________________________
Pollak, P.J.
_________________________
Brown, J.
A160102 People v. Poe
*Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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