The opinion of the court was delivered by: Timothy Jbommer United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented in June 2004 to have a United States Magistrate Judge conduct all further proceedings in this case. Respondents consented on December 9, 2009.
Following a 2001 jury trial where Petitioner represented himself pro per, Petitioner was convicted of two counts of second degree robbery, attempted murder, assault with a firearm on a police officer and being a felon in possession of a firearm along with several enhancements under these charges. The jury also found true that the Petitioner was previously convicted of battery with serious bodily injury in 1992. Petitioner was sentenced to fifty years and four months imprisonment.
Petitioner raises several claims in this federal habeas petition; specifically: (1) the trial court violated Petitioner's constitutional rights when it required him to wear a stun belt during portions of his trial as well as a belly chain during the trial ("Claim I"); (2) Petitioner's constitutional rights were violated when he was denied access to the prison law library in preparing for trial ("Claim II"); (3) the trial court violated Petitioner's due process rights when it denied Petitioner's request for a live pre-trial lineup ("Claim III"); (4) the trial court erred when it refused to allow Petitioner to impeach a prosecution witness on a prior misdemeanor conviction ("Claim IV"); and (5) several claims involving Petitioner's 1992 prior battery conviction with serious bodily in violation of Cal. Penal Code § 243(d) including: (a) the prosecution failing to meet their burden of proof that the 1992 conviction satisfied the prior felony element on a conviction for being an ex-felon in possession of a firearm (see Pet'r's Traverse at p. 47.), (b) the 1992 prior conviction constituting a strike as a serious prior felony under California Three Strikes Law (see id.); (c) the trial court failing to conduct a jury trial that Petitioner had a prior conviction and that the 1992 conviction constituted a prior serious felony under California's Three Strikes Law (see id. at p. 49.); and (d) the use of the 1992 battery conviction as a strike violated the 1992 plea agreement (collectively "Claim V").*fn1 For the foregoing reasons, the petition is denied.
II. FACTUAL BACKGROUND*fn2
Kishor Patel and Jagit Bhandal were working behind the counter at Day's Market about 1:15 p.m. on July 1, 1998. A man entered the store wearing a mask. He walked behind the counter, pointed a black gun at Patel and Bhandal, and demanded money from the cash register. Bhandal put paper bills totaling approximately $400 in a blue bag the robber took from his pocket. The robber told Patel and Bhandal to go to a back room, then fled on a blue bike. Patel called 911 and gave the operator a description of the robber. Meanwhile, Sacramento Police Officer Charles Husted was on patrol in the Oak Park area in a K-9 unit. He received a radio dispatch about the robbery that described the suspect as a Black adult male, armed with a firearm, wearing a white t-shirt and black shorts, and riding a blue bicycle. Because the suspect had already left the robbery scene, Husted decided to look for him in the surrounding neighborhood. He saw defendant, a black male, on a blue bike near the corner of 16th Avenue and Temple. Husted was not "100 percent convinced" that defendant was the robbery suspect, because he was wearing a white multi-colored t-shirt and light-colored pants. As Husted approached, defendant got on his bike and started to ride away. At that point, Officer Husted grabbed defendant by the armah to stop him from leaving. Defendant resisted and drew a gun from his pocket as Husted was calling for backup. A struggle ensued but Officer Husted was unable to take defendant's gun. Defendant aimed and fired at Husted from close range and the officer shot back. Defendant's second shot hit Husted in the shoulder as he was retreating to safety behind his patrol car. As defendant continued to fire, Husted released his dog and the dog subdued the defendant.
Officer Joseph Kuzmich took Patel to the place defendant had been detained. Paramedics had started cutting off defendant's pants, revealing a blue zipped bag filled with money, and the same clothes the robber had worn. Recognizing the man's eyes, forehead and dress, Patel identified defendant as the robber. He stated the gun carried by defendant was similar to the one used in the robbery. Patel also identified the blue bag. The bag contained $333 in cash and two $5 food stamps. (Slip Op. at p. 3-4.)
A jury trial convened in 2001 and Petitioner was convicted on two counts of second degree robbery, one count of attempted murder, assault with a firearm of a police officer and being a felon in possession of a firearm. Petitioner appealed his convictions to the California Court of Appeal, Third Appellate District. That Court denied Petitioner's direct appeal in a written opinion on May 19, 2003. On July 30, 2003, the California Supreme Court summarily denied the petition for review.
Petitioner first filed a federal habeas petition in 2004. Subsequently several amended habeas petitions were dismissed/stayed so that Petitioner could fully exhaust his claims in state court. In April 2005, the California Supreme Court summarily denied Petitioner's state habeas petition. Between 2004 and 2009, Petitioner filed several state habeas petitions all of which were denied. Petitioner filed his fourth federal amended habeas petition in June 2009. The Respondents answered Petitioner's fourth amended federal habeas petition on March 9, 2010. With respect to Claim V, Respondents alleged that it was not exhausted. (See Resp'ts' Answer at p. 12.) Respondents also argued that Petitioner was not entitled to federal habeas relief on all of his claims on their merits.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The California Court of Appeal analyzed Claims I-IV on the merits in its decision on direct appeal.*fn3
With respect to Claim V, Respondent argues that it is unexhausted as Petitioner never raised this Claim to the California Supreme Court. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). Petitioner never raised Claim V to the California Supreme Court so it is deemed unexhausted. Nevertheless, unexhausted claims may "be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies in the courts of the State." 28 U.S.C. § 2254(b)(2). A federal court considering a habeas corpus petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable." See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).
V. PETITIONER'S CLAIMS FOR REVIEW
In Claim I, Petitioner alleges that his due process, fair trial, presumption of innocence and counsel rights were violated when the trial court required Petitioner to wear an electric stun device during trial. The California Court of Appeal analyzed this Claim in its opinion on direct appeal and stated the following:
The court granted a sheriff's department request for security measures to include the use of a belly chain while defendant was seated and the use of a "REACT" belt while defendant was standing to present opening and closing argument to the jury. [FN2] Based on defendant's prior violent and insubordinate conduct and "most notably, assaultive conduct on a peace officer," it found "a demonstrative need for additional security precautions above and beyond those typically used . . . ." [FN2] "REACT" stands for "Remote Electronically Activated Control Technology." (People v. Mar (2002) 28 Cal.4th 1201, 1214 (Mar).) The belt is described as follows: "'Stun belts are used to guard against escape and to ensure courtroom safety. . . . The type of stun belt which is used while a prisoner is in the courtroom consists of a four-inch-wide elastic band, which is worn underneath the prisoner's clothing. This band wraps around the prisoner's waist and is secured by a Velcro fastener. The belt is powered by two 9-volt batteries connected to prongs which are attached to the wearer over the left kidney region. . . . [Citations.] [¶] The stun belt will deliver an eight-second, 50,000-volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt's metal prongs may leave welts on the wearer's skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures. [Citations.]'" (Id. at pp. 1214-1215.)
Defendant did not challenge the belly chain at trial and does not attempt to do so here. Instead, he argues the court abused its discretion in ordering use of the REACT belt based on a showing he had engaged in violent behavior outside the courtroom. Defendant says its use -- involving the threat of a severe shock -- hampered his ability to represent himself in propria persona at trial and violated his constitutional rights to due process, counsel, and a fair trial. We conclude the record supports the court's ruling and there was 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. Duran (1976) 16 Cal.3d 282, 290-291 (Duran); see also Mar, supra, 28 Cal.4th at p. 1205 ("general principles set forth in Duran that apply to the use of traditional types fo physical restraints also apply to the use of a stun belt"].) A record of violence does not alone justify restraints. (People v. Cunningham (2001) 25 Cal.4th 926, 986.) Instead, the record must demonstrate violence or a threat of violence or other nonconforming conduct. (Duran, supra, 16 Cal.3d at p. 291.) Nonconforming conduct may include "a showing that he plans . . . to disrupt proceedings by nonviolent means. Evidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained may warrant the imposition of reasonable restraints if, in the sound discretion of the court, such restraints are necessary." (Id. at pp. 292-293, fn. 11.) Manifest need is demonstrated in a variety of circumstances (id. At p. 291), and we will affirm the trial court's ruling absent abuse of discretion (People v. Medina (1995) 11 Cal.4th 694, 731).
Defendant maintains he never "became violent, abusive, or threatening" in the trial court proceedings and notes that on one occasion he himself asked to be removed to a holding cell when he became upset about a court ruling. The record generally supports defendant's characterization of his behavior in court up to the time of the sentencing hearing. However, defendant's actual conduct at trial is irrelevant to the question whether the pretrial record supports a finding of "manifest need" for the REACT belt during opening and closing argument.
Sheriff's Deputy William Imhof, the trial bailiff, represented that defendant had "a local history of convictions for batteries with great bodily injury, resisting arrest and obstructing justice . . . ." While in custody for the offenses at issue in this appeal, he had 11 jail write-ups. The most recent, in February 2001, involved an assault on another inmate while both were wearing belly chains. Imhof said that "when officers were wanting to break it up and separate them, [defendant] still continued to try to fight and was kicking the other inmate, so he didn't just stop." One write-up was for an assault on an officer at the jail "in which [defendant] beat him enough where they had to transport him to the hospital." Another write-up involved inciting a riot. Deputy Imhof stated that defendant was a member of a prison gang known for its violence and resistence to authority. We conclude this evidence supports the court's determination there was a danger that defendant's nonconforming conduct would disrupt the trial proceedings if unrestrained. (Duran, supra, 16 Cal.3d at p. 292, fn. 11.)
In any event, defendant was not prejudiced by the use of the REACT belt during his opening and closing argument. "The guidelines imposed by People v. Duran, supra, 16 Cal.3d at page 290, are intended, in large part, to avoid prejudice in the minds of jurors where a defendant appears or testifies in obvious restraints, or where the restraints deter him from taking the stand in his own behalf." (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.) There is ordinarily no prejudice where the jury has only brief glimpses of the defendant in shackles inside or outside of the courtroom. (Duran, supra, 16 Cal.3d at p. 287, fn.2.) Here, we find nothing in the record to show that the jurors were aware defendant was wearing a REACT belt while addressing them from the podium. The REACT belt was not activated during defendant's statements to the jury.
At the hearing on the sheriff's department request for restraints, defendant complained about a different kind of prejudice: "[H]aving something like [the REACT belt] attached to my person while I am under a very serious point in my life, fighting for my life, and he places a belt that will deliver shock, that will be on my mind the whole time I am here. [¶] I don't see how I will focus on the case to deliver myself a fair trial or presentation in trial while I am siting here worrying about this belt or if this officer believes that I am beginning to get hostile or something. [¶] At certain times in my delivery of opening statements or closing arguments, I may raise my voice. This officer might give me a shock. I am going to be worried about that, and it will affect my presentation and how I present my case." Citing Mar, supra, 28 Cal.4th at page 1225, footnote 7, defendant emphasizes on appeal that in "the improper use of a stun belt, . . . the greatest danger of prejudice arises from the potential psychological effect of the device upon the defendant rather than from the visibility of the device to the jury." We conclude defendant fails to show that he was, in fact, prejudiced by being required to wear the REACT belt.
In Mar, the court required the defendant to wear the REACT belt during his trial testimony. (Mar, supra, 28 Cal.4th at pp. 1208, 1213.) The trial court ruled it was in defendant's best interest "to testify as a reasonable person, without exhibiting any lapses in self-control." (Id. at p. 1213.) The Supreme Court held this was insufficient grounds for restraint under Duran, and concluded the trial court abused its discretion in overruling defendant's objection to the REACT belt. (Id. at p. 1223.) Turning to the question of prejudice, the Supreme Court noted that it was "impossible to determine with any degree of precision what effect the presence of the [REACT] belt had on the substance of defendant's testimony or on his demeanor on the witness stand," but concluded it had "at least some effect on his demeanor. . . ." (Id. at p. 1225.) The Supreme Court cited the relative closeness of the evidence, which turned completely on the jury's evaluation of defendant's credibility, and the crucial nature of defendant's demeanor while testifying and ruled the trial court's error was prejudicial under either the Watson or Chapman standards. (Mar, supra, at p. 1225.) This case differs from Mar in several respects. First, defendant wore the REACT belt only during argument and did not testify at trial. Second, apart from defendant's comment at the start of opening statement that he was "a little nervous today," there is nothing in his presentations to the jury to suggest he was overly anxious or that his nervousness was caused by the REACT belt. In a lengthy closing argument, defendant presented his theories of defense using detailed references to trial testimony and a visual presentation of the exhibits. Third, this was not a close case that turned on defendant's credibility. There were witnesses to the robbery at Day's Market and the assault on Officer Husted. In addition, the blue bag containing $333 in cash plus food stamps was found in defendant's possession. (Slip Op. at p. 4-10.)
Respondents argue in their answer that Petitioner "is barred from obtaining relief in light of the absence of clearly established Supreme Court precedent concerning the use of stun belts that are not visible to the jury." (Resp'ts' Answer at p. 18.) A similar argument was made in Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003). In Gonzalez, 341 F.3d at 904, the issue was whether restrictions on the use of stun belts constituted a "new rule" as used in Teague v. Lane, 489 U.S. 288 (1989). As the Ninth Circuit explained, under Teague, "a new rule of criminal procedure is retroactive if it 'places certain kinds of primary, private individual conduct beyond the power of criminal law-making authority to proscribe,' or if the rule 'requires the observance of those procedures that . . . are implicit in the concept of ordered liberty.'" Gonzalez, 341 F.3d at 904 (quoting Teague, 489 U.S. at 311). Where "the rule a habeas petitioner seeks to assert can be meaningfully distinguished from that established by binding precedent at the time his state court conviction became final, the rule is a 'new' one, typically inapplicable on collateral review." Id. (internal quotation marks and citations omitted). However, if "the rule cannot be so distinguished, the rule is not of 'new' ilk and is, as a result, applicable in the habeas context." Id. (citing Torres v. Prunty, 223 F.3d 1103, 1110 (9th Cir. 2000); Graham v. Gilbert, 506 U.S. 461 469 (1993); Bailey v. Newland, 263 F.3d 1022, 1030 (9th Cir. 2001)). Ultimately, the Ninth Circuit held that the Supreme Court has long imposed constitutional limits on the use of physical restraints at trial, and determined that Supreme Court precedent was not just confined to a particular type of restraint. See id. Otherwise, the Ninth Circuit reasoned: a new rule of criminal procedure would obtain every time there was a technological advance in the design of prisoner restraints.
The form of the physical restraint, however, is irrelevant to the application of the constitutional standards. It matters not whether the restraint takes the form of handcuffs, gags, leg shackles, ropes, straight jackets, stun belts or force fields. The relevant constitutional questions are identical and dictated by a long line of case law. In short, the applicable rule in this case was dictated by precedent existing at the time [Gonzalez's] conviction became final.
Id. at 904-05 (internal quotation marks and citations omitted).
Even though the Ninth Circuit's reasoning in Gonzalez seems to foreclose Respondents' argument that there is no clearly established Supreme Court precedent on the use of non-visible stun belts at trial, Respondents argue that Gonzalez is no longer controlling in light of the Supreme Court decision in Carey v. Musladin, 549 U.S. 70 (2006). In Musladin, the Supreme Court analyzed whether the state court holding was contrary to or an unreasonable application of clearly established federal as determined by the Supreme Court when it held that a defendant's fair trial rights were not violated when the victim's family wore buttons of the victim at defendant's trial. See 549 U.S. at 72. Ultimately, the court differentiated previous cases involving state-sponsored courtroom practices, such as wearing identifiable prison clothing at trial, see Estelle v. Williams, 425 U.S. 501 (1976) as well as the seating of uniformed state troopers immediately behind the defendant at trial, compared to the effect of a defendant's fair trial rights on spectator conduct at trial. See Musladin, 549 U.S. at 76. The Supreme Court stated that it: has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial. And although the Court articulated a test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectator's conduct. Indeed, part of the legal test of Williams and Flynn -- asking whether the practices furthered an essential state interest -- suggest that those cases apply only to state-sponsored practices.
Id. Ultimately, the Supreme Court determined that: [g]iven the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." § 2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators' conduct here. Therefore, the state court's decision was not contrary to or an unreasonable application of clearly established federal law.Id. at 77.
As previously stated, Respondents assert that Musladin narrowed what is to be considered "clearly established Federal law." However, the Supreme Court in that case was clear to delineate the difference between state-sponsored courtroom practices and spectator courtroom conduct. Here, the Ninth Circuit in Gonzalez laid out the Supreme Court precedent regarding the use of physical restraints and applied this "clearly established" law to the use of a stun belt. Furthermore, the Ninth Circuit determined that the applicable rule was not barred by Teague, and was dictated by existing precedent. See Gonzalez, 341 F.3d at 904-05. Respondents' arguments notwithstanding, for the reasons outlined in Gonzalez, Petitioner's stun belt claim rises to the level of an issue asserting that the state court's decision was contrary to or an unreasonable application of clearly established federal law. See, e.g., Hill v. Campbell, Civ. No. 05-4514, 2010 WL 4696636, at *5 (N.D. Cal. Nov. 10, 2010). Thus, the merits of this Claim will be analyzed.
Petitioner asserts that wearing the stun belt during the opening and closing arguments hampered his ability to represent himself at trial due the profound psychological effects of wearing the belt. Stun belts are an alternative method of prisoner restraint to shackles. See Gonzalez, 341 F.3d at 899. "As with all forms of physical confinement during trial, the use of stun belts raises a number of constitutional concerns." Id. For example, the sight of physical restraints might have a significant effect on the jury and could impede a defendant's ability to communicate with his counsel and participate in his defense. See id. at 899-900. Furthermore, the use of physical restraints might also confuse and embarrass a defendant which would impair his mental faculties. See id. at 900. (citations omitted). As noted by the Ninth Circuit: "'[i]n all [ ] cases in which shackling has been approved,' we have noted, there has been 'evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities.'" Id. (quoting Duckett v. Godinez, 67 F.3d 734, 749 (9th Cir. 2003).
In Gonzalez, the Ninth Circuit stated the following with respect to stun belts:
The use of stun belts, depending somewhat on their method of deployment, raises all of the traditional concerns about the imposition of physical restraints. The use of stun belts, moreover, risks "disrupt[ing] a different set of a defendant's constitutionally guaranteed rights." United States v. Durham, 287 F.3d 1297, 1305 (11th Cir. 2002). Given "the nature of the device and its effect upon the wearer when activated, requiring an unwilling defendant to wear a stun belt during trial may have significant psychological consequences." Mar, 124 Cal.Rptr.2d 161, 52 P.3d at 97. These "psychological consequences," id., cannot be understated. Stun belts, for example, may "pose[ ] a far more substantial risk of interfering with a defendant's Sixth Amendment right to confer with counsel than do leg shackles." Durham, 287 F.3d at 1305. We have long noted that "one of defendant's primary advantages of being present at trial[ ] [is] his ability to communicate with his counsel." Spain [v. Rushen], 883 F.2d , 820 [(9th Cir. 1995)]; see also Kennedy v. Cardwell, 487 F.2d 101, 106 (6th Cir. 1973) (asserting that restraints confuse mental faculties and thus abridge a defendant's constitutional rights). Stun belts may directly derogate this "primary advantage[ ]," Spain, 883 F.2d at 720, impacting a defendant's right to be present at trial and to participate in his or her defense. As the Eleventh Circuit . . . observed, "[w]earing a stun belt is a considerable impediment to a defendant's ability to follow the proceedings and take an active interest in the presentation of his case." Durham, 287 F.3d at 1306. "The fear of receiving a painful and humiliating shock for any gesture that could be perceived as threatening likely" hinders a defendant's participation in defense of the case, "chill[ing] [that] defendant's inclination to make any movements during trial -including those movements necessary for effective communication with counsel." Id. at 1305341 F.3d at 900. A decision to use a stun belt at trial is subjected to the same close judicial scrutiny required for imposing other physical restraints. See id. at 901. Before a court orders the use of a physical restraint on the defendant at trial, "'the court must be persuaded by compelling circumstances that some measure [is] needed to maintain the security fo the courtroom," and, as noted, "the court must pursue less restrictive alternatives before imposing physical restraints.'" Id. (quoting Morgan v. Bunnel, 24 F.3d 49, 51 (9th Cir. 1994)).
Before trial, the trial judge heard arguments from the bailiff and the Petitioner on the request to use a stun belt:
THE BAILIFF: Judge, Mr. Muhammad, also known as Nicholas Edwards, just in addition to the charges in this case, 211 and attempted murder on a Sac PD officer, he has a local history of convictions for batteries with great bodily injury, resisting arrest and obstructing justice, quite a few arrests and convictions for that. And in this custody period, which has extended from, I think, July of 1998, he has 11 jail write-ups; and those are violations of jail rules, so what happens is, you get written up and administrative action is taken.
The latest one was on February 9th of this year, which was an assault on another inmate; and basically the gist of that write-up was, while Mr. Edwards and another inmate were both in belly chains, they got into a fight.
And when officers were wanting to break it up and separate them, inmate Edwards still continued to try to fight and was kicking the other inmate, so he didn't just stop. It was a continuous thing.
Of those 11 write-ups, six were for insubordinate behavior. That is the kind of behavior -- whether to fail to lock down when the officer orders him to lock down, comply with nurses, come in from recreation or quit visits, disruptive behavior, stuff like that, that tends to totally disrupt the jail functions.
I think -- not in this custody period that I can recall but in his previous custody period, he had a number of the same type of write-ups, same type of behavior problems. In fact, one was for an assault on an officer in the jail in which he beat him enough where they had to transport him to the hospital.
Another one was for inciting a riot. I don't recall the specifics of that, other than he was encouraging other inmates to act out like he was, to disrupt whatever activity was going on. I don't know if it was lunch or feed or what.
Let's see. He also is a member of a prison gang, Anasar El Muhammad. What happens, members take on that name, the aka. That gang is known for their violence and their resistence to authority . . . .
And it's well-known throughout the jails and prisons that that's the type of behavior exhibited by these gangs and encouraged by their members.
So we would request that he remain -- some kind of security measures remain for the safety and security of the courtroom. Many times we are short-handed so we can't necessarily have two escort officers. Sometimes it is hard enough just to get one.
So measure that I would request would be like for proceedings like today, days that we are just doing testimony or motions, that he remain chained to the chair, both hands free, shackles off but still remain chained to the chair.
Maybe it will encourage him to maintain his composure and if something was to happen, then whatever escort officer and myself, if I am the bailiff, you know, it will give us time to react.
If he does opening statements and you decide to let him stand at the podium or closing arguments, something of those natures, I think the options would be . . . the react belt . . . . It is the same type of react belt we used to have. We could have that. It fits under the type clothes on the legs so it is not visible, intrusive of his looking like an out-of custody person at the time.
And probably having two deputies escort, one in the back so he is not readily -- you know, eyes look beyond the jury and myself also. I could be in the well.
Just those precautions to take to prevent anything from happening or to encourage composure in the court.
THE COURT: All right, Deputy Imhof is the regularly assigned bailiff for this court, and you secured that information in view of the Court's records?
THE BAILIFF: The jail computer system for all the write-ups, local criminal history.
THE DEFENDANT: I would just like to say the write-ups that he is referring to, where are they? Write-ups that you are referring to, do you have them?
THE BAILIFF: Yeah, I have copies and they are on the computer. There is always a permanent record.
THE COURT: It is my understanding that the deputies at the time of any incident make a record that is maintained by the Sheriff's Department. Is that correct?
THE BAILIFF: Yes, as a matter of fact, a copy is given to the inmate when they have their administrative hearing; and they sign it and it ...