People v. Kabonic

• Decision Date: 10 February 1986
• Citation: 223 Cal.Rptr. 41,177 Cal.App.3d 487
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bruce Edward KABONIC, Defendant and Appellant. F004938.

Page 41

223 Cal.Rptr. 41

177 Cal.App.3d 487

The PEOPLE, Plaintiff and Respondent, v. Bruce Edward KABONIC, Defendant and Appellant.

F004938.

Court of Appeal, Fifth District, California.

Feb. 10, 1986.

Certified For Partial Publication ^*

Steve L. Bedient, El Dorado, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., James T. McNally and Thomas Y. Shigemoto, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

CASTELLUCCI, Associate Justice. ^**

Bruce Edward Kabonic appeals from the judgment entered on jury verdicts convicting him of a lewd and lascivious act upon a child under the age of 14 years (Pen.Code, § 288, subd. (a)) and oral copulation of a child under 14 years of age and more than 10 years younger than the defendant (Pen.Code, § 288a, subd. (c)). We affirm the judgment.

It is unnecessary at the outset to set forth a detailed statement of the facts. We shall merely note that on the night in question, appellant was a house guest of the victim's parents.

I. ¹

THE COMPLAINING WITNESS/VICTIM WAS COMPETENT TO TESTIFY.

II.

DID THE TRIAL COURT ERR IN PERMITTING THE VICTIM'S MOTHER TO ACCOMPANY THE VICTIM TO THE WITNESS STAND, PURSUANT TO PENAL CODE SECTION 868.5, IN THE ABSENCE OF A NOTICED MOTION BY THE PROSECUTION.

Appellant contends the trial court erred in granting the prosecution's oral motion to permit Renee's mother, Mary, a prosecution witness, to accompany Renee to the witness stand and to permit Renee to sit on her mother's lap while Renee was testifying. Appellant contends the granting of this motion by the trial court, in the absence of a noticed motion by the prosecution pursuant to Penal Code section 868.5, ² was error.

Section 868.5, at all relevant times herein, provided as follows:

"(a) Notwithstanding any other provision of law, a prosecuting witness 16 years of age or under in a case involving a violation of Section 243.4, 261, 285, 286, 288, 288a, 289, or 647a, or a violation of subdivision (1) of Section 314, shall be entitled for support to the attendance of a parent, guardian, or sibling of his or her own choosing, whether or not a witness, at the preliminary hearing and at the trial, during the testimony of the prosecuting witness. The person so chosen shall not be a person described in Section 1070 of the Evidence Code unless the person is related to the prosecuting witness as a parent, guardian, or sibling and does not make notes during the hearing.

"(b) If the person so chosen is also a prosecuting witness, the prosecution shall present, on noticed motion, evidence that the person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person's attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony.

(c) The testimony of the person so chosen who is also a prosecuting witness shall be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during the person's testimony. Whenever the evidence given by the person would be subject to exclusion because given before the corpus delicti has been established, the evidence shall be admitted subject to the court's or the defendant' motion to strike that evidence from the record if the corpus delicti is not later established by the testimony of the prosecuting witness."

Initially, a determination must be made as to whether Mary was a "prosecuting witness" as that term is used in section 868.5.

If "prosecuting witness" is interpreted narrowly to mean only the victim or complaining witness, the fact that Mary accompanied her daughter to the witness stand, even though Mary was a witness for the prosecution, is of no consequence because the noticed motion requirement of subdivision (b) would be inapplicable.

Black's Law Dictionary defines "prosecuting witness" as follows:

"The private person upon whose complaint or information a criminal accusation is founded and whose testimony is mainly relied on to secure a conviction at the trial. In a more particular sense, the person who was chiefly injured, in person or property, by the act constituting the alleged crime ... and who instigates the prosecution and gives evidence."

(Black's Law Dictionary (5th ed. 1979) p. 1099.)

This definition is consistent with the more commonly used, if not more restrictive, meaning for the phrase. However, at least one court has concluded that the phrase "prosecuting witness" as used in section 868 refers to both a victim who is a witness and a witness for the prosecution who is neither the victim nor the complainant. (Ortega v. Superior Court (1982) 135 Cal.App.3d 244, 252, 185 Cal.Rptr. 297.)

Section 868.5 is bracketed by Penal Code sections which are somewhat related but only add to the confusion. Section 868 which pertains to open preliminary examinations, provides that the defendant may request, and the magistrate may order upon a finding of necessity to protect the defendant's right to a fair and impartial trial, the exclusion of all persons from the preliminary examination except certain specified individuals, including "a person chosen by the prosecuting witness who is not himself or herself a witness but who is present to provide the prosecuting witness moral support, ...." Section 868.7 provides that the preliminary examination may be closed to the public, upon motion of the prosecution, during the testimony of a witness "[w]ho is the complaining victim of a sex offense, ...."

Facially, sections 868, 868.5 and 868.7 support multiple interpretations of just what the Legislature meant by the phrases "prosecuting witness," "witness," and "complaining victim." Section 868 uses "prosecuting witness" and "witness" both in the same sentence and implies a distinction between the complaining witness and a witness for the prosecution. Conversely, section 868.7 does not even use the phrase "prosecuting witness" and instead distinguishes between all witnesses and a witness who is the complaining victim of a sex offense.

Section 868.5 itself also uses the phrases "prosecuting witness" and "witness" together in the same sentence. One interpretation obviously is that the Legislature did recognize a distinction between a complaining witness and a witness for the prosecution, simply referring to the latter as a witness. However, if one starts with the premise that the phrase "prosecuting witness" is used in the sense of any witness for the prosecution, the language of section 868.5 is equally consistent and reconcilable with the view that the Legislature intended to apply the procedural mechanism of subdivision (b) to all cases where the support person chosen by the victim is merely a witness for the prosecution.

Finding ambiguity in the language of section 868.5 and lacking any precedent construing "prosecuting witness" as used in section 868.5, we must examine legislative history and other materials and attempt to give meaning to the term based upon its usage and the purposes of section 868.5. (Ortega v. Superior Court, supra, 135 Cal.App.3d at p. 252, 185 Cal.Rptr. 297.) The Ortega case construed the same phrase as it is used in section 868. In that case, the trial court permitted the presence of a witness' mother during the witness' preliminary examination testimony. The witness was the teenage girlfriend of one of the defendants. She had been charged as an accessory in juvenile court and agreed to testify in return for immunity. She offered extremely damaging testimony against both defendants including several heavily incriminating admissions of the defendants. The defendants contended the presence of the witness' mother during her testimony rendered their commitment unlawful within the meaning of section 995 for failure to remove all persons not excepted under section 868, arguing that "prosecuting witness" means the victim or person who brings the criminal complaint. The reviewing court, after noting that the "phrase 'prosecuting witness' is ordinarily used in two connections" opted to adopt the broader meaning to include witnesses for the prosecution who are neither victim nor complainant.

We are of the opinion that the purpose of section 868.5, together with the scant authority and legislative history available, supports the broader interpretation of the phrase "prosecuting witness" (as it applies to support persons) to include all witnesses for the prosecution. The Pacific Law Journal suggests that the law contemplates all witnesses for the prosecution by stating that though the previous versions prohibited any witness from acting as an attendant, the new section 868.5 "allows a witness to serve in this role" and if the "attendant is also a witness for the prosecution, the prosecution must provide evidence on noticed motion that the attendant's presence is desired for support and will be helpful to the prosecuting witness." (15 Pacific L.J., Selected 1983 California Legislation, pp. 589-591.) The Legislative Counsel's comment states that section 868.5 would "delete the qualification that the [support] person is otherwise not a witness" and provides "procedures relative to testimony where the [support] person is also a witness and the prosecuting witness in the sex offense is 16 years of age or younger."

It is apparent the Legislature is concerned not only with minimizing the trauma to the complaining witness of tender years, but also with offering procedural safeguards to the defendant and protecting against the risk of tailored testimony. ( § 868.5(b), (c); cf. 15 Pacific L.J., supra, pp. 589-591.) The most logical and reasonable conclusion is that the Legislature intended to guard against the possibility that the support person would tailor his or her...