(Monterey County Super. Ct. No. SS031302) Trial Judge: Hon. Marla O. Anderson
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Thomas Miller of assault with a deadly weapon by a person serving a life term (count 1) and attempted murder (count 2). On appeal, defendant contends that (1) the evidence as to count 1 was insufficient because no evidence supported that defendant was serving a life term, (2) the trial court erred by shackling his legs during trial over objection, and (3) the abstract of judgment incorrectly records a $10,000 restitution fine rather than the pronounced $200 restitution fine. The People concede that the evidence was insufficient as to count 1. And the parties agree that double jeopardy principles bar a retrial of that count except for the lesser offense of assault with a deadly weapon. We agree with defendant that his shackling constituted prejudicial error. We therefore reverse the judgment, remand for retrial, and direct retrial on count 1 to be limited to the charge of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). Because reversal is required, we need not, and do not, reach the abstract-of-judgment issue.
While watching inmates at the Salinas Valley State Prison playing handball in the prison yard, California Department of Corrections Sergeant Gary Jordan saw defendant striking another inmate while on the ground and on top of the inmate. He used his radio to order the observation officer to "put the yard down," prison parlance for signaling all inmates in the yard to assume a prone position on the ground. All inmates complied with the signal except defendant and his victim. Defendant continued to strike his victim. When Sergeant Jordan approached the two, defendant turned, threw a knife over the wall, and kicked the victim in the head. Defendant had stabbed the victim 26 times causing a stroke from blood loss, coma, and paralysis. The victim testified that he was first stabbed in the neck from behind and did not see his assailant. But he continued that he afterward saw defendant stab him twice.
Defendant presented a misidentification defense via inmates who testified to witnessing a fistfight without weapons. He conceded that he found a knife wrapped in cloth on the ground and threw it over the wall. But he argued that no fingerprints linked him to the knife and, while the victim‟s blood was on the cloth, no blood existed on the blade. He theorized that multiple fights were occurring at the same time and someone else had stabbed the victim.
The record reveals that, outside the presence of the jury, defendant moved that he "not be shackled." The trial court then asked "As far as the Department of Corrections?" After the bailiff replied that "We can release one hand," the trial court told defendant that he could "go ahead and voir dire the jury with respect to the shackling." The trial court later instructed the jury in the language of CALJIC No. 1.04 as follows: "The fact that physical restraints have been placed on the defendant must not be considered by you for any purpose. They are not evidence of guilt and must not be considered by you as evidence that he is more likely to be guilty than not guilty. You must not speculate about the restraints being used. In determining the issues in this case, disregard that matter entirely."
The parties agree on the law governing the use of physical restraints at criminal trials. "[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury‟s presence, unless there is a showing of a manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran); see also Pen. Code, § 688 ["No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge"].) " "Manifest need‟ arises only upon a showing of unruliness, an announced intention to escape, or "[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained.‟ " (People v. Cox (1991) 53 Cal.3d 618, 651 (Cox), quoting Duran, supra, at p. 292, fn. 11.) Thus, the mere fact that the defendant is a prison inmate, standing alone, does not justify the use of physical restraints. "[T]he trial judge must make the decision to use physical restraints on a case-by-case basis. The court cannot adopt a general policy of imposing such restraints upon prison inmates charged with new offenses unless there is a showing of necessity on the record." (Duran, supra, at p. 293.) And the decision whether to shackle a defendant may not be delegated to security or law enforcement personnel; the trial court must make its own determination regarding restraints. (People v. Hill (1998) 17 Cal.4th 800, 841.) "Moreover, "[t]he showing of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.‟ " (Cox, supra, at p. 651, quoting Duran, supra, at p. 291.) The burden is on the People to establish in the record the manifest need for the shackling. (People v. Prado (1977) 67 Cal.App.3d 267, 275.)
The People concede that the trial court abused its discretion by denying defendant‟s motion to be unshackled. We agree that the concession is appropriate given that the record does not show defendant‟s violence, threat of violence, or other nonconforming conduct.
The People argue, however, that the trial court‟s error was harmless because there is no affirmative evidence in the record that the shackling burdened defendant, the jury knew defendant was a prison inmate and could have reasoned that he was shackled because he was a felon rather than violent or dangerous, the trial court admonished the jury to disregard the restraints, and the evidence of guilt was overwhelming. (People v. Anderson (2001) 25 Cal.4th 543, 596 [reversal is warranted only on a showing "that physical restraints impaired the fairness of defendant‟s trial and thus caused prejudice"].) We disagree given the circumstances of this case.
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." (People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584.) "Even a jury‟s brief observations of physical restraints generally have been found non-prejudicial." (People v. Slaughter (2002) 27 Cal.4th 1187, 1213.)
Here, there is no affirmative evidence that the jury saw defendant‟s restraints. But it is reasonable to infer that the jury saw them. This follows because the trial court instructed the jury to disregard them. "Such an advisement is given only when shackles are ...