Metropolitan News-Enterprise


Monday, October 2, 2006


Page 4


Excluding Defendant’s Friends During Testimony Not Unconstitutional


By TINA BAY, Staff Writer


Temporary exclusion of two of the defendant’s friends during the testimony of a child witness did not violate the accused’s constitutional right to a public trial, this district’s Court of Appeal has ruled.

Finding that a trial judge’s order to exclude members of the public from the courtroom during a minor’s testimony was constitutionally and statutorily permissible, Div. Eight Thursday unanimously affirmed Peter Esquibel’s convictions and life sentences for attempted murder and assault with a firearm.

Esquibel was prosecuted before a Compton jury in 2003 in connection with a shooting at Scott Park in Carson.

On May 18, 2002, then-17-year-old Esquibel entered the park while two teams of five-to-eight-year-old children, with their parents looking on, were playing a game of teeball. The teenager was allegedly affiliated with a local Hispanic gang called Catskill Street, which was a rival of the Scott Park Killers, a Samoan gang that had claimed Scott Park as its territory.

Allegedly after walking around for about 20 minutes, Esquibel pulled out a gun and yelled, “Are you from Scott Park?” then opened fire toward the teeball field. One child was grazed by a bullet. As several of the adults were chasing after Esquibel, he turned and shot at them.

One, Taalefuli Ryan, was shot and permanently paralyzed from the chest down.

At trial, prosecutor Kathleen Diesman called numerous adults and children as witnesses. The mother of a 7-year-old boy who was set to testify told Diesman she was afraid of retaliation, and asked for several accommodations to limit the possibility that her son would be identified.

Among other concerns she expressed, the mother said she was worried about having potential gang-affiliated friends of Esquibel in the audience during her son’s testimony. Those individuals could recognize her son when they see him in the neighborhood, thereby putting his life in danger, she told Diesman.

The prosecutor asked Los Angeles Superior Court Judge Jack W. Morgan to exclude potential friends of the defendant, but he initially denied her request because there was no specific information indicating the child could be in danger. After two of the defendant’s friends arrived at the trial, Diesman again made a motion to exclude the public from the courtroom due to an “intimidation factor.”

Over defense counsel Jennifer Cheng’s objection, Morgan granted the motion on the grounds that exclusion would cause no harm, and was appropriate to help the child relax as much as possible. Esquibel’s friends were asked to step outside during the boy’s testimony.

The jury ultimately convicted Esquibel on four counts of attempted murder and on one count of assault with a firearm, and found that he had acted for the benefit of a criminal street gang.

Morgan denied Esquibel probation and sentenced him to life in prison.

Div. Eight rejected Esquibel’s constitutional contentions on appeal, as well as his challenge to the exclusion order for failure to comply with Code of Civil Procedure Sec. 686.2.

With regard to his constitutional claim, Presiding Justice Candace Cooper, writing for the court, said:

“There was no order excluding the press or the public in general. Except for these two spectators, no one else connected with appellant was excluded from the courtroom and the exclusion was only for the testimony of the single witness. Members of the appellant’s family remained in the courtroom. There was no showing that the excluded individuals had any special relationship to appellant or were needed to provide him support during the trial.”

The justice further explained that Sec. 686.2 had no application to the facts of this case. That section provides for removing a spectator who is intimidating a witness, she said, but in Esquibel’s case there was no evidence of intimidation—his friends were excluded based on concerns of the child witness’ mother.

Cooper noted, however:

“Although the statute has no application in this case, we end…with the reminder that trial courts should proceed with extreme caution in this area. The exclusion of any non-disruptive 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.”

Justices Laurence D. Rubin and Madeleine Flier concurred in the opinion.

Esquibel’s appellate counsel, Martin Kassman, told the MetNews he will ask the Supreme Court for reviewof the justices’ ruling.

“What the prosecution and trial judge did in this case was outrageous, and I’m very disappointed that the Court of Appeal has sanctioned it,” he said. “ Cases going back more than 100 years say that one of the most important aspects of a right to a public trial is that the defendant must be able to have his friends and family members in the courtroom. By excluding two of Mr. Esquibel’s friends from the courtroom, the trial judge violated the core purpose of the Sixth Amendment right to a public trial.”

Deputy Attorney General Roy C. Preminger told the MetNews:

“It was just a de minimis partial closure with respect to two people. They weren’t excluded from the whole trial, and there’s no way he could show any prejudice.”

The case is People v. Esquibel, 06 S.O.S. 5255.


Copyright 2006, Metropolitan News Company