P. v. Bredfield

1
Filed 12/18/06 P. v. Bredfield CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD RAY BREDFIELD,
Defendant and Appellant.
C050407
(Sup. Ct. No. 992126)
A jury convicted defendant of eight counts of forcible lewd
acts on a child (Pen. Code, § 288, subd. (b)), and found true
the enhancement that he tied or bound the victim (Pen. Code, §
667.61, subd. (e)(6)). Sentenced to two consecutive terms of 15
years to life plus a determinate term of 18 years, he appeals.
Defendant contends (1) allowing the victim to testify with his
back to defendant violated the confrontation clause; (2) it was
prejudicial error to admit defendant’s Oregon conviction to
prove predisposition; (3) the victim was improperly permitted to
express a lay opinion as to defendant’s guilt; (4) denial of a

-- 1 of 16 --

2
jury trial on aggravating factors violated his right to a jury
trial; and (5) there is an error in the abstract of judgment.
We find merit only in the last contention and order the abstract
corrected.
FACTS
Defendant was originally convicted in 2002 after a jury
trial. That conviction was reversed due to irregularities in
the certification of competency. The second jury trial occurred
in June 2005.
The primary prosecution witness in the second trial was the
victim, J.S. J.S. did not want to have to make eye contact with
defendant. The prosecutor requested that J.S. be allowed to
take the stand outside the presence of defendant and face away
from him. The prosecutor reported J.S. expressed a profound
fear of testifying; J.S. basically said he was profoundly afraid
of defendant. The trial court declined to make any special
accommodation, but had no problem with counsel standing at an
angle so the witness did not face defendant.
J.S. was 14 years old; he was born in 1990. He had lived
in Goshen, Oregon in a trailer with his mother and defendant.
The trailer did not have a shower; they went to the truck stop
to shower. When asked what happened in the shower, J.S.
declared he would not answer that question. Defendant went with
him to the shower.
J.S. testified defendant did something to him in the shower
that made him feel bad. Defendant did it three or four times.
He did the same thing when they lived in Weed; defendant did

-- 2 of 16 --

3
these things more than once. J.S. would scream, but he was not
always able to scream because defendant taped his mouth with
duct tape. Defendant also taped his hands and wrists.
Defendant told J.S. not to tell anyone and J.S. felt scared.
J.S. did not want to answer questions about exactly what
defendant did to him. J.S. testified defendant touched him
below his waist and above his knees in front and in back.
Defendant touched him in front with his mouth. Defendant also
had J.S. touch him. When J.S. would not answer whether
defendant touched him with his penis, the testimony concluded
for the day.
The next morning the prosecutor reported that he was with
J.S. at the hospital the night before until almost 10 o’clock.
J.S. apparently attempted to kill himself by slashing his wrists
with a razor and may have tried to jump out a window. He was
not physically injured. J.S. was upset that he had to see
defendant while testifying; he claimed defendant made faces at
him, mocking him. No one else observed this; the defense
investigator saw defendant shake his head. The prosecutor had
seen the superficial cuts on J.S.’s wrists and damage to a
window screen.
Defense counsel was concerned that the jury not see any
injuries to J.S.’s wrists. He wanted J.S. to wear a long-
sleeved shirt. Counsel opposed closing the courtroom to the
public.
The court agreed to have J.S. enter the courtroom before
defendant. The prosecutor could position himself so J.S. was at

-- 3 of 16 --

4
a 90 degree angle from defendant. The court admonished
defendant to be passive. The court described the positioning.
The courtroom was a rectangle oriented north and south. The
counsel table was towards the south; the witness stand towards
the north, with the jury box to the west. J.S. was positioned
northwest.
J.S. testified he ran away from home in Weed after
defendant did things to him. In the shower in Goshen, defendant
touched the inside of J.S.’s butt with his penis. Defendant put
his hand and his mouth on J.S.’s penis and had J.S. touch his
penis with J.S.’s hand and mouth. He also did these things in
Weed while J.S. was tied with duct tape.
After they lived in Goshen, they moved to Eugene and then
Clear Lake before Weed. J.S. did not allege any molestation in
Eugene or Clear Lake. Defense counsel brought out
inconsistencies between J.S.’s current testimony and his
previous testimony, such as the color of the house in Weed and
when his mother worked at McDonald’s. At a dependency
proceeding, when defendant was absent, J.S. said defendant
touched him “quick, like a second.” He also said he had his
clothes on. J.S. had previously testified defendant taped his
legs. J.S. could not recall whether he made other inconsistent
statements, such as denying defendant orally copulated him or
originally omitting the mention of duct tape. J.S. had lived in
numerous foster and group homes, always with other children.
Paul Wilkins testified he owned the Road Runner Tire
business in Goshen, Oregon. Defendant worked there beginning in

-- 4 of 16 --

5
September 1995. Defendant lived in a trailer behind the shop
and he saw defendant and J.S. use the shower in the shop on a
regular basis. They left after approximately one year.
William Lachenmyer, a police lieutenant in Weed, testified
he investigated J.S. running away from home April 25, 1997.
J.S. told him he ran away because he got spanked with a belt.
The officer did not ask about molestation.
The parties stipulated a medical examination of J.S. would
not have provided relevant information. The prosecution
admitted exhibit No. 1, stipulated facts to support defendant’s
conviction for second degree sexual abuse in Oregon. The
victim, a girl under the age of 18 years, would testify she
climbed on defendant’s lap at bedtime in July 1990 and he rubbed
her vaginal area for 10 seconds through her clothes.
DISCUSSION
I
Defendant contends his rights under the confrontation
clause were violated when J.S. was permitted to testify with his
back to defendant. He further contends there were insufficient
findings that J.S. would be traumatized by defendant’s presence
to justify the denial of the right of face-to-face
confrontation.
The record is conflicting as to the placement of J.S. when
testifying. The trial court described the placement of J.S. as
facing northwest in a courtroom oriented north-south. Defense
counsel described J.S. as having his back to counsel; the
prosecutor replied, “[w]ell, almost.” In a motion for a new

-- 5 of 16 --

6
trial, defendant claimed J.S. was 135 degrees from the
prosecutor and 180 degrees from defendant. The prosecutor
disagreed; J.S. was 90 degrees from the prosecutor and 130
degrees from defendant. The trial court indicated there was a
profile view of J.S. from the counsel table.
It is the appellant’s burden to provide an adequate record
to show error. (People v. Akins (2005) 128 Cal.App.4th 1376,
1385.) In this context, defendant had the burden to provide a
clear record showing the actual placement of J.S. as a witness.
To the extent that the difference between the placement as
articulated by the trial court and by defense counsel is
constitutionally significant, defendant has failed to carry his
burden to provide a record showing error.
The confrontation clause of the Sixth Amendment, made
applicable to the states through the Fourteenth Amendment
(Pointer v. Texas (1965) 380 U.S. 400, 403 [13 L.Ed.2d 923,
926], provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him[.])”
In Coy v. Iowa (1988) 487 U.S. 1012, 1016 [101 L.Ed.2d 857,
864], the court, stressing the time-honored view that face-to-
face confrontation was essential to fairness, observed “the
Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact.
[Citation.]” The court held placing a screen between the
complaining witnesses and defendant violated defendant’s right
to a face-to-face encounter. (Id. at p. 1020.) The court left

-- 6 of 16 --

7
for another day whether there were exceptions to the right of
face-to-face confrontation. (Id. at p. 1021 [101 L.Ed.2d at p.
867].)
In Maryland v. Craig (1990) 497 U.S. 836, 857 [111 L.Ed.2d
666, 686], the court held the confrontation clause did not
prohibit a child witness from testifying against a defendant at
trial, outside defendant’s presence, by a one-way closed circuit
television to protect the child from trauma that would impair
the child’s ability to communicate where the reliability of the
evidence is ensured by subjecting it to rigorous adversarial
testing. The requisite finding of necessity to depart from
face-to-face confrontation must be case specific; the court must
hear evidence and determine the procedure is necessary to
protect the welfare of the particular child witness. (Id. at p.
855.) The court must find the child witness would be
traumatized by the presence of defendant and that such emotional
distress is more than de minimus. (Id. at p. 856.)
In assessing defendant’s contention, we must first
determine if he was denied his right to face-to-face
confrontation and, if so, whether the requisite showing of
necessity was made. We find defendant was not denied his right
of face-to-face confrontation, so we need not determine if the
finding of necessity was sufficient.
Face-to-face confrontation does not require the witness to
look at defendant: “The Confrontation Clause does not, of
course, compel the witness to fix his eyes upon the defendant;
he may studiously look elsewhere, but the trier of fact will

-- 7 of 16 --

8
draw its own conclusions.” (Coy v. Iowa, supra, 487 U.S. at p.
1019 [101 L.Ed.2d at p. 866].) Numerous courts have held that,
as long as the defendant and witness are present in the
courtroom and their view of each other is not physically
obstructed, as by a screen or two-way mirror, the Confrontation
Clause is not violated by allowing the witness to testify while
facing away from the defendant. (See, e.g., State v. Miller
(N.D. 2001) 631 N.W.2d 587, 594 [witness not facing defendant];
Smith v. State (Ark. 2000) 8 S.W.3d 534, 537-538 [witness
outside defendant’s line of sight]; State v. Brockel
(La.Ct.App. 1999) 733 So.2d 640, 644-646 [witness with back to
defendant]; Brandon v. State (Alaska Ct.App. 1992) 839 P.2d 400,
409-410 [witness seated in small chair perpendicular to
defendant]; State v. Hoyt (Utah Ct.App. 1991) 806 P.2d 204, 209-
210 [witness out of defendant’s line of sight]; Stanger v. State
(Ind.Ct.App. 1989) 545 N.E.2d 1105, 1112-1113 [witness chair
angled towards jury, away from defendant], overruled in part on
other grounds by Smith v. State (Ind. 1997) 689 N.E.2d 1238,
1246-1247, fn. 11; People v. Tuck (N.Y.App.Div. 1989) 537
N.Y.S.2d 355, 356 [witness table facing jury]; Ortiz v. State
(Ga.Ct.App. 1988) 374 S.E.2d 92, 95-96 [witness at 90 degree
angle].)
Consistent with these cases is People v. Sharp (1994) 29
Cal.App.4th 1772, disapproved of on other grounds by People v.
Martinez (1995) 11 Cal.4th 434. In Sharp, the prosecutor stood
or sat next to the witness stand so the child witness did not
have to look at defendant. Defendant could see the side and

-- 8 of 16 --

9
back of the witness’s head while she testified; even if he could
not see all her facial expressions, he could see her general
demeanor and reactions to questioning. The witness could, but
chose not to, see defendant and the jury could see both the
witness and defendant. (29 Cal.App.4th at pp. 1781-1782.) The
Sharp court found the situation “not materially different from
one in which a witness might stare at the floor, or turn her
head away from the defendant while testifying.” (Id. at p.
1782.)
The Sharp court rejected defendant’s contention his
confrontation rights were violated. “Surely, appellant cannot
be claiming a constitutional right to stare down or otherwise
subtly intimidate a young child who would dare to testify
against him. Nor can he claim a right to a particular seating
arrangement in the courtroom. A witness who avoids the gaze of
the defendant may be exhibiting fear, embarrassment, shyness,
nervousness, indifference, mendacity, evasiveness, or a variety
of other emotional states or character traits, some or all of
which might bear on the witness's credibility. It is, however,
the function of the jury to assess such demeanor evidence and
‘draw its own conclusions’ about the credibility of the witness
and her testimony. (Coy v. Iowa, supra, 487 U.S. at p. 1019
[101 L.Ed.2d at p. 866].) There was no interference with the
jury's ability to perform that function in this case.” (People
v. Sharp, supra, 29 Cal.App.4th at p. 1782.)
Defendant relies on an older case from this court, Herbert
v. Superior Court (1981) 117 Cal.App.3d 661, as did the

-- 9 of 16 --

10
defendant in Sharp. In Herbert, at a preliminary hearing the
courtroom was arranged, with the judge in the jury box, so that
the defendant and the child witness could not see each other.
This court found denial of the right of confrontation. “By
allowing the child to testify against defendant without having
to look at him or be looked at by him, the trial court not only
denied defendant the right of confrontation but also foreclosed
an effective method for determining veracity.” (Id. at p. 668.)
We find Herbert, supra, 117 Cal.App.3d 661 distinguishable
for the same reasons as the Sharp court. First, it is factually
distinguishable because here it was not physically impossible
for defendant and the witness to see each other. (People v.
Sharp, supra, 29 Cal.App.4th at p. 1781.) Further, Herbert’s
precedential value was been called into question by subsequent
California Supreme Court decisions (Whitman v. Superior Court
(1991) 54 Cal.3d 1063, 1077), statutes enacted to protect child
victims of sexual molestation (Pen. Code, § 1346 et seq.), and
Maryland v. Craig, supra, 497 U.S. 836 [111 L.Ed.2d 666], which
permits court to employ procedures allowing less than literal
face-to-face confrontation between an adult defendant and his
child victims. (People v. Sharp, supra, 29 Cal.App.4th at pp.
1782-1783.)
Defendant’s confrontation rights were not violated.
II
Defendant contends the trial court erred in admitting, over
defense objection, the document entitled “Stipulated Facts,”
from defendant’s 1990 Oregon conviction for second degree sexual

-- 10 of 16 --

11
abuse. Defendant contends the trial court abused its discretion
in admitting this unduly prejudicial evidence because the facts
of the Oregon case were so dissimilar to those of the instant
case that evidence of the Oregon case did not logically prove a
predisposition to engage in the sexual misconduct charged.
“In a criminal action in which the defendant is accused of
a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by
Section 1101, if the evidence is not inadmissible pursuant to
Section 352.” (Evid. Code, § 1108, subd. (a).) Evidence Code
section 1108 permits the admission of other crimes evidence to
show defendant’s propensity or disposition. (People v. Falsetta
(1999) 21 Cal.4th 903, 911.) It does not require the charged
and uncharged crimes be similar. (People v. Frazier (2001) 89
Cal.App.4th 30, 40-41; People v. Soto (1998) 64 Cal.App.4th 966,
984.)
Trial courts may admit other sex crimes evidence only after
a careful weighing process under Evidence Code section 352.
(Evid. Code, § 1108, subd. (a).) Evidence Code section 352
permits a court to exclude 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.” Before admitting other sex crimes
evidence, “trial judges must consider such factors as its
nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing,

-- 11 of 16 --

12
misleading, or distracting the jurors from their main inquiry,
its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant's other sex
offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (People v. Falsetta, supra, 21
Cal.4th at p. 917.)
In arguing the evidence should have been excluded,
defendant relies on a single factor, that the evidence was too
dissimilar to the charged crimes. All other factors favor its
admission. The evidence was short and offered no possibility of
confusion; it occurred five years before the charged offenses
and thus was not too remote; the stipulation established
certainty and it was less inflammatory than the charged
offenses.
While the other crimes evidence involved a brief touching
of a young girl through her clothes, rather than the more
extensive sexual contact with an unclothed boy in the charged
crimes, it was not so dissimilar that it lacked probative value.
In enacting Evidence Code section 1108, “the Legislature
‘declared that the willingness to commit a sexual offense is not
common to most individuals; thus, evidence of any prior sexual
offenses is particularly probative and necessary for determining
the credibility of the witness.’ [Citation.]” (People v. Soto,
supra, 64 Cal.App.4th 966, 983.) Further, it was more similar

-- 12 of 16 --

13
than just any sexual offense; it showed defendant’s willingness
to exploit young children for his sexual gratification.
Because the probative value of the other crimes evidence
was not substantially outweighed by the potential for prejudice,
the trial court did not err in admitting it.
III
Defendant contends the trial court erred in admitted J.S.’s
testimony that he believed defendant was at fault for what
happened in Goshen. He contends the court erroneously admitted
lay opinion as to his guilt.
On the first day of testimony, J.S. was reluctant to
testify as to exactly what defendant did to him. The prosecutor
continued:
“Q: In the shower in Goshen -- J[.], I’m going to have to
ask you the question directly, okay? And I’m going to need you
to answer, if you can remember.
“A: Huh-uh.
“Q: Because the jury needs to know what happened, and you
know the truth. Okay? So I want to work on this. Do you feel
that what happened to you was your fault in Goshen?
“A: No.
“Q: Do you understand that it wasn’t?
“A: Yeah.
“Q: Whose fault was it?
“A: Mr. Bredfield.”
Defense counsel objected and the objection was overruled.
The direct examination continued for a few more questions.

-- 13 of 16 --

14
After the prosecutor asked if defendant touched J.S. with his
penis and J.S. declined to answer, the testimony ended for the
day.
“A witness may not express an opinion on a defendant's
guilt. [Citations.] The reason for this rule is not because
guilt is the ultimate issue of fact for the jury, as opinion
testimony often goes to the ultimate issue. [Citations.]
‘Rather, opinions on guilt or innocence are inadmissible because
they are of no assistance to the trier of fact. To put it
another way, the trier of fact is as competent as the witness to
weigh the evidence and draw a conclusion on the issue of guilt.’
[Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
77.)
In Coffman and Marlow, the prosecutor questioned co-
defendant Marlow about the kidnapping and robbery of a victim.
Answering a series of questions asking the truth of the
allegations of the information, Marlow conceded he and Coffman
kidnapped and robbed the victim. On appeal, Coffman contended
Marlow gave inadmissible lay opinion as to her guilt. (Id. at
p. 76.) The California Supreme Court disagreed; in context, the
prosecutor simply succeeded in getting Marlow to concede the
truth of allegations against him and to describe, as a
percipient witness, the degree of Coffman’s participation.
Marlow did not express an opinion as to Coffman’s guilt, her
credibility, or her state of mind. (Id. at p. 77.)
Here, too, read in context, J.S.’s testimony was not an
impermissible opinion as to defendant’s guilt. Rather, the

-- 14 of 16 --

15
prosecutor was attempting to put J.S. at ease and overcome his
reluctance and embarrassment to testify as to what happened to
him when he was five and six years old. The prosecutor was not
eliciting J.S.’s opinion as to defendant’s guilt, but confirming
for J.S. that whatever happened in the shower in Goshen, and
also in Weed, was not J.S.’s fault. What actually happened and
whether defendant was legally responsible remained questions for
the jury. There was no impermissible opinion testimony.
IV
In a bifurcated trial, the jury was asked to determine the
truth of six aggravating factors. The jury unanimously found
true only two: the victim was particularly vulnerable and the
defendant engaged in tying and binding the victim.
The trial court sentenced defendant to two consecutive life
terms under Penal Code section 667.61 based on its finding that
the offenses occurred on two separate weekends in Weed. The
court sentenced defendant to the upper term on count three based
on his criminal history and imposed consecutive sentences on the
remaining counts based on the two aggravating factors found by
the jury. Defendant’s criminal history, as shown in the
probation report, spanned 15 years. In addition to the
misdemeanor sexual abuse conviction, defendant had multiple
convictions for driving under the influence or with a suspended
license, and criminal driving, all misdemeanor offenses except
the last criminal driving, which was a felony.
Defendant contends his Sixth Amendment rights to a jury
trial were violated when the trial court used aggravating

-- 15 of 16 --

16
factors not found true by the jury to impose two life terms and
the upper term on count three.
As defendant recognizes, the California Supreme Court
rejected his contention in People v. Black (2005) 35 Cal.4th
1238. Defendant contends he raises the issue to preserve it for
federal review and to seek reconsideration in the California
Supreme Court. We are bound by the decision in Black. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V
Defendant contends, and the Attorney General concedes,
there is an error in the abstract of judgment that must be
corrected. Defendant was sentenced to consecutive terms of
fifteen years to life on counts one and two. The abstract of
judgment, however, shows the sentence on counts one and two as
life with the possibility of parole; the box on line 5 rather
than the box on line 6.a was checked. We order the abstract
corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to
prepare a corrected abstract of judgment showing the sentence on
counts one and two as 15 years to life and to send a certified
copy of the corrected abstract to the Department of Corrections
and Rehabilitation.
MORRISON , J.
We concur:
BLEASE , Acting P.J.
CANTIL-SAKAUYE , J.

-- 16 of 16 --