(Alameda County Super. Ct. No. H44218)
The opinion of the court was delivered by: Needham, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Bryan James Howick appeals from a judgment of conviction for attempted first degree premeditated murder and personal use of a deadly weapon. (Pen. Code, §§ 187, subd. (a); 664, 12022, subd. (b)(1).) He contends the court erred in proceeding with the trial in his absence, because he voluntarily refused to appear at the commencement of trial, as well as at all other stages of the trial. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A second amended information charged Howick with attempted first degree premeditated murder. (Pen. Code, § 187, subd. (a), 664.)*fn1 The information alleged that, in the commission of the offense, Howick personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly weapon (§ 12022, subd. (b)(1)). It was further alleged that Howick had a prior conviction for making criminal threats (§ 422), which constituted a prior strike (§ 1170.12, subd. (c); § 667, subd. (e)(1)) and a prior serious felony conviction (§ 667, subd. (a)), and that he served prior prison terms (§ 667.5, subd. (b)). Howick entered a plea of not guilty and denied the allegations.
A. Order for Physical Restraints
Before trial, the prosecutor sought an order that Howick be physically restrained during trial, in light of his past violent episodes. At the ensuing hearing, Alameda County Deputy Sheriff Ron Rodriguez testified to Howick's conduct at a March 2008 Marsden hearing before another judge. After the court denied the Marsden motion, the deputy asked Howick to leave the courtroom with him. Howick stared at the deputy, announced that the deputy was "just going to have to move" him, stood up and assumed a defensive stance. When Deputy Rodriguez tried to escort Howick out, Howick grabbed him and the two engaged in a struggle that the deputy characterized as one of the scariest and most violent he had ever experienced. Other witnesses testified to additional incidents of Howick's temper and violent outbursts.
The trial court found "there [was] an imminent necessity" to restrain Howick physically, citing Howick's quick temper, lack of anger management, and large size (estimated at "between I would say six-three and six-five, and . . . well over 250 pounds"). The court concluded that Howick's "fits of violence and rage really indicate that counsel, any jurors, the deputy sheriffs in this courtroom, the clerk, everybody would be in danger should Mr. Howick not be restrained."*fn2
The court intended to have Howick wear a waist restraint, with a curtain that would cover his lower body so the jury could not see it. Howick's left hand would also be restrained, and the court was willing to give an appropriate jury instruction in case it was visible to the jury. The prosecutor noted that that the jury would not be able to see it unless Howick chose to raise his left hand.
Defense counsel argued that the restraints would have a chilling effect on Howick's right to testify, and Howick had stated that he would not attend his trial in shackles. Howick himself added, "It's prejudicial. I waive my right to appear . . ." The court noted that if Howick wore long sleeves and kept his arm down, the jury would not see the restraints, and since he was right-handed he could still write and communicate with his attorney.
B. Howick's Refusal To Attend The Trial
A few days later on July 20, 2009, when the court was ready to call in the jury panel, Howick was present in the courtroom and represented by counsel. The court repeated its intention to shackle Howick and noted that defense counsel had indicated Howick's decision not to be present in the courtroom. Howick confirmed his decision. The court made sure Howick knew he had a right to attend the trial: "THE COURT: Okay. Mr. Howick, you understand you have a constitutional and statutory right to be present at your trial; you understand that? [¶] THE DEFENDANT: My concern is the bias the shackles are going to generate and I have a constitutional right to due process and this is a violation of my due process right, and I think it's unfair that I should be seen in shackles and give up the presumption of innocence for, in my mind there's no reason at all."
The court informed Howick that a speaker would be hooked up in a holding cell so he could hear the proceedings. The court then again asked Howick: "And you understand you do have a right to be present in the courtroom? I'm going to bring you out every morning and every afternoon and ask you if you have changed your mind and ask you if you want to come in; do you understand?" Howick confirmed that he understood and that he wanted the speaker hookup. The court asked, "And you do voluntarily waive your presence in front of the jury, at least for this first hearing, part of the trial?" Howick stated: "I waive my presence in front of the jury because I don't want them to know that I'm in custody and at the same time I don't want to be seen in shackles."
The prosecutor reiterated that a curtain would hide the waist shackles from the jury's view and no one would see the wrist shackle if Howick kept his left arm down. Howick then refused to attend the trial because he had not been able to get a haircut. He also complained that, although civilian clothes were available to him, they did not fit properly. He claimed that if he had clothes that fit, a haircut, and was not shackled he would appear in the courtroom and testify. Otherwise, he refused to appear even for jury selection.
Howick proceeded to give an extended explanation of his grievances with the jail and other matters. The court asked him again if he wanted to be present for jury selection, and Howick replied, "No, sir, your Honor, I don't want to be present. I'm not violent, I didn't commit this crime." The court arranged for Howick to hear the trial proceedings in a holding cell.
The prosecutor asked Howick to sign a written waiver form pursuant to section 977, but Howick refused. (See § 977, subd. (b)(1) [excusing defendant's presence during certain portions of trial upon a written waiver].)
Jury selection began later that same day. The trial court asked Howick if he wanted to attend the proceeding, and Howick responded, "I'm never going to come in here under the ...