Opinion
H041490
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1358521)
A jury convicted defendant Alfredo Hernandez of four counts of sexual penetration with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and one lesser count of lewd or lascivious conduct with a child 14 years of age or younger (§ 288, subd. (a)). The charges stemmed from defendant's abuse of his girlfriend's then 10-year-old daughter (minor). Defendant argues that his convictions must be reversed because (1) section 288.5 is a special statute that precluded defendant's prosecution under the allegedly more general section 288.7; and (2) section 868.5 (regarding witness support persons) is unconstitutional because it does not require a showing that a support person is necessary. For the reasons stated here, we will affirm the judgment.
Unspecified statutory references are to the Penal Code.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with five counts of sexual penetration of minor, a child 10 years of age or younger. (§ 288.7, subd. (b)). The following factual summary is based on the evidence presented at trial.
A. MINOR'S TESTIMONY ABOUT DEFENDANT'S CONDUCT
Minor lived in an apartment with her mother, an older sister V., defendant, and two younger siblings (a sister and a brother). Defendant was mother's boyfriend.
For purposes of protective nondisclosure, we refer to minor's mother as "mother" and to her older sister as "V."
Minor testified about multiple incidents of sexual touching by defendant, all of which occurred in or around May 2013 when she was 10 years old. In the first incident, minor was in the living room sitting on the couch with defendant and her two younger siblings. Defendant started tickling minor's stomach, then moved his hand down underneath minor's pajamas and touched her vagina skin to skin. Minor testified that defendant penetrated her vagina with two fingers and smelled his fingers afterward. Minor could not remember if her siblings were in the room when the touching occurred.
Minor testified with a support person. The trial court admonished the jury before minor's direct examination as follows: "Ladies and gentlemen of the jury, I will also indicate that she does have the right to have a support person present. That person is present. You should take that not as evidence of anything. It's just a right that victims do have. Thank you."
The second incident happened later the same day. Minor went with her siblings to buy stickers at a store and then came back to the apartment. Once back at the apartment, minor sat on the couch in the living room while defendant and minor's younger sister sat together on a blanket on the floor. Defendant asked minor to sit on the blanket and minor eventually complied. Minor's younger sister left the room. Defendant then digitally penetrated minor's vagina, skin to skin, and moved his fingers around inside her. Minor testified that defendant's conduct was physically painful.
The third incident happened in the evening. Minor was not sure if it happened the same day as the first two incidents. Minor was helping defendant look for some paperwork in his bedroom. Defendant asked minor for a hug and she refused. Defendant picked up minor and pulled her onto the bed while he was still standing. Defendant put his fingers into minor's vagina. While digitally penetrating minor, defendant was looking at a bag that had a picture of a naked man and woman who were kissing.
The fourth incident occurred the day of minor's cousin's birthday in late May 2013. Minor wanted to paint her fingernails black for the party and went to defendant's bedroom to ask him for permission. Minor's younger sister was also in the room. Defendant was lying on the bed and minor was standing next to him. Defendant covered minor with a blanket. Minor testified that defendant then "touched my butt, and then he went to the other side to touch my vagina." Defendant put his fingers inside minor's vagina.
On direct examination, minor's testimony suggested that there might have been a fifth touching incident shortly after the fourth incident. Minor answered "Yes" when the prosecutor asked: "After the first time when he touched you and put his fingers in you, did you go back into the bedroom and ask him again about painting your fingernails?" Minor agreed with the prosecutor when he asked if defendant put his fingers inside her vagina when she went back into the room and that defendant fell off the bed when she pulled away from him. However on cross-examination, minor stated there were "only four times" when defendant touched her inappropriately. Defense counsel asked her if it was possible there were only three touching incidents; minor reaffirmed that "[i]t was four times."
B. MINOR'S DISCLOSURE OF DEFENDANT'S CONDUCT
Minor disclosed defendant's conduct in June 2013. She first told her younger sister, and then told her older sister V. a few days later. Minor told V. that she was afraid of defendant because he had been putting his fingers into her vagina.
V., who was 19 years old at the time of trial, confirmed during her trial testimony that minor told her that defendant had touched her inappropriately. V. testified that minor looked calm, but fearful, when she disclosed defendant's conduct. Minor told V. about two touching incidents during their relatively short 10- to 15-minute conversation. V. initially testified at trial that minor told her that defendant had penetrated minor's vagina with his fingers. On cross-examination V. acknowledged that when she was interviewed by the police the night defendant was arrested, V. reported that minor said defendant's fingers had not actually gone inside her vagina.
V. testified that she told mother about minor's disclosure when mother came home from work. Mother told V. she would talk to defendant. Mother and defendant went to the park for about 20 minutes and then returned to the apartment. V. testified that defendant told minor and V. that he was "embarrassed of what he did" and asked them for forgiveness.
One of V.'s aunts, Margarita, testified at trial that she went to the apartment with her sister Lorena on the evening of minor's disclosure because she had been told by someone that defendant had touched V.'s private parts. Margarita testified that she confronted defendant and asked him "if he had done it with regard to the information that had been given to us, and he said 'I did do it.' " When she asked him why, defendant reportedly responded: " 'I do not know why I did it. Possibly during a moment of being drunk.' " Lorena called the police, who came to the apartment and arrested defendant.
C. DEFENDANT'S INTERROGATION
Defendant was interrogated on the night of his arrest. A San Jose Police detective asked questions in English, which were translated into Spanish by a bilingual officer. Defendant answered questions in Spanish and the bilingual officer translated those responses into English for the detective. Defendant received a Miranda warning in Spanish, which defendant stated he understood.
A recording of the interrogation was admitted into evidence and played for the jury. Our summary is based on the transcript that was provided to assist the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant admitted that he touched minor inappropriately on as many as three occasions about 20 days earlier. Describing the first touching, defendant stated he was watching television with minor and her younger siblings in the living room on a Saturday morning. Defendant stated that he touched minor's vagina over her underwear. On further questioning, defendant acknowledged that it was possible he might have touched minor's vagina skin to skin and then smelled his fingers afterward. Though defendant initially described the foregoing as one touching incident, he later stated that it was possible he touched minor's vagina on two separate occasions that morning. The third touching incident occurred the following evening in defendant's bedroom. He was looking for a password to access his work schedule when minor entered the room and asked what he was doing. Defendant grabbed minor's leg, brought her close to him on the bed, and touched her vagina over her underwear, but under her pajamas.
D. MINOR'S INTERVIEW
A San Jose Police detective interviewed minor the morning after defendant's arrest. Minor's disclosure of defendant's inappropriate touching was generally consistent with her trial testimony. She described digital penetration by defendant in locations that were similar to those she described at trial. Consistent with her trial testimony, minor's initial statements to the detective during the interview appeared to separate the fourth touching incident (in defendant's bedroom when minor asked him if she could paint her nails) into two separate incidents. However, also consistent with her trial testimony, minor ultimately told the detective that defendant "only did it like about four times, I guess."
A video recording of the interview was admitted into evidence and played for the jury. Our summary is based on the transcript that was provided to assist the jury.
E. VERDICT AND SENTENCING
The jury found defendant guilty of four counts of sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)). As to count 5, the jury found defendant not guilty of the charged offense (§ 288.7, subd. (b)), but found him guilty of the lesser included offense of committing a lewd or lascivious act on a child under 14 years old (§ 288, subd. (a)).
The trial court sentenced defendant to an indeterminate term of 30 years to life in prison, consisting of 15 years to life in prison for count 1 and a consecutive 15 years to life in prison for count 2. (§ 288.7, subd. (b)). The trial court also imposed the following concurrent sentences: an indeterminate term of 30 years to life (consisting of 15 years to life for each of counts 3 and 4 (§ 288.7, subd. (b))), and a determinate six-year middle term for the lewd or lascivious act conviction (§ 288, subd. (a)).
II. DISCUSSION
A. SECTION 288.5 DOES NOT PRECLUDE PROSECUTION UNDER SECTION 288.7
Defendant argues that section 288.5, subdivision (a) (hereafter, section 288.5(a))—regarding multiple acts of sexual misconduct by a person who resides at the same home as the victim—is a special statute that prohibited defendant's prosecution for multiple counts of the allegedly more general section 288.7, subdivision (b) (hereafter, section 288.7(b)).
1. Legal Standard and Statutory Text
" 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.' " (In re Williamson (1954) 43 Cal.2d 651, 654 (Williamson).) The Williamson rule can apply even in situations where the general statute contains an element not found in the special statute. Where the elements do not line up perfectly, courts must consider "the entire context surrounding the 'special' statute to determine the true overlap of the statutes and to ascertain the intent of the Legislature." (People v. Jenkins (1980) 28 Cal.3d 494, 503 (Jenkins).) "If it appears from the entire context that a violation of the 'special' statute will necessarily or commonly result in a violation of the 'general' statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute." (Id. at p. 502.) Application of the Williamson rule involves statutory interpretation, which we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
Defendant was convicted under section 288.7(b), which provides: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Defendant argues that instead of charging him with five section 288.7(b) counts, the prosecutor was required to charge defendant with a single count of violating section 288.5(a), which provides: "Any person who ... resides in the same home with the minor child ... , who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years ... , as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years ... is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years." Section 288.5, subdivision (b) provides: "To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number." Section 288.5, subdivision (c) provides that no other act of substantial sexual conduct or lewd or lascivious conduct "involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative."
2. The Williamson Rule Does Not Apply
The Williamson rule would bar defendant's prosecution under section 288.7(b) if, considering the statutes in their legislative contexts, a violation of section 288.5(a) would "necessarily or commonly result in a violation" of section 288.7(b). (Jenkins, supra, 28 Cal.3d at p. 502.) But the statutes have multiple differences that preclude a finding that violating section 288.5(a) would necessarily or commonly violate section 288.7(b).
The statutes have different age requirements for both the defendant and the victim. Section 288.5(a) has no age requirement for the defendant and requires that the victim be younger than 14. By contrast, section 288.7(b) requires that the defendant be at least 18 years old and requires that the victim be 10 years of age or younger. We note a material difference between a victim who is under 14 years old and a victim who is 10 years old or younger. Section 288.5(a) prohibits sexual misconduct against a broader category of victims.
In addition to the age differences, section 288.5(a) can also be violated by less egregious misconduct than that prohibited by section 288.7(b). Section 288.5(a) prohibits "substantial sexual conduct," which includes the same penetration and oral copulation conduct as that prohibited by section 288.7(b). But section 288.5(a) can also be violated by committing three or more "acts of lewd or lascivious conduct" (§ 288.5(a)), which encompasses " 'any touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child." (People v. Martinez (1995) 11 Cal.4th 434, 452.) Because section 288.5(a) can be violated by committing a broader category of misconduct against a broader age range of victims than those proscribed by section 288.7(b), we find that violating section 288.5(a) will not "necessarily or commonly" violate section 288.7(b). (Jenkins, supra, 28 Cal.3d at p. 502.)
Section 1203.066, subdivision (b) states: " 'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." --------
Further indication that the Williamson rule does not apply here comes from section 288.5, subdivision (c). That subdivision expressly allows prosecutors to charge a defendant in the alternative under both section 288.5 and another Penal Code section that prohibits "act[s] of substantial sexual conduct ... with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288." Section 288.5, subdivision (c) suggests that the Legislature intended prosecutors to have discretion in determining how to charge defendants. Had the Legislature intended section 288.5 to act as an exception to other potentially applicable Penal Code sections (such as section 288.7(b)), it would not have expressly allowed the offense to be charged in the alternative.
Appellate authority in a similar context supports our conclusion. As defendant acknowledges, in People v. Hord (1993) 15 Cal.App.4th 711 (Hord) the Court of Appeal determined that sections 288 and 288.5 were not subject to the Williamson rule. (Hord, at p. 720.) In Hord, the defendant was convicted of one count of lewd or lascivious conduct by force (§ 288, subd. (b)) occurring in 1989 and one count of continuous sexual abuse (§ 288.5(a)) occurring between 1990 and 1991. (Hord, at pp. 715-716.) The Hord court noted that section 288.5 was enacted in response to an appellate decision that had reversed a conviction under section 288 after determining that a section 288 conviction could not be based on generic testimony. (Hord, at p. 718, citing People v. Van Hoek (1988) 200 Cal.App.3d 811 (Van Hoek), disapproved by People v. Jones (1990) 51 Cal.3d 294, 322 (Jones).) By requiring unanimous agreement "only that the requisite number of acts occurred not on which acts constitute the requisite number" (§ 288.5, subd. (b)), section 288.5 facilitates prosecution of resident child molesters in situations where the victim might not be able to distinguish particular incidents of abuse. (Hord, at p. 719.) After section 288.5 was enacted the Supreme Court decided Jones, which disapproved Van Hoek and determined that generic testimony can adequately support a conviction if it describes with sufficient specificity the kind of act or acts committed, the number of acts, and the general time period of the misconduct. (Jones, at pp. 316, 322.) Based on that history, the Hord court found that "the Legislature's intent in passing section 288.5 was not to enact a specific statute to apply in lieu of a general statute." (Hord, at p. 720.) Instead, its intent "was to enact a statute for an area which the Legislature believed was not covered by any other law." (Ibid.) The Hord court concluded that section 288.5 was not "a specific statute under the Williamson rule since this was clearly not the Legislature's intent at the time of the enactment." (Ibid.)
Defendant argues that we should not follow Hord, contending that the Hord court's discussion of Jones "misses the mark" because Jones "has nothing at all to do with the Legislature's intent in enacting section 288.5." He argues that "[u]ntil the Legislature sees fit to repeal section 288.5, its intent in enacting that section cannot simply be ignored." Defendant is correct that the text and intent behind section 288.5 cannot be ignored. But, as we already discussed, the text of section 288.5 does not compel prosecutors to proceed under that section whenever it could possibly apply. Instead, section 288.5 expressly affirms prosecutorial discretion to determine how to charge defendants. (See § 288.5, subd. (c).) We find no error in allowing prosecution of defendant under section 288.7(b) instead of section 288.5(a).
B. WITNESS SUPPORT PERSON (§ 868.5)
Defendant argues that the trial court's failure to require, on its own motion, that the prosecutor provide a showing of necessity before allowing minor to testify with a support person violated his rights to confrontation and due process under the Sixth and Fourteenth Amendments to the United States Constitution, respectively. Defendant also argues, based on factors identified in People v. Patten (1992) 9 Cal.App.4th 1718 (Patten), that the specific circumstances of his case required a showing of necessity.
1. Factual Background
Defendant never objected to minor testifying with the assistance of a support person. There is little in the record on appeal to describe the circumstances of the support person's presence. The only reference to a support person is the following admonition provided by the trial court when minor took the stand: "Ladies and gentlemen of the jury, I will also indicate that she does have the right to have a support person present. That person is present. You should take that not as evidence of anything. It's just a right that victims do have. Thank you." Based on that admonition, we assume that minor's support person was on the witness stand with her rather than merely in the courtroom. There is no indication that the support person was also a witness.
2. Statutory Text
Section 868.5, subdivision (a) states that prosecuting witnesses in cases involving, among other things, violations of section 288.7 "shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, ... at the trial ... during the testimony of the prosecuting witness." "Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness' testimony." (Ibid.)
If a support person is also a witness, section 868.5, subdivision (b) requires that "the prosecution shall present evidence that the person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness." On that showing, the trial court "shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person's attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony." (Ibid.)
"In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness." (§ 868.5, subd. (b).)
3. Forfeiture and Standard for Constitutional Challenge
" ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method." ' " (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) " ' "[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." ' " (Id. at p. 590, italics omitted.) Because defendant did not object to minor's use of a support person, he has forfeited any challenge to section 868.5 as that section was actually applied to the specific facts of his case. (See People v. Lord (1994) 30 Cal.App.4th 1718, 1722 ["The absence of an objection deprived the trial court of the opportunity to correct any procedural error and make an evidence-based finding that [the witness] needed a support person."].)
That forfeiture also extends to defendant's appellate argument related to the Patten factors, which the Patten court identified as relevant to determining whether a hearing should be required before allowing a witness to be accompanied by a support person. (Patten, supra, 9 Cal.App.4th at p. 1729.) The Patten factors include the relationship of the support person to the witness; the physical location of the support person in the courtroom when the witness testifies; whether the support person does anything that the jury could view as influencing the witness; and the age of the witness. (Id. at pp. 1731-1732.) Defendant includes argument about the Patten factors in the section of his Opening Brief alleging a violation of his Fourteenth Amendment rights. But the Patten factors are all case-specific. Defendant's failure to object in the trial court has left the record inadequate for us to apply those factors, thereby forfeiting the issue.
As for defendant's remaining challenges to the statute's constitutionality under the Sixth and Fourteenth Amendments, the constitutionality of a criminal statute may be challenged for the first time on appeal. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) As his constitutional challenges involve questions of law on undisputed facts, we review them de novo. (Sanchez v. State of California (2009) 179 Cal.App.4th 467, 486.)
4. Sixth Amendment Confrontation Challenge
Defendant argues that the failure of section 868.5, subdivision (a) to require an individualized showing of need violates the Sixth Amendment's confrontation clause. Specifically, defendant argues that the presence of a support person affects the jury's observation of the witness' demeanor and diverts the jury's attention from the witness.
An argument similar to defendant's was addressed by the Supreme Court in People v. Myles (2012) 53 Cal.4th 1181 (Myles). In Myles, a prosecution witness testified as an eyewitness with a support person about the defendant's involvement in a burglary and murder. (Id. at pp. 1189-1190, 1213.) Defendant argued in the Supreme Court that the presence of a support person interfered with his constitutional rights. The Supreme Court determined that defendant had forfeited that argument by not objecting at trial. (Id. at p. 1214.) The court also rejected the argument on the merits, stating: "Absent improper interference by the support person, ... no decision supports the proposition that ... the support person's mere presence infringes his due process and confrontation clause rights." (Ibid.) The court reasoned: " ' "The presence of a second person at the stand does not require the jury to infer that the support person believes and endorses the witness's testimony, so it does not necessarily bolster the witness's testimony." ' " (Ibid., italics omitted.) Because the jury had been properly admonished that the support person was not the witness and there was no evidence in the record that the support person improperly influenced the jury's assessment of the witness' testimony, the Supreme Court found no error. (Id. at pp. 1214-1215.)
Though the Myles court did not expressly decide the constitutional issue defendant raises here, it tacitly rejected it in its statement that "no decision supports the proposition that ... the support person's mere presence infringes [a defendant's] due process and confrontation clause rights." (Myles, supra, 53 Cal.4th at p. 1214.) Even if defendant's constitutional argument is not foreclosed by Myles, we find it to be without merit.
Defendant relies primarily on language from People v. Adams (1993) 19 Cal.App.4th 412 (Adams), a decision from a different panel of this court. Adams was prosecuted for raping a victim named Jamie. (Id. at p. 424.) Adams moved in limine to prevent Jamie's father from accompanying Jamie as a support person, arguing that there was " 'some indication that the complaining witness may have been abused by her father, and that could have been part or all of her motivation in reporting this incident as it was reported.' " (Id. at p. 434.) The court overruled the objection without requiring the prosecution to make a showing that a support person was necessary, and Jamie testified with her father as her support person sitting behind or next to her on the stand. (Ibid.) Her father also apparently testified at the trial. (Id. at p. 423.) On appeal, the Adams court suggested that allowing a witness to testify with a support person without an individualized showing of need might be constitutional error, but found any error was harmless beyond a reasonable doubt. (Id. at pp. 437-442, 444.)
Adams is distinguishable for three reasons. First, in Adams the support person was also a prosecuting witness, meaning that the applicable procedure was that found in section 868.5, subdivision (b), not subdivision (a). Section 868.5, subdivision (b) expressly requires the prosecution to show that a witness serving as a support person "is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness." Because the trial court in Adams had not required the prosecution to make that showing, the state law error made the discussion of constitutional issues dictum. Second, unlike here, evidence in the Adams record suggested that Jamie's testimony might be influenced or affected by her father's presence based on evidence that the father might have physically abused Jamie in the past. (Adams, supra, 19 Cal.App.4th at p. 434.) Third, Adams objected in the trial court, allowing development of a record and preserving the challenge for appeal.
Apart from Adams, defendant cites Coy v. Iowa (1988) 487 U.S. 1012 (Coy) and Maryland v. Craig (1990) 497 U.S. 836 (Craig). In Coy, the court reviewed a state statute allowing a prosecuting witness in a sexual assault case to testify in court behind a screen that "would enable appellant to dimly perceive the witnesses, but the witnesses to see him not at all." (Coy, supra, 487 U.S. at pp. 1014-1015.) The United States Supreme Court found the statute unconstitutional, stating that the confrontation clause "confers at least 'a right to meet face to face all those who appear and give evidence at trial.' " (Id. at p. 1016.) The court reasoned that the right to face-to-face confrontation ensures the integrity of the factfinding process because the "face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult." (Id. at pp. 1019-1020.)
In Craig, the United States Supreme Court upheld a statute allowing alleged child abuse victims to testify by one-way closed circuit television if the trial judge first determined that the practice was necessary to prevent serious emotional distress to the witness. (Craig, supra, 497 U.S. at pp. 840-841.) The court noted that the confrontation clause serves several purposes, including ensuring that the witness will testify under oath; forcing the witness to submit to cross-examination; and permitting the jury to observe the witness's demeanor. (Id. at pp. 845-846.) Though the closed circuit television practice prevented literal face-to-face confrontation, the court found that it was necessary (based on the case-specific hearing that occurred in the case) to further the substantial government interest in protecting children alleged to be victims of abuse from the trauma of testifying against the perpetrator. (Id. at pp. 850, 852, 855-856.)
Section 868.5, subdivision (a) does not run afoul of any of the purposes of the confrontation clause identified in Coy and Craig. Witnesses who testify with a support person must give their statements under oath while confronting the defendant face to face. The presence of a support person does not prevent defendant from cross-examining the witness. And the jury is permitted to directly observe the witness' demeanor free from improper influence. The statute expressly requires the trial court to admonish support persons "to not prompt, sway, or influence the witness in any way," and recognizes the court's discretion to "remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness." (§ 868.5, subd. (b).) We therefore conclude the trial court had no sua sponte duty under the Sixth Amendment to conduct a hearing and determine that a support person was necessary.
5. Fourteenth Amendment Due Process Challenge
Defendant argues that section 868.5 violates his rights to a fair trial and the presumption of innocence under the Fourteenth Amendment because "permitting the witness to testify in the company of a support person ... unfairly clothes the prosecution witness in a mantle of veracity." Defendant acknowledges that a facial challenge to the statute as inherently prejudicial under the Fourteenth Amendment has been rejected by numerous courts in California, including this court in Adams and the Supreme Court in Myles. (Citing Adams, supra, 19 Cal.App.4th at p. 437 ["The presence of a support person at the stand does not necessarily rob an accused of dignity or brand him or her with an unmistakable mark of guilt ... [;] does not require the jury to infer that the support person believes and endorses the witness's testimony, so it does not necessarily bolster the witness's testimony ... [; and] does not interfere with the decorum of the judicial proceedings."], italics omitted; Myles, supra, 53 Cal.4th at p. 1214 ["[N]o decision supports the proposition that ... the support person's mere presence infringes his due process ... rights."]; Patten, supra, 9 Cal.App.4th at p. 1727 ["Thus, under the California statute, the absence of a requirement of a case-specific showing of necessity does not, as defendant argues, make this statute unconstitutional per se ... because procedures available to utilize support persons pursuant to the statute would not infringe any constitutional rights."].)
As we are bound by Myles (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), and we find the reasoning in Patten and Adams persuasive, we reject defendant's Fourteenth Amendment challenge.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P.J. /s/_________ Premo, J.