Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F07248
HULL, J.Following a jury trial in which defendant Theon Marcel Kambon represented himself, a jury convicted him of corporal injury on a cohabitant, assault by means of force likely to produce great bodily injury, and false imprisonment, each against A.J.; the jury also convicted him of corporal injury to B.K., the mother of his child. In a trial by court, the court found defendant had a prior serious felony conviction within the meaning of Penal Code section 667, subdivisions (a) and (b)-(i). (Undesignated statutory references that follow are to the Penal Code.) For these convictions as well as those in another case for which defendant was on probation, he was sentenced to prison for 10 years four months.
On appeal, defendant contends reversal of his convictions is required because the trial court erred by (1) failing to adequately inquire into a conflict arising from his appointed counsel’s prior representation of victim B.K.; (2) denying his Wheeler (People v. Wheeler (1978) 22 Cal.3d 258) motion; (3) finding true the prior strike allegation; and (4) permitting two bailiffs to stand behind him during trial without a showing of manifest need. We reject each contention and affirm the judgment.
Facts and Proceedings
Charged acts of violence against A.J.
In July 2007, A.J. was living with defendant in a romantic relationship. On July 27, A.J. called defendant and he told her he was in a room at a Motel 6. A.J. went to the room, discovered that it was registered in “some girl’s name,” and there were condom wrappers on the floor. When she questioned defendant about these circumstances, he became angry and, over that night and the next day (July 28), beat her with his hands and fists, choked and kicked her, and took her clothes and put them in his car so that she could not leave. He eventually gave her back her clothes and she went to the front desk, rented her own room, and called the police.
Officer Matthew Villarreal responded to A.J.’s call. She was frightened and had multiple bruises around her eye, head, forearm, and legs.
Uncharged acts of violence against A.J.
On March 29, 2007, defendant and A.J. were in Carson City, Nevada, drinking and arguing in a car. Defendant struck A.J. in the head with one of her high-heeled shoes, hit her more than five times in the head and arms with his hands, and choked her into unconsciousness. She escaped, ran back to their hotel and the police were called. A.J. was very bloody, some of her hair had been pulled from her head, and she was crying and hysterical. An examination of the car wherein the assault took place revealed blood on the seats, windows, doors, and dashboard.
Charged acts of violence against B.K.
B.K. testified that she and defendant dated from 2004 to 2006 and that he was the father of her son. On July 1, 2006, she was asleep in her apartment when she was awakened by defendant who was angry. Defendant slapped her, hit her head against the headboard, and grabbed her face so hard that it left bruises. Photographs showed the injuries she had received.
Uncharged acts of violence against B.K.
On January 9, 2005, B.K. went to defendant’s apartment to get her keys from him. When she told him why she was there he grabbed her by the hair, pulled her into the bedroom, hit her in the face and upper body, and threw her into a wall.
On June 28, 2007, defendant came to B.K.’s residence looking angry and upset. He grabbed her by the hair as she tried to walk to her bedroom, then grabbed her by the face and squeezed her jaw. B.K.’s niece, J., who had been asleep, heard Boupheng’s screams as she came toward J.’s room. B.K. came into the room followed by defendant who grabbed B.K. by the hair and face.
Uncharged acts of violence against Jamie D.
Jamie D. was the mother of two of defendant’s children. On July 1, 2006, defendant came to her residence early in the morning and climbed into bed with her. When she rebuffed his attempts to touch her, he became angry but left the room. She fell back asleep, but was awakened by defendant straddling her and yelling. He choked her and for an hour hit her on the face and head. After he left she went to the hospital where she received treatment for injuries to her eye and swelling to her face, chest, and arms.
Uncharged acts of violence against M.G.
On July 17, 2006, defendant arrived uninvited at the residence of M.G., the mother of two of defendant’s children. While the two were discussing their daughter, defendant became angry, struck Marigod in the face three times with his fist, causing a welt on the side of her face and bruising to her jaw. She reported the attack to the police.
Defense
Defendant denied committing the assaults testified to by A.J., B.K., Jamie, and Marigod. He also presented witnesses who testified that they had never seen or heard of defendant hitting any woman.
Discussion
I
Conflict of Appointed Counsel
Defendant contends reversal of the judgment is required because the court failed to adequately inquire into his claim of conflict with his court-appointed counsel. The record, which we set forth in detail, does not support the contention.
Defendant’s preliminary hearing was conducted on August 17, 2007, before Judge James Henke. Defendant was represented by Deputy Public Defender Joshua Kurtz. After defendant had been held to answer and the complaint was deemed an information, the court asked defendant if he wanted appointed counsel. Defendant replied that he did and the court reappointed the public defender. Defendant informed the court that he had a conflict with the public defender’s office because attorneys from that office had previously represented B.K. and A.J. The court stated it was “not going to make a decision at this point,” and set the matter for trial on October 9, seven days before October 16, the last statutory day for trial.
On August 23, 2007, defendant personally filed a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) On September 14, 2007, at Kurtz’s request, the case came before the court (Judge John P. Winn). Kurtz explained that he had requested the hearing because “last week” defendant had informed him that he wanted to represent himself. Kurtz, who was unaware that defendant had filed a Marsden motion, also explained that he had reviewed the transcript of the prior strike conviction, that he believed defendant had a basis for moving to withdraw the plea, and that he had so informed defendant. The court offered “to appoint another attorney to talk to [him], just to kind of evaluate the situation” so that defendant could decide how he wanted to proceed. Defendant declined the offer, stating that he was “trying to preserve [his] rights to a speedy trial” and that “there’s [not] any attorney in the world that could step in [in] time at this point.”
At another point in the same hearing, defendant stated that the reason he “had to go pro per” was because Kurtz would not be able to represent him at trial and defendant was “not going to waive time.” Defendant said he had told Kurtz that if Kurtz could protect defendant’s speedy trial right then “we didn’t have a conflict.” Kurtz had assured defendant that he could do so. Kurtz explained to the court that at the preliminary hearing he had “made it absolutely clear” to defendant and the court that he would be on paternity leave from October 10 to November 10. Kurtz informed defendant that while he was unable to be in court on the above dates, he believed there were some witnesses who might be able to assist defendant and that he believed “an attorney from our office would be prepared to go forward with that.” Kurtz never told defendant that the case would have to be continued, but that it might have to be trailed to October 16, which was “the sixtieth day.” Defendant stated that he wanted to represent himself for trial. Defendant said that he did not want to be represented by anyone from the public defender’s office, that Kurtz had not been adequate, and they had a breakdown in communication. Defendant said he would like to have an attorney from the panel.
At this point, the court cleared the courtroom. The court told defendant, “I need to know from you where you want to go. Do you want to represent yourself or are you asking Mr. Kurtz be relieved for some reason and I appoint another counsel to represent you. Which way do you want me to go on this?” Defendant said that he wanted the court to follow the law and “allow [him] to represent [himself] and have the assistance of counsel....” Defendant also repeated that the only way he could protect his speedy trial right was to “be pro per under Faretta.” The court expressed its doubt that defendant was making an “unequivocal” request to represent himself and asked Kurtz if he had anything to say. Kurtz said defendant had on three occasions made clear that he wanted to represent himself. Defendant then said that to protect his speedy trial right his decision to go pro per was “unequivocal.” The court granted defendant’s pro per request.
Defendant argues that although the court was made aware of a potential conflict of interest between he and Kurtz at the conclusion of the preliminary hearing and again during the hearing conducted on September 14, the court failed in its duty to inquire into that possibility. This failure, in his view, requires reversal of the judgment. We disagree.
Defendant is entitled to conflict-free counsel and a trial court, once apprised of a potential conflict, must inquire into the matter. (People v. Jones (2004) 33 Cal.4th 234, 252.) However, the court at the preliminary hearing cannot be faulted for not inquiring into the matter at that time because it was obvious that Kurtz was unaware of the extent or circumstances surrounding the alleged conflict, namely, the facts relating to his office’s prior representation of B.K. and A.J. Counsel was simply in no position at that time to provide the court with the information it needed to determine whether a conflict existed.
On September 14, 2007, defendant was again before the court, this time on his request to represent himself. Although defendant initially equivocated on his request to represent himself, upon further questioning by the court defendant made it abundantly clear that he wanted to represent himself because he believed that, contrary to his counsel’s representation, it was the only way he could protect his right to a speedy trial. Defendant expressly stated that he would not accept another attorney. Thus, the court’s granting of defendant’s request for self-representation rendered the question of relieving counsel because of a conflict of interest moot. Consequently, we reject defendant’s contention.
II
The Wheeler Motion
Defendant’s contention that the trial court erred when it denied his Wheeler/Batson (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson)) motion arises as follows: During jury selection, defendant stated: “I just wanted to state that I guess I should put an objection on the record. I don’t remember what I read, but the DA has used five of her peremptory challenges, and all of them are male. [¶] I believe I remember reading something to that accord. I don’t know when it was, but I would have to do some more research. I wanted to it on the record now.” The court responded, “Okay. We can talk about that after, but the record will so reflect.”
Jury selection continued to a point where the court was ready to recess until the next day, when defendant said, “Your Honor, did you want to--you said you had something to say about my objection.” The court replied: “Mr. Kambon did point out that the first five prospective jurors that were dismissed in peremptory challenges exercised by [the prosecutor] were all men. [¶] She did dismiss a woman, and that in her sixth peremptory. [¶] On your side, Mr. Kambon, you dismissed one, two, three, four, five--seven out of eight jurors that you dismissed were women, so sort of the flip side of [the prosecutor]. [¶] I don’t find there’s a prima facie showing that either of you exercised your peremptory challenges improperly. There’s no need to pursue it, okay?” Defendant responded, “Okay,” and nothing further was said regarding the matter.
Likening his case to People v. Motton (1985) 39 Cal.3d 596 (Motton), defendant argues that given the trial court’s refusal both to afford him the opportunity to make a prima facie case of Wheeler error and to permit him to make a more complete record of the matter, his objection was sufficient to state a prima facie case. We find Motton factually distinguishable and disagree that defendant made a prima facie showing here.
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias.” (People v. Guerra (2006) 37 Cal.4th 1067, 1100, citing Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at pp. 82-83]; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Gender discrimination constitutes a cognizable group within the meaning of Batson/Wheeler. (People v. Panah (2005) 35 Cal.4th 395, 438-439.)
“Recently, ‘the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. “First, the defendant must make out a prima facie case by ‘showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.]”’” (People v. Guerra, supra, 37 Cal.4th at p. 1100.) If the reviewing court finds the trial court properly determined that defendant failed to make a prima facie case, no further review of the issue is necessary. (People v. Farnam (2002) 28 Cal.4th 107, 135.)
Here, defendant’s objection consisted solely of his observation that the prosecutor had used her first five peremptory challenges to dismiss males from the panel of potential jurors. Defendant made no attempt whatsoever to set forth, as is his burden (People v. Trevino (1997) 55 Cal.App.4th 396, 402), circumstances surrounding the dismissals. The cognizable group cited by defendant, to wit, males, constitutes approximately one-half the population of the world. Consequently, without a record of the number of males who were initially on the panel or the number who remained after the jurors in question were excused, we cannot determine whether the prosecutor exercised her peremptory challenges in a disproportional manner.
Defendant does not challenge the point that he failed to make the foregoing record, but asserts that he was prevented from doing so by the trial court’s “declining to hear the matter when the objection was first raised, and then summarily rejecting the Wheeler motion when [he] raised the issue again after the jury voir dire had ended.” Thus, he concludes, he has made “as complete a record of the circumstances as is feasible.” (See Wheeler, supra, 22 Cal.3d at p. 280.) The record does not support these assertions.
When defendant first made his challenge to the prosecutor’s use of her peremptory challenges, he informed the court that he was not sure of his authority and “would have to do some more research.” The court could reasonably understand defendant as wanting his objection placed on the record and that he would address the merits after he further researched the issue. Even if the court did not so understand defendant, it nevertheless addressed his concern at the close of voir dire when defendant again brought it up. The court explained why it did not believe he had made a prima facie case, and stated that “[t]here’s no need to pursue it, okay?” By asking defendant if its ruling was “okay,” the court was affording defendant the opportunity to disagree, to make a further showing, or to make a more complete record.
Defendant cites Motton for the proposition “that both the trial court and the prosecution have a responsibility to construct ‘as complete a record as is feasible’ when a Wheeler motion is made.” The circumstances under which that statement was made are significantly different than those of the instant case.
In Motton, counsel had challenged the prosecutor’s having exercised several peremptory challenges to excuse black women from the jury. (Motton, supra, 39 Cal.3d at pp. 601-602.) Despite counsel’s repeated attempts to construct a record of the circumstances surrounding his challenge, the trial court refused to permit him to do so. (Id. at pp. 602-603.) It was in this context that the appellate court stated, “When a Wheeler motion is made, we believe it to be the duty of the court, and both counsel as officers of the court, to cooperate to construct as complete a record as is feasible.” (Id. at p. 605.) By contrast, when the court herein informed defendant that there was no need to pursue the matter and queried whether that was “okay,” defendant’s reply of “Okay” indicated that he had nothing further to add. Consequently, Motton is factually distinguishable, and defendant’s contention is rejected.
III
Prior Conviction
Defendant contends that the evidence was insufficient to prove that his prior conviction for battery with serious bodily injury, a violation of section 243, subdivision (d), qualified as a serious felony within the meaning of section 1192.7, subdivision (c)(8). We disagree.
A criminal offense qualifies as a serious felony if it comes within the description of any of the circumstances listed section 1192.7, subdivision (c). Subdivision (c)(8) of this section refers to “any felony in which the defendant personally inflicts great bodily injury on any person....”
In determining whether a prior conviction is a serious felony within the meaning of section 1192.7, subdivision (c), the trial court may look to the “entire record of the conviction,” which includes a reporter’s transcript. (People v. Sohal (1997) 53 Cal.App.4th 911, 915.)
Here, the trial court read into the record a portion of the reporter’s transcript of defendant’s plea to the section 243, subdivision (d) violation. That portion established that defendant was fully advised that he was pleading to a strike offense within the meaning of section 1192.7, subdivision (c)(8), that he admitted committing “great bodily injury,” and that the factual basis for the offense showed that defendant struck the victim with “some type of wooden instrument” and that when the victim fell to the ground the defendant and his accomplice kicked and “severely beat” the victim so badly that he ended up in the hospital. Consequently, sufficient evidence supports the trial court’s finding that defendant’s prior conviction for violation of section 243, subdivision (d) was a strike.
Defendant also “objects” to our consideration of the court’s recitation of the transcript of the plea because that transcript was not made part of the appellate record. However, defendant never objected to the court’s recitation or to its consideration of that recitation as evidence. Hence, any complaint in this regard is forfeited for appellate review. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 545.)
IV
Court Security
Prior to trial, the court asked defendant if he wanted the jury instructed not to consider the fact he was in custody because “they are going to see deputies sitting behind you.” Defendant objected, noting that he was neither a flight risk nor a “danger to anybody in here.” Defendant claimed that “by having [the deputies] sit down behind me is just the same as me being shackled up, or sitting here in an orange suit.” The court gave the indicated instruction.
Defendant contends the trial court prejudicially erred by “requiring two bailiffs to stand behind [him] during trial, without a finding of manifest need for such procedures. We reject the contention.
Following the filing of the briefs in this case, the California Supreme Court filed its opinion in People v. Stevens (2009) 47 Cal.4th 625, reaffirming its prior decisions in People v. Duran (1976) 16 Cal.3d 282 and People v. Marks (2003) 31 Cal.4th 197, that the monitoring of a defendant by court security personnel is not akin to a “human shackle” and that the monitoring of a defendant by such personnel need not be justified by a showing of “manifest need.” (Stevens, at p. 629; see also id. at pp. 634-637.)
In People v. Duran, supra, 16 Cal.3d 282, the court distinguished between physical restraints being placed on a defendant, which requires a showing of a “manifest need” for such a procedure, and a defendant’s being monitored by courtroom security personnel, which does not require such a showing. (Id. at pp. 290-291 & fn. 8.) Our Supreme Court reaffirmed this distinction in People v. Marks, supra, 31 Cal.4th 197, stating: “We therefore maintain this distinction between shackling and the deployment of security personnel, and decline to impose the manifest need standard for the deployment of marshals inside the courtroom.” (Id. at p. 224.)
The following procedure governs a trial court’s use of security personnel: “‘A trial court has broad power to maintain courtroom security and orderly proceedings.’ [Citation.] Accordingly, we review the court’s decisions regarding security measures in the courtroom... for an abuse of discretion.” (People v. Ayala (2000) 23 Cal.4th 225, 253.) The deployment of security personnel does not in and of itself raise a presumption of prejudice and whether prejudice has occurred is reviewed on a case-by-case basis. (Holbrook v. Flynn (1986) 475 U.S. 560, 569 [89 L.Ed.2d 525]; People v. Jenkins (2000) 22 Cal.4th 900, 998.)
Here, the circumstances known to the court were as follows: Defendant is of formidable size--six feet one inches tall and weighing 225 pounds. He was charged with having been convicted in October 2005 of battery with serious bodily injury. He also had two prior felony convictions for drug offenses, for which he served a three-year prison term, and a felony conviction for perjury. He was presently charged with physically assaulting two women, each of whom would be in court, in relative proximity to him, and would be testifying against him. The court had read the preliminary hearing transcript, which contained testimony by an officer who had responded to A.J.’s motel room and saw her injuries--“bruising... under her eyes, her cheeks, forearms, and on her legs”--which she said had been caused by defendant. B.K. testified at the preliminary hearing that defendant had come to her residence, awakened her by yelling in her face, slapping her in the face, grabbing her hair and hitting her head against the headboard, and then grabbing her by the face and squeezing. The court was also aware of the uncharged incidents of violence committed by defendant against A.J., B.K., Jamie D., and M.G., which the People were seeking to have admitted pursuant to Evidence Code section 1109. Since Jamie and Marigod would also be testifying against defendant, they too would be in relatively close proximity to him.
From defendant’s inclination for violence, especially against women apparently, as shown by evidence of physical assaults on four witnesses who were each going to be testifying against him, coupled with his size and his prior felony convictions, the court could reasonably infer that defendant might well represent a danger to witnesses or others in the courtroom (we note the prosecutor in this case was a woman) and, therefore, the placement of two deputies near him was reasonably necessary for the security of trial participants. Put differently, defendant’s history of violence preceded him. Consequently, there was no abuse of discretion as claimed by defendant.
Disposition
The judgment is affirmed.
We concur: RAYE, Acting P. J., ROBIE, J.