The opinion
FRANSON, Acting, P. J.
I respectfully dissent.
The majority holds that the trial court properly required appellant to elect between keeping his defense expert in the courtroom to assist his counsel in cross-examining the prosecution’s expert witness and calling the defense *699 expert as a witness. By electing to keep the defense expert in the courtroom in the face of the exclusion order, appellant waived his right to call the expert as part of the defense case. 1
I submit, however, that although the trial court granted appellant’s motion to keep his expert in the courtroom to assist in the cross-examination of the prosecution expert, appellant still had a constitutional right to call his expert as a defense witness.
The record belies the majority’s assertion that “defense counsel failed to show the trial court good cause for his expert’s presence during the prosecution’s expert testimony” and hence “. . . the trial court did nothing more than afford [defense] counsel the courtesy of having his expert sit at counsel table during cross-examination.” The record shows that defense counsel explained his need to have his expert “sit with [him]” to help in understanding the prosecution expert’s testimony about forensic and serological laboratory work and to assist in the cross-examination of the expert.
The right to assistance in cross-examining an opposing expert witness is more than a mere “courtesy” to a criminal defendant; depending on the circumstances, it may touch on his Sixth Amendment right of confrontation and to manage his case. This is because of what may be the highly technical and scientific nature of the expert’s testimony in any given case, thereby requiring broader cross-examination of the expert than of the ordinary witness. (See Evid. Code, § 721, subd. (a).) “Once an expert offers his opinion ... he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of a factual witness. The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based [citation], and which he took into consideration; and he may be ‘subjected to the most rigid cross-examination’ concerning his qualifications, and his opinion and its sources [citation].” (Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 230 [ 344 P.2d 428 ].)
Federal Rules of Evidence section 615 provides that “a person whose presence is shown by a party to be essential to the presentation of his cause” shall not be excluded from the courtroom. The Notes of the Advisory Committee on the Proposed Federal Rules state that section 615 contemplates *700 such persons as . .an expert needed to advise counsel in the management of the litigation” citing 6 Wigmore section 1841, note 4. Morvant v. Const. Aggregates Corp. (6th Cir. 1978) 570 F.2d 626 , 630 explains: “. . . [W]here a fair showing has been made that the expert witness is in fact required for the management of the case, and this is made clear to the trial court, . . . the trial court is bound to accept any reasonable, substantiated representation to this effect [and to permit the witness to remain in the courtroom].”
Here, the trial court wisely granted defense counsel’s request to allow his expert to remain in the courtroom and to assist in the cross-examination of the opposing expert.
Turning now to the real problem in this case—the constitutional effect of precluding a defense expert from testifying for the defense simply because he was allowed to remain in the courtroom to assist in the cross-examination of the prosecution’s expert witness—I should first state what this case does not involve. It does not involve “fault” on the part of defense counsel, the defendant or a witness in violation of any order of the trial court. Everything that occurred in the present case accorded with the trial court’s orders. Because of this, the majority’s interesting but far-ranging comments about fault or connivance by counsel, a defendant or a witness concerning exclusion orders and the sanctions to be imposed for willfully disobeying such orders are irrelevant. Also, it appears the majority misunderstands appellant’s argument when it says “appellant asserts that if the trial court makes an exclusion order, it cannot enforce the order by depriving the defendant of the testimony of an important witness who remains in court after the order is made.” This is not appellant’s contention; he does not contend that a trial court is without power to enforce its exclusion order. Rather, appellant simply asserts that where the witness remains in the courtroom with the permission of the court, the defendant does not thereby waive his right to call the witness as part of his defense case. He cannot be forced to elect between keeping an essential witness in the management of his case in the courtroom and calling the witness as part of his defense.
The trial judge and the majority misinterpret the power given to a trial judge under Evidence Code section 777. This statute explicitly gives the judge the discretion to “exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.” By clear implication, the statute also gives the judge the discretion to make such exceptions to the exclusion order as he may determine are necessary to enable a party to effectively cross-examine his opponent’s witnesses or to otherwise manage his case. However, once the trial court permits a particular witness to remain in the courtroom because the *701 witness is essential to the defendant’s case, the trial court’s power of exclusion over that witness ends.
The concept that Evidence Code section 111 authorizes the judge by implication or otherwise to condition an order allowing a particular witness to remain in the courtroom on the witness’ not later testifying for the defense impinges upon a defendant’s Sixth Amendment right to present a defense. As explained by Mr. Witkin, “One of the elements of a fair trial is the right to offer relevant and competent evidence on a material issue. Subject to such obvious qualifications as the court’s power to restrict cumulative and rebuttal evidence [citation], and to exclude unduly prejudicial matter [citation], denial of this fundamental right is almost always considered reversible error. [Citations.]” (Witkin, Cal. Evidence (2d ed. 1966) § 1069, p. 990.) “Denial of the right to present evidence is even more serious in criminal trials, and is almost invariably regarded as reversible error. [Citations.]” (Italics added, Witkin, op. cit. supra, § 1070, p. 992.)
In Washington v. Texas (1967) 388 U.S. 14 [ 18 L.Ed.2d 1019 , 87 S.Ct. 1920 ], our high court ruled that the Sixth Amendment right to compulsory process in criminal prosecutions includes the right to present a defense which is applicable to the states through the Fourteenth Amendment. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (Italics added, 388 U.S. at p. 19 [ 18 L.Ed.2d at p. 1023 ].)
Over 100 years ago, in People v. Boscovitch (1862) 20 Cal. 436 , Chief Justice Field on behalf of a unanimous California Supreme Court held that where two witnesses for the defense in a robbery case had disregarded the trial court’s order excluding them from the courtroom until called, although the witnesses might have been punished for contempt, it was prejudicial error for the court to deprive the defendant of the benefit of the witnesses’ testimony. “The defendant could not enforce the [exclusion] rule, and to deprive him of the benefit of [the witnesses’] testimony for [their] disobedience, without fault on his part, was manifestly unjust and illegal.” ( 20 Cal. at p. 436 ; People v. Mack (1931) 115 Cal.App. 588, 590 [ 2 P.2d 209 ]; Mintzer v. Wilson (1937) 21 Cal.App.2d 85, 91-92 [ 68 P.2d 370 ]; People v. Tanner (1946) 77 Cal.App.2d 181, 187 [ 175 P.2d 26 ]; People v. Ortega (1969) 2 Cal.App.3d 884, 893 [ 83 Cal.Rptr. 260 ]; Annot. (1967) 14 A.L.R.3d 16 .) Thus, absent fault on the defendant’s part in permitting a witness to remain in the courtroom in violation of an exclusion order, the trial court may not deprive the defendant of the benefit of the witness’ testimony as part of the defense case. The majority’s attempt to equate appellant’s “election” to keep his witness in the courtroom during the pros *702 ecution case with the “fault” concept underlying Boscovitch simply is wrong. (See Holder v. United States (1893) 150 U.S. 91 [ 37 L.Ed. 1010 , 14 S.Ct. 10 ]; United States v. Davis (5th Cir. 1981) 639 F.2d 239, 242-243 ; Braswell v. Wainwright (5th Cir. 1972) 463 F.2d 1148, 1156 ; United States v. Schaefer (7th Cir. 1962) 299 F.2d 625 [ 14 A.L.R.3d 1 ]; People v. Mack (1931) 115 Cal.App. 588, 590 [ 2 P.2d 209 ]; Mintzer v. Wilson, supra, 21 Cal.App.2d 85, 91-92 ; People v. Tanner (1946) 77 Cal.App.2d 181, 187 [ 175 P.2d 26 ]; People v. Ortega (1969) 2 Cal.App.3d 884, 893 [ 83 Cal.Rptr. 260 ]; Annot. (1967) 14 A.L.R.3d 16 .)
I also reject the suggestion by the majority that appellant waived his right to call his expert as part of the defense case because he did not actually try to call him at that time. Once the trial court had implicitly ruled that by keeping the defense expert in the courtroom, appellant was foreclosed from later calling the expert as a witness, defense counsel was relieved of any further obligation to “make a record” by calling the witness. Counsel was entitled to rely on the earlier ruling by the trial court.
Nor can it be argued that appellant is precluded from asserting the Sixth Amendment error on appeal because he did not make a record as to what his expert would have testified. People v. Duane (1942) 21 Cal.2d 71, 81 [ 130 P.2d 123 ] holds that a formal offer of proof is unnecessary where the record shows the general substance of the precluded witness’ testimony and that such testimony would be vital to the defense. Here, the record shows that appellant intended to call his expert to rebut the opinion testimony of Mr. Kyle, the prosecution expert, concerning the blood grouping and semen analysis and the percentages of the Caucasian and Mexican-American population having similar blood and semen types as appellant’s found at the scene of the rape. As explained below, this testimony was vital to the defense.
Normally, the violation of a federal constitutional right in a criminal case requires a reversal. However, “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” (Chapman v. California (1966) 386 U.S. 18, 22 [ 17 L.Ed.2d 705, 709 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) The deprivation of a criminal defendant’s Sixth Amendment right to cross-examination as well as the right to call witnesses for the defense comes within the Chapman standard. (United States v. Davis, supra, 639 F.2d 239, 245 ; Braswell v. Wainwright, supra, 463 F.2d 1148 ; People v. Jimenez (1985) 171 Cal.App.3d 411 [ 217 Cal.Rptr. 324 ].)
I cannot find beyond a reasonable doubt that the trial court’s error in precluding the defense expert in testifying was harmless. The prosecution *703 expert’s testimony was confusing, disjointed and contradictory with reference to the blood grouping analysis. As argued by appellant, “. . . the prosecution’s expert bandied around figures like a roulette wheel operator— 6%; 15%; 11%; 27%.” (Citations omitted.) The jury was obviously confused by this testimony; it interrupted its deliberations to ask about the percentages given by the prosecution’s expert, but the trial court only reread the general instructions on expert testimony. Appellant’s argument is persuasive: “In this light, it was crucial that appellant be allowed to present his expert witness to present evidence of the true proportion of the Mexican-American population with the blood-type found on the victim’s bed which was also consistent with appellant’s blood-type. Yet the court’s order prevented appellant from presenting this critical witness on his behalf. The court had appointed only one expert, and it was too late in the trial for a second expert to be appointed and to testify. Thus, because of the prosecution’s untimely motion to exclude witnesses, and the court’s erroneous grant of the exclusion motion, appellant was deprived of his constitutional right to present a crucial expert witness on his behalf. Because the victim did not identify appellant, it is not certain beyond a reasonable doubt that the denial of appellant’s constitutional right did not affect the verdict, and thus reversal is required (Chapman v. California (1967) 386 U.S. 18, 23 ). Even under a less strict standard for error, reversal is required. (See Taylor v. United States (9th Cir. 1967) 388 F.2d 786, 788-89 ; United States v. Schaefer (7th Cir. 1962) 299 F.2d 625, 631 , cert. denied, 370 U.S. 917 .)”
Trial and appellate judges should be extremely sensitive to defendants’ Sixth Amendment right to call witnesses in their defense; this is the essence of our criminal justice system.
Finally, any doubt whether appellant should receive a new trial must be resolved in his favor when we consider the erroneous admission of his three prior felony convictions for burglary, assault with a deadly weapon and marijiiana possession for impeachment purposes. If appellant had testified without impeachment by the prior convictions (as the majority acknowledges we must assume in assessing prejudice) and if he had been allowed to call his expert as a defense witness, it is reasonably probable the verdict would have been different even under the standard of People v. Watson (1956) 46 Cal.2d 818 [ 299 P.2d 243 ]. The case against appellant was entirely circumstantial; the victim could not identify her assailant and could only describe him as “Mexican” and smelling of garlic. There was testimony that other workers in the garlic shed would have smelled of garlic.
While appellant’s defense had some inconsistencies, it was not incredible; hence, when the jury heard appellant’s extensive criminal record, including *704 the infliction of violence on others, appellant’s credibility was destroyed just as emphasized by the prosecutor in his closing argument to the jury.
I would reverse the judgment of conviction and remand for a new trial.
Appellant’s petition for review by the Supreme Court was denied May 8, 1986. Grodin, J., was of the opinion that the petition should be granted.
The net effect of the trial court’s action was to except the defense expert from the exclusion order. The defense expert remained in the courtroom while the other prospective witnesses presumably left the courtroom. The majority, however, treats the sequestration procedure simply as an election by appellant to keep his expert in the courtroom knowing that by doing so he would be foreclosed from testifying for the defense. I accept the majority’s premise in my analysis of the case.