APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed. (Super. Ct. No. INM187272).
The opinion of the court was delivered by: Ramirez P.J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant, Raul Sanchez, of the misdemeanor of indecent exposure (Pen. Code, § 314, subd. (1)). He was sentenced to local time and appealed to the appellate department of the trial court. The appellate department, in a per curiam opinion, reversed defendant's conviction because it concluded, although disagreeing with it, that it was bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, to follow an appellate court opinion which was not then final, and for which review before the California Supreme Court has since been granted.*fn1 The appellate department then certified the case for transfer to this court, pursuant to California Rules of Court, rules 8.1002 and 8.1005, and we granted the transfer. Since then, the California Supreme Court deferred action in the case for which it granted review, pending the outcome of People v. Stevens (2009) 47 Cal.4th 625 (Stevens), which has now been decided. We here reject defendant's contention that his right to a fair trial was violated by the security measures used during this trial and we affirm the judgment. Our decision is consistent with the recent holdings by the California Supreme Court in Stevens.
The facts will be discussed as they are relevant to the issue raised.
According to the record before us, a deputy followed defendant as he walked from his chair at counsel table to the witness stand. The deputy then variously stood or sat behind defendant, near the jury box, while defendant testified, being sure not to block the jury's view of defendant. He stood "at ease," his gun remained holstered and he did not have his hand on his belt. When defendant finished testifying, the deputy followed him back to his seat at counsel table. Although not specifically mentioned by the trial court, defendant was in custody throughout trial and was dressed in civilian clothes for it.
Defendant moved for a mistrial on the basis that the deputy's activities deprived him of a fair trial. The trial court denied his motion, finding that the deputy's positioning was no more prejudicial than having him in the courtroom. Additionally, the trial court said, "The deputy's obligation is to escort the [defendant] to the witness stand when we have a defendant, for the safety of the public and the Court, and the deputy is going to stand somewhere in the general vicinity of the defendant, and the jury knows he's the defendant in a criminal case. I'm sure they can conclude why we have a deputy in the courtroom to begin with."
Defendant contends that because the deputy's actions were not justified by manifest necessity, they deprived him of a fair trial. We disagree.
"[T]he right to a fair trial... does not mean... that every practice tending to single out the accused from everyone else in the courtroom must be struck down. Recognizing that jurors are quite aware that... defendant... did not arrive... by choice or happenstance, we have never tried, and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for allegedly criminal conduct.... [¶]... [H]owever[,]... certain practices pose such a threat to the `fairness of the factfinding process' that they must be subjected to `close judicial scrutiny.' [Citation.]... [¶]... [We do not believe that] the conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial is the sort of inherently prejudicial practice that... should be permitted only when justified by an essential state interest specific to each trial.... [¶] The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers' presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant's special status. Our society has become inured to the presence of armed guards in most public places.... [¶]... [I]t is possible that that the sight of a security force within the courtroom might under certain conditions `create the impression in the minds of the jury that the defendant is dangerous or untrustworthy.' [Citation.] However, `reason, principle and common human experience' [citation], counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial. In view of the variety of ways in which such guards can be deployed, we believe that a case-by-case approach is more appropriate. [¶]... [¶]... [T]he question must be... whether `an unacceptable risk is presented of impermissible factors coming into play.' [Citation.] [¶]... [Did the practice]... tend... to brand [defendant] in the eyes [of the jury] `with an unmistakable mark of guilt[?]' [Citation.]... [¶]... [¶]... [I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over." (Holbrook v. Flynn (1986) 475 U.S. 560, 567-572 (Holbrook).)
The United States Supreme Court in Holbrook concluded that the presence of four armed state troopers sitting in the front row of the spectators' section of the court room, in addition to the eight other officers present, were not "so inherently prejudicial that [defendant] was thereby denied his constitutional right to a fair trial" as he was being tried with five co-defendants. (Id. at p. 570.) The Court went on to hold, "[E]ven were we able to discern a slight degree of prejudice attributable to the troopers' presence..., sufficient cause for this level of security could be found in the State's need to maintain custody over the defendants who had been denied bail after an individualized determination that their presence at trial court not otherwise be ensured." (Id. at p. 571.)
A great deal has changed since the High Court's pronouncement in Holbrook that "[o]ur society has become inured to the presence of armed guards in most public places." (Id. at p. 569.) In fact, law-abiding citizens are routinely treated as suspected terrorists at airports, courthouses and other governmental buildings and suspected robbers at banks. At airports, the pulling aside of randomly chosen passengers for detailed questioning or more intrusive body searches in the presence of others is common, as is the forced removal of all passenger's shoes and the mandatory repeated showing of one's boarding pass and identification, the latter of which triggers others present to whisper, "Is that person a terrorist?" It is difficult to fathom that jurors, who are routinely subjected to such treatment, would look askance at an armed deputy near a testifying defendant.
In People v. David (1939) 12 Cal.2d 639, 644 (cited with approval in People v. Duran (1976) 16 Cal.3d 282, 291, fn. 8), the California Supreme Court rejected the defendant's contention that reversal of his conviction was appropriate because a deputy sheriff had seated himself immediately behind defendant as the latter sat at counsel table.
In People v. Marks (2003) 31 Cal.4th 197, 223, a marshal had been seated four to five feet from defendant, facing his side, as the latter testified. The California Supreme Court held, "Defendant cites [People v. ]Duran[, supra, 16 Cal.3d at p. 282] for the proposition that there must be a `manifest need' for the placement of the marshal so close to him as he testified. Duran imposed the manifest need standard for the use of physical restraints. [Citation.] Duran expressly distinguished such shackling from monitoring by security personnel.... The Duran holding encompassed not only the standard positioning of officers but also their unusual deployment, as is shown by its citation to People v. David.... The distinction between shackling and monitoring is long- standing.... People v. Harrington (1871) 42 Cal.165... was the primary authority on which Duran relied, and its reasoning indicates that courtroom monitoring by security personnel does not necessarily create the prejudice created ...