Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. 06-CR-10156.
BUTZ, J.
A jury convicted defendant Rudy Arocha of possession of a weapon in a penal institution. (Pen. Code, § 4502, subd. (a).) The trial court found defendant had three prior strikes: two robbery convictions and a murder conviction. (Id., §§ 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to state prison for 25 years to life consecutive to the term he was then serving.
On appeal, defendant contends the trial court abused its discretion and violated due process when it ordered that he would be restrained by leg braces during the jury trial. We shall affirm the judgment.
The statement of facts in the Attorney General’s brief falls below the standard expected of a competent appellate attorney. Rule 8.204(a)(1)(C) of the California Rules of Court directs that an appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” This rule is intended to direct the appellate court to evidence in the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Despite this well-established rule, the only citation to the record in the Attorney General’s factual summary is a citation to the presentencing probation report, rather than to the pertinent evidence at trial in the reporter’s transcript. The summary of facts prepared by the probation officer for the sentencing court is not evidence; it is a hearsay synopsis of the facts, which may be taken from police reports or the victim’s statements, and not the evidence at trial. (People v. Otto (2001) 26 Cal.4th 200, 207-208; People v. Lockwood (1967) 253 Cal.App.2d 75, 81.) Where, as here, a transcript of the trial proceedings exists in the appellate record, there is no need to resort to a hearsay synopsis that may or may not reflect the trial evidence. In the future, we expect the Attorney General to comply with applicable appellate rules and provide the appropriate citations to the record.
The facts of defendant’s offense are not at issue and may be briefly stated.
In October 2005, defendant and another inmate had a physical altercation at Mule Creek State Prison. Defendant sliced the other inmate’s face, stabbed him in the neck and backside, cut his arm, and punctured his right lung. An alarm was sounded, and the two combatants distanced themselves from one another. In the vicinity of the brawl, correctional officers found two inmate-manufactured weapons on the ground about four feet apart. The weapons were five to six inches long, wrapped in torn sheets; one still had two hobby- or craft-type blades affixed to the end. A search of defendant’s cell yielded torn sheets that were consistent with the fabric on the weapons. The search also yielded red glue that could have been consistent with that on the weapons.
DISCUSSION
Defendant contends the trial court abused its discretion and violated his Fifth, Sixth, and Fourteenth Amendment rights when it ordered that he would be restrained by leg braces during the jury trial. We disagree.
Background
Trial commenced on May 6, 2008. The first issue the court considered was whether, and to what degree, defendant would be restrained during the jury trial. Two officers from the California Department of Corrections and Rehabilitation (CDCR) testified that, during a jury trial, every CDCR inmate wears leg braces, which are the least restrictive devices available.
This exchange ensued:
“THE COURT: And the jury can’t actually see the braces; is that correct?
“[CORRECTIONAL OFFICER]: They’re covered by the pants. And he can walk with them, but if he went to run, they’ll lock out.
“THE COURT: I see. And for the record,... defendant has been incarcerated for... two counts of robbery and one count of murder. [¶]... [¶]
“[DEFENSE COUNSEL]:... The law seems pretty clear... he should not be shackled.... [¶]... [¶]
“[THE PROSECUTOR]:... [T]he purpose of the law concerning shackles has to do with what a jury would be observing. And in this particular case... there is nothing visible that would indicate that he is restrained in some way. [¶]... [¶] And we do have to remember that [defendant] is... currently in [CDCR] for very serious crimes.... [¶]... [¶]
“[CORRECTIONAL OFFICER]... Our institutional procedures are that we use some kind of restraint.... [t]hat’s our requirement per our institution, some kind of restraint.
“[DEFENSE COUNSEL]:... If... [defendant]... wishes to testify, then it’s going to be clear that he’s restrained.
“THE COURT: Oh, I don’t think that’s true.
“[DEFENSE COUNSEL]: He has to get up and walk over to the witness stand and he’s going to limp along.
“THE COURT: I just saw him walk. I didn’t even notice him limping.”
The trial court ordered that defendant be restrained with leg braces, stating: “One of the important factors is that... defendant is a prisoner in state custody. Another... is that he has been convicted of violent crimes. [¶] Another... is that he is now on trial, where the nonsense is over. And he may be on the threshold of a conviction that could lengthen his prison sentence substantially. [¶] And another factor, although I don’t think it’s absolutely controlling, because the Court does have the last word on this subject, is the fact that under the rules of the state they are required to restrain these prisoners to some degree. [¶] So I’m going to order that... defendant be restrained by the leg braces, which are the least possible restrictive restraints that this Court can approve.”
Analysis
In People v. Duran (1976) 16 Cal.3d 282 (Duran), the California Supreme Court stated: “Recognizing [English] common law pronouncements, we held over 100 years ago in People v. Harrington (1871) 42 Cal. 165, that ‘any order or action of the Court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense; and especially would such physical bonds and restraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness and testifying in his own behalf.’ (Id. at p. 168.) We held accordingly that it was prejudicial error, a violation of the common law rule and a violation of section 13 of the Criminal Practice Act, for the trial court to refuse to allow the defendant to appear before the jury without physical restraints unless there was ‘evident necessity’ for the restraint. [¶] We have subsequently adhered to the Harrington rule.” (Duran, supra, 16 Cal.3d at pp. 288-289, fn. omitted.)
Duran noted that “[n]umerous cases indicate what circumstances will demonstrate such a need. (See People v. Kimball[ (1936)] 5 Cal.2d 608, 611 [defendant expressed intention to escape, threatened to kill witnesses, secreted lead pipe in courtroom]; People v. Burwell (1955) 44 Cal.2d 16, 33 [defendant had written letters stating that he intended to procure a weapon and escape from the courtroom with the aid of friends]; People v. Chacon[ (1968)] 69 Cal.2d 765, 778...; People v. Hillery (1967) 65 Cal.2d 795, 806 [defendant had resisted being brought to court, refused to dress for court, and had to be taken bodily from prison to court]; People v. Burnett (1967) 251 Cal.App.2d 651, 655 [evidence of escape attempt]; People v. Stabler (1962) 202 Cal.App.2d 862, 863-864 [defendant attempted to escape from county jail while awaiting trial on other escape charges]; People v. Loomis (1938) 27 Cal.App.2d 236, 239 [defendant repeatedly shouted obscenities in the courtroom, kicked at the counsel table, fought with the officers, and threw himself on the floor].)” (Duran, supra, 16 Cal.3d at p. 291.)
In People v. Hawkins (1995) 10 Cal.4th 920 (Hawkins), overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89, the court stated that the “defendant’s three reported fistfights in prison, together with his extensive criminal history, are sufficient to support the trial court’s order to shackle defendant, inasmuch as they demonstrate instances of ‘violence or [other] nonconforming conduct’ while in custody. The trial court was therefore within its discretion to order the shackling of defendant.” (Hawkins, supra, 10 Cal.4th at p. 944, quoting Duran, supra, 16 Cal.3d at p. 291.)
Defendant’s violent conduct in prison (slicing an inmate’s face, stabbing his neck and backside, cutting his arm, and puncturing his lung) is far more egregious than the “three reported fistfights” at issue in Hawkins, supra, 10 Cal.4th at page 944. Defendant’s criminal history, while less extensive than that in Hawkins, is nevertheless more egregious in that it includes two robberies and a murder. Defendant’s in-prison conduct appeared “as a matter of record” (Duran, supra, 16 Cal.3d at p. 291) in the transcript of the preliminary hearing; the showing was more substantial than the hearsay “report[s]” that sufficed in Hawkins (Hawkins, supra, 10 Cal.4th at p. 944).
In light of defendant’s significant criminal history, we have no occasion to consider whether “all defendants who are charged with committing a violent act while in custody”--even those without a comparable history--may properly be restrained. (Italics added.)
People v. Miller (2009) 175 Cal.App.4th 1109 (Miller), on which defendant relies, is distinguishable because the record in that case did “not show defendant’s violence, threat of violence, or other nonconforming conduct.” (Id. at p. 1114.)
Defendant claims Hawkins is “readily distinguishable” because there the defendant “engaged in violent conduct while in custody on the charged offense. [Citation.] The violent conduct [the Attorney General] attributes to [defendant] occurred prior to his arrest for the current charge and was the factual basis for the current charge.”
Defendant’s attempt to distinguish Hawkins leads to an absurdity. Under his reasoning, the Hawkins defendant--who was lawfully restrained during his capital trial--would have to remain unshackled at an ensuing trial for his three fistfights in prison. No law or logic supports that absurd result.
The California Supreme Court observed that “[t]he guidelines imposed by People v. Duran, supra, 16 Cal.3d 282, 290, are intended, in large part, to avoid prejudice in the minds of jurors where a defendant appears or testifies in obvious restraints, or where the restraints deter him from taking the stand in his own behalf.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 583 (Tuilaepa).)
None of these scenarios arose in this case. Defendant did not testify, and nothing in the record suggests that the restraints deterred or dissuaded him from doing so. (Tuilaepa, supra, 4 Cal.4th at p. 583.) Nor did defendant “appear[]... in obvious restraints.” (Ibid.) A correctional officer testified, and the trial court found, that the “jury can’t actually see the braces.”
The trial court’s finding distinguishes this case from Miller, supra, 175 Cal.App.4th 1109, on which defendant relies. In Miller, as in this case, “there [was] no affirmative evidence that the jury saw defendant’s restraints.” (Id. at p. 1115.) But Miller found it “reasonable to infer that the jury saw” the restraints “because the trial court instructed the jury to disregard them. ‘Such an advisement is given only when shackles are visible.’” (Miller, supra, at p. 1115, quoting People v. McDaniel (2008) 159 Cal.App.4th 736, 744.)
Miller’s description of when the advisement is given is a bit too narrow. The bench notes to CALCRIM No. 204 state: “If the restraints are not visible, do not give this instruction unless requested by the defense.” (Bench Notes to CALCRIM No. 204 (2008) p. 36.) In this case, the clerk’s transcript reflects that CALCRIM No. 204 was requested by both parties. Because the defense request was a sufficient reason to give the instruction, we cannot deduce that the restraints were visible to the jury even though a witness testified, and the trial court found, that they were not.
Alternatively, any error in restraining defendant could not have been prejudicial. “The California Supreme Court has stated that it has ‘consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury.’ [Citation.] ‘Even a jury’s brief observations of physical restraints generally have been found nonprejudicial.’” (Miller, supra,175 Cal.App.4th at p. 1115; see People v. Slaughter (2002) 27 Cal.4th 1187, 1213; Tuilaepa, supra, 4 Cal.4th at pp. 583–584.)
Because there was no affirmative and uncontradicted evidence that the jury ever saw defendant’s restraints, any unjustified restraint or shackling could not have been prejudicial. (Miller, supra,175 Cal.App.4th at p. 1115.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., SIMS, J.