Filed 3/3/14 P. v. Russell CA5
Order received for posting 3/5/14




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064550
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF36187)
    v.
                                                                         ORDER MODIFYING OPINION AND
JARED W. RUSSELL,                                                            DENYING REHEARING
                                                                           [NO CHANGE IN JUDGMENT]
    Defendant and Appellant.


THE COURT:
         It is ordered that the nonpublished opinion filed herein on February 4, 2014, be
modified as follows:
         On page 19 the last paragraph of section VI. of the Discussion beginning with
“We find that the threat made by Russell …” is deleted. The following paragraph is
inserted in its place:

                In any event, even if lesser included instructions should have been
         given, we conclude that there is no reasonable probability that the failure to
         give a lesser included offense instruction affected the outcome of the trial.
         (People v. Joiner (2000) 84 Cal.App.4th 946, 972; People v. Breverman
         (1998) 19 Cal.4th 142, 177-178; People v. Watson, supra, 46 Cal.2d at p.
         836.) Examining the evidence as a whole and, as is appropriate to do in
         reference to the question of prejudice, examining its strength and
         weaknesses (Breverman, supra, at p. 177), we conclude that there is no
     reasonable probability the failure to give a lesser included offense
     instruction affected the outcome of the trial.


     There is no change in the judgment.

     Appellant’s petition for rehearing is denied.


                                                              _____________________
                                                                           Franson, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Kane, J.




                                           2.
Filed 2/4/14 (unmodified version)




                  NOT TO BE PUBLISHED IN THE 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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064550
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF36187)
    v.

JARED W. RUSSELL,                                                                        OPINION
    Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor
Provost, Judge.
         Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George
M. Hendrickson, Deputy Attorneys General, Plaintiff and Respondent.
                                                        -ooOoo-
       Following a jury trial, appellant Jared W. Russell was convicted of one count of
making a criminal threat (Pen. Code, § 422)1 and one count of carrying a concealed dirk
or dagger (former § 12020, subd. (a)(4)). He was acquitted of one count of corporal
injury to a cohabitant and parent of his child (§ 273.5, subd. (a)). Russell was sentenced
to two years in state prison on the criminal threat conviction, with a concurrent two-year
term on the concealed weapon conviction.
       On appeal, Russell contends: (1) the trial court improperly allowed evidence of his
previous domestic violence; (2) the trial court precluded evidence of the complaining
witness’s prior domestic violence and prior violent acts for impeachment purposes; (3)
the cumulative evidentiary errors resulted in prejudice; (4) there is insufficient evidence
to uphold the conviction for carrying a concealed dirk or dagger; (5) the trial court failed
to correctly instruct on the elements of the offense of carrying a concealed dirk or dagger;
(6) the trial court failed to instruct on the lesser included offense of attempted criminal
threat; (7) the prosecutor committed repeated misconduct in closing argument; (8) the
trial court erred in removing Russell’s father from the courtroom; and (9) counsel was
ineffective. We disagree and affirm.
                             STATEMENT OF THE FACTS
       On July 19, 2011, around 8:00 in the evening, Erin Hall (Ms. Hall) received a
phone call from her cousin and Russell’s girlfriend, Allison Artzer, who asked Ms. Hall
to come and get her and Artzer’s five-year-old son. Artzer said Ms. Hall should probably
bring her husband Steve (Mr. Hall). Artzer had been spending “a lot of time” at the
Halls’ because it was a “safe place” where she would go if she and Russell had been
fighting. In response to Artzer’s call, the Halls left immediately and drove the three
miles to Artzer’s apartment. They had their 19-year-old daughter with them.


1      All further statutory references are to the Penal Code unless otherwise stated.



                                              2.
       After calling Ms. Hall, Artzer took her son and went across the street to the
apartment of a neighbor, Brandon Shults. According to Shults, Artzer was “really upset”
and said Russell was trying to hurt her. She showed Shults a mark on her arm. Russell
was outside his apartment yelling for Artzer. Shults locked the door and called 9-1-1.
       When the Halls arrived, Artzer came out of Shults’s apartment and talked to Ms.
Hall. Artzer seemed “[e]xtremely scared,” and asked Ms. Hall to take her car keys
because Russell was trying to get into her car.
       While this was happening, Mr. Hall knocked on the door of the apartment where
Russell and Artzer lived. When Russell came to the door, Mr. Hall asked him several
times why he was “beating on” Artzer. Russell, who was “pretty excited” and “fired up,”
did not answer, but his right hand was clenched in an aggressive manner and he lunged at
Mr. Hall, who was considerably smaller than Russell. Mr. Hall punched Russell in the
jaw. He fell straight back and was down for about 10 seconds to a minute. When Russell
sat up, he said, “It’s on. Now you’re going to jail. You’re going to jail. It’s on.” Artzer
yelled, “No, he’s not. No, he’s not.” Russell then started to get up, and Mr. Hall punched
him again.
       Ms. Hall suggested that she and Mr. Hall go to their car and call 9-1-1. Russell
got up and the Halls saw he had a piece of metal in his hands. Russell then threw the
handle of a hydraulic jack at the Halls. At this point, Mr. Hall was sitting in the car and
Ms. Hall hid on the far side of the car as the jack flew over them and hit a nearby tree.
       Russell then got a tire iron from his truck, walked toward the Hall’s car and looked
like he was going to swing the tire iron at the passenger side window. Mr. Hall started
the car and drove away toward a knoll where they could look down onto the apartment
complex. They called 9-1-1 again and waited for the police. When Russell saw them, he
yelled, “I’m going to stab you with a knife.” These words form the basis of the criminal
threat charge.



                                             3.
       When Officers Dennis Townsend and Andrew Theodore arrived, Russell, who was
standing outside the porch area of his apartment, had something in his hand and stepped
forward. Officer Theodore drew his gun and ordered Russell to step away from the
apartment and kneel on the ground. Officer Townsend found a serrated kitchen knife in
Russell’s pants pocket. The blade of the handle was up and the knife covered by his T-
shirt. A tire iron was found in the bed of Russell’s truck. The screen door and door of
the apartment were damaged and the screen had been removed from a window.
       After Russell was placed in the patrol car, Artzer came over and told Officer
Theodore she had had an argument with Russell, that she tried to leave, and that Russell
took her car keys and her arm was cut in the struggle. She also said Russell had punched
her numerous times in the back of the head. When Russell was outside, Artzer locked the
front door, grabbed her son, and fled though the back door to Shults’s apartment as
Russell kicked in the front door. Artzer wanted a protective order against Russell.
Officer Townsend noted a lump on Artzer’s head. Artzer said that Russell had told her
previously that he hit her there “because it doesn’t leave marks that the cops could find.”
Artzer told Officer Theodore she did not see what had happened between Russell and Mr.
Hall. She did not appear to be intoxicated.
       Artzer had also told Ms. Hall that Russell had hit her in the back of the head that
evening. Artzer had a cut and a bruise on her back and a bruise on her face as well. Ms.
Hall heard Artzer tell officers that Russell hits her in the back of the head because it does
not leave marks.
       Russell told the officers that nothing had happened except that he and Artzer had
had a verbal altercation. When speaking to the officers, Russell was angry and yelling
and used profanity in answering simple questions. When placed in the patrol car, he
made mocking “crying noises” directed at Artzer and shouted profanity toward the
arresting officer, Artzer, and the Halls.



                                              4.
         As trial approached, Artzer and Russell reconciled and Artzer asked the Halls to
change their testimony about what had happened, but both refused. When Ms. Hall
refused, Artzer ended her relationship with her.
         At trial, Artzer testified that, on the date of the incident, she and Russell had had
an argument. When she was in the kitchen and Russell was on the back porch, she had
said something that made Russell mad and she tried to close the side door to keep him
out. They both pushed on the door from opposite sides, breaking the door jamb. Artzer
had some cuts on her arm and back, but did not know how they happened because she
was intoxicated.
         Artzer testified that she ran to Shults’s apartment, where she called Ms. Hall to
come pick her up. When the Halls arrived and knocked on the door of Russell’s
apartment, Artzer ran outside from Shults’s apartment. Russell told Mr. Hall that he did
not hit Artzer but, if he had, “she deserved it.” Mr. Hall then hit Russell and he fell into
the screen door, damaging it, and he lay unconscious for about 15 seconds. When
Russell got up, Mr. Hall hit him again.
         The Halls then walked to their car and Russell picked up a long piece of metal and
also walked toward the car. The Halls drove away. Artzer testified she did not see
anything after that, and denied telling a defense investigator she had watched the events
through the bathroom window of Shults’s apartment.
         Artzer testified that Russell had never hit her in the back of the head, but on
redirect examination, said he had. Artzer did not remember telling officers that Russell
had tried to take her keys or that Russell had hit her in the past. But she acknowledged
telling officers that she was scared for her safety and the safety of her son and that she
grabbed him and took him to Shults’s apartment. Artzer testified that she had been
arrested for domestic violence the previous year. She said that Mr. Hall “has a violent
history himself.” Artzer acknowledged that she and Russell had reconciled before the
trial.

                                                5.
        Defense Investigator Bill Perreira testified that Artzer told him she had been
looking through the neighbor’s bathroom window when she saw Mr. Hall punch Russell
in the face, knocking him out. Artzer told Perreira that Russell had hit her that evening.
        Russell testified in his own behalf that he and Artzer had been arguing and she
tried to lock him out, which caused a struggle at the side door. Russell denied hitting
Artzer. According to Russell, Artzer took their son across the street. Later, Mr. Hall
knocked on the door and asked him why he was beating Artzer. When Russell did not
answer, Mr. Hall hit him in the face, knocking him unconscious. Russell did not
remember saying anything to Mr. Hall after that, and he did not remember throwing a
pipe, walking toward the Halls’ vehicle with a tire iron, or having a knife in his pocket.
According to Russell, he hid knives from the house in his toolbox to keep them away
from Artzer, because she is a “self-mutilator.” Russell testified that Artzer had been
previously arrested for biting him, but the charge was dropped.
                                       DISCUSSION
   I.   EVIDENCE OF RUSSELL’S PREVIOUS DOMESTIC VIOLENCE
        Russell contends that the trial court erred in admitting evidence of prior domestic
violence under Evidence Code section 1109 because the court failed to conduct the
required weighing process under Evidence Code section 352, requiring per se reversal.
Respondent asserts the issue was forfeited and, that in any event, no prejudicial error
occurred. We agree with respondent.
        Procedural History
        During discussion of preliminary matters, the prosecutor stated that she
“anticipate[d] that past domestic violence is going to come up … [a]nd so, I’m just
putting the court on notice that under 1108 and 1109, I think it will be relevant.” Defense
counsel objected, stating “[t]here is no conviction. It was something [Artzer’s] saying in
anger when she’s talking to the cop .…” The trial court replied, “The code now calls for
that, so I will allow it.”

                                             6.
       Subsequently, during direct examination of Artzer, the prosecutor asked if there
had been a prior incident of domestic violence in her home. Artzer answered that only
she, not Russell, had been arrested for domestic violence. Defense counsel objected on
grounds of relevance, but Artzer had answered before the court could rule and counsel
did not move to exclude the evidence. Artzer then testified without objection that she
told officers Russell had hit her in the back of the head because the Halls “had caused
such an issue … coming there .…” She testified that Russell had not hit her on the date
of the charged offenses.
       On redirect examination, Artzer testified without objection that she did not
remember how many times Russell had hit her. When the prosecutor asked, “So many
you can’t remember,” defense counsel objected on grounds that the question was
argumentative. After again asking how many times Russell had previously hit Artzer,
she replied, “I guess, once.”
       Applicable Law and Analysis
       Evidence Code section 1109, subdivision (a)(1) provides, “Except as provided in
subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant’s commission of other domestic
violence is not made inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to Section 352.” Under Evidence Code section 352, “the trial court enjoys
broad discretion in assessing whether the probative value of particular evidence is
outweighed by concerns of undue prejudice, confusion or consumption of time.
[Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
       Respondent asserts Russell has failed to preserve the issue on the basis he now
contends. But even assuming all proper objections were made and the evidence was
improperly admitted, it cannot be said Russell would not have received a more favorable
result, even absent the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836-837; see
People v. Riccardi (2012) 54 Cal.4th 758, 804.) The purpose of the prior domestic

                                             7.
violence evidence was to show that Russell had, in fact, struck Artzer. But the jury
acquitted Russell on the only charge based on violence against Artzer. And it cannot be
said that the evidence of Russell’s prior domestic violence was the only evidence to
convict him of the other charges. Instead, those charges were supported by the testimony
of the Halls, as well as Shults, and by the officers’ observations of Russell’s behavior and
their discovery of the jack handle he threw, the tire iron he used to threaten the Halls, and
the knife in his pocket. No prejudicial error occurred.
   II. EVIDENCE OF PRIOR VIOLENCE BY A COMPLAINING WITNESS
       Russell next contends that the trial court erred when it “denied admission …
outright” of evidence of “previous domestic violence” by Mr. Hall “for which he had
been convicted, and which was being offered to show [Mr. Hall’s] propensity for
violence.” Respondent asserts that the issue was waived and, in any event, no
constitutional violation occurred. We agree with respondent.
       Procedural History
       Prior to the presentation of evidence, during a discussion of the parties’ witness
lists, the trial court noted that Ms. Hall was listed on both. The prosecutor stated that Ms.
Hall was on her list because she was Artzer’s cousin and also wife of Mr. Hall, who was
at the scene. Defense counsel stated she was on his list because she was “a victim of
domestic violence perpetrated by [Mr.] Hall.” When the trial court asked “What’s that
got to do with anything,” defense counsel stated that it went to Mr. Hall’s “propensity for
violence” and “impeachment.” The trial court stated that it would not let that in.
       Later, in the discussion of witnesses, defense counsel again brought up Mr. Hall,
this time stating he wished to “use the domestic violence” to impeach Mr. Hall because
he went to Russell’s house and assaulted him. The trial court stated, “No. Let me hear
the testimony, but I don’t think so.” The prosecutor noted that the prior conviction for
Mr. Hall occurred in 2001, making it “remote in time” and not relevant. Again, the trial
court stated, “I don’t think I’m going to let it in.” But the trial court also stated, “if you

                                               8.
think it’s all of a sudden become more relevant, you let me know and we’ll go in the
back.” At trial, defense counsel made no further request to introduce the evidence.
       Applicable Law and Analysis
       In general, a defendant in a prosecution for an assaultive crime who has raised
self-defense is authorized under Evidence Code section 1103 to present evidence of the
violent character of the victim via the victim’s prior and subsequent acts of violence to
show the victim, in this case Mr. Hall, was the aggressor. (People v. Shoemaker (1982)
135 Cal.App.3d 442, 446-448.) Evidence Code section 1103, subdivision (a), provides in
pertinent part: “In a criminal action, evidence of the character or a trait of character (in
the form of an opinion, evidence of reputation, or evidence of specific instances of
conduct) of the victim of the crime for which the defendant is being prosecuted is not
made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to
prove conduct of the victim in conformity with the character or trait of character.” The
trial court however has broad discretion under Evidence Code section 352 to exclude
such character evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352; People v. Shoemaker, supra, at p. 448.)
       These evidentiary rules also apply to evidence sought to be admitted for
impeachment purposes. (People v. Hill (1995) 34 Cal.App.4th 727, 738.) “Although
wide latitude should be given to cross-examination designed to test the credibility of a
prosecution witness, the court retains discretion to exclude collateral matters.
[Citations.]” (Ibid.) In this regard, “a state court’s application of ordinary rules of
evidence - including the rule stated in Evidence Code section 352 - generally does not
infringe upon [a defendant’s federal constitutional right to present a defense].
[Citations.]” (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

                                              9.
       Similarly, “trial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on … cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 679.) The confrontation clause guarantees only “‘an opportunity
for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.’” (U.S. v. Owens (1988) 484 U.S. 554,
559.) Therefore, there is no violation of the Sixth Amendment right to present a defense
“unless the defendant can show that the prohibited cross-examination would have
produced ‘a significantly different impression of [the witnesses’] credibility’ .…”
(People v. Frye (1998) 18 Cal.4th 894, 946, overruled on other grounds in People v.
Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
       We agree with respondent that, because defense counsel made no further request,
the issue was forfeited. But we will address the issue because Russell alternatively
contends that, if the issue was forfeited, the failure to preserve the issue demonstrated
ineffective assistance of counsel. The constitutional right to effective assistance of
counsel is violated when an attorney fails to perform as a reasonably competent attorney,
and it is reasonably probable that, absent counsel’s deficiencies, a more favorable result
would have been obtained. (Strickland v. Washington (1984) 466 U.S. 668, 687; see also
In re Wilson (1992) 3 Cal.4th 945, 950.)
       The evidence at trial was that Mr. Hall went to Russell’s apartment to ask why he
was abusing Artzer. When Russell lunged at him with a clenched fist, Mr. Hall hit
Russell. Russell then sat up, said, “It’s on,” and started to get up when Mr. Hall punched
him again. The Halls then went to their car and Russell threw a metal rod at them.
Russell then got a tire iron and walked toward them. The Halls drove off and stopped
their car some distance away. It was then that Russell saw them and yelled, “I’m going
to stab you with a knife,” the threat that was at the center of the criminal threat allegation.

                                                10.
       Thus, the jury had before it evidence that Mr. Hall threw the first two punches.
We also note that Artzer, in her testimony at trial, at one point testified that Mr. Hall “has
a violent history himself,” without objection from either party. Therefore, because of this
evidence of Mr. Hall’s earlier violent actions, it is therefore not reasonably probable that,
if defense counsel has pursued the admission of evidence of Mr. Hall’s propensity for
violence through a previous domestic violence conviction, as Russell now urges on
appeal, there would have been a more favorable result. We reject Russell’s argument to
the contrary.
   III. CUMULATIVE EVIDENTIARY ERRORS
       Russell contends that the cumulative effect of the above evidentiary errors kept
him from receiving a fair trial. We have either rejected Russell’s claims of error and/or
found that any evidentiary errors, assumed or not, were nonprejudicial on an individual
basis. Viewed cumulatively, we find that any evidentiary errors do not warrant reversal
of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
   IV. SUFFICIENCY OF THE EVIDENCE
       Russell next contends there is insufficient evidence to uphold his conviction for
carrying a concealed dirk or dagger under former section 12020, subdivision (a)(4).
Specifically, Russell maintains that the evidence shows he carried the steak knife found
in his pocket only while in his home or on his property and a reading of the statute to
include such conduct would be constitutionally overbroad. Russell cites In re Bergen
(1923) 61 Cal.App. 226 (Bergen) in support of his contention.

       “‘The proper test for determining a claim of insufficiency of evidence in a
       criminal case is whether, on the entire record, a rational trier of fact could
       find the defendant guilty beyond a reasonable doubt. [Citations.] On
       appeal, we must view the evidence in the light most favorable to the People
       and must presume in support of the judgment the existence of every fact the
       trier could reasonably deduce from the evidence. [Citation.] [¶]
       ‘Although we must ensure the evidence is reasonable, credible, and of solid
       value, nonetheless it is the exclusive province of the trial judge or jury to


                                             11.
       determine the credibility of a witness and the truth or falsity of the facts on
       which that determination depends. [Citation.] Thus, if the verdict is
       supported by substantial evidence, we must accord due deference to the
       trier of fact and not substitute our evaluation of a witness’s credibility for
       that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6
       Cal.4th 1199, 1206.)
       Former section 12020, subdivision (a)(4), prohibited any person from carrying
upon his or her person a concealed “dirk” or “dagger.”2 Section 12020, subdivision
(c)(24), in turn, provided, “[A] ‘dirk’ or ‘dagger’ means a knife or other instrument with
or without a handguard that is capable of ready use as a stabbing weapon that may inflict
great bodily injury or death.” To be convicted, the defendant must (1) “‘knowingly and
intentionally carry [the] concealed’” instrument, and (2) know the instrument “‘is capable
of ready use as a stabbing weapon.’ … A defendant who does not know he is carrying
the weapon or that the concealed instrument may be used as a stabbing weapon is
therefore not guilty of violating section 12020.” (People v. Rubalcava (2000) 23 Cal.4th
322, 332, fn. omitted (Rubalcava).) Proof of intent “to use the instrument as a stabbing
weapon[]” is not an element of the crime. (Id. at p. 333.)
       In People v. Grubb (1965) 63 Cal.2d 614 (Grubb), superseded by statute on other
grounds in Rubalcava, supra, 23 Cal.4th at pages 329-331, our Supreme Court upheld the
constitutionality of section 12020 against a void-for-vagueness challenge. Construing the
statute “in the light of the legislative design and purpose” (Grubb, supra, at p. 620), the
court found:

       “The Legislature here sought to outlaw the classic instruments of violence
       and their homemade equivalents; the Legislature sought likewise to outlaw
       possession of the sometimes-useful object when the attendant
       circumstances, including the time, place, destination of the possessor, the

2      Former section 12020 is now repealed. (See Stats. 2010, ch. 711, § 4.) At present,
section 21310 reads: “[A]ny person in this state who carries concealed upon the person
any dirk or dagger is punishable by imprisonment in a county jail not exceeding one year
or imprisonment pursuant to subdivision (h) of Section 1170.”



                                             12.
       alteration of the object from the standard form, and other relevant facts
       indicated that the possessor would use the object for a dangerous, not
       harmless, purpose. [Citation.]” (Id. at pp. 620-621, fn. omitted.)

       “The concomitant circumstances may well proclaim the danger of even the
       innocent-appearing utensil. The Legislature thus decrees as criminal the
       possession of ordinarily harmless objects when the circumstances of
       possession demonstrate an immediate atmosphere of danger.” (Id. at p.
       621.)

       “We recognize that the presence of suspicious circumstances attendant to
       possession of the proscribed object does not forge an ironclad case against
       defendant. He may be able to demonstrate an innocent usage of the object
       but the burden falls upon him to do so.” (Id. at p. 621, fn. omitted.)
       The holding in Grubb that section 12020 is not unconstitutionally vague was
reaffirmed in Rubalcava, supra, 23 Cal.4th 322, even though “[a]s written, section 12020,
subdivision[ ] (a) … may criminalize seemingly innocent conduct.” (Id. at p. 333.)
“[T]he statute may invite arbitrary and discriminatory enforcement not due to any
vagueness in the statutory language but due to the wide range of otherwise innocent
conduct it proscribes.” (Ibid.) The Supreme Court observed that, although former
section 12020, subdivision (a)(4), could be read on its face as criminalizing the carrying
of legal instruments such as steak knives, scissors and metal knitting needles, there was
“‘no need to carry such items concealed in public.’” (Rubalcava, supra, at p. 330.) In
the end, the Supreme Court ruled that it would “not find [former section 12020,
subdivision (a)(4),] unconstitutionally overbroad without some concrete impairment of
constitutionally protected conduct.” (Id. at p. 333, italics in original; see also People v.
Mitchell (2012) 209 Cal.App.4th 1364, 1377.)
       Here, the evidence “in the light most favorable to the People” (People v. Ochoa,
supra, 6 Cal.4th at p. 1206), is that when Officer Townsend first drove up to the
apartment, Russell was not in his own apartment, but “standing outside the porch area”
“looking back and forth.” Officer Theodore, who followed Officer Townsend to the site,
saw Russell standing in the open doorway of the apartment. Russell was then detained


                                             13.
and a “serrated kitchen knife” was found in his pants pocket covered by his T-shirt.
There was no evidence that Russell offered an innocent explanation to officers for his
possession of the knife at the time it was discovered. At trial, Russell claimed that he
was barbecuing that night, but officers who detained him did not smell any barbecue or
see any evidence of barbecuing at the apartment. Russell also claimed that he had no
recollection of putting the knife in his pocket, but that if he did put it here, it would have
been to keep it away from Artzer.
       Bergen does not help Russell. In that case, the defendant was charged by
complaint with violating a statute which proscribed carrying a concealed firearm without
a license. However, the complaint alleged that the defendant violated the statute by
“conceal[ing] upon his person one … Pistol, without a license to carry such firearm.”
(Bergen, supra, 61 Cal.App. at p. 227.) The appellate court found that the complaint did
not state facts sufficient to constitute a violation of the statute as the “absence of an
allegation of ‘carrying’ leaves the accusation defective, not merely in form, but in
substance ….” (Id. at p. 228.) “[T]he purpose of the [L]egislature in enacting this law
was to prevent citizens from going armed in such fashion as to constitute a danger to the
public; we think it was not designed to prohibit the concealment of a weapon upon one’s
person on his own premises or in his own home.” (Id. at p. 228.)
       In this case, Russell was charged with violating section 12020, subdivision (a)(4),
which proscribes carrying a concealed dirk or dagger on one’s person, and the record
supports the finding that Russell carried a concealed knife on his person outside his
apartment. The jury could reasonably conclude that, by his actions, Russell was “going
armed in such fashion as to constitute a danger to the public ….” (Bergen, supra, 61
Cal.App. at p. 228.) Russell was not “on his own premises or in his own home” (ibid.),
and the circumstances surrounding Russell’s conduct supports the finding that he violated
“the legislative design and purpose” of section 12020, subdivision (a)(4). (Grubb, supra,
63 Cal.2d at p. 620.)

                                              14.
   V. INSTRUCTIONAL ERROR
       Russell argues that the trial court prejudicially erred when it failed to include
certain language in CALCRIM No. 2501 on the elements of carrying a concealed dirk or
dagger pursuant to section 12020. We disagree.
       As stated above, Russell was convicted of a violation of section 12020,
subdivision (a)(4), which made it illegal for a person to carry “concealed upon his or her
person any dirk or dagger.” The jury was instructed with CALCRIM No. 2501 as
follows:

              “The defendant is charged in Count 3 with unlawfully carrying a
       concealed dirk or dagger in violation of Penal Code section 12020(a)(4).
       [¶] To prove that the defendant is guilty of this crime, the People must
       prove that: [¶] One, the defendant carried on his person a dirk or dagger;
       [¶] Two, the defendant knew that he was carrying it; [¶] Three, it was
       substantially concealed on the defendant’s person; [¶] And four, the
       defendant knew that it could readily be used as a stabbing weapon. [¶] The
       People do not have to prove that the defendant used or intended to use the
       alleged dirk or dagger as a weapon. [¶] A dirk or dagger is a knife or other
       instruments with or without a hand guard that is capable of ready use as a
       stabbing weapon that may inflict great bodily injury or death. Great bodily
       injury means significant or substantial physical injury. It’s an injury that is
       greater than minor or moderate harm. [¶] A knife carried in a sheath and
       worn openly suspended from the waist of the wearer is not concealed.”
       In giving the instruction, the trial court did not include the following paragraph,
which is to be given “only if object may have innocent uses.” (See CALCRIM No.
2501.):

       “When deciding whether the defendant knew the object ( … could be used
       as a stabbing weapon), consider all the surrounding circumstances,
       including the time and place of possession. Consider also (the destination
       of the defendant[,]/the alteration of the object from standard form[,]) and
       other facts, if any.”
       Russell contends that the trial court had a sua sponte duty to give the above
paragraph where, as here, the “common household steak knife may have innocent uses.”



                                             15.
       Russell also contends that the trial court had a sua sponte duty to instruct on his
mental state, pursuant to CALCRIM No. 252, which instructs on the joint union of act
and intent. Russell argues that failure to give these instructions was failure “to instruct
the jury on the mental-state element of [Russell’s] knowledge that the instrument was
possessed ‘as a weapon,’” (boldface and some capitalization omitted) and therefore the
jury was not instructed on all of the elements of the charged crime.
       We disagree. As stated in the instruction as given, “dirk or dagger” is defined as a
“knife or other instrument” that is “capable of ready use as a stabbing weapon.” Here,
there is no dispute Russell had a “knife” within the meaning of section 12020. In
addition, the instruction as given required the jury to find that Russell knew that the knife
could readily be used as a stabbing weapon. The additional language Russell now
contends should have been given was not necessary.
   VI. INSTRUCTIONAL ERROR ON LESSER INCLUDE OFFENSE
       Russell next argues that the trial court was required to instruct the jury on an
attempt to make a criminal threat under section 422, a lesser included offense of the
violation of section 422 charged in Count II. We disagree.
       A trial court has a duty to instruct the jury on any offense “necessarily included”
in the charged offense if substantial evidence lends support for the lesser crime’s
commission. (People v. Birks (1998) 19 Cal.4th 108, 112.) As the California Supreme
Court has explained, “a lesser offense is necessarily included in a greater offense if either
the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser.” (Id. at p. 117.) “This
venerable instructional rule ensures that the jury may consider all supportable crimes
necessarily included within the charge itself, thus encouraging the most accurate verdict
permitted by the pleadings and the evidence.” (Id. at p. 112.)



                                             16.
       Even in the absence of a request for an instruction on the lesser included offense,
the trial court must give the instruction if a reasonable jury might find the evidence of the
lesser offense persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) But, “the court
‘has no duty to instruct on any lesser offense unless there is substantial evidence to
support such instruction.’” (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting People
v. Cunningham (2001) 25 Cal.4th 926, 1008.) “[W]e review independently the question
whether the trial court failed to instruct on a lesser included offense.” (People v. Cole,
supra, at p. 1215.)
       Section 422 was enacted to target “‘those who try to instill fear in others,’”
(People v. Wilson (2010) 186 Cal.App.4th 789, 805.) In order to prove a violation of
section 422, the prosecution must establish (1) that the defendant “‘willfully threaten[ed]
to commit a crime which will result in death or great bodily injury to another person’”;
(2) that the defendant made the threat “‘with the specific intent that the statement … is to
be taken as a threat, even if there is no intent of actually carrying it out’”; (3) that the
threat was “‘on its face and under the circumstances in which it [was] made, … so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the threat’”;
(4) that the threat actually caused the person threatened “‘to be in sustained fear for his or
her own safety or for his or her immediate family’s safety’”; and (5) that the threatened
person’s fear was “‘reaonabl[e]’” under the circumstances. (People v. Toledo (2001) 26
Cal.4th 221, 227-228.)

              “A threat is sufficiently specific where it threatens death or great
       bodily injury. A threat is not insufficient simply because it does ‘not
       communicate a time or precise manner of execution .…” [Citation.] In
       addition, section 422 does not require an intent to actually carry out the
       threatened crime. [Citation.] Instead, the defendant must intend for the
       victim to receive and understand the threat, and the threat must be such that
       it would cause a reasonable person to fear for his or her safety or the safety



                                               17.
       of his or her immediate family. [Citation.]” (People v. Wilson, supra, 186
       Cal.App.4th at p. 806.)
       Attempted criminal threat is a lesser included offense of criminal threat. (People
v. Toledo, supra, 26 Cal.4th at pp. 226, 230.) In Toledo, the California Supreme Court
explained that a person commits an attempted criminal threat “if a defendant, … acting
with the requisite intent, makes a sufficient threat that is received and understood by the
threatened person, but, for whatever reason, the threat does not actually cause the
threatened person to be in sustained fear for his or her safety even though, under the
circumstances, that person reasonably could have been placed in such fear, the defendant
properly may be found to have committed the offense of attempted criminal threat.” (Id.
at p. 231, italics in original.)
       Russell contends the evidence that the Halls experienced sustained fear was
lacking so the trial court had a duty to instruct sua sponte on attempted criminal threat.
We disagree.
       The evidence at trial was that, after Mr. Hall confronted Russell and punched him
twice, Russell got up and threw a metal pipe near Ms. Hall as she attempted to get into
her vehicle. Russell then approached the vehicle with a jack handle as the Halls drove
away. When Russell saw the Halls parked up on a nearby hill, he yelled, “I’m going to
stab you with a knife” while acting “pretty nuts.” Mr. Hall then drove to a more remote
location until officers told him it was safe to return.
       When they returned, Russell was in the back of the police vehicle. He was
described by Mr. Hall as “completely wild,” and “yelled and screamed and hollered and
just was completely out of his head” for 45 minutes.
       Ms. Hall testified that she remained in fear, noting that she had, since the incident,
gone to several court dates with Artzer where Russell harassed them by circling the block
while Artzer was trying to get to her car. At one court date, the trial judge had Ms. Hall
and Artzer wait in the courtroom for Russell to leave first because he was so upset.



                                              18.
       Although, as Russell notes, Mr. Hall testified that he was not “concerned” about
being stabbed while he was parked at a distance on the hill, he also testified that he took
the threat seriously and was still concerned that Russell might attack him.
       As stated earlier, section 422 does not require the immediate ability to carry out a
threat. (People v. Wilson, supra, 186 Cal.App.4th at pp. 806-807.) In People v. Wilson,
the court held that the defendant’s threat to kill a prison guard when he was released in 10
months was sufficiently immediate to violate section 422. (Wilson, supra, at p. 814.)
Here Russell, in a rage, made a threat to kill the Halls which, under the circumstances, he
could only carry out after police were no longer on the scene.
       We find that the threat made by Russell was more than sufficient to violate section
422, since the threat extended into the indefinite future and there was no “fortuity, not
intended by the defendant, [which] prevented the defendant from perpetrating the
completed offense of criminal threat itself.” (People v. Toledo, supra, 26 Cal.4th at p.
231.) As a result, there was no basis on which the jury might have found Russell guilty
of an attempt but not the complete offense. (People v. Friend (2009) 47 Cal.4th 1, 51-
52.) Thus, there was no basis to instruct on the lesser included offense.
   VII.    PROSECUTORIAL MISCONDUCT
       Russell contends that, in three separate ways, the prosecutor committed
misconduct and thus violated his right to due process and a fair trial. He asserts the
prosecutor engaged in misconduct in closing argument, when she argued that the pattern
of recollection claimed by Russell was inconsistent with amnesia due to a concussion,
when she argued that Artzer’s inconsistent testimony fit the pattern of domestic violence,
and when she made an improper plea to the jury involving Artzer and Russell’s child.
We find no prejudicial error.

              “‘The applicable federal and state standards regarding prosecutorial
       misconduct are well established. “‘A prosecutor’s … intemperate behavior
       violates the federal Constitution when it comprises a pattern of conduct so
       “egregious that it infects the trial with such unfairness as to make the

                                            19.
       conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor
       that does not render a criminal trial fundamentally unfair is prosecutorial
       misconduct under state law only if it involves “‘“the use of deceptive or
       reprehensible methods to attempt to persuade either the court or the
       jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
       Prosecutorial misconduct requires reversal only if it prejudices the defendant.
(People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant’s
constitutional rights, reversal is required unless the reviewing court determines beyond a
reasonable doubt that the misconduct did not affect the jury’s verdict. (People v. Harris
(1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is
cause for reversal when it is reasonably probable that a result more favorable to the
defendant would have occurred had the prosecutor refrained from the objectionable
conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
       The issue of prosecutorial misconduct is forfeited on appeal if not preserved by
timely objection and request for admonition in the trial court. (People v. Cunningham,
supra, 25 Cal.4th at p. 1000.) If an objection has not been made, “‘“the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct” [citations]’” (id. at pp. 1000-1001) or if an objection would have been futile
(People v. Hill (1998) 17 Cal.4th 800, 820-821).
       Here, defense counsel never objected on the grounds of prosecutorial misconduct
and did not request that the jury be admonished, thereby forfeiting the claim on appeal.
(People v. Cunningham, supra, 25 Cal.4th at p. 1000.) But even on the merits, we find
Russell’s claim lacking, and for that reason do not need to discuss his further claim of
ineffective assistance of counsel for failing to object.
       Russell points to the following three instances in which he claims prosecutorial
misconduct occurred.
       First, Russell complains that the prosecutor argued in closing and rebuttal that,
although Russell testified to details of what happened immediately before Mr. Hall hit



                                             20.
him and was able to quote exact statements by both of them, he was unable to relay
subsequent events, particularly throwing the metal pipe, menacing the Halls with the tire
iron, having a knife in his pocket, and threatening to stab the Halls. Russell contends that
the prosecutor’s comment, that “[s]omebody with a concussion generally doesn’t
remember details before” constituted improper “expert testimony.”
       Second, Russell argues that the prosecutor committed misconduct in arguing that
Artzer exhibited “very classic domestic violence” symptoms, and her inconsistent
testimony was likely due to a “cycle” of domestic violence. Russell argues such
argument was improper expert argument of which the prosecutor had no knowledge.
       Finally, Russell argues that the prosecutor’s plea in closing, to consider the
situation of the child in this situation because a child cannot protect himself in a domestic
violence dispute, was an improper plea to passion for the jury to convict and was also
improper expert testimony.
       A prosecutor is entitled to comment on the credibility of a witness based on
evidence adduced at trial. (People v. Thomas (1992) 2 Cal.4th 489, 529.) What a
prosecutor may not do is suggest that he or she has information undisclosed to the jury
bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that
the jurors will believe that some inculpatory evidence, known only to the prosecution, has
been withheld from them. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on
other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Green (1980)
27 Cal.3d 1, 35.)
       Even if we agree with Russell that the prosecutor’s remarks were objectionable,
we find no prejudice. The trial court instructed the jury that nothing the attorneys said
during closing argument was evidence and that the jury could not be influenced by “bias,
sympathy, prejudice, … public opinion,” or “bias for or against the witnesses, attorneys,
defendant, or alleged victim.” The jury is presumed to have followed the court’s
instructions. (People v. Wash (1993) 6 Cal.4th 215, 263.)

                                             21.
       Finally, there is no reasonable likelihood that the jury construed or applied the
challenged comments, whether singly or together, for improper purposes, especially in
light of the fact that the jury acquitted Russell on the charge involving domestic violence.
(People v. Friend, supra, 47 Cal.4th at pp. 28-29.) Thus, any incorrect implications in
the comments were harmless. (People v. Doolin, supra, 45 Cal.4th at p. 445; People v.
Bell (1989) 49 Cal.3d 502, 539.)
   VIII.    PRESENCE IN THE COURTROOM
       Russell next argues that his constitutional right to a public trial was violated when
the trial court excluded his father from the courtroom during the jury trial requiring
reversal. We disagree.
       Near the beginning of trial, out of the presence of the jury, the trial court told
Russell that it had heard of “two incidents with two different witnesses” (Artzer and
Shults) in which Russell apparently said something. The trial court admonished Russell
to “stop.” The trial court also stated, “And don’t let your family talk to people. I’ll tell
you, there are charges called dissuading a witness from testifying, and your family could
be subjected to them .…”
       At the outset of the second and final day of trial, outside the presence of the jury,
the trial court stated the following on the record:

       “The bailiff received a complaint from Steve Hall, and Steve Hall indicated
       that the parents of defendant said something to him that he took as a threat
       this morning in the courthouse. He apparently said “Hello,” and they said
       something back. And on its face, it didn’t sound particularly threatening,
       but Steve Hall took it as a threat because of the tone of voice or the
       demeanor. So, I’m thinking at this point of just kicking the parents out of
       here.”
The prosecutor agreed with the court, stating that Russell’s father “just crossed through
the bar [in the courtroom]. I told him he was not supposed to come up here, and he
ignored me.” After someone in the courtroom, apparently Russell’s mother, denied



                                             22.
saying anything to Mr. Hall, the court said that she could stay.3 The trial court reiterated
that it was time for Russell’s father to leave, and he was removed from the courtroom.
Before Russell’s father was removed, the court admonished the gallery, stating:

       “ … I am paying careful attention to facial expressions of audience
       members. And I’m telling anybody in the audience, I don’t want to see a
       facial expression, I don’t want to see a glare, I don’t want to see anything
       that looks like an intimidation of the witnesses.”
       Initially, we note that this claim is forfeited because Russell failed to object on this
ground below. “‘A defendant “may, by his own acts or acquiescence, waive his right [to
a public trial] and thereby preclude any subsequent challenge by him of an order
excluding the public. Unlike the jury trial which requires an express personal waiver
[citation], the constitutional guarantee of a public trial may be waived by acquiescence of
the defendant in an order of exclusion.” [Citations.]’ [Citation.]” (People v. Virgil
(2011) 51 Cal.4th 1210, 1237; see also People v. Gonzales (2012) 54 Cal.4th 1234, 1292,
fn. 27 [defendant forfeited right to public trial by failing to assert error below].)
       In any event, Russell’s claim has no merit. A criminal defendant has a
constitutional right to a public trial, including the presence of friends and relatives. (U.S.
Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Presley v. Georgia (2010) 558 U.S.
209, 210, 214-215 [reversed judgment where trial court excluded the public from the
courtroom during voir dire due to space limitations and concern that prospective jurors
might overhear observers’ remarks].) However, the Sixth Amendment presumption of
openness can be rebutted by a showing that exclusion of the public was necessary and
narrowly tailored to protect some “‘higher value.’” (People v. Bui (2010) 183
Cal.App.4th 675, 680-681 (Bui).) “[B]oth the defendant’s and the public’s right may be


3     The January 5, 2012, minute order states that Russell’s mother, “who was not
ordered removed from the courtroom, leaves and remains outside of the courtroom for the
remainder of the trial.”



                                              23.
subjected to reasonable restrictions that are necessary or convenient to the orderly
procedure of trial, and the trial court retains broad discretion to control courtroom
proceedings in a manner directed toward promoting the safety of witnesses. [Citation.]”
(People v. Esquibel (2008) 166 Cal.App.4th 539, 552 (Esquibel).) The right of the public
to attend the trial may be curtailed under special circumstances without infringement on
the constitutional right, but it cannot be denied altogether, and it cannot be restricted
except when necessary. (People v. Byrnes (1948) 84 Cal.App.2d 72, 73.) “The exclusion
of any nondisruptive spectator from a criminal trial should never be undertaken without a
full evaluation of the necessity for the exclusion and the alternatives that might be taken.
This evaluation should be reflected in the record of the proceedings.” (Esquibel, supra,
at p. 556, italics added.)
       In Esquibel, the trial court excluded two friends of the defendant during the
testimony of a single witness who was a minor because, although there was no indication
of intimidation or harassment, the minor’s mother was concerned the spectators might be
gang members and would recognize the minor in the neighborhood. (Esquibel, supra,
166 Cal.App.4th at p. 554.) The appellate court held, “… the partial closure of a trial by
the temporary exclusion of select supporters of the accused does not create an automatic
violation of the constitutional right to a public trial.” (Ibid.) The court found that, on the
facts, there was no violation of the defendant’s right to a public trial as the exclusion was
temporary; the defendant did not need the spectators for support; and family members
remained in the courtroom. The court reasoned that the purposes of the public trial right
would not be served by finding a constitutional violation. (Ibid.)
       In Bui, three spectators, including two of the defendant’s family members, were
excluded by a bailiff from the courtroom for about 40 minutes during jury selection.
(Bui, supra, 183 Cal.App.4th at p. 679.) After the trial court was advised of the situation,
the problem was rectified and the courtroom was opened to all who wanted to be present.
(Id. at p. 686.) On appeal, the defendant maintained his right to a public trial had been

                                             24.
violated and reversal was required. The appellate court made it clear that, while it did not
condone the exclusion of any person from court proceedings, the short period of
exclusion did not constitute a per se violation of the defendant’s right to a public trial. It
stated, “Given what we find to be the de minimis nature of the temporary exclusion of
these individuals from only a limited portion of voir dire, we likewise find, as did the
Supreme Court in [People v.]Woodward [(1992) 4 Cal.4th 376, 383-385], that this
‘temporary “closure” did not violate defendant’s fundamental constitutional right to a
public trial.’ (Woodward, supra, 4 Cal.4th at p. 379.)” (Bui, supra, at pp. 688-689, fn.
omitted.)
       Here, the exclusion of Russell’s father was not temporary as in Esquibel and Bui,
but was instead for the remainder of the last day of trial. But, more importantly, unlike
the exclusions in Esquibel and Bui, Russell’s father was disruptive.
       As recently reiterated in People v. Pena (2012) 207 Cal.App.4th 944 (Pena):

               “‘[T]he United States Supreme Court “has made clear that the right
       to an open trial may give way in certain cases to other rights or interests,
       such as the defendant’s right to a fair trial .… Such circumstances will be
       rare, however, and the balance of interests must be struck with special
       care.” (Waller [v. Georgia (1984)] 467 U.S. [39,] 45.) Consequently both
       the defendant’s and the public’s right may be subjected to reasonable
       restrictions that are necessary or convenient to the orderly procedure of
       trial, and the trial court retains broad discretion to control courtroom
       proceedings in a manner directed toward promoting the safety of witnesses.
       (Alvarado v. Superior Court (2000) 23 Cal.4th 1121.) [¶] … In the case of
       a partial closure [(where some, but not all, spectators are asked to leave)],
       the Sixth Amendment public trial guarantee creates a “‘presumption of
       openness’” that can be rebutted only by a showing that exclusion of the
       public was necessary to protect some “‘higher value’” such as the
       defendant’s right to a fair trial .… (See Waller, supra, 467 U.S. at pp. 44-
       45.) When such a “higher value” is advanced, the trial court must balance
       the competing interests and allow a form of exclusion no broader than
       needed to protect those interests. (Ibid.) Specific … findings are required
       to enable a reviewing court to determine the propriety of the exclusion. (Id.
       at p. 45.) … [¶] The identity of the spectator sought to be excluded is
       highly relevant in a partial closure situation .… The application of the


                                              25.
       above principles and the issue whether an accused has been denied his
       constitutional right to a public trial cannot be determined in the abstract, but
       must be determined by reference to the facts of the particular case.
       [Citation.]’ [Citations.]” (Pena, supra, 207 Cal.App.4th at p. 949, fn.
       omitted.)
       In Pena, the trial court excluded the entire families of the two defendants, who
were brothers, during the last 30 minutes of testimony, closing argument and jury
instruction. At one point early in the trial, defense counsel was told by the trial court to
admonish “the family” not to interact with the jury inadvertently. Later, the clerk
reported to the trial court that several jurors had felt family members of the defendants
were following them during recess and making them uncomfortable. The prosecutor also
reported an incident in which the defendants’ mother had given her an intimidating look.
(Pena, supra, 207 Cal.App.4th at pp. 947-948.) The trial court then excluded 10 to 12
family members, stating that, while it could hold a hearing to determine exactly which of
the family members was responsible, that would delay the trial and be “‘bad for the
defense.’” (Id. at p. 948.)
       On appeal, the defendants claimed the trial court committed reversible error by
excluding members of their family. The court in Pena disagreed, stating that the trial
court had identified three interests that required exclusion of the family members: the
right of both defendants to a fair trial; the right of the jurors to feel free from
intimidation; and the right of jurors to an undelayed conclusion of their duty at this late
point in the trial. (Pena, supra, 207 Cal.App.4th at p. 948.) The court in Pena discussed
various alternatives available to the trial court under the circumstances, but concluded
that its actions were reasonable, finding them no broader than necessary to protect the
interests identified by the trial court. (Id. at pp. 950-951.)
       Here the trial court properly weighed the need for a public trial against the need
for a fair and orderly trial. From the trial court’s earlier statements, it is apparent that it
was concerned with witness intimidation from the onset of trial and specifically warned



                                               26.
Russell not to allow his family to speak to any witnesses. The subsequent incident the
following morning between Mr. Hall and Russell’s father, along with the fact that
Russell’s father ignored courtroom protocol and directives when he crossed the bar, was
likely an indication to the trial court that Russell’s father would continue to disrupt the
orderly trial process. And although the trial court at first indicated it would remove both
Russell’s mother and father, it allowed Russell’s mother to stay after she denied saying
anything to the witness, making the exclusion of Russell’s father a narrow and carefully
tailored remedy.
       Furthermore, the exclusion of Russell’s father from the courtroom under these
circumstances did not implicate any of the rationales underlying the right to public trial.
“‘“‘The requirement of a public trial is for the benefit of the accused; that the public may
see he is fairly dealt with and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their responsibility and to the
importance of their functions .…’”’ [Citations.] [¶] In addition to ensuring that judge
and prosecutor carry out their duties responsibly, a public trial encourages witnesses to
come forward and discourages perjury.” (Waller v. Georgia, supra, 467 U.S. at p. 46, fn.
omitted.) The exclusion of Russell’s father from the courtroom did not affect any of
these goals.
   IX. INEFFECTIVE ASSISTANCE OF COUNSEL
       Russell finally contends in supplemental briefing that, if this court chooses not to
reach the merits of the claims of error argued in his opening brief based on failure of
counsel to adequately preserve them on appeal, he received ineffective assistance of
counsel. However, we have addressed all issues on the merits and have found either no
error or no prejudicial error and need not further address his claim of ineffective
assistance of counsel.




                                             27.
                                 DISPOSITION
     The judgment is affirmed.

                                               _____________________
                                                            Franson, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Kane, J.




                                     28.
