Opinion
NOT TO BE PUBLISHED
Superior Court County No. 127087 of Santa Barbara, Zel Canter, Judge
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Three days before being called to trial in the present matter, Kenneth Barber, Jr., was involved in a fight with two of his cellmates. One victim's arm was viciously slashed with a razor while the other's throat was cut. Appellant was unscathed. At the time of appellant's arrest, sheriff's deputies had placed him in an isolation cell to conduct a strip search. Instead of complying with the deputy's commands, appellant removed a baseball-sized baggie of drugs from his buttocks, ripped the bag apart, and attempted to force the drugs down a drain in the cell. He then violently resisted the deputies as he attempted to lick the evidence off the cell floor. Eight years earlier, appellant was convicted of mayhem for biting off a man's ear. Based on this information, the trial judge considered alternative restraints and determined that for the duration of the proceedings appellant would be kept in a glass-windowed room that looked out into the courtroom.
A jury convicted appellant of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possessing methamphetamine for sale (id. at § 11378), possessing heroin (id. at § 11350, subd. (a)), misdemeanor concealing or destroying evidence (Pen. Code, § 135), and two counts of misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). In a bifurcated proceeding, the trial court found true allegations that appellant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)). He was sentenced to a total state prison term of 10 years and 4 months, plus a consecutive 30-month jail sentence on the misdemeanor counts. The court awarded appellant 853 days of custody credit, applied those credits to the 30-month jail sentence, and reduced that sentence to time served. Appellant contends (1) the court violated his constitutional rights by requiring him to sit in the separate "glass room" throughout trial as a means of maintaining courtroom security; (2) he was sentenced consecutively on the misdemeanor counts in violation of section 654; and (3) he is entitled to additional custody credits. We affirm.
All statutory references are to the Penal Code unless stated otherwise.
After the briefs were filed, appellant personally submitted a letter claiming that the record on appeal does not include the transcripts of the hearing on his motion to suppress under section 1538.5. Our review of the record reveals that no such hearing was ever held. Although appointed counsel filed a suppression motion on appellant's behalf, appellant withdrew the motion after he was granted self-representation.
STATEMENT OF FACTS
At around 12:00 a.m., on June 25, 2007, Santa Maria Police Officer Joe Lopez was patrolling on Main Street when he saw appellant driving in a suspicious manner. Officer Lopez conducted a traffic stop after discovering that the registration on the vehicle appellant was driving had expired. Appellant was arrested for an outstanding warrant and was transported to the police station. Syringe needles were found on appellant's person and in the vehicle.
Appellant waived his Miranda rights and agreed to an interview. He admitted using methamphetamine and morphine, and displayed objective symptoms of being under the influence of a stimulant. Officer Lopez conducted another search of appellant and found more syringe caps. When the officer asked appellant if he had any drugs, appellant became agitated and refused to answer.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Lopez transported appellant to the Santa Barbara County Sheriff's substation in Santa Maria. Deputy Juan Duarte searched appellant and found four small baggies hidden in his underwear. Three of the baggies appeared to contain methamphetamine, while the substance in the fourth baggie appeared to be heroin.
Deputy Duarte conducted a strip search of appellant in an isolation cell. The deputy told appellant to walk to the corner of the cell, face the wall, and squat and cough. Instead of complying, appellant walked around the cell while visibly clenching his buttocks. After Deputy Duarte raised his voice, appellant went to the corner and removed a baseball-sized baggie from his buttocks. Deputy Duarte ordered appellant to drop the baggie. Appellant dove toward a drain in the floor and ripped the baggie apart. He forced some of the contents of the baggie down the drain, then began eating, licking and snorting what was left on the floor. When Deputy Duarte, Officer Lopez, and another officer entered the cell to subdue appellant, he was growling and highly agitated. He ignored the officers' commands and made biting movements toward Officer Lopez, who delivered three knee strikes to appellant's shoulder. When appellant was finally subdued, he had a white crystal substance all over his face. Officer Lopez swept up what was left of the substance to preserve it as evidence.
DISCUSSION
I.
Appellant contends the court violated several of his federal constitutional rights by imposing a security measure that required him to sit in a separate "glass room" throughout the trial proceedings. We disagree.
For lack of a better term, we adopt the People's nomenclature in referring to the room in which appellant was placed as "glass room."
Background
At the outset of a pretrial hearing on Monday, August 25, 2008, the court stated that the proceedings had been moved to Department 6 "because [appellant] can be housed in a room next to the courtroom that has a glass window and audio, both a microphone and a receiving unit.... It has this arraignment room, I guess it is." The prosecutor explained she had been informed by sheriff's detectives that on Friday appellant had assaulted two fellow jail inmates with a razor that was never found. One inmate suffered a slicing wound on his neck that required 13 to 16 stitches, while the other had a slashing wound to his arm that required 61 staples as well as "significant" wounds on his back and stomach. Appellant had suffered no wounds at all. The court responded: "That leads us to this extraordinary security at the request of the bailiffs that he be housed momentarily, at least for these purposes, in the adjoining room where he can see and hear these proceedings, but is segregated from us."
After appellant's most recent Marsden motion was heard and denied, the matter was continued until August 27 for what the prosecutor characterized as "a hearing regarding security measures." At that hearing, the court began by stating that "[appellant] is restrained in the sense that he's behind glass in a room off the courtroom where he can see and hear, but there's a glass window... between him and the court.... [¶] The question before the court today is how to handle the trial, [appellant] having been involved in an incident in the jail in which two people were stabbed and the question is courtroom security."
At the court's request, a sheriff's deputy was present to "apprise the court of what's known about the incident to date." The deputy stated that the incident took place in the day room and that one of the inmates "got his throat slashed, " while the other "had one of his arms slashed down lengthwise pretty bad." When the custody deputies arrived, appellant was struggling with the inmate whose arm was slashed and there was "blood all over the day room." Appellant "was covered with blood, " yet had no injuries. The deputies went upstairs and found the other inmate "with his throat slashed" and "blood everywhere...." It was also noted that appellant had a history of "violent behavior" and had been involved in another fight about a year earlier. In light of this information, the sheriff's department requested that appellant be subjected to some form of physical restraint for the remainder of the proceedings.
After noting that it had "to exercise its discretion in a way that preserves [appellant's] right as much as possible, " the court considered the possibility of shackling appellant. The court was concerned that handcuffs would be seen by the jury, and posited the following: "If I were to restrain him as he is now, that is, by putting him in the isolation cell with the window into the courtroom where he can hear over the microphones and speak -- we could turn off his speaking microphone so he doesn't say something that everybody would hear and jeopardize his 5th Amendment rights. I'd need to come up with a way for him to communicate with his lawyer and not with us through a microphone into the courtroom and that would be something separate. I anticipated that as problem, so I asked the tech staff to figure out some way. I suggested maybe cell phone use or something else and apparently they can't do that. So they're going to see what else they might be able to do if it comes to it."
The court asked the deputy to "check to see if there's such a thing as arm braces. Maybe we can see what the restraint levels are that would be commensurate with courtroom safety and allowing [appellant] to participate." After the prosecutor informed the court that appellant's prior mayhem conviction "involves him biting a man's ear off, " the court stated "[h]e has a propensity for violence. He's engaged in violence in the past and the weapon was not found. So it does indicate there's some concern about his being able to smuggle or hide or conceal weapons and use them."
The court concluded: "I think it calls for restraint of some sort; shackling of some sort. I asked the researchers to give me a memo on this or a recommendation and advice, and they're [sic] advice was that putting him in a holding cell is akin to the shackling; they used the shackling analogy. [¶] I can make the finding now that he has demonstrated through his violence in custody and his prior violence that he is able to carry out violent acts." After asking the prosecutor to "look and see if there's any cases that tell us what kind of restraints can be used in the presence of the jury, " the court stated "[i]t isn't escape that we're worried about -- escape is one thing, but its [sic] the violence in the courtroom and toward court personnel and attendance that we worry about."
Appellant was placed in the glass room throughout the remainder of the proceedings. On the morning the trial commenced, the court stated: "[Appellant] is segregated per the court's earlier instructions and findings and he's in a glass booth facing out toward the jury. There is a microphone in the courtroom. All these microphones that counsel have, plus other microphones in the courtroom go directly into that room. We have adjusted it so that the one unit that has both a microphone and a speaker inside that glass room, make it virtually impossible to hear anything [appellant] says, but I warn [appellant] to keep his voice low because now we have also given both [appellant] and his counsel an FRS radio and headset so he can converse with his lawyer and his lawyer with him during the trial without the rest of us hearing it inside the courtroom."
Analysis
"[A] criminal defendant may be subjected to physical restraints in the jury's presence upon 'a showing of a manifest need for such restraints.' [Citations.] This requirement is satisfied by evidence that the defendant has threatened jail deputies, possessed weapons in custody, threatened or assaulted other inmates, and/or engaged in violent outbursts in court. [Citations.]" (People v. Lewis (2006) 39 Cal.4th 970, 1032.) Although the court's decision to restrain a defendant must be based on more than rumor or mere innuendo, a formal evidentiary hearing is not required. (Ibid.) "A shackling decision will be upheld absent a manifest abuse of discretion. [Citation.]" (Ibid.)
Appellant contends the court violated his federal due process rights as well as his constitutional rights to counsel, to be personally present at trial, and to confront witnesses, by requiring him to sit in the glass room throughout his trial. The People respond that appellant forfeited his claims by failing to raise them below. The People further contend (1) the court's action did not amount to a "physical restraint" and was a proper exercise of its broad discretion to maintain courtroom security, (2) appellant's constitutional rights were not violated, and (3) appellant suffered no prejudice.
We agree with the People that appellant's claims are forfeited because he never objected at trial to being placed in the glass room. Although appellant filed a motion asserting that the imposition of physical restraints would be a violation of his federal due process rights, the court construed it as a request to be unshackled and stated, "... and I agreed to that and he is." Neither appellant, who was seated in the glass room at the time, nor his attorney stated any disagreement with the court's assessment. Rather, it is clear from the record that appellant's placement in the glass room was perceived by the court and the parties as an acceptable and less-intrusive alternative to shackling. In these circumstances, appellant cannot be heard to complain that his constitutional rights were violated.
Appellant's trial attorney did state that appellant "would like to join counsel at counsel table so that he can more adequately communicate with his attorney...." In denying the request, the court stated: "... I've already made findings that he needs to be segregated and that's how it's going to be. I deny it for safety of all personnel, including the lawyers. I want him segregated."
We reject the People's contention that placing appellant in the glass room did not qualify as a "physical restraint" that must be justified by a showing of manifest need. The cases the People cite for the proposition that the court has broad power to maintain courtroom security by, for example, placing a deputy sheriff next to defendant while he testifies (People v. Stevens (2009) 47 Cal.4th 625, 632-638; People v. Marks (2003) 31 Cal.4th 197, 224) or placing a metal detector at the courtroom entrance (People v. Ayala (2000) 23 Cal.4th 225, 253), are inapposite. The Supreme Court has recognized a "distinction" between "the deployment of security personnel" and the type of physical restraints, such as shackling, which "'... are unmistakable indications of the need to separate a defendant from the community at large....' [Citation.]" (People v. Marks, supra, at p. 223; see also People v. Stevens, supra, at p. 636 [rejecting defendant's claim that a deputy who stood or sat next to him while he testified amounted to a "'human shackle'" for which a showing of manifest need was required].) Having appellant sit in another room, albeit one with a glass wall, unequivocally conveyed the impression that he needed to be separated from everyone in the courtroom.
As the trial court correctly recognized, the act of placing appellant in the separate room amounted to a physical restraint and therefore required a showing of manifest need. The court also acted well within its discretion in finding that such a showing had been made. The court was presented with evidence that appellant brutally attacked two fellow jail inmates with a weapon that had not been found. There was also evidence that appellant had been convicted of mayhem for biting a man's ear off. Moreover, the charged crimes included an allegation that appellant had secreted contraband on his person. Based on this evidence, the court found that appellant had a propensity for violence and noted "there's some concern about his being able to smuggle or hide or conceal weapons or use them." The volatile and unpredictable behavior appellant exhibited during the strip search following his arrest provided further support for the court's conclusion that appellant presented a substantial safety risk.
The court also recognized that appellant was "obviously unhappy with his lawyer" and expressed concerns that appellant "represents a present danger to not only courtroom personnel, that is the bailiffs, but also his lawyer, perhaps the district attorney, perhaps the judge." It also expressed its dedication to imposing the least intrusive means of restraint to accomplish its goal of maintaining courtroom safety, and appellant never complained that the means actually imposed interfered with any of his constitutional rights. Under the circumstances, it cannot be said the court abused its discretion in finding that the prosecution had shown a manifest need for placing appellant in the glass room as a less intrusive alternative to shackling. (See, e.g., People v. Wallace (2008) 44 Cal.4th 1032, 1050 [use of concealed leg shackles justified for defendant cited for engaging in jailhouse fights and possessing illegal razors]; People v. Lewis (2006) 39 Cal.4th 970, 1032 [no abuse of discretion in shackling defendant who attacked other inmates and threatened to kill deputies]; People v. Combs (2004) 34 Cal.4th 821, 837-838 [shackling proper where prosecutor stated defendant had possessed two shanks in jail and threatened jail deputies]; People v. Medina (1995) 11 Cal.4th 694, 730 [defendant had a history of escapes and of violent conduct in the courtroom and in custody]; People v. Hawkins (1995) 10 Cal.4th 920, 943-944, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110 [defendant had a history of criminal violence and court security stated he had been violent in jail].) Appellant's due process claim accordingly fails.
Appellant's reliance on People v. Miller (2009) 175 Cal.App.4th 1109 (Miller), is unavailing. In that case, the People conceded that the trial court had abused its discretion in shackling the defendant. It appears that the People never attempted to establish a manifest need for shackling, and that the trial court made no findings in that regard. (Id. at p. 1114.) That is not the case here. Appellant notes that the defendant in Miller was a prison inmate on trial for stabbing another inmate, while appellant was not charged with committing the attacks upon which the decision to restrain him was based. In Miller, however, the record was devoid of any evidence as to how the defendant's conduct rendered him a threat to courtroom security. The decision to retrain the defendant was apparently based solely on his status as a prison inmate. Here, the court was presented with evidence that appellant had engaged in violent behavior while awaiting trial and had succeeded in secreting the weapon. The record further demonstrates that on two different occasions appellant failed to comply when deputies ordered him to submit. Moreover, the court expressly relied on these facts in finding a manifest need to restrain appellant.
The record also belies appellant's claim that his placement in the glass room violated his rights to confront his accusers and to be personally present at trial. Nothing indicates that appellant was unable to see any of the witnesses who testified, or that they were unable to see him. (Compare Coy v. Iowa (1988) 487 U.S. 1012, 1019-1020.) Moreover, appellant was actually present in the courtroom. He was separated from everyone else by a glass window, and could see and hear all of the proceedings. Appellant also contends his placement in the glass room hindered his ability to communicate with his attorneys and thereby amounted to a violation of his right to counsel, yet the record demonstrates he was able to fully communicate with both of his attorneys throughout the proceedings.
In any event, even if appellant could establish that the court abused its discretion by placing him in the glass room, he would not be entitled to a reversal of his conviction. "Determining whether or not the erroneous imposition of restraints on a defendant was prejudicial requires us to consider the 'possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant's decision to take the stand.' [Citation.] The first and last of these considerations are the most significant. [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1050-1051.)
The jury was, of course, aware that appellant was sitting behind a glass window. No reason was given for appellant's segregation, and the court instructed the jury to "completely disregard" it. We presume the jurors understood and followed this instruction. (People v. Stevens (2009) 47 Cal.App.4th 625, 641.)
The jury instruction given (No. 204) stated: "The fact that the defendant is in the adjacent window room is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
The remaining factors also weigh against a finding of prejudice. The placing of appellant in the glass room did not constitute an affront to his dignity or demonstrate disrespect for the judicial system. On the contrary, the court took pains to ensure that appellant was subjected to the least intrusive means of restraint, and the method employed did not invoke the demeaning implications of shackling. The record is also devoid of any indication that appellant's placement in the glass room had any effect whatsoever on his decision to refrain from testifying. Moreover, although our Supreme Court has yet to decide whether the Chapman or Watson standard of prejudice applies to shackling error, the overwhelming evidence against appellant is sufficient to render any error harmless under either standard. (See Miller, supra, 175 Cal.App.4th at p. 1115 [applying Chapman standard].)
Chapman v. California (1967) 386 U.S. 18, 24.
People v. Watson (1956) 46 Cal.2d 818, 836.
II.
Section 654Appellant was sentenced to six months for concealing or destroying evidence in violation of section 135 (count 4), and one-year consecutive sentences for each count of resisting a peace officer in violation of section 148, subdivision (a)(1) (counts 5 [Deputy Duarte] and 6 [Officer Lopez]). Appellant contends that section 654 required the court to stay either the sentences in counts 4 and 5, or the sentence in count 6. We conclude separate punishment was proper.
Count 4 was based on appellant's conduct in attempting to discard the methamphetamine by ingesting it and by putting it down the drain in the jail cell. Counts 5 and 6 were based on appellant's conduct in resisting Deputy Duarte and Officer Lopez, i.e., his refusal to comply with Deputy Duarte's orders to face the wall and squat and cough, and his conduct in fighting both officers as they tried to prevent him from discarding the methamphetamine. Although appellant asserts that all three offenses were directed at preventing the officers from seizing the methamphetamine, substantial evidence supports a contrary finding. As the People note, appellant's objective in refusing to comply with Deputy Duarte's commands was to prevent discovery of the methamphetamine. Because appellant pursued an objective in resisting Deputy Duarte that was distinct from his objective in concealing or destroying the methamphetamine, separate punishment on those counts was not barred by section 654.
Separate punishment was also proper on counts 5 and 6 under section 654's multiple-victim exception. "An assailant's greater culpability for intending or risking harm to more than one person precludes application of section 654. [Citation.]" (People v. Felix (2009) 172 Cal.App.4th 1618, 1631.) Appellant subjected both Deputy Duarte and Officer Lopez to violence and the risk of injury, so section 654's bar on multiple punishment does not apply. (See People v. Martin (2005) 133 Cal.App.4th 776, 783 [applying exception to multiple counts of resisting and executive officer in violation of section 69].)
III.
Presentence Custody Credits
Appellant claims that his presentence custody credits must be recalculated if the court concludes he was sentenced in violation of section 654. Because we conclude otherwise, the claim is moot.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.