Ct.App. 1/4 A112197 Alameda County Super. Ct. No. C148565 Judge: Leopoldo E. Dorado.
The opinion of the court was delivered by: Corrigan, J.
We hold here that the stationing of a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice that must be justified by a showing of manifest need. Defendant Lorenzo Stevens attempts to bring his case under the exacting manifest need standard by asserting that the deputy‟s presence is akin to a "human shackle." A divided Court of Appeal rejected this argument, and we do so as well. This conclusion is consistent with our explicit and unanimous holding in People v. Marks (2003) 31 Cal.4th 197, 222-224 (Marks). Because defendant has not shown actual prejudice, and the record supports the trial court‟s exercise of discretion, we affirm the judgment of the Court of Appeal.
On July 13, 2004, 14-year-old R.D. was riding the bus home when defendant, her father, called her cellular phone. R.D. lived with her grandmother and had not seen her father in a month or two. At defendant‟s request, R.D. met him at a nearby Taco Bell. From there, they walked about 30 minutes to an alley. Defendant said he was living in a truck, which appeared to have been parked in the alley for a long time. The windshield was covered with dirt, and the windows were obscured with hanging pieces of cloth. They talked about why defendant was living in a truck, and defendant asked R.D. if she would help him make money. He said he wanted to take her to a hotel, and R.D. believed he was suggesting prostitution. Defendant told R.D. she should use a more exotic, grownup name at the hotel. He told her to say her name was "Joy." Defendant asked R.D. if she was sexually active with her boyfriend, and he looked through her purse for condoms.
While they sat inside the truck, defendant smoked something he called "crystal" from a glass pipe. He then lay back and told R.D. to take off her pants. When she refused, defendant placed a small rock of the "crystal" in her mouth, telling her to suck on it and relax. The rock made R.D.‟s tongue numb. While defendant‟s eyes were closed, she took the rock out of her mouth and placed it in her bra. Defendant later asked for the rock back, but R.D., to his substantial annoyance, claimed she had swallowed it. Defendant pulled his daughter onto his lap and told her to dance. As she sat there, she felt his pelvis moving against her bottom. She told him she wanted to leave, but defendant would not release her. She began to cry and scream. Defendant continued to hold her down and then sucked the side of her neck. He threatened to hit her if she did not quiet down. Then he pulled his pants down, pulled R.D.‟s head toward his penis, and told her to orally copulate him.
R.D. managed to escape and took the bus to her grandmother‟s house. While on the bus, she took the rock out of her bra and put it in her purse. Once home, R.D. called her mother, then told her grandmother what had happened. The grandmother, Alice Beal, noticed a red mark on R.D.‟s neck that she had not seen earlier that morning. R.D. gave the rock to Beal, who placed it in a plastic bag and called the police.
Officer Valerga of the Oakland Police Department responded and took possession of the bag containing the "crystal" rock, which was later determined to be cocaine base. The officer asked to see where the incident occurred and then drove R.D. and her grandmother to the Taco Bell. While she was in the squad car, Beal received a call from R.D.‟s mother, who reported that she had seen defendant and that her brother (R.D.‟s uncle) was chasing him. Officer Valerga went to the mother‟s location and called for backup.
Several officers chased defendant through backyards. Eventually, he jumped onto the roof of a house. As approximately 10 to 15 officers surrounded the house and began to establish a perimeter, defendant took a running leap onto another rooftop. He paced continually, looking over the edges of the roof. During an hour-long standoff with the officers, defendant was agitated and threatened suicide. He said he was upset about the sexual way his friends had been looking at his daughter. He said that, although nobody would believe him, he did not touch her. When one officer urged defendant to come down, he refused, saying, "They‟re going to look at me differently." At one point, defendant sat and smoked what appeared to be crack cocaine from a glass pipe. While on the roof, he began interacting with the crowd of spectators that had gathered.
Officers found a ladder in the yard and leaned it against the house. However, to the great amusement of the crowd, defendant pulled the ladder onto the roof, leaving the officers on the ground. Eventually, Oakland Fire Department personnel arrived with a ladder. When officers began climbing to the roof, defendant jumped off the opposite side. He was taken into custody on the ground and later transported to a hospital for a sexual assault exam. He was combative and uncooperative at the hospital and had to be placed in restraints.
Defendant was charged with assault with intent to commit rape, sodomy, or oral copulation; furnishing a controlled substance to a minor; and administering a drug to aid in the commission of a felony. The information also alleged defendant had a prior serious felony conviction. Early in the trial, the court was informed that defendant was trying to convince R.D. and her mother to drop the charges. While in custody, he had arranged for a woman to call on his behalf and convey this request. The court said for the record that it considered this conduct to be an implied threat.
Defendant testified that he called R.D. on July 13, 2004, because he was concerned about rumors he had heard about her grades and bad behavior and because he was considering moving away. As they walked to the truck where he was living, defendant said he noticed a "hickey" on R.D.‟s neck. When they were sitting in the truck, he confronted her about the hickey and asked if she was sexually active or using drugs. Defendant claimed R.D. began crying during this conversation and told him she had been raped. After she stopped crying, defendant walked her to the bus stop. Defendant saw her off, then retrieved some supplies and began washing someone‟s car. As he did so, a friend approached and warned him that R.D. had reported a sexual assault. Distressed, defendant called his sister, asking her to come and talk to him. When she arrived, R.D.‟s mother and a man jumped out of the car and began an attack that included beating him with a stick. Defendant ran. He continued running even after he saw the police because he was afraid. Defendant admitted that he smoked crack cocaine while he was on the roof.
Defendant attended his trial unshackled and wearing civilian clothing. During R.D.‟s testimony, a support person sat next to her and, without defense objection, was introduced as a "victim witness advocate." (See Pen. Code, § 868.5.) A sheriff‟s deputy sat directly behind defendant throughout the trial, and a uniformed deputy*fn1 was stationed at the witness stand while defendant testified.
Before defendant took the stand, his attorney stated that he had been informed by the court and by courtroom deputies that if his client testified, "it is policy-I‟m not sure whose policy, but it is policy to have a deputy sit with him at the witness stand while my client testifies." Counsel objected to this procedure, arguing the placement of a deputy at the witness stand "is, basically, a human shackle" that must be justified by good cause. In response, the court observed that a deputy had been "sitting right behind" defendant "throughout the entire trial," and the court reasoned, "Having a deputy in, basically, the same proximity... will be no more prejudicial." The court remarked that "the Alameda County Sheriff‟s Department policy of having a deputy at the stand with an in-custody [defendant] for safety purposes, or even to prevent escape, is certainly reasonable," and stated it did not want jurors to be distracted by safety concerns. The prosecutor added that defendant had become outwardly agitated in the presence of other deputies. One of the jurors had submitted a note that remarked on defendant‟s agitated behavior and apparent irritability. After defendant testified, his attorney stated for the record that a uniformed deputy sheriff was "up on the stand next to him" during both days of his testimony. Counsel also observed that the juror‟s note stated only that he found defendant‟s behavior "distracting." In a second note, the juror said he did not feel afraid of defendant.*fn2
Defendant was convicted as charged and sentenced to prison. A divided panel of the Court of Appeal affirmed his conviction. We granted review to determine whether the placing of a deputy sheriff at the witness stand while defendant testified was an abuse of discretion or required a specific showing of need. Defendant claims this procedure violated his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. He also argues the trial court abused its discretion by deferring to a sheriff‟s department policy instead of reaching its own determination about security needs.
We begin with the familiar principle that a "trial court has broad power to maintain courtroom security and orderly proceedings. [Citations.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1269.) For this reason, decisions regarding security measures in the courtroom are generally reviewed for abuse of discretion. (Ibid.; People v. Ayala (2000) 23 Cal.4th 225, 253; People v. Duran (1976) 16 Cal.3d 282, 293, fn. 12 (Duran).)
However, despite our traditional deference to the trial court in this area, some extraordinary security practices carry an inordinate risk of infringing upon a criminal defendant‟s right to a fair trial. These exceptional practices must be justified by a particularized showing of manifest need sufficient to overcome the substantial risk of prejudice they pose. For example, visible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community. (Deck v. Missouri (2005) 544 U.S. 622, 630; see Duran, supra, 16 Cal.3d at p. 290.) The same problem arises if the defendant is required to appear before the jury dressed in prison clothing. (People v. Taylor (1982) 31 Cal.3d 488, 494-495; Estelle v. Williams (1976) 425 U.S. 501, 504-505.) In addition to their prejudicial effect on the jury, shackles may distract or embarrass a defendant, potentially impairing his ability to participate in his defense or serve as a competent witness on his own behalf. (Deck v. Missouri, at p. 630; Duran, at pp. 288-290; People v. Harrington (1871) 42 Cal. 165, 168.) Similar concerns have been raised about the use of physical restraints not visible to the jury, like stun belts. (People v. Mar (2002) 28 Cal.4th 1201, 1218-1220.)
Because physical restraints carry such risks, the United States Supreme Court has long considered their use inherently prejudicial. (Deck v. Missouri, supra, 544 U.S. at pp. 626-629; Illinois v. Allen (1970) 397 U.S. 337, 343-344; see Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 (Holbrook).) Thus, a criminal defendant may not appear before the jury in shackles unless the trial court has found that the restraints are justified by a state interest specific to the particular trial. (Deck v. Missouri, at pp. 629, 632.) The court‟s determination may "take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial." (Id. at p. 629.)
For similar reasons, we too have concluded that visible physical restraints must survive heightened scrutiny and be justified by a particular need. In Duran, supra, 16 Cal.3d at pages 290-291, we held that "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." While the court retains discretion to order restraints when they are needed to protect against courtroom violence or other disruptions, we cautioned that imposing visible physical restraints without a record showing violence, a threat of violence, or other nonconforming conduct, "will be deemed to constitute an abuse of discretion." (Id. at p. 291.) No formal hearing is necessary to fulfill the mandate of Duran; however, the record must show the court based its determination on facts, not rumor and innuendo. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032; People v. Cox (1991) 53 Cal.3d 618, 651-652; see also People v. Hayes, supra, 21 Cal.4th at p. 1268.)
But the stringent showing required for physical restraints like shackles is the exception, not the rule. Security measures that are not inherently prejudicial need not be justified by a demonstration of extraordinary need. (People v. Jenkins (2000) 22 Cal.4th 900, 995, 997; Duran, supra, 16 Cal.3d at p. 291, fn. 8.) In contrast to physical restraints placed on the defendant‟s person, we have upheld most other security practices when based on proper exercises of discretion. Thus, we concluded the use of a metal detector or magnetometer at the entrance of the courtroom is not inherently prejudicial. (People v. Jenkins, at p. 996; People v. Ayala, supra, 23 Cal.4th at pp. 252-253; see also Morgan v. Aispuro (9th Cir. 1991) 946 F.2d 1462, 1465 [use of a "security courtroom," with a partition and bars separating spectator section from court area, is not inherently prejudicial].)
And we have consistently upheld the stationing of security or law enforcement officers in the courtroom. (E.g., People v. Jenkins, at pp. 998-999; People v. Ainsworth (1988) 45 Cal.3d 984, 1003-1004; see People v. Miranda (1987) 44 Cal.3d 57, 114-115 [three officers accompanied a prosecution witness who was in custody].)
In Duran, we specifically distinguished shackling from the use of armed guards in the courtroom. (Duran, supra, 16 Cal.3d at p. 291, fn. 8.) We explained that unless the guards "are present in unreasonable numbers, such presence need not be justified by the court or the prosecutor. [Citations.]" (Ibid.) California courts have long maintained this distinction between the presence of security officers and the imposition of physical restraints. In People v. David (1939) 12 Cal.2d 639, 644, after a sheriff and his deputies accompanied the defendant into the courtroom, one deputy followed the defendant inside the rail and took a seat immediately behind him. The defendant claimed this action biased the jury in the same manner as shackling, but we disagreed, finding "nothing to show that [the deputy‟s] conduct prejudiced the defendant in any way." (Ibid.) In People v. Stabler (1962) 202 Cal.App.2d 862, 863, a defendant with a history of escaping from prison relied on shackling authorities in objecting to the presence of eight armed law enforcement officers in the courtroom. The Court of Appeal rejected his claim, noting the defendant "was under no close or obvious personal restraint in the presence of the jury." (Id. at p. 864.) The court observed, "Mere increase in the number of guards was by no means unreasonable in view of the indications that defendant sought to become the Houdini of Humboldt." (Ibid.) In People v. Ainsworth, supra, 45 Cal.3d at page 1003, ...