Filed 4/4/17
                CERTIFIED FOR PUBLICATION

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


THE PEOPLE,                              B270426

       Plaintiff and Respondent,         (Los Angeles County
                                         Super. Ct. No. TA136977)
       v.

MARK MALIK SCOTT,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of
Los Angeles County, John T. Doyle, Judge. Affirmed in part and
reversed in part.
                             ______

      Kevin D. Sheehy, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Colleen M. Tiedemann and
Michael C. Keller, Deputy Attorneys General, for Plaintiff and
Respondent.
                               ______
        Appellant Mark Malik Scott appeals from the judgment
entered on his two convictions of second degree attempted robbery
and four convictions of second degree robbery. Appellant asserts
that the court violated his constitutional right to a public trial when
the court excluded his family members from the courtroom during
a portion of the trial and that such violation requires reversal
of all the convictions. Although we agree that the court erred in
granting the exclusion order, we reject the request to reverse all the
convictions. Rather, we tailor the remedy to fit the violations and
accordingly reverse the judgment only on those counts where the
victims testified while appellant‘s family was excluded from the
courtroom.

          FACTUAL AND PROCEDURAL BACKGROUND
      On April 7, 2015, near 109th Street and San Pedro Street in
Los Angeles, appellant approached two juveniles, A.S. and J.G., as
they were walking to their high school. After asking them for the
time, appellant lifted his shirt to reveal the handle of a black gun
in the waistband of his pants. He demanded that A.S. and J.G.
hand over their cellular phones, and they complied. The next day,
appellant approached 12-year-old J.V., who was riding her bicycle.
Appellant asked her the time, showed that he had a gun, and
demanded J.V.‘s bicycle and cellular phone, which she gave him.
      At about 7:25 a.m. on April 9, 2015, appellant approached
teenage middle schoolers L.T. and E.J., reached into his clothing
as though he had a gun, and demanded their cellular phones.1


      1 About a week before, appellant, whom E.J. recognized,
asked E.J. where she was from. She answered, ―I‘m not from
anywhere.‖ He responded, ―This is East Coast Crips. See yourself




                                   2
E.J. handed over her phone, but L.T. refused to do so. Appellant
pursued L.T. into a convenience store. When the store clerk
intervened, appellant returned E.J.‘s phone to her and fled. About
10 minutes later, appellant approached a woman, K.M., who was
waiting at a bus stop and attempted to rob her of her cellular
phone.
       An information charged appellant with six counts—one
count for each victim. In counts 1 and 2 the information charged
appellant with second degree robbery arising from the incident
involving A.S. and J.G. Count 3 alleged second degree robbery
based on the incident with J.V. Count 4 alleged the attempted
robbery of K.M. Counts 5 and 6 alleged second degree robbery of
E.J. and attempted second degree robbery of L.T., respectively.
The information further alleged gang and weapons enhancements.
       At the outset of the trial, the court admonished everyone
in the courtroom, including members of appellant‘s family who
were present, not to have any contact with the prospective jurors.
The next morning, at a break during jury selection, prospective
juror No. 2 advised the trial court that while she was riding in the
elevator at the courthouse with appellant and his father, after the
first day of jury selection, appellant‘s father made a comment to
her. Appellant‘s father observed that the juror worked as a nurse
and he asked whether she had been excused. After prospective
juror No. 2 said that she had not been excused, the conversation
ended. The court excused her from the panel after the prospective
juror indicated that the interaction could affect her ability to
perform her duty as a juror. The prosecutor characterized


walking out [of] the hood.‖ When police arrested appellant, he wore
sandals that had ―ECC‖ and ―East Coast Crip‖ written on them.




                                  3
appellant‘s father‘s contact with prospective juror No. 2 as an
attempt at ―manipulation by the family‖ in direct violation of
the court‘s order not to have any contact with the jurors. The
prosecutor further argued that appellant‘s father should be found
in contempt or excluded from the proceedings. Appellant‘s counsel
asked the court to wait until the completion of the trial before
deciding whether to initiate contempt proceedings against
appellant‘s father and acknowledged the court‘s right to exclude
appellant‘s father from the courtroom proceedings if the court
believed he would engage in further disruptive conduct. The
court advised appellant‘s father that the alleged incident was
serious and that contempt proceedings were pending against him.
       Later in the trial, on the morning of January 15, 2016, the
court excluded appellant‘s family members from the proceedings
during the testimony of several witnesses including three of the
minor victims based on the prosecutor‘s claim that the victims
did not want to testify because they had been threatened and
felt intimidated. The jury found appellant guilty on all six counts
and found the weapons allegations true.2 The trial court sentenced
appellant to an aggregate determinate term of 20 years 8 months in
state prison. Appellant filed a timely notice of appeal.




     2  The jury deadlocked, and the court declared a mistrial, on
the gang allegations.




                                 4
                            DISCUSSION
      Appellant claims that the trial court violated his
constitutional right to a public trial when it excluded his family
members from attending the trial during the entirety of the
morning session on January 15. For reasons discussed below, we
agree.
      A.    Factual Background
       On the first day of trial, no one was excluded from the
courtroom. A.S. (the victim in count 1) and J.G. (the victim in
count 2) testified that appellant had robbed them of their cellular
phones. K.M. (the victim in count 4) testified that appellant
attempted to rob her of her cellular phone.
       The next morning, outside the presence of the jury, E.J.‘s
mother addressed the court, stating that although E.J. wanted to
―make a statement,‖ she did not want to take the stand to testify.
The court acknowledged E.J.‘s concerns, but also stated that
because E.J. had been subpoenaed as a witness, she would have to
testify, and that appellant‘s counsel had the right to question her
about the incident.
       Several minutes later, also outside of the presence of the
jury, the prosecutor reported to the trial court that she had been
informed by a police detective that L.T.‘s mother had received
threats over the telephone ―that if [L.T.] testifies in this case, that
that will cause problems.‖ These threats reportedly put L.T. and
her family in ―fear for their safety‖ and made them ―very concerned
about retaliation.‖ The prosecutor reported that the family did
not know the identity of the caller, and informed the court that
the matter was under investigation. The prosecutor asked that
the court exclude appellant‘s family from the courtroom during the




                                   5
testimony of E.J. and L.T., because: ―They are very scared. They
do not want to participate in this case. They are doing so under
subpoena. And I think given their age and the threats and the type
of case this is, that it‘s a gang case, I think it is totally appropriate
within the court‘s discretion to remove those individuals during
their testimony.‖
         Appellant‘s counsel objected, arguing that excluding the
family members violated appellant‘s right to a public trial, pointing
out that the threats were unsubstantiated and that there was no
evidence that the family members were the source of the threats.
The court, however, agreed with the prosecutor, observing that
―[t]he specter of intimidation with witnesses has been looming
over this trial for some time now . . . . I‘m getting mounting
evidence that the witnesses are in fear and that they‘ve been
intimidated. While there‘s no direct evidence that this can impeach
any family members, we had another incident that [a] family
member had contact with a juror against a court order, and we had
to . . . get rid of that juror. So I will do that. I will exclude family
members for purposes of the testimony of these two next victim
witnesses.‖ The court then asked the appellant‘s two family
members present to leave the courtroom, and cautioned everyone
that remained: ―The issue of fear can be adduced on the record
in front of the jury as to how it affects the witness‘s testimony.
But we have no clear implication that other than just being
generally afraid of courtroom processes that something specific
has been communicated to these witnesses at the request of or in
acquiescence by the [appellant] or his family. So to that extent, I
don‘t want to hear anything in front of the jury to the effect, well,
now that the [appellant‘s] family is excluded, don‘t you feel better
and are you telling the truth.‖ The court added that if witnesses




                                    6
testified about threats, the court would admonish the jury that
there was no specific evidence that appellant or his family had
made the threats.
       The prosecutor then informed the court that she had just been
told by a detective that L.T.‘s mother did in fact know the identity
of the person who called her and made the threat, but that she was
afraid to provide the name out of fear of retaliation. The court
declined to inquire further into the matter.
       When the proceedings resumed, E.J., L.T., L.T.‘s aunt, J.V.,
and J.V.‘s father testified.3 None of these witnesses testified to
facts concerning the crimes alleged against A.S., J.G., or K.M.
Thereafter, the court excused the jury for the noon recess and asked
the prosecutor, ―Are we out of the woods of fear?‖ The prosecutor
responded, ―We‘re done with the civilians.‖ The court then stated
that it ―will lift the order excluding the [appellant‘s] family from
the proceedings this afternoon. They can come in.‖ No one was
thereafter excluded from the courtroom.
       When the trial resumed in the afternoon, Officer Windle
Hawkins testified about an interview she conducted with L.T.,
and Detective Michael Fairchild testified regarding his
investigation of the crimes, including his interviews with E.J. and
L.T. On the third day of trial, Detective Fairchild continued his
testimony, and Officer Hector Beas testified as a gang expert.


      3 L.T.‘s aunt testified that L.T.‘s family had received a couple
of threatening phone calls, which made them fear for their safety.
The court thereafter admonished the jury that there was no
evidence that appellant or his family had made any threats.
      J.V.‘s father identified a bicycle that police had taken from
appellant as a bicycle he had built for J.V.




                                  7
      B.    Analysis
        The United States Constitution and the California
Constitution guarantee a criminal defendant the right to a public
trial, including the right to have friends and relatives present
during the proceedings. (See U.S. Const., 6th & 14th amends.;
Cal. Const., art. I, § 15; Presley v. Georgia (2010) 558 U.S.
209, 210, 214-215; In re Oliver (1948) 333 U.S. 257, 271-272, fn. 29
[noting special concern for assuring attendance of a defendant‘s
family members and friends].) The right to a public trial serves two
important interests. It protects those who are accused of a crime by
helping to ensure that the innocent are not unjustly convicted and
that the guilty are given a fair trial. (Id. at p. 270, fn. 25.) Second,
there is a ―strong societal interest in public trials‖; they provide an
opportunity for spectators to observe the judicial system, improve
the quality of testimony, encourage witnesses to come forward with
relevant testimony, and prompt judges, lawyers, witnesses, and
jurors to perform their duties conscientiously. (Gannett Co. v.
DePasquale (1979) 443 U.S. 368, 383.)
        ―Given the importance of public trials to both the accused
and the public, there is a ‗ ―presumption of openness‖ ‘ in the
courtroom that ‗ ―may be overcome only by an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.‖ ‘ ‖ (People v.
Baldwin (2006) 142 Cal.App.4th 1416, 1421, quoting Waller v.
Georgia (1984) 467 U.S. 39, 45 (Waller) [holding that instances
when closure of the courtroom is appropriate ―will be rare . . . and
the balance of interests must be struck with special care‖].)
        The Supreme Court in Waller identified four requirements
necessary to justify exclusion: (1) the existence of an overriding
interest that is likely to be prejudiced absent the closure;




                                   8
(2) the closure is narrowly tailored, i.e., no broader than necessary
to protect that interest; (3) no reasonable alternatives to closing
the proceeding are available; and (4) the trial court must ―make
findings adequate to support the closure.‖ (Waller, supra, 467 U.S.
at p. 48; accord, People v. Woodward (1992) 4 Cal.4th 376, 383.)
The court cannot determine the application of the above principles
in the abstract; they must be determined by reference to the facts
of the particular case. (People v. Pena (2012) 207 Cal.App.4th
944, 949.) Having those considerations in mind, we are persuaded
that the Waller test was not satisfied in this case.
       With respect to the first requirement, the protection of
witnesses from threats, harassment, or physical harm is an
overriding interest and deserving of protection. (See NBC
Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th
1178, 1223, fn. 48 [the protection of witnesses from intimidation
is one of the ―overriding interest[s]‖ that may justify closure of a
courtroom]; United States v. Hernandez (9th Cir. 1979) 608 F.2d
741, 747.) In a different context, our Supreme Court has
emphasized the ―serious nature and magnitude of the problem of
witness intimidation. . . . The state‘s ability to afford protection
to witnesses whose testimony is crucial to the conduct of criminal
proceedings is an absolutely essential element of the criminal
justice system.‖ (Alvarado v. Superior Court (2000) 23 Cal.4th
1121, 1149-1150, fn. omitted.)
       Although we consider appellant‘s claim that he was deprived
of his constitutional right to a public trial de novo (see U.S. v.
Shryock (9th Cir. 2003) 342 F.3d 948, 974), the court‘s finding
that witnesses had been threatened and that appellant‘s family
members were involved in some way with those threats are factual
determinations, which we review for substantial evidence (cf. People




                                  9
v. Cromer (2001) 24 Cal.4th 889, 893-894; People v. Edwards (1991)
54 Cal.3d 787, 807.) Here, the record does not support the court‘s
findings because there is no substantial evidence that any member
of appellant‘s family was in any way involved with the purported
threats. The court based its decision to exclude appellant‘s family
on only a suspicion that appellant‘s family might have something
to do with the intimidation. The prosecutor stated that the phone
threats were under investigation and had not been linked to
appellant or any other person. The only evidence connecting
any of appellant‘s family members with any potentially improper
conduct was appellant‘s father‘s contact with a juror earlier in the
proceedings. Though improper, the nature of that contact was
not intimidating or threatening and was therefore insufficient to
support the conclusion that family members threatened anyone.
       Moreover, even after the prosecutor disclosed to the court that
L.T.‘s mother knew the identity of the caller who issued the threat,
the court did not take that opportunity to probe any connection to
appellant or his family to the alleged threats. ―The exclusion of
any nondisruptive spectator from a criminal trial should never
be undertaken without a full evaluation of the necessity for the
exclusion . . . . This evaluation should be reflected in the record
of the proceedings.‖ (People v. Esquibel (2008) 166 Cal.App.4th
539, 556.)
       Here, in view of the lack of substantial evidence establishing
a connection between the appellant‘s family and the purported
witness fear and intimidation, and the court‘s failure to evaluate
the claim of witness fear and intimidation more thoroughly, the
first requirement of Waller was not met.
       Accordingly, under these circumstances, the exclusion of
appellant‘s family from the courtroom during the testimony of three




                                 10
of the victims violated appellant‘s constitutional right to a public
trial.4 And where, as here, a defendant has been deprived of his
constitutional right to a public trial, no showing of prejudice is
required ―[b]ecause the right to a public trial protects the defendant
from very subtle but very real injustices,‖ and ―[r]equiring such a
defendant to prove actual prejudice would deprive most defendants
of the right to a public trial.‖ (Davis v. Reynolds (10th Cir. 1989)
890 F.2d 1105, 1111; accord, Waller, supra, 467 U.S. at pp. 49–50;
People v. Bui (2010) 183 Cal.App.4th 675, 680.)
       The more difficult question is the appropriate remedy in this
case. Although a defendant need not show prejudice resulting from
the violation of the public trial right, the remedy, the Supreme
Court has stated, ―should be appropriate to the violation.‖ (Waller,
supra, 467 U.S. at p. 50; see also United States v. Rivera (9th Cir.
2012) 682 F.3d 1223, 1236-1237.) Reversal and a new trial is an
inappropriate remedy when it ―presumably would be a windfall
for the defendant, and not in the public interest.‖ (Waller, supra,
467 U.S. at p. 50; see Brown v. Kuhlmann (2d Cir. 1998) 142 F.3d
529, 539 [reversal of conviction may constitute ―disproportionate
relief‖ in some cases for violation of public trial right].)
       The requirement that the remedy be appropriate to the
violation implies that all violations of the public trial right are not
equal, and that the nature and extent of the violation should inform
and shape the remedy. In considering whether a public trial right
violation has occurred, courts have treated partial closures—i.e.,


      4   Although the trial court‘s initial order excluded appellant‘s
family during the testimony of L.T. and E.J. only, the court did not
lift the order until after L.T.‘s aunt, victim J.V., and J.V.‘s father
testified.




                                   11
when only some persons are excluded from the courtroom—
differently from total closures. (See, e.g., People v. Woodward,
supra, 4 Cal.4th at p. 384; People v. Esquibel, supra,
166 Cal.App.4th at pp. 552-554; U.S. v. Osborne (5th Cir. 1995)
68 F.3d 94, 98-99.) Such different treatment is appropriate because
―the values that the Constitution‘s public trial guarantee seeks to
protect, which include permitting the public to see that a defendant
is dealt with fairly, ensuring that trial participants perform their
duties conscientiously, and discouraging perjury . . . are only
moderately burdened when the courtroom is partially closed to the
public, as certain spectators remain and are able to subject the
proceedings to some degree of public scrutiny.‖ (Judd v. Haley
(11th Cir. 2001) 250 F.3d 1308, 1315-1316; see also Woods v.
Kuhlmann (2d Cir. 1992) 977 F.2d 74, 76 [partial closures and total
closures are not equal violations ―because a partial closure does
not implicate the same secrecy and fairness concerns that a total
closure does‖].) These considerations should guide not only the
determination of whether a defendant‘s public trial right has been
violated, but also the remedy for the violation. As one court stated,
―[i]f the remedy of a new trial without a showing of prejudice is
intended to deter unjustified courtroom closures, then the necessity
for that remedy should depend on the degree to which it ‗could
be charged that the judge deliberately enforced secrecy in order
to be free of the safeguards of the public‘s scrutiny.‘ ‖ (Brown v.
Kuhlmann, supra, 142 F.3d at p. 541.) And just as the existence
of a violation ―must be determined by reference to the facts of
the particular case‖ (People v. Esquibel, supra, 166 Cal.App.4th
at p. 553), so must the propriety of the remedy.
        Here, although the temporary exclusion of appellant‘s family
members violated his right to a public trial, and he is entitled to a




                                 12
remedy for that violation, the values protected by the public trial
guarantee were only moderately at risk. The general public was
never excluded from any part of the trial, and such openness
generally ensured that the trial participants would perform their
duties properly—the court did not ― ‗deliberately enforce[] secrecy
in order to be free of the safeguards of the public‘s scrutiny.‘ ‖
(Brown v. Kuhlmann, supra, 142 F.3d at p. 541.) To be sure, it is
conceivable that the absence of appellant‘s family members may
have affected the testimony of the witnesses who testified during
that time and, consequently, impacted the values protected by
the public trial right as to the counts related to such testimony.
Because appellant is not required to show prejudice to be entitled
to a remedy, we do not attempt to measure that possible impact.
Accordingly, the convictions on those counts must be reversed.
       The absence of the family members during the testimony
concerning the crimes against E.J., L.T., and J.V., however, had
no material effect on the counts concerning the crimes against
A.S., J.G., and K.M. Reversing the convictions on these counts
would constitute ―a windfall for the defendant‖ and be contrary
to ―the public interest.‖ (See Waller, supra, 467 U.S. at p. 50.)
We therefore decline to order such a remedy.
       In light of the nature of the violation—a partial and
temporary closure—and the particular facts and circumstances in
this case, the appropriate remedy is to reverse the convictions on
counts 3, 5, and 6, and affirm the convictions on counts 1, 2, and 4.




                                  13
                         DISPOSITION
     The judgment is reversed as to counts 3, 5, and 6 and is
otherwise affirmed.

     CERTIFIED FOR PUBLICATION.




                                         ROTHSCHILD, P. J.
We concur:




                 CHANEY, J.




                 JOHNSON, J.




                                14
