Opinion
F074463
11-12-2019
THE PEOPLE, Plaintiff and Respondent, v. LEE LOULY SAYSANASY, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11906503)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Lee Louly Saysanasy shot and killed A.K. (victim) during a party Saysanasy was hosting at a restaurant. Saysanasy was charged with first degree murder but was convicted of second degree murder. In his opening brief on appeal, Saysanasy contends the trial court erred in precluding the jury from considering voluntary intoxication evidence to assess his imperfect self-defense and heat of passion defense theories. In the alternative, Saysanasy contends his trial counsel's failure to request jury instructions allowing the jury to consider such evidence with respect to his defense theories constituted ineffective assistance of counsel. However, in Saysanasy's reply brief, he acknowledges his position was invalidated by the California Supreme Court's opinion in People v. Soto (2018) 4 Cal.5th 968 (Soto), which was published after the submittal of his opening brief. Saysanasy next contends the trial court erred in precluding him from presenting evidence that victim had methamphetamine in his system at the time of his death. Additionally, Saysanasy contends his state and federal constitutional rights to counsel and due process were violated when the trial court ordered he be placed in leg restraints without a showing of manifest need or consideration of less restrictive alternatives. Finally, Saysanasy contends the case must be remanded to allow the trial court to exercise its sentencing discretion within the meaning of Senate Bill No. 620 (Senate Bill 620). We remand for resentencing and in all other respects we affirm.
STATEMENT OF THE CASE
On April 18, 2012, the Fresno County District Attorney charged Saysanasy with murder (count 1; Pen. Code, § 187 subd. (a)) and possession of marijuana for sale (count 2; Health & Saf. Code, § 11359). With respect to count 1, it was further alleged Saysanasy personally and intentionally discharged a firearm which proximately caused the death of victim in violation of section 12022.53 subdivision (d) and personally and intentionally discharged a firearm in violation of 12022.53 subdivision (c). In addition, the information alleged Saysanasy had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (a)), and one prior serious felony conviction (§ 667, subd. (a)(1)). Trial on the count 2 charge and the prior conviction allegation were bifurcated.
All statutory references are to the Penal Code unless otherwise stated.
It does not appear that the section 12022.53, subdivision (c) allegation was ever brought before the jury.
After a series of continuances, trial began on February 29, 2016, and on March 17, 2016, a jury acquitted Saysanasy of first degree murder but convicted him of second degree murder. The jury also found true the section 12022.53, subdivision (d) firearm enhancement allegation. Count 2 was dismissed on the People's motion. The trial court found true the prior strike and prior serious felony conviction allegations. At sentencing, probation was denied and Saysanasy was sentenced to a total of 60 years to life in state prison, consisting of the indeterminate term of 15 years to life, doubled due to his prior strike; five years for the prior serious felony conviction; and 25 years to life for the firearm enhancement.
STATEMENT OF FACTS
On November 12, 2011, Saysanasy threw a party for himself and about 25 friends at a restaurant and bar in Fresno. Throughout the evening, Saysanasy had several interactions with the victim, whom he had not met before. According to P.C., a waitress at the bar, everyone at the restaurant, including the two men, appeared to be having a good time. The atmosphere was lively, music was playing, and people were dancing. P.C. was not aware of any problems during the evening that might later lead to violence. She did testify that both men had been drinking and victim was clearly intoxicated. It was not until the early hours of the following morning that the interactions between Saysanasy and victim turned violent, and Saysanasy shot victim.
Before the shooting, P.C. was asked by another waitress, A.I., who had been serving victim, to take over for her because victim was very drunk, kept hitting on her, asking her to dance, was very aggressive with her, and grabbed her hands to get her attention. A.I. did not complain that victim was armed or that he was going to hurt her. P.C. did not regard this as an odd request from A.I., since P.C. had had experience with someone who was drunk and flirtatious before, and this seemed no different.
At some point in the evening, one of the patrons at the bar, a cousin of P.C., saw another cousin of hers put on a bullet proof vest. P.C. did not know why, nor did she know if her cousin knew victim.
Video surveillance, shown to the jury, captured the interactions between Saysanasy and victim prior to the shooting. As seen on the surveillance video, around 1:20 a.m., victim approached someone sitting at the bar and attempted to poke him in the eyes in a playful manner. Victim then walked over to Saysanasy and made the same gesture to him. Saysanasy immediately pushed victim away. Victim then outstretched his arms with his palms facing up. Saysanasy pulled out a gun and shot victim multiple times in the torso, killing him. At the time of death, victim had a blood-alcohol content of .18 percent in his system.
Fresno Police Sergeant Paul Cervantes explained there was five minutes of footage—which proceeded the shooting itself—missing from the video surveillance which could not be recovered.
K.K., a waitress at the bar who was not on duty that night but was present, knew both Saysanasy and victim and did not see any tension between the two before the shooting. Nor did P.T., another patron at the restaurant, see any tension between Saysanasy and victim before the shooting.
After the shooting, Saysanasy fled with his girlfriend, S.D., who dropped him off at a friend's house. S.D. then returned to her home, but was contacted by Saysanasy about an hour later. He instructed her to bring him a change of clothes and rent him a car, which she did. Later, Saysanasy drove the rental car through town and S.D. followed behind him in a separate car. Saysanasy and S.D. eventually pulled into a parking lot, where police officers who had been following the pair, arrested them. Defense
A.I. was waitressing at the restaurant on the night of the shooting. She was serving victim, who made her feel uncomfortable, as he was very persistent in asking her to dance. She responded by asking P.C. to handle her tables and she hid in the kitchen, where she heard gunshots about 15 minutes later. A.I. described victim as very intoxicated. She had witnessed no weapons or fights in the restaurant before the shooting. A.I. did not feel like victim was trying to harm her or harm anyone else, he was just in a good mood and having a good time.
Saysanasy testified in his own defense that he was at the restaurant with about 25 friends, to watch a boxing match and celebrate. The conversations between Saysanasy and victim began shortly after midnight. Saysanasy did not know victim before that night. Saysanasy and two other unidentified males were outside the restaurant when victim approached and interjected himself into the conversation. Saysanasy was trying to explain to them why he did not want one of the men to hold a beer bottle while dancing on the dance floor, as he might drop it and hurt someone. A woman walked up and handed one of the men a "tactical" vest, which he put on. Saysanasy and one of the men patted each other on the back before Saysanasy went back into the restaurant. Back inside the restaurant, victim approached Saysanasy and asked him who he was. Saysanasy said he was "just myself." Victim put his right hand into his pocket. Saysanasy said he came to the restaurant to have fun. Victim called him an asshole in a loud "threaten[ing]" voice and Saysanasy said he "stopped talking." Saysanasy remained at the bar waiting for his drink order and then walked back to his table. Saysanasy went outside the bar several times to smoke but did not see victim.
Saysanasy testified to a later interaction with victim, who came up to him and "pok[ed]" him with his two fingers and said, "Don't be so fancy yourself." Saysanasy pushed victim away. Victim poked him a second time and said, "You are dead." Victim then pulled back and raised his hands and said "Come on." At that point, Saysanasy was scared for his life and thought he should protect himself, not knowing what victim had in his pocket. Saysanasy thought of his earlier conversation with the unidentified male with the beer bottle and the one with the tactical vest, and he decided that "[w]hen I put all of this together, then I should protect myself." Saysanasy shot victim more than once, but said he "was like black out" after the first time.
On cross-examination, Saysanasy acknowledged that he never saw victim or anyone else with a weapon. When asked if he thought victim had been disrespectful of him, Saysanasy said, "I think he was drunk," and then said he felt disrespected. Saysanasy described victim as smaller than him. Saysanasy claimed that, when he shot victim, he did not want to kill him, only protect himself, although he acknowledged he pulled the .45-caliber handgun out, pulled the slide back, put a round into the chamber and then shot him.
Saysanasy testified that, in the Laotian culture, it was very disrespectful to touch another person's face if you did not know them.
DISCUSSION
I. INSTRUCTION ON THE USE OF VOLUNTARY INTOXICATION EVIDENCE
Saysanasy first contends the trial court erred in instructing the jurors pursuant to CALCRIM No. 625, which limited consideration of voluntary intoxication evidence to the question of whether Saysanasy possessed the specific intent to kill. Saysanasy asserts the jury was entitled to consider voluntary intoxication evidence in assessing his imperfect self-defense and heat of passion defense theories. Saysanasy acknowledges this argument is no longer viable, and we agree.
After the submittal of the opening briefs in the present case, the California Supreme Court issued an opinion in Soto, supra, 4 Cal.5th 968, which addressed the same jury instruction issue. In Soto, the defendant, who had been using methamphetamine and drinking alcohol, stabbed the victim to death. (Id. at p. 971.) The defendant relied on the theory of imperfect self-defense, claiming the methamphetamine caused him to unreasonably believe his life was in danger. (Id. pp. 972-973.) However, the trial court instructed the jury with CALCRIM No. 625, which stated, "'"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted. Voluntary intoxication can only negate express malice, not implied malice.... You may not consider evidence of voluntary intoxication for any other purposes."'" (Soto, supra, at p. 973.) The jury acquitted the defendant of first degree murder but found him guilty of second degree murder. (Ibid.) On appeal, the defendant contended the trial court erroneously instructed the jury on use of the voluntary intoxication evidence. (Ibid.)
In its opinion, the California Supreme Court analyzed whether section 29.4, which does not permit evidence of voluntary intoxication to negate implied malice, permits such evidence to negate express malice. (Soto, supra, 4 Cal.5th at p. 978.) Upon a review of the legislative history of section 29.4, the court concluded the statute is "best understood as not allowing voluntary intoxication to establish unreasonable self-defense and negate the unlawful aspect of express malice murder." (Soto, supra, at p. 978.) The court reasoned if it ruled otherwise, its decision would place a person who acted in self-defense with the specific intent to kill in a better legal position than someone who acted in self-defense but only intended to seriously injure. (Ibid.) Therefore, the California Supreme Court affirmed the trial court's instruction to limit evidence of voluntary intoxication to the determination of the specific intent to kill. (Id. at p. 981.)
The facts and circumstances of Soto are parallel to the present case. Like the defendant in Soto, Saysanasy asserts his voluntary intoxication was relevant in assessing his unreasonable belief that it was necessary to use self-defense. The trial court below used jury instructions nearly identical to those given by the trial court in Soto. Because the California Supreme Court in Soto affirmed jury instructions that limited the use of voluntary intoxication evidence in the same manner as the trial court did here, we conclude there was no instructional error with respect to Saysanasy's imperfect self-defense theory.
Similarly, because Saysanasy's heat of passion defense functions to negate express malice in the same way as the theory of self-defense, we conclude it was proper to exclude voluntary intoxication evidence with respect to heat of passion. Furthermore, because the jury instructions were consistent with the opinion expressed in Soto, we reject Saysanasy's alternate claim of ineffective assistance of counsel.
In his reply brief, Saysanasy acknowledges the holding in Soto forecloses his argument on this issue. He continues to raise the issue only to preserve it for federal review.
II. EXCLUSION OF METHAMPHETAMINE EVIDENCE
Saysanasy next contends the trial court abused its discretion and violated his constitutional rights to due process, to a fair trial, and to present a defense by excluding evidence that victim had methamphetamine in his system at the time of his death. We disagree.
Background
Before trial, the prosecutor made a motion in limine to exclude evidence that victim had a blood-alcohol content of .18 and a "low level" of methamphetamine in his system at the time of his death, arguing such evidence was irrelevant. At the hearing on the motion, defense counsel objected and sought to allow an expert to testify as to victim's blood-alcohol level and methamphetamine level of "22 nanograms" and what "behaviors can be expected from somebody with that level of alcohol and drugs." The prosecutor countered that it had no objection to victim being described as intoxicated, as drinking, or as having been loud and boisterous, but objected to admitting the specific numbers used as those would have been determined after the fact and "there's no nexus of what those numbers are and any impact that they would have on any witnesses' perceptions of how [the victim] was behaving that night." Defense counsel disagreed, arguing that the information was relevant to show victim was antagonizing not only Saysanasy, but others as well, that he was the aggressor, and the evidence went to victim's "overall demeanor and behavior."
The trial court reasoned that, if Saysanasy did not see or was not aware of victim's drug use, it "cannot go to either his subjective or objective belief about whether or not it was imperfect self-defense or heat of passion." The trial court found the video of Saysanasy and victim's interactions relevant and admissible, but not the specifics of victim's methamphetamine use, as there was no evidence Saysanasy was aware of victim's drug use for purposes of a self-defense or heat of passion defense. The trial court found that the video would "speak for itself."
Defense counsel again argued to be allowed to introduce expert testimony on what the combination of alcohol and methamphetamine in victim's system would do to his behavior. The prosecutor again argued a lack of relevance, stating, "We know exactly what his behavior was. We can watch it."
The trial court ruled to allow defense counsel to talk to the expert, have the expert prepare a report to be provided to the prosecution, and then have an Evidence Code section 402 hearing (402 hearing).
At the subsequent 402 hearing outside the presence of the jury, Deborah Harkness, an expert in drug and alcohol treatment, testified that she viewed the surveillance video of Saysanasy and victim and the toxicology results for victim. She also read a witness statement from a waitress at the scene. Harkness testified that there is a very high correlation between alcohol consumption and aggressiveness, and an overexpression of emotion when a person has a blood-alcohol level between .11 and .20—victim had a level of .18. Harkness noted, in viewing the video tape, that victim became more aggressive over the course of the footage. According to Harkness, a combination of methamphetamine and alcohol has been "shown to increase the effects of aggressiveness." Harkness described victim's level of methamphetamine, as "not high. He either had used just prior to the incident or within a few hours prior to the incident or ... he was coming down after using for one or two days." Harkness opined that, if a person with a level of ".22 nanograms" was "coming down," "[t]hey would be irritable." According to Harkness, the effects of a combination of .22 nanograms of methamphetamine and a blood-alcohol level of .18 would depend on when the methamphetamine had been used: if it was recent, it would increase wakefulness, which could lead to becoming more aggressive or belligerent, if it was used a day or two before, the effect of the alcohol would be more prevalent and he would "not feel as good." Harkness opined that the likelihood of violence is increased with methamphetamine if used with alcohol.
In earlier discussion between the parties, this is referred to as "22 nanograms."
On cross-examination, Harkness acknowledged the use of both alcohol and methamphetamine have differing effects of different people, and the best predictor of how the combination affects someone is by observing them, which she acknowledged could be done via video.
On redirect, Harkness testified she watched the video and described victim as "violating people's personal space and acting inappropriately" and then became more "aggressive," although she could not tell if he was joking or not.
The trial court ruled that evidence of the victim's methamphetamine use would be excluded, as Harkness did not have any idea when victim used the drug, and it made a "substantial difference to [Harkness's] opinion whether it was days ago or that day." After an Evidence Code section 352 analysis, the trial court stated it would limit Harkness's testimony to the impact of alcohol on a person and how that might make them more aggressive. Harkness would not be allowed to testify on victim's methamphetamine use and would not be allowed to opine on either Saysanasy or victim's behavior based on the videotape, as the "videotape speaks for itself and it was for the jury to determine.
Subsequently at trial, toxicology evidence showing a blood-alcohol content of .18 was admitted and Harkness testified that a person with a blood-alcohol level of between .11 and .20 becomes more aggressive or assertive in their behavior, they become more boisterous or inappropriate, and they lose respect for other people's personal space. On cross-examination, Harkness acknowledged alcohol affects each person differently, based on the circumstances in which they are consuming alcohol and their tolerance to alcohol.
Applicable Law and Analysis
The trial court excluded the evidence of victim's methamphetamine use as irrelevant and based on Evidence Code section 352.
"'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Only relevant evidence is admissible. (People v. Scheid (1997) 16 Cal.4th 1, 13.) Evidence Code section 352 provides that the trial "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (See also People v. Valdez (2012) 55 Cal.4th 82, 138.) The trial court has broad discretion to determine the relevance of evidence and to exclude evidence it deems irrelevant, confusing, cumulative, or unduly prejudicial. (People v. Weaver (2001) 26 Cal.4th 876, 933.) We review the trial court's ruling on the admissibility of evidence under the abuse of discretion standard, and we do not reverse the trial court's ruling unless the trial court exercised its discretion in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
A defendant's constitutional right to a fair trial includes the right to present all relevant evidence that is of significant value to the defense case. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Even weak evidence is relevant if it tends to prove an issue before the jury; the weight of such evidence is for the jury to determine. (People v. Freeman (1994) 8 Cal.4th 450, 491; People v. Slocum (1975) 52 Cal.App.3d 867, 891.) "It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible." (People v. Rowland (1968) 262 Cal.App.2d 790, 797; see also People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) However, the defendant's right to present evidence "does not require 'the court [to] allow an unlimited inquiry into collateral matters.' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 282.) And, in exercising its discretion whether to permit evidence of a victim's drug use, the trial court "is not required to admit evidence, such as cocaine or marijuana use, 'that merely makes the victim of a crime look bad.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
Thus, while the exclusion of relevant evidence vital to the defense will implicate the defendant's constitutional rights, "'a defendant has [no] constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.' [Citations.]" (People v. Babbitt (1988) 45 Cal.3d 660, 684.) When relevant evidence has been excluded under ordinary rules of evidence, the defendant bears a heavy burden to demonstrate a violation of his right to due process under the Constitution. (Montana v. Egelhoff (1996) 518 U.S. 37, 42-43.) Since Saysanasy did not raise constitutional issues below, he must first meet his burden to establish state law error. (People v. Thornton (2007) 41 Cal.4th 391, 443-444.)
Saysanasy sought to use the evidence of methamphetamine in victim's system and Harkness's testimony on how people under the influence of methamphetamine act to support the defense theory that victim was the aggressor in the confrontation between the two and that Saysanasy acted in self-defense. However, Saysanasy overstates Harkness's testimony. Harkness testified, at the 402 hearing, that victim did not have a high amount of methamphetamine in his system and she could not determine how long before his death he had ingested it. As such, she was not able to accurately opine how the methamphetamine might have affected victim's behavior. In essence, Saysanasy argues that victim's aggressiveness was bolstered with evidence that he took methamphetamine in an unknown quantity and at an unknown time. We cannot conclude that the trial court erred when it found this evidence irrelevant.
Even if the evidence of victim's methamphetamine use had relevant value, it cannot be said that the trial court's ruling on this evidence struck an improper balance and thereby constituted an abuse of discretion.
Under Evidence Code section 352, a defendant must demonstrate not only that the ruling was erroneous, but also that the error resulted in a miscarriage of justice. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) He must meet his burden under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), by showing a reasonable probability of a different result absent the alleged error. (People v. Paniagua (2012) 209 Cal.App.4th 499, 524.) Section 352 directs "the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744.)
And for the same reasons that Saysanasy failed to provide a basis for this court to find that the trial court's exercise of discretion was arbitrary, capricious or patently absurd, he has failed to demonstrate a reasonable probability of a different result if the jury had been told that the autopsy showed methamphetamine in victim's system at the time of his death.
The issue at trial was victim's behavior itself, whether he was the aggressor or provoked Saysanasy, not what caused victim's behavior. Numerous witnesses, including Saysanasy, testified about victim's behavior that night. Only Saysanasy described victim as aggressive or hostile. And most importantly, victim's behavior during the evening and in the moments leading up to his death were captured on the restaurant's surveillance cameras. This footage was played for the jury, allowing the jurors to make their own conclusions about victim's behavior. The jury was aware that victim had been drinking and was intoxicated, as testified to by several witnesses and the toxicology evidence showing a blood-alcohol content of .18. Harkness testified that a person is more aggressive with a blood-alcohol content between .11 and .20. Evidence that victim also had a low amount of methamphetamine in his system would not have altered the state of the evidence to such an extent that it would have made a difference in the outcome of the case.
Because Saysanasy has failed to show error or a miscarriage of justice under the Watson standard, his constitutional claim fails as well. (See People v. Thornton, supra, 41 Cal.4th at pp. 443-444.) Regardless, we would conclude beyond a reasonable doubt that under all the circumstances we have discussed above, any constitutional error would have been harmless.
III. USE OF SHACKLING
Saysanasy contends the trial court erred in ordering him to wear leg shackles without a showing of manifest need and further contends the shackling was prejudicial because it interfered with his right to counsel. We agree that the trial court improperly shackled Saysanasy but, because the jury was unaware of the shackles and there is no evidence that the shackles impaired his ability to assist or communicate with his counsel, we find the error was harmless.
Background
Before trial, defense counsel moved to allow Saysanasy to appear before the jury during trial without physical restraints. The trial court denied the motion and ruled that Saysanasy would remain in leg constraints, but his hands would be free. The trial court confirmed with the bailiff that the leg restraints were silent and there was a curtain around counsel table to hide the shackles from the jury's view. Saysanasy was allowed to testify without the restraints.
Applicable Law & Analysis
Almost 150 years ago, in People v. Harrington (1871) 42 Cal. 165, 168, the California Supreme Court acknowledged the harm caused by unjustified shackling, noting such an action by the court, "inevitably tends to confuse and embarrass [a defendant's] mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights." Accordingly, there must be a showing of manifest need before a defendant can be subjected to physical restraints while in the presence of the jury. (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).) Courts have continued to uphold this rule to prevent "possible prejudice in the minds of the jurors, the affront to human dignity, ... 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...." (Id. at p. 290.) In addition, shackling has the potential to hinder a defendant's ability to communicate effectively with counsel. (People v. Fierro (1991) 1 Cal.4th 173, 220.) A showing of manifest need to use physical restraints has been satisfied where there is evidence from the record that indicates the defendant poses a flight risk or may resort to violence. (See People v. Pitcock (1982) 134 Cal.App.3d 795, 800-801 [shackling of defendant proper where record showed history of attempts to escape from correctional institutions]; People v. Jacobo (1991) 230 Cal.App.3d 1416, 1425-1426 [shackles justified where trial judge witnessed defendant punch his attorney in the nose].) Failure on the part of the court to demonstrate manifest need prior to shackling the defendant constitutes an abuse of discretion. (Duran, supra, at p. 291.)
Here, the trial court did not establish manifest need for physical restraints. The court overruled Saysanasy's objection to the leg restraints and ordered Saysanasy to be shackled during jury selection and trial without providing evidence in support of its decision. The People concede, and we conclude, this was an abuse of discretion, given that Saysanasy appeared in court 39 times over the course of several years and nothing in the record shows Saysanasy disrupted the proceedings or behaved violently.
Our Supreme Court has not yet articulated the applicable standard for prejudicial error with respect to improper shackling. (Duran, supra, 16 Cal.3d at p. 291.) Under the federal standard, reversal is warranted unless the state can prove the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) On the other hand, the state standard asks whether it is reasonably probable a more favorable result would have been reached absent the error. (Watson, supra, 46 Cal.2d at p. 836.)
Though the proper standard of review is unclear, the California Supreme Court has consistently held a trial court's abuse of discretion in shackling a defendant is harmless error "if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense." (People v. Anderson (2001) 25 Cal.4th 543, 596.)
In the present case, the trial court's abuse of discretion in shackling Saysanasy constituted harmless error under either standard. Saysanasy concedes any prejudice relating to jurors and the leg restraints is irrelevant to this case, since the jury never saw the restraints. He argues instead that the shackles impaired his ability to communicate effectively with counsel and/or altered his ability to assist in his defense. However, nothing in the record supports either of these contentions. There is no evidence Saysanasy experienced any difficulty communicating with his attorney due to the restraints on his legs. Furthermore, the trial court permitted Saysanasy to testify without restraints, eliminating the potential for the restraints to affect Saysanasy's mental capacity while on the stand. We therefore conclude the shackling, though improper, was harmless.
IV. SENATE BILL 620
As noted above, as part of Saysanasy's sentence, he received 25 years to life for the firearm allegation pursuant to section 12022.53, subdivision (d). While this case was pending on appeal, the Governor signed Senate Bill 620 (2017-2018 Reg. Sess), effective January 1, 2018. Following the enactment of Senate Bill 620, section 12022.53 now includes language stating: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) Prior to the enactment of Senate Bill 620, courts did not have discretion to strike or dismiss this enhancement. The former language of this section explicitly provided that the courts "shall not strike" enhancement allegations under this section. (Former § 12022.53, subd. (h).)
The People concede that the amendment to section 12022.53 should be afforded retroactive application to nonfinal judgments. However, the People contend that remanding for resentencing in this case would constitute an idle act, and therefore is not appropriate. The People assert, based on defendant's criminal history, the circumstances of the charged crime, and the trial court's choices at the original sentencing proceeding show that the trial court would not have exercised its discretion to lessen the sentence.
The People cite People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), in which the Court of Appeal, relying on comments made by the trial court at the sentencing hearing, declined to remand for resentencing after the courts gained discretion to strike prior strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In Gutierrez, the trial court had exercised its discretion not to strike a different enhancement, commenting that it did not believe the defendant's sentence should be shortened. (Gutierrez, supra, at p. 1896.) Although Gutierrez did not remand for resentencing in light of the trial court's comments, it nonetheless clarified the standard for evaluating the necessity of remand. Gutierrez held that remand was necessary "unless the record show[ed] that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the [enhancement] allegations." (Id. at p. 1896, italics added.)
People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), applied the Gutierrez approach to the defendant's request for remand for resentencing in light of Senate Bill 620. McDaniels remanded the case for resentencing because "the record contain[ed] no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements" under the amendments effected by Senate Bill 620. (McDaniels, supra, at pp. 427-428.)
McDaniels's approach is further supported by a California Supreme Court case, also called Gutierrez, i.e., People v. Gutierrez (2014) 58 Cal.4th 1354. There, at the time of sentencing, the governing law contained a presumption that juvenile defendants found guilty of specific crimes under certain circumstances would be sentenced to life without parole terms. A change in the law, which was held to apply retroactively to cases still pending on direct appeal, dictated that this presumption be removed, thus increasing the scope of the trial court's sentencing discretion. Our Supreme Court held that, for defendants sentenced under the former law but to whom the new law applied retroactively, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Id. at p. 1391.) Our Supreme Court emphasized, "'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (Ibid. )
We agree with the McDaniels approach. The new law drastically expands a trial court's sentencing discretion with respect to firearm enhancements. For defendants with enhancement findings under section 12022.53, subdivision (d), like Saysanasy, trial courts now have the power to increase the sentence by 25 years to life or not at all. This is so even though every case in which a section 12022.53, subdivision (d) allegation is found true is a case involving extreme violence, since the defendant must have personally and intentionally discharged a firearm, proximately causing great bodily injury or death. Senate Bill 620 represents a legislative determination that striking the enhancement will, nevertheless, sometimes be appropriate, thereby profoundly changing the sentencing environment when such an enhancement is at issue. Like the authorities discussed above, we recognize that unless the sentencing court "clearly indicate[s]" it would not have struck the enhancements in question even if it could, determining what it likely would have done had it possessed the new discretion, is inherently speculative. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
Here, the trial court sentenced Saysanasy to the indeterminate term of 15 years to life, doubled to 30 years due to the prior strike, and imposed a five-year determinate term pursuant to section 667, subdivision (a)(1), and an indeterminate and consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, for a total of 60 years to life.
Respondent argues remand is not required in Saysanasy's case because the sentencing court described the current crime as a "point blank assassination"; it declined Saysanasy's request to reduce the second degree murder conviction to manslaughter, finding the evidence did not support a heat of passion or imperfect self-defense; it declined Saysanasy's Romero motion to strike a prior strike conviction; it cited Saysanasy's criminal history, which it stated lacked any "significant periods of crime-free behavior"; and it stated it could not "take the risk that Mr. Saysanasy will ever be back out in society, given his temperament and possession of a deadly weapon that may lead to another killing."
We reject respondent's argument that remand is not required because of the trial court's denial of Saysanasy's Romero motion. The trial court's decision on Saysanasy's Romero motion focused on whether Saysanasy fell outside the purview of the Three Strikes law (see People v. Williams (1998) 17 Cal.4th 148, 161 [describing factors the court must consider when deciding whether defendant falls outside the spirit of the Three Strikes law].) Such a decision requires a different analysis than a decision as to whether the strike a firearm enhancement. And, in fact, the statements made by the trial court that the current crime was a "point blank assassination," that Saysanasy had "little, if any" periods of crime-free behavior, and that it could not take the risk of allowing Saysanasy "back out in society," were all reasonings the trial court used in denying the Romero motion.
As for respondent's argument that the trial court rejected Saysanasy's request to reduce his second degree murder conviction to manslaughter, that is also a decision that requires a different analysis. In denying Saysanasy's request, the trial court noted that the facts at trial did not support such a finding, as the victim did not have a weapon and, while obnoxious and aggressive, was not a threat to anyone. It further stated that it saw no evidence "that would cause Mr. Saysanasy to be angry or to react from heat of passion or imperfect self-defense." This is not an indication of whether or not the trial court would impose a firearm enhancement if it had such discretion.
The trial court did not say anything at sentencing that clearly indicates that, had it possessed the discretion to strike the firearm enhancement, it would nonetheless have imposed the same sentence. After refusing to strike the prior conviction, and giving its reasons for doing so, the trial court initially sentenced Saysanasy to the indeterminate term of 35 years to life for the murder of victim. Having no discretion to do otherwise, it then added an additional 25 years for the firearm enhancement, bringing the total sentence to 60 years to life. The circumstances upon remand will now be different. The trial judge will have discretion to add or not an additional 25 years to the initial 35 years to life sentence. Determining how that discretion will be exercised, based on the present record in this case, is unknown at this point in time. Accordingly, we will remand for resentencing. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391 [remanding for resentencing where the record "[does] not clearly indicate that [the trial court] would have imposed the same sentence had [it] been aware of the full scope of [its] discretion"]; People v. Robbins (2018) 19 Cal.App.5th 660, 664 [remanding for resentencing in light of Senate Bill 620, where defendant sentenced to life without parole plus 25 years to life for firearm enhancement, with underlying convictions for first-degree murder and premeditated attempted murder].)
DISPOSITION
The sentence is vacated and the case remanded to the trial court for resentencing in light of section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 1). The judgment is otherwise affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
SNAUFFER, J.