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Name: People v. Chenault
Case #: D064276
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/21/2014

Presence of support dog during testimony of child sex abuse victims did not prejudice defendant. Chenault appealed following his conviction for various forcible and nonforcible lewd acts on a child under 14 (Pen. Code, § 288, subd. (a) & (b)). The victims were his two minor children and a niece’s two daughters. On appeal, Chenault claimed the trial court erred by allowing a support dog to be present during the testimony of the 11- and 13-year-old great-nieces without an individualized showing of necessity, and that the presence of the dog was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront witnesses. Held: Affirmed. Although Penal Code section 868.5, expressly allows the presence of one or two support persons for a witness in certain circumstances, it does not apply to therapy dogs. However, under Evidence Code section 765, the trial court has broad control over the interrogation of witnesses, which includes the authority to allow the presence of a therapy/support dog during a witness’s testimony. The presence of a support dog is not inherently more prejudicial than the presence of a support person, and the trial court need not make a case-specific finding that an individual needs the presence of a support dog in order to accord due process (disagreeing with People v. Adams (1993) 19 Cal.App.4th 412). In making a determination to allow a witness a support dog, the trial court should consider whether the presence of the dog would likely assist the “witness to testify without undue harassment or embarrassment and provide complete and truthful testimony.” Here, the court implicitly made that finding, and took precautions to limit any potential prejudice by adopting specific procedures to render the dog unobtrusive. Assuming the court abused its discretion, any error was harmless.