People v. Poe CA1/4

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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