People v. Smith CA4/1

Opinion

Filed 9/29/26 P. v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085907

Plaintiff and Respondent, (Super. Ct. No. FVI20000058)

v.

EDMOND JEROME SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Nicole Quintana Winter, Judge. Reversed and remanded.

Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Senior Assistant Attorney General, Kristine A. Gutierrez, Supervising Deputy Attorney General, Sahar Karmini and James M. Toohey, Deputy Attorneys General for Plaintiff and Respondent.

The trial court closed the courtroom to the public during the testimony of two accomplices during the trial of appellant Edmond Jerome Smith, after one accomplice testified that he saw “shot callers” from the gang in court, did not feel “safe” testifying, and felt “nervous” and “scared” that something would happen to him or his loved ones who still lived in his neighborhood. The jury convicted Smith of the first degree felony murder of Dominic Beard (Pen. Code,1 § 187, subd. (a); count 1), and found true that Smith personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)), committed murder while engaged in the commission of robbery (§ 190.2, subd. (a)(17)(A)), and committed murder while engaged in the commission of burglary (§ 190.2, subd. (a)(17)(G)). Smith contends that the trial court violated his constitutional right to a public trial by excluding the public from the courtroom during the testimony of the two accomplices. Smith next contends that no substantial evidence supported the jury’s finding that Smith committed the crime for the benefit of a criminal street gang, and that the court abused its discretion by permitting the gang expert to testify in response to a hypothetical that used real gang monikers, and to opine based on the accomplices’ plea admissions that Smith’s crime commonly benefited the gang in a financial manner.

1 Undesignated statutory references are to the Penal Code.

2 Smith further contends that the trial court erred when, after treating Smith’s motion for new trial as a motion under the Racial Justice Act (RJA), the trial court failed to recuse itself as required by the RJA and denied the motion without an evidentiary hearing. Smith claims in the alternative that his counsel was ineffective for failing to invoke the RJA to address racial bias in the efforts by the judge and prosecutor to close the courtroom to “Black people,” and in testimony by a gang expert that African American gang members who commit a robbery together typically divide the proceeds among themselves and thus benefit the gang as a whole. Smith was permitted to file a supplemental brief, in which he contends the manner in which the “geofence” search warrant was executed violated the Fourth Amendment of the Constitution and the California Electronic Communication Privacy Act. We conclude the court’s closure of the courtroom to the public during the testimony of at least two accomplice witnesses2 violated Smith’s constitutional right under the federal and state constitutions to a public trial. We therefore reverse Smith’s conviction for first degree felony murder and remand for retrial. Because we reverse, we do not reach Smith’s remaining claims of error.

2 As discussed below, the record is unclear whether the court closed the courtroom only for the testimony of the two accomplices, or kept it closed for some or all of the testimony of the three witnesses called between the two accomplices. 3 FACTUAL AND PROCEDURAL BACKGROUND The Shooting On April 3, 2019, K.M. went to visit his mother and his brother Dominic Beard at the apartment where they lived in Victorville. K.M.’s then- girlfriend, S.H., went with him. Beard was known by the nickname “Too Tall” due to his stature. While K.M. was at the apartment, someone knocked on the door. K.M. and Beard went to answer the door. Three individuals were there to buy “weed.” Beard got some weed and showed it to them. They smelled it and wanted to know if Beard had any more. Beard tried to close the door, but the three men pushed the door open and rushed in. K.M. recognized one man as “JD.” K.M. and JD had gone to high school together. K.M. had recently been in a fight with JD. The other two men K.M. recognized as “Lil’ 50” and “Bari.” Once all three were inside the apartment, JD rushed at Beard and threw a punch at him. Beard slammed JD onto the ping pong table. Bari ran to another part of the apartment. K.M. moved his girlfriend out of the way so she did not get shot, and they hid in the kitchen. Lil’ 50 was in the living room. K.M. saw Lil’ 50 shoot Beard with a black handgun. After the shooting, the intruders ran out of the apartment. At Smith’s trial, K.M. identified photographs of “JD” and “Bari.” Asked if he saw Lil’ 50 in the courtroom, K.M. said he did not see him. The prosecutor noted that K.M. was staring at someone, and asked if K.M. recognized that person. K.M. answered, “I’m not sure.” Asked if he recognized anyone at counsel table, K.M. replied, “Maybe Lil’ 50.” After K.M. testified, the prosecution called two law enforcement witnesses to impeach K.M.’s testimony with his prior statements, including 4 his prior identification of Smith.3 The prosecution then called Barion Walkins. Walkins’s Testimony Walkins pleaded guilty to voluntary manslaughter, first degree burglary and first degree robbery with firearm enhancements, and admitted he committed his crimes for the benefit of the Grape Street Watts gang. He agreed to serve 30 years in state prison. In his first day on the stand, Walkins testified he was in custody for a home invasion robbery committed in Victorville in April 2019 with Ravon Friend and Edmond Smith. Friend’s nickname was JD, and Walkins and Friend knew each other from the Jordan Downs housing complex where they both grew up. Walkins knew Smith, who was a little older than Walkins and who went by the nickname “50,” from the neighborhood. He identified Smith in the courtroom. Walkins, Smith, and Friend were all members of the Grape Street Watts Crips gang. Walkins testified that he received a call from Smith on April 3, 2019. Smith said he was broke and needed rent money. Smith picked up Walkins and they drove around and smoked marijuana. Walkins called Friend to discuss helping Smith out with a robbery. Closed Evidentiary Hearing At this point in Walkins’s testimony, the court recessed for the day. When deputies brought him out the next day, Walkins asked to use the restroom, then refused to return to the courtroom. Walkins told the deputies he could not go back out because there were specific people in the courtroom.

3 Prior to calling K.M., the prosecution called as its first trial witness the deputy sheriff who responded to the scene at the apartment and discovered Beard bleeding from a gunshot wound. 5 The prosecutor requested that the court conduct an evidentiary hearing to allow the court to make a finding that “a limited exclusionary order is appropriate, not to the entire public, not to family . . . not to the entire case, just when Mr. Walkins or Friend is testifying, and only [excluding] certain individuals.” The court closed the courtroom for a hearing to investigate the safety concern. In the closed courtroom without the jury present, Walkins testified that, upon his return to the stand that morning, he recognized four or five members of the Grape Street Watts gang sitting in the back of the courtroom who were not present the day before. He felt “nervous” and “scared” when he saw these individuals in court. He felt that if he continued to testify, “something might happen to me or my loved ones.” If the gang caught someone “snitching,” “something bad will happen to you. . . . You end up getting killed,” Walkins explained. Family members and friends would be targeted as well. “It gave me the chills when I see them type of people,” Walkins testified. Walkins saw several “shot callers,” meaning people who could command others to do what they said. Although he did not know their “government names,” he recognized individuals known by the monikers “Nine,” “Keefee,” and “Choc.” Choc was Smith’s uncle. Walkins did not want to testify with those individuals in the courtroom because he felt his life and his family’s lives were “in jeopardy.” His family still lived in Watts. Walkins testified he was comfortable testifying with Smith’s mother present, “[b]ecause that’s his mother. . . . [I]f I was the defendant, I would want my mother here.” He did not believe Smith’s mother was part of the Grape Street gang, stating, “She’s a church woman.”

6 As for Smith’s other relatives, however, Walkins was not comfortable testifying if any of them were present in the courtroom. On cross examination, Smith’s counsel elicited from Walkins that Walkins had made statements against Smith “from the very beginning” but had not been threatened during his four years in custody. Walkins stated, “From what I was told, nobody knew” that he cooperated against Smith. The prosecutor stated that he knew of no actual threats. The prosecutor requested exclusion of the three individuals named by Walkins, “unless Mr. Walkins can give more information with regards to who he feels like he’s threatened from by testifying.” Walkins responded, “Threatened by everybody.” The parties stipulated “that there were additional members of the public present” on the second day of Walkins’s testimony who were not there the first day.

The prosecutor argued section 868.7,4 which addresses closure of a courtroom to protect a witness, gave the court options “short of closing the proceedings,” but argued that the alternatives suggested by the statute, such as concealing Walkins’s features, would not work since the individuals in question knew Walkins and his family.

4 Section 868.7, subdivision (a)(2) provides that a judge, upon motion of the prosecutor, may close to the public the examination of a witness “[w]hose life would be subject to a substantial risk in appearing before the general public, and where no alternative security measures, including, but not limited to, efforts to conceal his or her features or physical description, searches of members of the public attending the examination, or the temporary exclusion of other actual or potential witnesses, would be adequate to minimize the perceived threat.”

7 The prosecutor also invoked section 686.2,5 which permits exclusion of a spectator who is found to be intimidating a witness. The prosecutor noted Walkins wore green inmate’s attire, which would reveal that he was in protective custody, that it was “more than coincidence” that 11 people, including three “shot callers” for the gang, attended when “throughout this entire trial” only Smith’s mother and a cousin had appeared before. The prosecutor also stated that Walkins was actually intimidated, as Walkins testified. Defense counsel objected to the exclusion of anyone because it was “unbelievable” that nobody knew Walkins had “snitched” over four years, and objected that a witness “should have the say as to who gets to come into this courtroom. Absent someone making a threat or even giving, you know, a mean look, they’re entitled to be here.” The Court’s Waller Analysis and Limited Exclusion Order The court found there had been “insufficient evidence of actual intimidation” for section 686.2 to apply, noting that it had watched the gallery and, despite the increased number of spectators, the court did not see 5 Section 686.2 provides: “(a) The court may, after holding a hearing and making the findings set forth in subdivision (b), order the removal of any spectator who is intimidating a witness. [¶] (b) The court may order the removal of a spectator only if it finds all of the following by clear and convincing evidence: [¶] (1) The spectator to be removed is actually engaging in intimidation of the witness. [¶] (2) The witness will not be able to give full, free, and complete testimony unless the spectator is removed. [¶] (3) Removal of the spectator is the only reasonable means of ensuring that the witness may give full, free, and complete testimony. [¶] (c) Subdivision (a) shall not be used as a means of excluding the press or a defendant from attendance at any portion of a criminal proceeding.”

8 or hear any actual intimidation. Nor had court staff seen any intimidation by the spectators in the courtroom. The court recognized it had broad discretion under section 868.7 to protect a witness who was testifying, but found the statute unhelpful, and instead looked to the case law regarding the right to a public trial under the state and federal constitutions. The court considered the four factors set forth in Waller v. Georgia, (1984) 467 U.S. 39 (Waller), “to justify exclusion of an individual or the public from the courtroom.”6 The trial court found “an overriding interest in protecting [Walkins] from intimidation, threats, and/or harassment, and physical harm.” The court noted Walkins still had family living in his former neighborhood, and found credible Walkins’s expressions of concern for his safety. The court concluded that closure of the courtroom satisfied the first Waller factor, the existence of an overriding interest that is likely to be prejudiced absent the closure. (Waller, supra, 467 U.S. at p. 48.)

6 The Supreme Court in Waller identified four requirements necessary to justify exclusion of the public from a courtroom: (1) the existence of an overriding interest that is likely to be prejudiced absent the closure; (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.) The Waller test applies when a trial court orders a complete closure of the courtroom to all spectators during trial. A partial closure requires only a “substantial reason” for the exclusion of certain spectators, and that the exclusion be narrowly tailored. (People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, fn. 1.) The trial court recognized this and explained it had chosen to apply the Waller test, though it was only ordering a partial closure, in order to be “overly cautious.” 9 For the second factor, requiring a “narrowly tailored” exclusion, (Waller, supra, 467 U.S. at p. 45), the court found the prosecutor’s requested exclusion of only three individuals, identified by their monikers, to be “narrowly tailored” and “no broader than necessary to protect the interest of protecting the witness from threats and intimidation.” Considering alternatives as required by the third Waller factor (Waller, supra, 467 U.S. at p. 48), the court found no “reasonable alternatives to closing the proceeding[.]” The court noted that “screening” the witness from public view would not be helpful, nor would having him testify through a remote platform such as Zoom, considering the “difficulties in understanding the witness.”7 Walkins’s identity would still be disclosed to the Grape Street gang members in attendance. To fulfil the last Waller factor, that the court make findings supporting its exclusion order, the court found that Walkins had willingly testified the day before, but “as soon as the public came in” the next day Walkins was no longer willing to testify. The trial court found that Walkins was intimidated, that there had been “a change in circumstances and in the trial setting,” and that its findings justified the narrowly tailored order excluding the three identified individuals. The court held that its order applied only to Walkins’s testimony, rejecting the prosecutor’s request that the exclusion order apply also to the upcoming testimony of accomplice Ravon Friend, the third participant in the home invasion robbery. The prosecutor informed Walkins about the court’s ruling, and Walkins indicated he would testify when trial resumed the following week. Smith’s Jail Calls and Court’s Order Closing the Courtroom 7 The record reflects Walkins’s testimony was at times inaudible or could not be heard by defense counsel. 10 When trial resumed, before calling any witnesses, the prosecutor informed the court that Smith had made phone calls from jail the week before, on the evening of Walkins’s first day of testimony. Smith called his mother and his daughter. In the calls, Smith told his mother and his daughter that he wanted certain people to come to court and that it was “very important” that they attend “tomorrow.” Smith specifically mentioned Nine, Keefee, and Choc. His mother said, “I know why, I know why, I know why.” When his daughter said, “What if they can’t come tomorrow,” Smith responded, “Tell them I need them tomorrow, on Beezy.8 I need them.” The prosecutor argued that the recording showed Smith summoning gang members for the purpose of intimidating Walkins. The recordings suggested as many as 14 to 23 people were expected to attend Walkins’s second day of testimony. As a result of this effort to intimidate the witnesses, the prosecutor requested the trial court exclude “anyone part of [the] defendant’s party.” He did not want to exclude “rest of the public,” in order to keep the trial “as open as possible, as public as possible[.]” The prosecutor requested the order apply during the testimony of witnesses Walkins and Friend. The prosecutor also sought to exclude Smith’s mother and daughter as potential witnesses because he planned to introduce the jail calls during the trial. Defense counsel stated he was “disappointed” in what he heard on the recordings, but noted that the court had already excluded the three individuals named in the calls. He stated Smith was “entitled to have friends come to court,” and the mother’s efforts to ask people to come were “not a 8 Walkins later testified that this was a reference to a deceased gang member nicknamed “Beezy,” and to say “On Beezy” meant to “swear on the lives of deceased friends or brothers.” 11 problem.” “Closing the courtroom also says that Black people aren’t welcome,” defense counsel argued further. “That’s something the court should be concerned for because all of the people that came for Mr. Smith were Black people.” Defense counsel stated, “And to stand at the door and screen everybody and say, if you’re Black you can’t come in here unless you disavow any knowledge of Mr. Smith is way out of line, so I object to this.” The court noted that a witness exclusion order was already in place to address the prosecutor’s concerns that the jail recordings made Smith’s mother and daughter excludable as potential witnesses. The trial court listened to the jail calls and stated its concern “that there are efforts to undermine a fair and just process . . . through the intimidation of witnesses . . . .” The trial court found “unfortunate” Smith’s phone calls, in which Smith said he “needs [people] out here tomorrow, is real important, ‘on Beezy’.” The court found these calls to be “attempts at intimidation” by Smith, and noted his efforts “did work last week, and the witnesses were not willing to testify.”9 The court recognized the need to minimize the violations of an individual’s right to a public trial against the “overriding interest in ensuring a just process and ensuring that witnesses are not intimidated.” The court said it attempted to balance those interests, “along with issues of security and safety in the courtroom, including the jurors and the alternates.” The court concluded, “I don’t feel like there’s any way for me to craft a surgically- precise order of eliminating individuals that may or may not be present to intimidate these witnesses. Therefore, I’m going to close the courtroom to all 9 The record does not indicate that any witness other than Walkins refused to testify the week before.

12 members of the public for the remainder of Mr. Walkins’ testimony and Mr. Friend’s testimony. That is my order.” Trial Testimony Walkins completed his direct and cross-examination testimony in a closed courtroom. He testified that he, Friend, and Smith discussed committing a home invasion robbery of someone Walkins only knew as “Too Tall.” They planned to force their way into the house, steal whatever they could find of value, and split it three ways. Walkins testified Smith drove the three of them to the apartment in Victorville. Friend and Smith brought guns. Using guns was part of the plan for the robbery, to “put fear in the victim[s].” Friend went to the door to ask about marijuana. Smith and Walkins joined him at the door, and they barged into the apartment. Beard was trying to close the door. After they barged in, Smith had his gun out. Friend wrestled with Beard while Walkins went to another room in the apartment. Walkins heard a gunshot and they all ran out of the apartment. As they were running out, Walkins heard Friend yell at Smith, “Why you do that?” Smith answered, “Man, he had you. He had you.” Walkins admitted he and Friend had committed robberies together before, but not with Smith. Walkins again identified Smith in court. During a break in Walkins’s testimony, the court indicated that as the courtroom door opened to let the jury out, individuals outside were attempting to take photographs inside the courtroom. The record does not clearly indicate when the court reopened the courtroom to the public. After Walkins testified, the prosecution called S.H., the girlfriend of K.M. The court did not state that the courtroom was reopened or indicate that anyone waiting outside could enter.

13 S.H. testified about her visit with K.M. to Beard’s apartment, the intrusion by the three individuals, and the fight. She saw one of the intruders point a gun at Beard but she hid in the kitchen before the gun was fired. She did not recognize any of the intruders in the courtroom. After S.H. testified, Sergeant Tramayne Phillips of the San Bernardino County Sherriff’s Department testified regarding prior statements of K.M., in which K.M. identified “Lil’ 50” as Smith and said he was the shooter; and statements Walkins made to law enforcement about the robbery. Sergeant Michael Gardea then took the stand to introduce Smith’s two jail calls to his mother and sister, and testify about statements made by Walkins in another interview with law enforcement.10 At this time, the prosecution called Friend. At the start of Friend’s testimony, the trial court again ordered the proceedings closed to the public, which suggests the courtroom had been reopened at some point prior to Friend’s testimony, although the record is unclear if or when that occurred.11 In the closed courtroom, Friend told the jury that he recognized the monikers Choc, Nine, and Keefee as Grape Street gang members. If they were in the courtroom watching him testify, Friend said it would feel “like, 10 In his new trial motion, Smith stated that the trial court closed the courtroom during the portion of Sergeant Gardea’s testimony when he testified about prior statements of Walkins and Friend. The transcript does not reflect that Gardea testified about Friend’s prior statements. The record also does not indicate the court closed the courtroom during some parts of Gardea’s testimony and reopened it for others.

11 The parties do not dispute that the record is unclear whether the courtroom was closed only for the testimony of Walkins and Friend, or also during the testimony of additional witnesses, including law enforcement officers who testified, among other topics, to prior statements by Walkins. 14 basically, it’s a threat to me,” like they were “trying to come in here and put on an image, like you trying to come in here and scare me or something.” Friend testified that on the day of the robbery, Smith called him and said he was “low” and needed rent money. They discussed committing a home invasion robbery of Beard. The plan was for Friend to go to the door, see if Beard had marijuana, and if so to do the home invasion robbery. They would take “weed, money, and jewelry, guns . . . whatever was valuable,” and split it evenly among them. The plan was for Smith to hold the gun and they would all force their way in. Once the gun was shown, everyone would take whatever valuable possessions were in the home. Both Friend and Smith had guns. Before they entered the apartment, Friend suggested switching guns with Smith, because Friend’s gun, a .40-caliber “ghost Glock” with 32 shots, was “bigger [and] look[ed] scarier” than Smith’s gun. As Friend pushed into the apartment, Beard grabbed Friend by the shirt and Friend tried to push Beard off. In the scuffle Friend landed on top of Beard on the ping pong table. As Beard tried to get up, Smith said, “Don’t move, I’m going to shoot.” As soon as he said this, Smith shot Beard, Friend testified. Friend never took out his own gun, which remained zipped up in his pocket. Friend testified he, Walkins, and Smith all belonged to the Grape Street Watts gang. He identified Smith in the courtroom. The courtroom was reopened to the public following defense counsel’s recross-examination of Friend. The prosecution never called Smith’s mother or daughter as witnesses, instead introducing Smith’s jail calls through Sergeant Gardea. The Motion for New Trial 15 Following the verdict, defense counsel filed a motion for new trial based on closure of the courtroom for the testimony of Walkins, Friend, and Sergeant Gardea during Gardea’s testimony about prior inconsistent statements by Walkins and Friend. Defense counsel did not contend the courtroom was closed for any other testimony. The People did not dispute that the courtroom was closed during Gardea’s testimony. Smith attached to his new trial motion the declarations of seven of Smith’s family members and friends, including two nieces, Smith’s older brother, an older sister, another relative, a family friend, and Smith’s mother. Each stated that he or she had had come to watch Smith’s trial and was barred from entering the courtroom on one or more court days. The prosecution filed two pleadings in opposition: one arguing that Smith had failed to state a prima facie case for relief under the RJA, and a second pleading opposing the motion for new trial. The court denied the new trial motion. The court noted it balanced an “overriding interest which included the safety and security of the court, the court staff, the witnesses, the attorneys present in the courtroom” and the need for a fair proceeding, against the right of the defendant and the public to a fair and public trial. The court stated “there was definite intimidation as I noted on the record at that time,” and also “a potential threat of safety” that arose after the court heard Smith’s jail calls, which raised concerns over the number of individuals who may be present, or “if there was a threat.” The court asserted that “due to the resources that were available to the court, namely to the sheriff’s department . . . [t]he court had no additional resources or reasonable alternatives to closing the proceeding.” The court also found Smith had not made a prima facie case under the RJA. Smith timely appealed.

16 DISCUSSION A. Legal Principles 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; In re Oliver (1948) 333 U.S. 257, 271-272, 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.” (People v. Scott (2017) 10 Cal.App.5th 524, 530 (Scott).) 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.” (Ibid.) In general, there are two types of exclusions: a total closure where all spectators are directed to leave the courtroom, and a partial closure where some, but not all, spectators are asked to leave. (People v. Esquibel (2008) 166 Cal.App.4th 539, 552 (Esquibel).) Occasions when closure of the courtroom is appropriate “will be rare” and in such scenarios “the balance of interests must be struck with special care.” (Waller, supra, 467 U.S. at p. 45.) The Supreme Court in Waller identified four requirements necessary to justify total closure of a courtroom: (1) the existence of an overriding interest that is likely to be prejudiced absent the closure; (2) the closure is narrowly tailored, i.e., no broader than 17 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.” (Id. at p. 48.) We consider an appellant’s claim that he was deprived of his constitutional right to a public trial de novo, but we review any underlying factual findings by the court for substantial evidence. (Scott, supra, 10 Cal.App.5th at p. 531.) B. Analysis We are not persuaded that the Waller test for closure was satisfied in this case. The court issued two orders. In its first order (the Exclusion Order), issued after Walkins’s first day of testimony, the court excluded only the three named gang members, and only during the remaining testimony of Walkins. In its second order (the Closure Order), issued after the prosecutor presented evidence of the jail calls, the court closed the courtroom to the public for the remaining testimony of Walkins and the entire testimony of Friend. Our review focuses on the Closure Order because that order took effect: the courtroom was closed to all members of the public for the testimony of Walkins, Friend, and perhaps others. While California statutes permit both exclusion and closure orders, (see, e.g., §§ 686.2, 868.7), rulings applying those statutes are still subject to the fundamental constitutional right to a public trial under the federal and California constitutions. We thus analyze the court’s Closure Order using the factors the Supreme Court identified as relevant to balancing the important public interest in open courtrooms against any “higher values” or “overriding interest.” (Waller, supra, 467 U.S. at p. 45.) As to the first Waller factor, protecting trial witnesses from threats, harassment, or physical harm is an overriding interest and deserving of 18 protection. (See NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223). Substantial evidence supports the trial court’s factual determination that Walkins felt intimidated by the presence of individuals in the courtroom on the second day of his testimony. The record reflects that the courtroom contained more spectators on his second day of testimony as compared to the first. Walkins identified, by their monikers, people he recognized in the courtroom on the second day. The trial court found credible Walkins’s expression of fear and nervousness for himself and his family members who still lived in Watts if he were to testify in the presence of individuals he identified as “shot callers” in the gang. We conclude the first Waller factor was met. We are not convinced that the court’s closure order met the second Waller requirement that the closure be narrowly tailored. As Smith points out, little had changed between the court’s Exclusion Order and the Closure Order. The court issued its Exclusion Order based on the nervousness and fear prompted by the appearance of several individuals in the courtroom that were known to Walkins to be “shot callers” in the gang, three of whom Walkins identified by their monikers. Based on that circumstance, the prosecutor requested, and the court imposed, an order excluding just those three individuals. The court did not impose a broader closure, and the prosecutor did not request one, even though Walkins testified that he was not comfortable with any of Smith’s family members present, and that he felt “threatened by everybody,” not only the three “shot callers.” In the interval between the trial court’s issuance of its Exclusion and Closure orders, the court and parties learned of the jail calls. Those calls 19 suggested that Smith had procured the attendance of the additional individuals in court on the second day of Walkins’s testimony, likely with the assistance of his mother and daughter. Walkins sought the attendance specifically of Kefee, Nine, and Choc, the same three “shot callers” whose presence caused Walkins to feel scared and nervous. The new information, then, was that Smith had a role in getting the additional spectators to attend. That Smith wanted spectators to attend comes as no surprise. We presume people were in court for Smith’s trial to support Smith, and because Smith wanted them to be there. Even if Smith wanted the gang members to attend in order to intimidate Walkins, the Attorney General has not persuaded us that such an intention would materially change the Waller analysis the court had already conducted. The court already made findings that: there was an effort to intimidate Walkins, the effort was successful, and Walkins was intimidated by the presence of the additional people in the courtroom. The court then crafted a narrow remedy through the Exclusion Order that honored Smith’s right to a public trial. The court did not explain how Smith’s participation in the effort to intimidate Walkins changed its factual findings that led to the Exclusion Order and instead required closure of the courtroom entirely. The jail calls effected one material change: to include Smith’s mother and daughter as potential witnesses if the prosecutor intended to introduce the jail calls at trial. The court had already granted the prosecutor’s 20 unopposed motion to exclude trial witnesses.12 Leaving the Exclusion Order in place, along with the witness exclusion order, would have had the effect of keeping out the three gang members and Smith’s mother and daughter—five out of the estimated 11 spectators in the courtroom on the second day, allowing the majority to remain. The court made no findings why such a narrower order did not satisfy the overriding interest in protecting the witnesses. The court also did not determine whether the additional spectators had any connection with the effort to intimidate Walkins, merely stating it could not craft such a “surgically-precise” order. Though Walkins testified that he felt threatened by “everybody” and would not testify in the presence of any of 12 We are not asked to review whether a witness exclusion rule violates the right to public trial, if the witnesses subject to the order include the defendant’s family members. Courts have paid special attention to ensuring the presence of a defendant’s relatives in the case law interpreting the guarantee of the right to a public trial. (In re Oliver, supra, 333 U.S. at pp. 271-272, fn. 29.) But it has been a longstanding aspect of criminal law that exclusion of witnesses does not violate a defendant’s right to a public trial, even if the witnesses are the defendant’s close relations. (People v. Sprague (1879) 53 Cal. 491, 493 [“The wife and daughters of defendant were witnesses, and were properly included within the order which excluded from the Court-room all witnesses but the one under examination”]; see Evid. Code, § 777 [trial court “may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses”]; United States v. Ricker (8th Cir. 2020) 983 F.3d 987, 994 [rejecting defendant’s Sixth Amendment argument after the defendant’s father was excluded from the courtroom as a potential witness but was not called; explaining, “The Supreme Court has said ‘that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.’ [Citation.] This entitlement is not absolute, however, and does not necessarily prohibit the sequestration . . . of the defendant’s friends or relatives who may be called as witnesses.”].)

21 Smith’s family members, the court already implicitly rejected that such evidence justified closure to all of Smith’s family members. Instead, in response it crafted the Exclusion Order that only excluded the three named gang members. Walkins himself was willing to have Smith’s mother in the courtroom, both because she was Smith’s mother and also because Walkins did not know her to be a member of the Grape Street gang. The court made no findings whether the other additional spectators belonged to Grape Street. (Cf. Scott, supra, 10 Cal.App.5th at p. 531 [reversing convictions based on the trial court’s exclusion of the defendant’s family members where the court did not take the opportunity to probe any connection between the defendant or his family to the alleged threats received by a victim’s mother].) Even assuming all of the additional spectators had come as a result of Smith’s efforts to intimidate the witnesses, the court could have narrowed its order to exclude Smith’s family instead of the entire public. (See People v. Pena (2012) 207 Cal.App.4th 944, 950 (Pena) [exclusion of all of defendants’ family members, totaling 10 to 12 individuals, did not violate defendants’ public trial rights, where jurors alleged unspecified family members were following them around, and the court considered but rejected the alternative of conducting a “mini trial” requiring jurors to point out which family members were harassing them].) Further reinforcing that the court’s Closure Order was not narrowly tailored, we note that neither party requested the broad closure the court imposed. The prosecutor requested exclusion only of “the defendant’s party.” The defense objected that the prosecution’s suggestion would require a screening process that might be carried out, explicitly or implicitly, in a biased manner, and argued that the existing Exclusion Order was sufficient.

22 The court made no findings addressing the screening procedure or explaining why the only solution required closure to the entire public. Moreover, the court did not indicate why it closed the courtroom not just for the remaining appearance of Walkins, whose testimony served as evidence of intimidation which undergird the court’s Exclusion Order findings, but also for the testimony of Friend and a law enforcement witness, neither of whom supplied any evidence of intimidation before the court issued the Closure Order. The court heard evidence that Friend also would have declined to testify in the presence of the “shot-callers” only after the court had already issued the Closure Order, so it could not have relied on that evidence to support the order. In addition, the Closure Order barred the public during some of the most significant testimony of the trial connecting Smith to the shooting of Beard. Before the courtroom was closed, no percipient witness had definitely identified Smith as having been present at the robbery, much less fingered Smith as the shooter. K.M. said he recognized one of the three intruders as “Lil 50,” but did not unequivocally identify Smith as “Lil 50” in court. In the public portion of his testimony, Walkins identified Smith as participating in the home invasion robbery of Smith’s apartment, but had not yet described the shooting. During the closed portions of the trial, Walkins and Friend each testified that Smith wielded the gun inside the apartment, and Friend said Smith shot Beard. (Cf. Esquibel, supra, 166 Cal.App.4th at p. 554 [no constitutional violation where two spectators were excluded “for a minimal amount of time” during the testimony of a single witness]; People v. Woodward (1992) 4 Cal.4th 376, 385, 386 [exclusion order was de minimis and did not rise to a level of a constitutional violation where it did not include any evidentiary portion of the trial and lasted only one and one-half hours];

23 Pena, supra, 207 Cal.App.4th at p. 950 [denying claim that defendants’ right to public trial was violated where defendants’ family members were excluded from the last 30 minutes of testimony along with closing argument and jury instruction, but the only evidence presented while the family was excluded came from a witness who had already testified in the presence of the family members].) For the reasons above, we conclude that the Closure Order was not narrowly-tailored to satisfy the overriding interest in ensuring witness safety. The third Waller factor required the court to consider alternatives to the Closure Order. The Attorney General argues that the court did so, citing the court’s analysis in imposing the Exclusion Order. While the court did not explicitly repeat its findings from its Waller analysis of the Exclusion Order, we accept that some, but not all, of the findings would apply to the Closure Order as well. We accept the court’s findings that putting a screen in front of Walkins or allowing him to testify via a remote platform like Zoom would not accomplish the goal of permitting the witness to testify comprehensibly without intimidation. Smith contends that the court should have considered livestreaming the proceedings, requiring spectators to proceed through magnetometers or metal detectors, or posting more armed guards in the courtroom. The court actually considered, and rejected, the possibility that Walkins could testify via Zoom, finding that he was difficult to understand on the stand. We conclude that the trial court, and trial counsel, were best situated to observe the challenges presented by the specific witness and the alternatives available in the San Bernardino courthouse. At the time, Smith’s counsel objected generally to imposition of the Exclusion Order but suggested no 24 alternatives for Walkins’s testimony. We conclude that the trial court need only consider alternatives, and it does not err if it does not consider and adopt the specific alternatives suggested by the appellant on appeal. Finally, we conclude the Waller analysis of the Closure Order fails on the fourth factor as well. The court did not make sufficient findings to support its conclusion that it could not “craft a surgically-precise order of eliminating individuals that may or may not be present to intimidate these witnesses.” To the extent the court relied upon “issues of security and safety in the courtroom, including the jurors and the alternates” to justify its Closure Order, the court made no findings as to those issues, or as to why alternatives to closure would not have addressed those issues. Even so, we would reject such findings as not supported by substantial evidence, and in fact as undermined by the evidence—including the court’s own prior findings. The court, in rejecting the application of section 686.2, found that there was insufficient evidence of actual intimidation by anyone in the courtroom on Walkins’s second day of testimony, noting that it had observed the spectators and neither saw nor heard any intimidation. The prosecutor informed the court that he knew of no actual threats made against Walkins. The court’s finding that Walkins felt intimidated did not result from any threatening conduct by spectators in the courtroom, but by spectators merely observing his testimony, which carried the risk of retribution later, outside the courtroom, against Walkins or his family members. These findings did not support the existence of a security risk within the courtroom. In denying the motion for new trial, the court offered the new justification that “due to the resources that were available to the court, namely to the sheriff’s department . . . [t]he court had no additional resources 25 or reasonable alternatives to closing the proceeding.” Again, the court made no findings as to the resources available. The court’s contemporaneous discussion reflected that it considered alternatives such as screening the witness from view or taking testimony through a remote platform such as Zoom, not in adding additional guards or other security measures, such as the metal detectors Smith now suggests on appeal. The court made no findings regarding what measures the sheriff’s department could or could not provide. To the extent the court relied on the number of individuals who might be present in court, and the possible threat that could arise from the presence of a large number of spectators, the court made no findings that the mere presence of a large number of people would constitute intimidation or a threat. Again, such a finding would lack support by substantial evidence. At the time the court cited this concern, it had the benefit of hindsight: it had already seen that the proposed attendance of 15-23 spectators referenced in the jail calls had not come to fruition; the record suggests only 11 people were in court on the second day of Walkins’s testimony, and the court itself recognized that none of those additional spectators utilized any intimidating gestures or words. We conclude the Closure Order violated Smith’s constitutional right to a public trial. Smith need not show prejudice from this violation. (Waller, supra, 467 U.S. at p. 49 and fn. 9; Scott, supra, 10 Cal.App.5th at p. 532.) Because no prejudice need be demonstrated, Smith also need not prove that anyone actually sought access to the courtroom when it had been closed. Nonetheless, we note here that the impact of the closure order was not theoretical. Smith submitted evidence suggesting that the closure order actually barred individuals who intended to support Smith by attending his jury trial, several of whom were his relatives. The declarations attached to 26 the new trial motion came from Smith’s niece, older sister, brother, an unspecified relative, and a family friend, in addition to Smith’s mother, all of whom stated they attended the trial to support Smith but were turned away. In addition, some of the declarants offered innocuous explanations for why supporters first appeared on the second day of Walkins’s testimony and not earlier. Smith’s niece M.C. explained that Smith’s trial date had moved multiple times over years, and that family members waited to hear confirmation from Smith’s mother that the trial had started before taking time off or traveling to attend. Another niece, S.M., and Smith’s brother, R.W., explained they had received incorrect information as to when Smith’s trial would start. None of the declarants claimed gang affiliation, and at least two came from outside the Watts area. The court made no inquiry as to these alternate explanations, nor explained why the burden of doing so would have impermissibly impeded progress of the trial. (Cf. Pena, 207 Cal.App.4th at p. 950 [court rejected the alternative of conducting “mini trials” to identify which family members were harassing jurors].) Because the Closure Order violated Smith’s right to a public trial under the federal and state constitutions, Smith’s first degree felony murder conviction is reversed. The matter may be retried on remand. (People v. Hernandez (2003) 30 Cal.4th 1, 3 [“As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence.”].) Because we reverse and remand for retrial, we decline to reach the other claims of error.

27 DISPOSITION The judgment is reversed. The matter is remanded to the trial court for retrial.

O’ROURKE, J.

WE CONCUR:

MCCONNELL, P. J.

KELETY, J.