San Bernardino County Super. Ct. No. FBA 4939, Judge: James A. Edwards.
The opinion of the court was delivered by: Werdegar, J.
A jury convicted defendant Richard Cameron Gamache of first degree murder with robbery, burglary, and kidnapping special circumstances, as well as various lesser crimes, for the 1992 abduction and killing of Lee Williams. (Pen. Code, §§ 187, 189, 190.2, former subd. (a)(i), (ii) & (vii), now subd. (a)(17)(A), (B) & (G).)*fn1 It thereafter returned a death verdict. On automatic appeal, we affirm the judgment as to Gamache's death sentence, but reverse in part to allow the trial court to correct error in Gamache's determinate sentences for his non-capital crimes.
Factual and Procedural Background
In November 1992, Richard Gamache, then 18 years old, was discharged from the Army. He returned to San Bernardino County, where his estranged wife, Tammy, lived. After he reconciled with his wife, they moved in with a minor friend, Thomas P., in Yermo while planning what to do next. Tammy Gamache had studied animal husbandry and loved horses, so the Gamaches decided to acquire horses and go to Washington to camp in the wilderness. Tammy Gamache had once lived next door to a Yermo couple, Lee and Peggy Williams, who owned horses; she told Richard Gamache about them.
Around December 1, 1992, Tammy Gamache talked with a friend, Melanie Foote, and Foote's grandparents about the Gamaches' plans to move to Washington with some horses. She indicated they were planning to buy horses soon and asked whether they could keep them temporarily at Foote's grandparents' ranch. Foote's grandmother agreed.
On the afternoon of December 3, Richard Gamache, Andre Ramnanan, and an acquaintance, Donald Gray, went target shooting in the desert outside Yermo. Gray testified he overheard Gamache and Ramnanan discussing plans to steal horses, a horse trailer, and a mobilehome and take them to Washington or Oregon to live off the land. Gamache and Ramnanan would tie the victims up and shoot them if they gave them any trouble.
Around 7:30 p.m. on December 3, the Gamaches borrowed the car of Randy Vojkufka, who was also staying at Thomas P.'s residence. They drove to the Foote ranch and confirmed arrangements to drop off horses and a horse trailer there later that evening, and to pick them up again in two days. They left the Foote ranch around 10:30 p.m.
After 11:00 p.m., Peggy Williams testified, she was awoken by a knock at the door of her home. She woke her husband, Lee Williams, and he answered the door. She got up a few minutes later and went to the kitchen. Tammy Gamache was using the phone; Thomas P. and Andre Ramnanan were standing with Lee. Richard Gamache came up behind Peggy, put his arm around her neck, and held a gun to her head. Ramnanan held a gun to Lee's head. Lee and Peggy Williams were made to lie facedown; Richard Gamache ordered Lee to cooperate or he would kill Peggy. Someone tied Peggy's hands behind her back with a shoelace.
Tammy Gamache asked where the horse halters and truck keys were and left. She later returned, reported she had hooked up the horse trailer, and asked Lee Williams about the horses' care and the location of their blankets and saddles.
Meanwhile, Richard Gamache and Ramnanan plundered the house, taking a television, videocassette recorder, camcorder, food dehydrator and vacuum sealer, jewelry, approximately $4,500 in cash, numerous guns, Lee's wallet, Peggy's watch, and the couple's wedding rings.*fn2 Throughout this process, they were laughing and having a good time. Richard Gamache asked for the pink slips (titles) to the Williamses' vehicles; Peggy Williams replied they did not yet have them because they were still making payments.
Richard Gamache and Ramnanan announced it was time to go. Gamache asked Lee Williams if anyone would miss them and how often people came to the house. Lee and Peggy Williams were taken barefoot, in their bathrobes, out to their motor home. Peggy asked if she could get shoes; Richard Gamache told her she would not need them. Gamache and the others turned out the lights and locked the doors.
In the motor home, Richard Gamache and Ramnanan bound and gagged the Williamses. Gamache drove; Ramnanan guarded them with a gun. Tammy Gamache drove the Williamses' truck and horse trailer. When they arrived at Thomas P.'s house, where Thomas P. was dropped off, they ungagged and untied Peggy Williams. The Gamaches dictated bills of sale for the Williamses' motor home, truck, trailer, and car; Peggy wrote them out and signed them. Lee Williams was also forced to sign them.
Richard Gamache resumed driving the motor home. After some time he stopped, and he and Ramnanan walked the Williamses from the roadside a short distance into the desert. Gamache made them lie facedown on the ground. He said, "Thank you and have a nice day" and shot Lee Williams in the head. He then shot Peggy Williams in the head. Gamache and Ramnanan questioned whether she was dead, shined a light in her eyes, and checked her pulse; Gamache then shot her again. Gamache and Ramnanan walked off and drove away. Peggy waited to confirm they were gone, unsuccessfully tried to get a response from Lee, and then walked toward the lights of a truck stop in the distance and called 911 when she got there.
When the police arrived, Peggy Williams described her attackers and provided license plate numbers for the stolen vehicles. Within an hour, the police located the motor home in a café parking lot nearby. They broke in and found it filled with stolen property from the Williamses' home. They then waited to see if anyone would return.
Shortly after 5:00 a.m., now on the morning of December 4, Richard and Tammy Gamache returned to the motor home in the Williamses' truck, having dropped off the horses and horse gear at the Foote ranch. They were arrested. In the truck, police found the murder weapon (a.32- caliber handgun), other weapons, a bag of cash, and the dictated bills of sale for the Williamses' vehicles. A search of Thomas P.'s residence the same morning turned up more weapons and jewelry, as well as bloody clothing. Tammy Gamache agreed to help the police find Lee Williams and took them to his body. She then took the police to the Foote ranch where they recovered the horses, horse trailer, horse equipment, and more guns.
Ramnanan was arrested late on the evening of December 4. Peggy Williams's car was found nearby.
Richard Gamache presented no witnesses, relying instead on cross- examination. In closing argument, he conceded he was guilty of murder, attempted murder, robbery, and burglary. He argued, however, that the jury should not convict him of kidnapping for robbery, as the robberies were already completed before the kidnappings, and that the jury should not find any special circumstances true, because the kidnappings, robberies, and burglary were all completed before he decided to shoot the Williamses.
The prosecution elaborated on the circumstances of the crime with further testimony from Peggy Williams, a 40-minute tape of Richard and Tammy Gamache and Andre Ramnanan jointly confessing on December 7 to the details of the crimes, and two police officers testifying to statements Richard Gamache had made about the crimes while in police custody.
The prosecution presented victim impact evidence from Peggy Williams. She described Lee Williams and their happy marriage, and how when he was shot and died in her arms she lost her "world." She described the flashbacks, anxiety, panic, and depression she had experienced since the shootings, and how she eventually left her job and her home. Peggy Williams's psychotherapist, Dr. Jennifer Reese, testified Williams had made little improvement in the years since the shootings and likely would never recover completely.
The prosecution introduced evidence of two other uncharged crimes by Richard Gamache in the month before the murder: an incident in which he had tied up a roommate, accused him of saying Gamache had not paid his rent, and then waterboarded him; and an incident in which he and Ramnanan had taken over a pizzeria at closing, robbed the employees, and emptied the cash register. During the robbery, Gamache held a knife to the throat of one employee and, after taking the wallet of another employee and noting his name and address, threatened to hunt him down and kill him if he went to the police.
The prosecution also presented evidence that Gamache had plotted an escape from prison while awaiting trial.
Richard Gamache called his mother, a psychiatrist who had examined his mother, and several psychiatrists who had examined him. Testimony about his childhood showed his mother had left his father when Gamache was in utero because the father's beatings had threatened a miscarriage. His mother had had Gamache when she was 17 years old. She had been abused by a series of other boyfriends and husbands in addition to Gamache's father, had been raped, had used drugs and become a prostitute, and had repeatedly tried to kill herself. Gamache and his mother moved frequently. He missed a year of school (fourth grade) to stay home and take care of his mother, who had had ovarian cancer and a hysterectomy. By age 10 or 11, Gamache was left alone at home to fend for himself several days a week. He eventually dropped out of high school, got his GED, and joined the Army, but was discharged in November 1992 for psychological reasons. He experienced feelings of anger and hopelessness as a result.
Gamache had a long history of dreams, fantasies, and delusions about engaging in violent behavior. Dr. Michael Kania testified Gamache had a borderline personality disorder, also known as a cycloid personality disorder or unstable personality disorder. He was highly impulsive and subject to rapid mood swings, with a great deal of underlying anger. Dr. Kania likened Gamache to a stick of dynamite and concluded he had a very serious mental disorder.
Dr. Lorna Forbes testified Gamache was legally insane at the time he shot the Williamses. She also concluded he was schizophrenic. Though he admitted planning to kill the Williamses from the beginning, this was the product of a delusional mind. Gamache was probably untreatable.
Richard Gamache, Tammy Gamache, and Andre Ramnanan were each charged with first degree murder with three special circumstances, murder during the commission of a robbery, murder during the commission of a burglary, and murder during the commission of a kidnapping. (§§ 187, 189, 190.2, former subd. (a)(i), (ii) & (vii), now subd. (a)(17)(A), (B) & (G).) They were also charged with attempted murder (§§ 187, 664), two counts of residential robbery (§ 211), residential burglary (§ 459), two counts of kidnapping for robbery (§ 209, subd. (b)), and firearm use enhancements (§ 12022.5, subd. (a)). They were tried jointly. A jury convicted each defendant of first degree murder and found all the special circumstances true. It also convicted each defendant of all the lesser offenses, found the firearm use enhancements true for Richard Gamache and Andre Ramnanan, and found them not true for Tammy Gamache.
At the penalty phase, the jury returned a verdict of death for Richard Gamache, a verdict of life for Andre Ramnanan, and could not reach a verdict for Tammy Gamache. The prosecution abandoned further attempts to seek the death penalty against Tammy Gamache, who was sentenced to life in prison without the possibility of parole. Discussion
A. Denial of Prosecutorial Recusal Motion (§ 1424)
Before trial, Richard Gamache moved to recuse the entire San Bernardino County District Attorney's Office. (§ 1424.) He argued the district attorney's office had a conflict because the surviving victim of the crimes, Peggy Williams, had been employed in the district attorney's office as a typist for 10 years. The trial court held a series of evidentiary hearings and concluded Gamache had failed to establish a conflict warranting recusal. We conclude the trial court did not abuse its discretion.
We recently reiterated the principles governing this claim. "Section 1424 sets out the standard governing motions to recuse a prosecutor: such a motion `may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.' (Id., subd. (a)(1).) The statute `articulates a two-part test: "(i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting?" ' " (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) Where, as here, a defendant seeks to recuse not just an individual prosecutor but also an entire prosecuting office, he must make an "especially persuasive" showing. (People v. Hamilton (1988) 46 Cal.3d 123, 139.) We review the trial court's decision to deny a recusal motion, even in a capital case such as this one, only for an abuse of discretion. (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 728-729.) Accordingly, we must determine whether the trial court's findings were supported by substantial evidence and whether, in turn, those findings support the decision to deny recusal. (People v. Vasquez (2006) 39 Cal.4th 47, 56.)
As to the first prong of section 1424, we agree with Gamache that the prosecution had a conflict; that is, there was "a reasonable possibility that [the prosecution's] impartial exercise of discretion might be affected...." (Haraguchi v. Superior Court, supra, 43 Cal.4th at pp. 717-718, fn. 13; see also People v. Conner (1983) 34 Cal.3d 141, 148 [A conflict exists "whenever the circumstances of a case evidence a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner."].) Peggy Williams was employed by the San Bernardino County District Attorney's Office as a transcriber/typist. She had worked for the district attorney's office for 10 years at the time of the crimes. She was a victim in the case and its most important witness, and remained deeply emotionally affected by these crimes. Moreover, the murder victim, Lee Williams, was her husband and thus related to a district attorney's office employee.
We have recognized this situation as a paradigmatic conflict. In People v. Superior Court (Greer) (1977) 19 Cal.3d 255, we considered a special circumstance murder case in which the victim's mother was a discovery clerk for the district attorney's office charged with prosecuting the case. The victim's mother's grief was evident to her co-workers; as well, she stood to be a material witness for the prosecution. (Id. at p. 259.) We concluded that where "[t]he victim of the homicide was the son of a member of the district attorney's staff who worked in the very office in which the prosecution was being prepared" (id. at p. 270), it was not an abuse of discretion to find a conflict (id. at p. 269). Similarly, in People v. Conner, supra, 34 Cal.3d at page 148, we recognized that where a deputy district attorney was a material witness to a shooting and himself potentially a victim, having possibly been shot at, these circumstances could pose a conflict for the district attorney's office. As well, in People v. Vasquez, supra, 39 Cal.4th at pages 57-58, we recognized that the fact a district attorney's office employed both the defendant's mother and his stepfather could give rise to a conflict. (See also Lewis v. Superior Court (1997) 53 Cal.App.4th 1277, 1283-1284 [conflict arising from the fact that every district attorney's office employee was necessarily a victim of the charged crimes].) Peggy Williams's roles as employee, victim, relative of a second victim, and witness created at least the possibility the San Bernardino County District Attorney's Office might be influenced in its discretionary decisionmaking.
However, the possibility that a prosecutor might be influenced does not alone establish the requisite likelihood or probability that a defendant will be treated unfairly. The trial court here conducted a two-day hearing. Based on all the evidence adduced, it concluded Gamache and his co-defendants had not shown a conflict rising to a level that would require recusal. Having reviewed that evidence, we conclude the trial court did not abuse its discretion because substantial evidence fully supports that conclusion.
The San Bernardino County District Attorney's Office is large, with 500 employees and 122 deputy district attorneys. Because of San Bernardino County's huge geographic spread,*fn3 the district attorney's office is divided into three administratively and operationally separate divisions. The murder occurred in the area covered by the Desert Division, where Peggy Williams worked, and was initially handled by prosecutors from that office. On December 7, 1992, Gamache was charged with first degree murder. On December 8, an amended complaint was filed adding special circumstance allegations. After the holidays, by January 7, 1993, the case was reassigned from Barstow in the Desert Division to San Bernardino in the Central Division, 70 miles away, and all further proceedings were handled by the Central Division.
We consider first whether the decision to charge Gamache with special circumstances and to seek the death penalty was likely to have been infected by the conflict. The record supports the trial court's conclusion that it was not, as the decision maker had no personal relationship with Peggy Williams and based his decision on input from others with no connection to Peggy Williams.
According to witnesses, District Attorney Dennis Kottmeier made the decision to retain the case as a special circumstances case and to seek the death penalty following a February 23, 1993, meeting with his chief deputies and the assigned prosecutor. Every witness testified that the decision to file special circumstances and seek death was Kottmeier's, and Kottmeier's alone. Kottmeier barely knew Peggy Williams. He had not hired her, had never had social contact with her, did not know her by name, and would have recognized her face only in context if he had seen her while visiting the Barstow office where she worked; he would not have recognized her if he had run into her on the street. He did not know Lee Williams at all. Kottmeier testified repeatedly that Peggy Williams's status as an employee of the district attorney's office played no role in his decision to seek death for Gamache.
The assigned prosecutor, Raymond Haight, prepared the initial recommendation to Kottmeier that the prosecution should seek the death penalty. He did not know Peggy Williams, and her employment status played no role in his recommendation.
The other attorneys who played advisory roles and consulted with Kottmeier on the decision to seek the death penalty testified similarly. Chief Deputies Richard Maxwell, James Hackleman, and Michael Kewin did not know Peggy or Lee Williams at all. Peggy Williams's status as an employee played no role in their discussions with Kottmeier about the case and in the decision to seek death. Notably, the one chief deputy who did know Peggy Williams, Dennis Christy,*fn4 immediately recognized his participation in the case could create a recusal problem, concluded he should have no role in any discretionary decisions, and took no part in the discussion during the February 1993 staff meeting at which Kottmeier decided to seek death. The record here thus stands in sharp contrast to People v. Vasquez, supra, 39 Cal.4th at pages 56-58, where uncontradicted evidence established that the defendant's relationship to employees of the district attorney's office played a role in the handling of the case and where, accordingly, we found recusal mandated.
Gamache argues it was error not to disregard this testimony because Kottmeier visited Peggy Williams in the hospital once, on the day she was shot, and later attended Lee Williams's funeral and offered Peggy Williams a word or two of condolence. Gamache also points out that Kewin, the chief deputy in charge of administrative services, spoke to the office's victim witness personnel about providing services to Peggy Williams. These actions demonstrate Kottmeier and Kewin were human and humane; they are not of the sort that would demonstrate Kottmeier inevitably must have been subconsciously influenced by Peggy Williams's employment status in deciding whether to seek the death penalty for Gamache. The trial court heard Kottmeier's testimony, and that of each of his deputies, and found the disavowals of any influence credible. It was entitled to do so.
Further, Gamache argues that Christy, the chief deputy who knew Peggy Williams well, critically affected the decision to seek the death penalty. The record does not support his argument. Gamache and his co-defendants were arrested on Friday, December 4, 1992, and Eric Nakata, the deputy district attorney initially responsible for the case, filed a felony complaint on Monday, December 7. Sometime in these first few days, Christy mentioned to Kottmeier a previous possible death case in which S. Donald Ames, Gamache's counsel, had created procedural difficulties by having his client plead guilty at arraignment, before any special circumstances had been added. Kottmeier directed Christy to avoid this possibility by having special circumstances filed immediately, and an amended complaint charging special circumstances was filed on December 8.
Notably, however, Kottmeier and Christy both testified that this early addition of special circumstances was purely procedural, to preserve the status quo and the option of seeking death. Kottmeier reserved judgment until more facts were known and did not decide to pursue the case as a special circumstance murder and to seek the death penalty until February 1993, after the preliminary hearing. Christy and Kottmeier testified, without contradiction, that Christy had played no role in any of the subsequent substantive discussions that led to Kottmeier's ultimate decision.
There is likewise evidence to support the trial court's conclusion that Peggy Williams's employment by the district attorney's office would not affect the subsequent conduct of trial. As noted, the San Bernardino County District Attorney's Office is unusually large and consequently is divided into administratively and operationally separate divisions. There is little to no employee mixing between these divisions. Within approximately one month, the case had been reassigned from the Desert Division in Barstow, where Peggy Williams worked, to the Central Division in San Bernardino, an office 75 miles away. Prosecutor Raymond Haight had never worked in Barstow and had never met Peggy Williams. Indeed, he was part of a career criminal prosecution group that was segregated on its own floor and had its own staff, even apart from the rest of the San Bernardino office. District Attorney Kottmeier established an ethical screen so no Desert Division employees would have any role in the case, and no evidence was advanced that would suggest such screens had not been or could not be effective. The record thus supports the trial court's conclusion that, because of the prompt steps taken to screen off prosecution of this case from those employees who might have any connection to Peggy Williams, there was no likelihood the conflict would lead to unfair treatment of Gamache at trial.
The size of the office and the ability of the San Bernardino County District Attorney's Office to set up effective ethical screens distinguish this case from those on which Gamache relies. (See People v. Vasquez, supra, 39 Cal.4th at p. 57 [emphasizing the significance of the size of a prosecutor's office in deciding whether recusal of the entire office is necessary]; In re Charlisse C. (2008) 45 Cal.4th 145, 163 [noting ethical screens may obviate the need to recuse an entire government law office]; City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 853 [same].) In People v. Superior Court (Greer), supra, 19 Cal.3d at page 270, we emphasized that the victim's mother "worked in the very office in which the prosecution was being prepared." In People v. Conner, supra, 34 Cal.3d at pages 148-149, we found it critical that the felony division of the district attorney's office consisted of only 25 attorneys; one of the 25 was a victim and a witness, and his experiences had been discussed pervasively throughout the office. And in People v. Choi (2000) 80 Cal.App.4th 476, 483, recusal was appropriate because no effective ethical wall was in place; though the district attorney's office had in theory set up such a wall, in practice the conflicted district attorney continued to communicate with others in the office about the case.*fn5 In light of the contrasting facts here, the trial court did not abuse its discretion when it declined to order recusal.
Gamache also argues that the trial court deprived him of his federal due process rights by denying recusal. (U.S. Const., 14th Amend.)*fn6 However, we have explained that section 1424's recusal standards are prophylactic in nature and "serve to prevent potential constitutional [due process] violations from occurring." (People v. Vasquez, supra, 39 Cal.4th at p. 59.) If recusal was properly denied under section 1424, ipso facto no due process violation occurred.
B. Imposition of Security Belt and Shackles
Gamache contends the trial court erred by requiring him to wear leg shackles and an electronic security belt during trial, in violation of his rights to a fair and reliable capital trial. (U.S. Const., 5th, 6th, 8th & 14th Amends.) We find no abuse of discretion.
" `[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. Wallace, supra, 44 Cal.4th at p. 1050.) The Fifth and Fourteenth Amendments to the federal Constitution bar the use of visible restraints "unless the trial court has found that the restraints are justified by a state interest specific to the particular trial." (People v. Stevens (2009) 47 Cal.4th 625, 633; see also Deck v. Missouri (2005) 544 U.S. 622, 629.)
In deciding whether restraints are justified, the trial court may "take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial." (Deck v. Missouri, supra, 544 U.S. at p. 629.) These factors include evidence establishing that a defendant poses a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in nonconforming behavior. (Id. at pp. 628-629, 633; People v. Stevens, supra, 47 Cal.4th at p. 633; People v. Seaton (2001) 26 Cal.4th 598, 651; People v. Duran (1976) 16 Cal.3d 282, 291.) If the record establishes restraints are necessary, a trial court should select the least obtrusive method that will be effective under the circumstances. (Duran, at p. 291.) These principles apply fully to the decision whether to require a defendant to wear an electronic security belt, also known as a stun belt, notwithstanding that such a belt may not be visible to the jury. (People v. Mar (2002) 28 Cal.4th 1201, 1219.)*fn7
Because a "trial court has broad power to maintain courtroom security and orderly proceedings" (People v. Hayes (1999) 21 Cal.4th 1211, 1269), we review decisions regarding the physical restraint of a defendant for abuse of discretion. (Ibid.; People v. Wallace, supra, 44 Cal.4th at p. 1050; People v. Ayala (2000) 23 Cal.4th 225, 253; People v. Duran, supra, 16 Cal.3d at p. 293, fn. 12.) "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. Stevens, supra, 47 Cal.4th at p. 633.) The imposition of restraints without evidence in the record establishing a threat of violence, escape, or nonconforming conduct is an abuse of discretion. (Duran, at p. 291.) Thus, we consider whether the trial court made the findings necessary to impose a particular security measure - that there was a manifest need, and that the measure chosen was the least obtrusive that would still be effective - and further whether those findings were supported by substantial evidence.
On June 22, 1995, the trial court held a pretrial hearing to address security measures. The People introduced evidence that in July 1994 Gamache's cell had been searched and he had been found with a hacksaw, 42 ounces of toothpaste,*fn8 plans for a homemade silencer, and a written escape plan. The five-step escape plan, which Gamache admitted writing, involved his (1) getting a saw blade, a lighter, and street clothes; (2) cutting his cell bars and making "didimow";*fn9 (3) committing a carjacking to get money and a car, and then either (a) going to "Spink's house," then Ord Mountain (the area where he and Ramnanan had taken target practice on December 3, 1992) to get a gun, or (b) if there happened to be a gun in the car already, going directly to Laughlin or Las Vegas, Nevada; (4) robbing a casino and changing his identity; and (5) buying equipment to "big hit" Bullhead (an airport outside Laughlin) or "St. Mary's" (unknown).
On May 13, 1995, just a month before the hearing, deputies at the jail where Gamache was being held searched an inmate who was about to be released and found a sealed letter he was attempting to smuggle out and mail on Gamache's behalf. The letter, to Gamache's mother, asked her to get a device to trigger the stun belt Gamache expected to wear at trial. Gamache believed this would result in a mistrial. Then Gamache could either escape from the hospital, with the help of outsiders "eddy and gene," or escape from court using equipment he would buy with money he would receive after successfully suing over being inadvertently shocked.
On May 17, just days later, deputies intercepted a second letter from Gamache to his mother, again asking her to get a device to trigger his stun belt, whereby he could obtain a mistrial and sue for "150 thou or so." Deputies interpreted both letters as asking Gamache's mother to get a device that might override the stun belt and allow Gamache to escape directly from the courtroom.
The People also presented testimony from the marshal in charge of security for the courthouse. He testified that security was hampered by the fact the courthouse had numerous public entrances, but no metal detecting equipment. He further testified that Gamache, alone among the three defendants, had been designated a high-security escape risk.
The trial court made an express finding that the evidence established a "manifest need to restrain [Gamache] in some fashion during trial in the presence of the jury." (See People v. Duran, supra, 16 Cal.3d at pp. 290-291.) It cited the escape plan and hacksaw found in Gamache's cell the previous year, as well as the two letters sent a month before the hearing, again plotting an escape. In part because of concerns that Gamache might use the stun belt itself as part of an escape plan, the court concluded ankle shackles, arranged so the jury would not see them, were the preferred means of restraint.
On August 7, 1995, at the People's request, the trial court held a second pretrial hearing to address Gamache's restraints. The People provided a marshal's report indicating that Gamache had been found with a homemade handcuff key a few days earlier. The People further indicated Gamache had been found with an elastic file fastener that he allegedly was seeking to shape into a weapon. Gamache admitted possession of the fastener, but argued the handcuff key had been planted in his shoe and, in any event, might not have worked to open his shackles. As a final point, the People represented that Gamache's mother, to whom his earlier escape letters had been directed, had gone to the Barstow marshal's office and said that if the trial had been in Barstow, she " `would have blown up the courthouse and everybody else.' "*fn10 Gamache conceded his mother had threatened to blow up a courthouse. Based on this, the People feared Gamache might still have outside help to assist in a potential escape.
In light of this additional record, the trial court made an express finding that use of a stun belt in addition to shackles was now appropriate, provided the stun belt was "properly concealed from the jury's view as much as possible." Defense counsel assured the court that they would make arrangements to ensure Gamache would be dressed in such a fashion as to conceal the belt.
The trial court did not abuse its discretion. It made express findings at both the June 22 and August 7 hearings that restraints were called for. Those findings were fully supported by evidence in the record establishing that Gamache was a genuine escape risk. The court considered in each instance the least obtrusive means that would suffice to address the perceived security problem Gamache posed, initially ordering just shackles that could be concealed from the jury. Only after Gamache and his mother had provided additional evidence that he remained an escape risk and that restraints impervious to picking with a homemade key were necessary, did the trial court order the stun belt. Even then, the court remained cognizant of the possibility for prejudice and took steps to ensure that the stun belt, like the shackles, would not be visible to the jury.
Before us, Gamache argues that the trial court should have discounted any possibility of escape as the product of a delusional mind. He further argues that he was never disruptive or violent in court. As to the first point, the record establishes his escape plans were not only in his head. The homemade handcuff key was real, and the trial court was permitted to disbelieve his protestations that the key was not his. So were the letters he wrote to his mother, asking for help in escaping. The trial court could credit testimony that indicated the threat of an escape attempt was genuine and could take into account that Gamache was devising ever-changing methods: a hacksaw, an electronic device to control his stun belt, a homemade handcuff key. His letters suggested he had become desperate in the face of the potential punishment he faced. Given time, Gamache might attempt anything. The trial court was entitled to prepare for that risk.
As to the second point, that he was never disruptive or violent in the courtroom, the People v. Duran, supra, 16 Cal.3d 282, requirement that the record establish a threat of violence, escape, or disruption is framed in the disjunctive. Where the record establishes a threat of escape, a defendant cannot plead no threat of violence or disruption, and vice versa; the banks he has not robbed do not excuse the banks he has. If any threat in one of these categories is established, a trial court is entitled to ...