Exclusion of defendant’s family members during a portion of trial violated defendant’s right to a public trial. Defendant was charged with six robbery-related counts, each count pertaining to a different victim. During trial, the mother of one victim reportedly received threats over the telephone that the minor victim’s testimony would “cause problems.” The court granted the prosecution’s request to exclude appellant’s family members during portions of the trial, citing “mounting evidence” of witness intimidation. Defendant appealed. Held: Reversed in part. A criminal defendant’s right to a public trial includes the right to have friends and relatives present during the proceedings. Under Waller v. Georgia (1984) 467 U.S. 39, four requirements are necessary to justify exclusion from the courtroom: (1) the existence of an overriding interest that is likely to be prejudiced absent the closure; (2) the closure is narrowly tailored; (3) no reasonable alternatives to closing the proceeding are available; and (4) the trial court must “make findings adequate to support the closure.” The protection of witnesses from threats, harassment, or physical harm is an overriding interest deserving of protection. However, here there was no substantial evidence connecting appellant’s family to the reported threats. The prosecution initially stated the phone threats had not been connected to appellant or any person, and when the victim’s mother disclosed that she knew who made the threats but was afraid to identify the person, the court did not inquire further. Although there was evidence of improper contact between appellant’s father and a prospective juror, the nature of that contact was not intimidating or threatening. Given the court’s failure to more thoroughly investigate the claim of witness fear and intimidation, and the lack of evidence connecting appellant’s family to the purported threats, the first element of the Waller test was not met, and the exclusion of appellant’s family members was unjustified.

Violation of right to public trial required reversal of three convictions that were based on witness testimony that occurred while defendant’s family was excluded. Because the exclusion of appellant’s family members violated his constitutional right to a public trial, appellant was not required to show prejudice resulting from the violation in order to obtain relief. However, the remedy for a public trial right violation should be appropriate to the nature and extent of the violation. Partial courtroom closures are treated differently than total courtroom closures, and reversal and a new trial is an inappropriate remedy when it would be a windfall for the defendant and not in the public interest. In defendant’s case, the courtroom closure was partial and temporary, as the general public was never excluded from the trial and appellant’s family members were excluded during the testimony of three of the six victims. Although defendant is entitled to reversal of the counts associated with the testimony given while his family was excluded from the courtroom (counts 3, 5, and 6), he is not entitled to reversal of the remaining counts (1, 2, and 4). Because the witness testimony concerning counts 3, 5, and 6 had no material effect on counts 1, 2, and 4, which pertained to separate crimes, reversing the convictions on counts 1, 2, and 4 would constitute a windfall for defendant and would be contrary to the public interest.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B270426.PDF