COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 7, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DONALD CLARENCE SCHOONOVER, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Rodger W. Krauel, Judge. Affirmed.
The opinion of the court was delivered by: Benke, Acting P. J.
P. v. Schoonover CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found Donald Clarence Schoonover guilty of assault with a deadly weapon by means of force likely to cause great bodily injury. Schoonover appeals, contending the trial court prejudicially abused its discretion by: (1) allowing a defense witness to be shackled; and (2) denying his motion to dismiss a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We reject Schoonover's contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Schoonover and Michael Holland lived in a residential complex in downtown San Diego. Their respective rooms were across from each other. On November 22, 2008, Holland, Phillip Waldchen and a friend named Sam were smoking marijuana in Sam's room. Holland and Waldchen also drank some alcohol. After Holland and Waldchen got into an argument, Sam kicked them out of his room.
The following day, in the early morning, Holland dropped a container of pistachio shells in his room. He used a towel to sweep the shells out of his room and into the hallway so they could be picked up by a janitor. Schoonover confronted Holland about the shells on the floor and the men exchanged profanities. After the verbal exchange, Schoonover went into his room and returned holding a ball-peen hammer with a large handle. Holland claimed he was unarmed and had not made any threats.
Schoonover swung the hammer at Holland, and ultimately hit him in his shoulder area and lower back. Ols Bardhi, the front desk clerk, heard Holland's screams and went to investigate. He looked into Holland's open door, saw Holland on the floor in a defensive position, and watched as Schoonover hit Holland with an unknown object. Schoonover then returned to his room, and Bardhi left to call the police.
San Diego Police Officers Carl Pira and Joseph Pardue responded, and Holland told them that Schoonover had hit him on the left side of his torso with a hammer. Schoonover allowed Officer Pira into his room. Officer Pira found a large ball-peen hammer with a metal handle that weighed between four and five pounds. Officer Pira showed the hammer to Holland, who identified it as the weapon that Schoonover had used.
After being advised of his Miranda rights, Schoonover agreed to talk to Officer Pira. (Miranda v. Arizona (1966) 384 U.S. 436.) Schoonover told Officer Pira that he kicked Holland once as Holland stepped toward him. Schoonover never told the officers that Holland had come at him with a knife or his fists. Although the officers found a plastic bag in the hallway that contained a small four-inch knife and pistachio shells, Officer Pira did not collect the knife because Schoonover never claimed that Holland had brandished it.
Schoonover testified in his own defense at trial. He admitted that in 1988 he had been convicted of unarmed bank robbery, a felony, and in 1997 he was convicted of another felony, attempted carjacking. Schoonover generally testified that he karate kicked Holland once in the ribs because Holland had swung at him with a knife.
Waldchen testified as a defense witness at trial. He admitted that he had two felony burglary convictions, and the jury knew that he was currently incarcerated. After his scuffle with Holland, he returned to a room he had in the same building. Waldchen later tried to apologize to Holland, but Holland picked up a three-foot-long desk drawer and started swinging it. Although Holland did not hit Waldchen with the drawer, Holland asked him if he was scared. Waldchen had previously heard that Holland was a violent person, but he had not seen Holland in a fight.
A jury found Schoonover guilty of assault with a deadly weapon by means of force likely to cause great bodily injury, and found true the allegations that he: (1) personally used a deadly weapon; (2) personally inflicted great bodily injury upon Holland; and (3) personally inflicted great bodily injury on Holland, which is a serious felony. Schoonover later admitted he had two prior serious felony convictions. After the trial court denied Schoonover's request to strike his prior convictions, it sentenced him under the three strikes law to 25 years to life plus a determinate term of 13 years. Schoonover timely appealed.
I. Shackling of Defense Witness
The trial court held an Evidence Code section 402 hearing (the 402 hearing) regarding Waldchen's proposed testimony. At the conclusion of the hearing, the trial court sua sponte addressed the issue of Waldchen's restraints. After noting the general policy to not shackle witnesses, the bailiff informed the trial court that Waldchen was an inmate housed in administrative segregation, which required that he be shackled and have two deputies behind him in the courtroom. The following exchange occurred:
"THE COURT: I think a lesser way of doing it and meeting the requirement will be to keep his leg shackles on, which are not seen from underneath here, and take his upper body shackles off.
"Will that be satisfactory for the deputy?
"THE DEPUTY: We'll have the shackles on and the deputy standing behind him.
"THE COURT: But it won't be two deputies?
"THE DEPUTY: Right.
"THE COURT: We'll have him on the stand when the jury comes back in and we'll break and let him go."
The court went off the record after both counsel agreed to this procedure. After Waldchen testified before the jury, the court ordered a ten-minute recess.
A defendant may be subjected to physical restraint only upon a finding of manifest need based on affirmative facts. (People v. Vance (2006) 141 Cal.App.4th 1104, 1112.) Manifest need may arise from a showing that the defendant has threatened or assaulted other inmates, or otherwise engaged in violent, disruptive, or other nonconforming conduct. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032.) The People have the burden of establishing the manifest need for shackling. (People v. Prado (1977) 67 Cal.App.3d 267, 275.) The trial court must make its own independent determination of the need for physical restraints, and may not rely solely on the judgment of prison or court security personnel. (People v. Mar (2002) 28 Cal.4th 1201, 1218.) These rules also apply to the shackling of defense witnesses. (People v. Duran (1976) 16 Cal.3d 282, 288, fn. 4 (Duran).) We review a court's determination that restraints are necessary under the abuse of discretion standard. (Id. at p. 293, fn. 12.)
The erroneous shackling of a defense witness requires reversal only if "'it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.'" (People v. Ceniceros (1994) 26 Cal.App.4th 266, 278, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) The prejudicial effect of shackled witnesses in prison attire is less consequential because it does not directly affect the presumption of innocence or a defendant's decision to testify or communicate with his or her attorney. (Duran, supra, 16 Cal.3d at p. 288, fn. 4; People v. Ceniceros, supra, 26 Cal.App.4th at pp. 279-280.) Additionally, the detrimental impact of the restraints on the witness's credibility is lessened by the witness's status as an inmate. (People v. Ceniceros, supra, 26 Cal.App.4th at p. 281.)
Schoonover contends the trial court abused its discretion by requiring that Waldchen be shackled without any factual showing, and asserts that the jurors saw the restraints on Waldchen's hands or otherwise "heard" the chains. The Attorney General responds that Schoonover forfeited the issue on appeal by not objecting to the shackles. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583 [if defendant does not object at trial to the use of restraints, the failure to make a record below forfeits the issue on appeal].) We agree with the Attorney General.
Here, after the trial court discussed the issue with the bailiff, defense counsel agreed with the resolution and did not object to leg restraints hidden from the view of the jurors. Even if forfeiture does not bar the issue on appeal, the presence of the minimal restraints was harmless.
First, the record fails to support Schoonover's assertion that Waldchen had his arms or hands shackled, and that the jurors saw Waldchen's shackles or were otherwise aware of the physical restraints. As Schoonover points out, at the start of the 402 hearing, held outside the jury's presence, Waldchen wore upper body restraints because the court stated: "Sir, if you would raise your right hand as best you can." The court addressed the issue of Waldchen's restraints at the end of the 402 hearing, and clearly stated its intent that Waldchen's "upper body" shackles be removed, but that the hidden leg restraints could remain. While the deputy's response was somewhat vague, nothing in the record supports Schoonover's assertion that the upper body restraints were not removed before Waldchen testified before the jury, or that the jury could see or hear the leg restraints.
Where, as here, there is no evidence the jury was aware that a defense witness was shackled during trial, any error in the use of restraints is harmless. (People v. Tuilaepa, supra, 4 Cal.4th at pp. 583-584 [Supreme Court has "consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury"].) In any event, the jury knew that Waldchen was in custody. Moreover, Waldchen only addressed Holland's propensity for violence, did not observe the incident, and could not address the critical issue of whether Schoonover acted in self-defense. Thus, it is unlikely that Schoonover would have received a more favorable outcome had Waldchen testified without restraints. Accordingly, assuming error occurred, it was harmless.
II. Romero Motion
Schoonover asserts the trial court abused its discretion by refusing to strike his prior serious and violent felony convictions under Romeo based on his age (55), the periodic nature of his criminality, and his recent successful employment. (Romero, supra, 13 Cal.4th 497.) We disagree.
In imposing sentence under the three strikes law, the trial court has discretion to strike one or more of the defendant's prior violent or serious felony convictions in the interest of justice. (Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th 497.) In exercising its discretion, the trial court must consider whether, in light of the nature and circumstances of his present felonies and prior serious or violent felony convictions, and the particulars of his background, character, and prospects, the defendant is outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) A court's refusal or failure to strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) "[T]he circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the . . . scheme . . . .'" (Id. at p. 378.)
Schoonover's past criminal history includes three unarmed bank robberies in 1987, one of which Schoonover admitted as his first strike offense. He served 90 months in prison and received supervised release in 1994. In May 1996 his release was revoked and he served an additional nine months in prison. In 1996, he received a three-year prison term, and a second strike, when he attempted a carjacking by displaying a knife.
At the start of the hearing, the court stated its tentative decision to deny the request, but allowed counsel to argue the matter. After hearing argument, the trial court indicated that it had "thoroughly" reviewed all the issues, but could not conclude that Schoonover fell outside the spirit of the three strikes law. The trial court noted the progressive nature of Schoonover's conduct, from threatening to use a knife during the bank robbery, to displaying a knife during the attempted carjacking, to seeking out a weapon and then using the weapon on Holland.
Schoonover does not argue that the trial court failed to evaluate all the aggravating and mitigating factors; rather, he suggests that the trial court improperly evaluated all the factors and came to the incorrect result given the circumstances. To show an abuse of discretion, however, Schoonover must demonstrate the trial court's decision was irrational or arbitrary. "It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) Here, while reasonable people may disagree with the trial court's conclusion, Schoonover has not met his burden of showing that the decision was irrational or arbitrary. Accordingly, we cannot conclude the trial court abused its discretion in declining to strike one of Schoonover's prior strike convictions.
The judgment is affirmed.
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