California Court of Appeal Aug 29, 2018 No. JAD18-09Published
Filed 7/3/18
CERTIFIED FOR PUBLICATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE APPELLATE DIVISION
THE PEOPLE,
Plaintiff and Respondent, Case Nos: APP1700214 v. APP1700215 APP1700216 APP1800074 APP1800075 APP1800077 APP1800082 JASPREET SEKHON APP1800089 Defendant and Appellant, (Trial Court: DK37757JS)
[And seven other cases.] OPINION
People v. Jessie Ponce (No. CV1923JP); People v. Benjamin Petra (No. CV191048BP); People v. Jeffrey Schaefer (No. DS10861JS); People v. Duc Tran (No. DS12358DT); People v. Jin Soo Kim (DK42080JK); People v. Catherine Cirrincione (No. DK42079CC); People v. Senthilvelan Mohandoss (No. DK42227SM).
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APPEAL from a judgment of the Superior Court of Riverside County, B.J. Bjork, Judge. (Retired judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.); Kristi Hester, Commissioner. Affirmed. Shaffer Cormell, for Defendants and Appellants.
Michael A. Hestrin, Deputy District Attorney, for Plaintiff and Respondent.
DISCUSSION
In this consolidated appeal, Appellants were cited for various violations of the
California Vehicle Code. Prior to each court trial, Appellants objected to the trial judge
not being physically present and the use of video conferencing equipment to conduct the
trials. The trial court in each case overruled Appellants' objection and permitted the trial
to proceed. After testimony and oral arguments, the trial courts found Appellants guilty.
Appellants filed timely notices of appeal.
We have reviewed Appellants' opening briefs and the official transcripts of the
electronic recordings. In this case of first impression, we address whether a trial court's
use of video conferencing equipment in an infraction trial is permissible over a
defendant's objection.
The use of video conferencing and other electronic communication technology has
been found to be permissible in certain circumstances and for certain proceedings in both
criminal and civil cases. In general, the use of such technology is subject to constitutional
considerations, such as the right of a defendant to confront witnesses against him, and
proper security and reliability of the technology with guidelines for the use established by
rules of court. One of the areas in which the use of remote technology faces the highest
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scrutiny are when a proceeding involves the presentation of evidence and witnesses to be
cross-examined. This is because one of the most basic of the rights guaranteed by the
Confrontation Clause is the accused's right to be present in the courtroom at every stage
of his trial. (Illinois v. Allen (1970) 397 U.S. 337, 338.)
It is beyond dispute that "Courts have inherent power to adopt any suitable method
of practice, both in ordinary actions and special proceedings, if the procedure is not
specified by statute or by rules adopted by the Judicial Council. [Citation.]" (Citizens
Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-813.) That inherent power
entitles trial courts to exercise reasonable control over all proceedings connected with
pending litigation in order to insure the orderly administration of justice. (See Hays v.
Superior Court (1940) 16 Cal.2d 260, 264-265.) Thus, courts are permitted to formulate
rules of procedure where justice demands it. (Adamson v. Superior Court (1980) 113
Cal.App.3d 50, 509.) The Legislature has also recognized the authority of courts to
manage their proceedings and to adopt suitable methods of practice. (See Code Civ.
Proc., §§ 128, 187; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) It is
also well established that courts have fundamental inherent equity, supervisory, and
administrative powers, as well as inherent power to control litigation before them.
(Coffle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.) In addition to their inherent
equitable power derived from the historic power of equity courts, all courts have inherent
supervisory or administrative powers which enable them to carry out their duties, and
which exist apart from any statutory authority. (Bauguess v. Paine (1978) 22 Cal.3d 626,
636-637.) However, even with this authority, courts must tread carefully when creating
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new procedures as appellate courts will not authorize new procedures of dubious
constitutional validity. (In re Amber S. (1993) 15 Cal.App.4th 1260, 1266.) "Nor may we
bless procedural innovations inconsistent with the will of the Legislature or that usurp the
Legislature's role by fundamentally altering criminal procedures." (People v. Lujan
(2012) 211 Cal.App.4th 1499, 1507.)
However, regardless of their source of authority, "trial judges have no authority to
issue courtroom local rules which conflict with any statute" or are "inconsistent with
law." (Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160.) There is no
dispute the Judicial Council is authorized to adopt rules and forms governing infraction
trials. (Cal. Const., art. VI, § 6; California Court Reporters Assn. v. Judicial Council of
California (1995) 39 Cal.App.4th 15, 21.) Although not cited by any of the moving
papers, there does exist a Rule of Court that governs the permissive use of video
proceedings in traffic infraction cases upon request from a defendant. Rule 4.220,
effective February 1, 2013, and amended effective September 1, 2015, authorizes a
superior court to permit arraignments, trials, and related proceedings concerning traffic
infractions to be conducted by two-way remote video communication methods when
certain conditions are met. Rule 4.220 establishes the minimum procedural requirements
necessary when a defendant requests the use of two-way remote video communication
equipment.
"The usual rules of statutory construction are applicable to the interpretation of the
California Rules of Court. [Citation.] This means our primary object is to determine the
drafters' intent. The words of the statute are the starting point. Words used in a statute ...
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should be given the meaning they bear in ordinary use. [Citations.] If the language is
clear and unambiguous there is no need for construction, nor is it necessary to resort to
indicia of the intent of the Legislature " (Kahn v. Lasorda's Dugout, Inc. (2003) 109
Cal.App.4th 1118, 1 122-1123.) The plain language of rule 4.220 only addresses a
situation when a defendant requests to appear via remote two-way video communication
and when a judge and witnesses are at another location than a defendant. Rule 4.220 does
address the current issue at hand of whether a trial court is authorized to require a
defendant to the use remote video equipment when the trial judge is in a separate location
from both the defendant and the witnesses.
Rule 4.220(b)(2) defines "remote video proceeding" as "electronic audiovisual
communication between the defendant, any witnesses, and the court in lieu of the
physical presence of both the defendant and any witness in the courtroom." This is not
what occurred in these matters. Rather in all of these cases both the defendant and all the
witnesses were in one courtroom and the trial judge was located in another courtroom.
Further, rule 4.220(c) specifically states that the application of this rule only applies
when the defendant requests to proceed according to this rule." Therefore, although rule
4.220 exists and is related to the issue at hand, we must resolve this matter on
constitutional grounds.
Under California statutory law, a person charged with an infraction has some, but
not all, of the constitutional rights afforded a defendant in a misdemeanor criminal
prosecution. For example, Penal Code section 19.6 specifically states that a person
charged with an infraction does not have a right to appointed counsel or a trial by jury.
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Instead, "[t]rial of an infraction shall be by the court...." (Pen. Code, § 1042.5.) A
person charged with a Vehicle Code infraction does have a statutory right to be present
and to confront and cross-examine witnesses. (Veh. Code, § 40901, subd. (c).) In this
regard, Vehicle Code section 40901, subdivision (c), provides as follows: "Prior to the
entry of a waiver of constitutional rights ... the court shall inform the defendant in writing
of the nature of the proceedings and of his or her right to confront and cross-examine
witnesses ... and to hire counsel at his or her own expense. The court shall ascertain that
the defendant knowingly and voluntarily waives his or her right to be confronted by the
witnesses against him or her, to subpoena witnesses on his or her behalf, and to hire
counsel on his or her behalf before proceeding.”
The right to presence during the trial of a traffic infraction was created by statute
under Vehicle Code sections 40512.5 and 40901 with reference to Penal Code section
1043. Because the right was conferred by the state, any errors are evaluated under the
harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See
also People v. Crayton (2002) 28 Cal.4th 346, 363-364; People Wilen (2008) 165
Cal.App.4th 270, 288-289.) Under that standard, reversal is only warranted for a
miscarriage of justice if it "is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error." (Watson, supra,
at p. 836.) In addition, a "[d]efendant has the burden of demonstrating that his absence
prejudiced his case or denied him a fair trial. [Citations.]" (People v. Bradford (1997)
15 Cal.4th 1229, 1357.)
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The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant
"the right to be confronted with the witnesses against him." Further, the Fourteenth
Amendment makes the guarantees of this clause obligatory upon the States. (Illinois v.
Allen (1970) 397 U.S. 337, 338.) The right of confrontation ordinarily requires a face-
to-face encounter. (See Coy v. Iowa (1988) 487 U.S. 1012, 1016 ["We have never
doubted ... that the Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact"]; Ohio v. Roberts (1980) 448
U.S. 56, 63, ["The Court has emphasized that the Confrontation Clause reflects a
preference for face-to-face confrontation at trial"]; see also Mattox v. United States
(1895) 156 U.S. 237, 242—243; People v. Murphy (2003) 107 Cal.App.4th 1150, 1153.)
Similar to the Sixth Amendment of the federal Constitution, the California Constitution
states as follows: "The defendant in a criminal cause has the right to be personally
present with counsel, and to be confronted with the witnesses against the defendant."
(Cal. Const., art. l, § 15.)
Moreover, Appellants fail to address what prejudice was suffered to warrant a
reversal. Rather, Appellants claim "the violation of the guarantee to a public trial requires
reversal without any showing of prejudice" and cites to Waller v. Georgia (1984) 467
U.S. 39, 49. Nothing in the record demonstrates Appellants were not afforded the right to
a public trial. There is no allegation the images displayed or the sound quality on either
end of the two-way video conferencing were unclear or inaudible. Additionally, the
advent of major developments in videoconferencing equipment, including the use of high
definition technology, allow a judge to see the most detailed observations of a witness,
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almost eliminating any concerns of a judge not being physically present in the same
courtroom. Therefore, applying the harmless error standard, we conclude even if the trial
court erred in requiring the use of two-way video conferencing, any such error was
harmless.
DISPOSITION
The judgment is affirmed.
______________________________ CABRERA, Acting P. J.
I CONCUR,
_____________________________ WILLIAMS, J.†
Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution † Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
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APALOO, J., I dissent
I dissent with the majority's opinion and find the trial court's practice
violates both the California Constitution as well as rule 4.220. I find this error to
be structural error and cannot be resolved applying harmless error. Therefore, I
would reverse the judgment and remand for a new trial consistent with this
dissent.
The California Constitution provides defendants the right to be "personally
present," which is explained by the Judicial Council in Notice and Waiver of
Rights and Request for Remote Video Arraignment and Trial (TR 505) to mean
they have a right to be present in court at all stages of the proceeding, including
arraignment and trial. Although a defendant can always waive their rights, the
practice of the trial court requiring defendants to submit to a trial via two-way
remote video communication denies defendants their right to personal presence,
absent a waiver. Under section 15 of article I of the California Constitution, a
criminal defendant has the right to be "personally present with counsel, and to be
confronted with the witnesses against the defendant." Further, under the Sixth
Amendment's confrontation clause, a criminal defendant has the right to be
personally present when his appearance is necessary to prevent "interference with
[his] opportunity for effective cross examination." (Kentucky v. Stincer (1987)
482 U.S. 730, 744-745, fn. 17.) Similarly, under the Fourteenth Amendment's due
Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
process clause, a criminal defendant has the right to be personally present at a
"stage ... that is critical to [the] outcome" and "his presence would contribute to
the fairness of the procedure." (Kentucky v. Stincer, supra, 482 U.S. at p. 745.) To
preserve these inherent rights the Judicial Council has provided the availability of
remote video proceedings under strict conditions, which have not been met in
these cases.
Therefore, I find the denial of a person's constitutionally guaranteed right
represents a fundamental change in the process, which not only denies face-to-
face confrontation, but a trial court's ability to observe a witness to determine
credibility.
Rule 4.220 establishes the minimum procedural requirements necessary
when a trial court uses two-way remote video communication equipment as well
as the required forms. (See Judicial Council Form Nos. TR-500-lNFO
[Instructions to Defendant for Remote Video Proceeding]; TR-505 [Notice and
Waiver of Rights and Request for Remote Video Arraignment and Trial]; TR-510
[Notice and Waiver of Rights and Request for Remote Video Proceeding]. )
In particular, rule 4.220 only allows the use of video proceedings for a
traffic infraction trial at the request of a defendant. In each of these matters,
Appellants objected to the use of two-way remote video communication
equipment to conduct their trials and did not complete the mandatory forms for
requesting a trial using video communication equipment. Specifically, rule
4.220(a) states "[a] superior court may by local rule permit arraignments, trials,
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and related proceedings concerning the traffic infractions" under the conditions
stated in rule 4.220. As the Superior Court for the County of Riverside does not
have a local rule allowing video proceedings for traffic arraignments and/or trials,
it is not authorized to conduct remote video proceedings.
Rule 4.220(c), states the minimum procedural requirements for courts to
conduct remote video proceedings upon request from a defendant. Thus, a
mandatory prerequisite for the use of remote video proceedings is a request by a
defendant. Moreover, in the definition of the words "remote video proceeding,"
the term "courtroom" describes where the judge is located not where the defendant
and witnesses are located, therefore I disagree with the majority's contention that
Appellants were present in the courtroom for confrontation clause purposes.
Thus, under a plain reading of rule 4.220 a defendant must consent in
writing to the use of two-way remote video communications equipment to conduct
court trials on infractions. As Appellants did not consent, their sentences must be
vacated.
___________________________ APALOO, J.
Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
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AI Brief
AI-generated · verify before citing
Holding. The court held that even if a trial court errs by requiring the use of two-way video conferencing in an infraction trial over a defendant's objection, such error is subject to the harmless error standard and does not warrant reversal absent a showing of prejudice.
Issues
Whether a trial court is authorized to require a defendant to use remote video equipment in an infraction trial over the defendant's objection.
Whether the use of two-way video conferencing in an infraction trial constitutes reversible error without a showing of prejudice.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“applying the harmless error standard, we conclude even if the trial court erred in requiring the use of two-way video conferencing, any such error was harmless.”