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The People v. Arturo Jesus Hernandez

February 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ARTURO JESUS HERNANDEZ, DEFENDANT AND APPELLANT.



Ct.App. 1 A119501 Super. Ct. No.050707604 Contra Costa County

The opinion of the court was delivered by: Corrigan, J.

In People v. Stevens (2009) 47 Cal.4th 625, 638 (Stevens), we held that the stationing of a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice that must be justified by a showing of manifest need. We explained, however, that the trial court must exercise its own discretion and determine on a case-by-case basis whether such heightened security is appropriate. (Id. at p. 642.) Here, the trial court did not make a case-specific decision but instead deferred to a general policy when it stationed a deputy at the witness stand during defendant's testimony. The court erred, but the error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson).

BACKGROUND

Deva Belarde first met defendant outside the senior center in Antioch where she did volunteer work. About a week and a half later she saw him outside Lone Tree Liquors. She invited defendant to her house because he looked tired and dirty and she thought he might be hungry. Belarde said she did this "a lot of times with people," and defendant "seemed to be friendly." They walked to her house, drank, and talked for 20 or 25 minutes. Defendant left when Belarde's fiancee asked him to go.

Around 10:00 p.m. the next night, March 11, 2007, Belarde saw defendant sitting outside the same liquor store. He was drinking beer and asking people for money. Belarde sat and talked with defendant for more than an hour. She drank from a half-pint of vodka and from a beer that defendant bought her. Belarde had also consumed one 40-ounce beer around 2:00 p.m. and another around 6:00 p.m. She did not begin feeling intoxicated until she drank the vodka. Defendant eventually left for the bus stop. Belarde followed. She thought she should accompany defendant because he was "staggering somewhat." Defendant, however, wanted to walk alone. Belarde walked with defendant and put her hand on his shoulder. At one point, defendant loudly insulted Belarde and accused her of being a prostitute. Upset, she pushed him and turned to walk away. Defendant grabbed her by the arm, turned her around, and punched her in the left eye. Belarde became dizzy and shoved defendant from behind. Defendant shoved back, hit Belarde on the side of the face with a "stick" or "branch," then ran off. Belarde fell down bleeding. She managed to get up and walk to a nearby gas station, where she fell again. She later identified the branch defendant had used to hit her.

Antioch Police Officer B. J. Hewitt arrived at the Valero gas station on Lone Tree Way about 10:25 p.m. Several officers were already on the scene and an ambulance was departing. After a brief search, Hewitt and other officers found defendant sitting between some shrubs, 200 to 300 yards from the gas station. His knuckles were bleeding, his forearm was scraped, and he smelled of alcohol. He was arrested without incident.

Belarde testified that she did not have a weapon with her and did not punch, kick, or slap defendant or try to take his wallet. She was 49 years old, stood four feet 11 inches tall, and weighed about 155 pounds. Defendant was five feet six inches tall and 175 pounds. The amount of alcohol Belarde had consumed that day was normal for her, and she did not feel "out of control." Although Belarde denied having blackouts or seizures related to alcohol consumption, her medical records reflected several such incidents. She had been unemployed for approximately three years. On cross-examination, Belarde did not recall many details about statements she made to medical and police personnel after the incident. She explained she had been "blocking out things" and trying to forget the incident. She did not think alcohol had affected her memory.

Paramedic Jennifer Matthews treated Belarde at the scene. Belarde said she had been hit once in the face with "a stick or a branch . . . by a man who was trying to rob her." Belarde said she had consumed a quart of beer. Belarde appeared upset but not confused. She had bruising and swelling around her left eye and lip and two cuts in those areas. Belarde told the paramedic she had not lost consciousness. Photographs taken after the incident showed swelling and bleeding around Belarde's left eye, but the injuries did not require stitches or surgery. At trial, she still felt swelling and pain to the touch on her cheekbone and temple. She had difficulty sleeping and continued to feel an "extreme amount of stress" from the incident. Contrary to what she told the paramedic at the scene, Belarde testified that she lost consciousness on the night of the assault, though she did not know for how long.

When Officer Hewitt took a statement from Belarde at the hospital, she smelled strongly of alcohol and appeared "very upset, traumatized" from the incident. She was shaking and her face was bruised and bleeding. In an interview that was played for the jury, Belarde said defendant had gotten drunk and wanted to go home to his daughter's house. When she tried to walk him to the bus, he "snapped" and hit her in the face. She said defendant hit her three to five times with his fists and then once with a stick. Belarde denied asking defendant for money, saying defendant had tried to borrow money from her.

Hewitt looked for the stick along the route Belarde described but did not find it. The next day, Antioch Police Officer Steve Bergerhouse searched the area where the assault occurred. Near the assault site, he found one long stick, three to four feet long and half an inch in diameter. He found a shorter stick, about a foot long and three-quarters of an inch across, on an embankment behind the Valero gas station. This stick did not match the nearby trees. Belarde identified the shorter stick as the one used in the assault. There was no blood on the stick and it was not tested for DNA.

Officer Bergerhouse interviewed Belarde on March 19. She seemed "frail" and "very shaky" but did not smell of alcohol. Her left eye was swollen closed, the left side of her face was bruised, and her hands trembled. Belarde told the officer that defendant said he had $50 and had heard that she was a prostitute. At one point, defendant "snapped" and began punching her. She tried to cover her face and did not hit back. Defendant then picked up a wooden stick and hit her face with it. Officer Bergerhouse acknowledged that there were some inconsistencies between what Belarde told him and the statements she made to Officer Hewitt and to medical personnel. Bergerhouse did not ask Belarde about the inconsistencies. In his experience, victims' stories "tend to waiver" in the retelling. Belarde's injuries, statements, and medical records were consistent with what Bergerhouse found during his investigation, and her statements to him were generally consistent with what she told Officer Hewitt days earlier.

Defendant was charged with one count of assault with a deadly weapon and with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) A personal infliction of great bodily injury clause was attached to that count. (Pen. Code, § 12022.7, subd. (a).) The information alleged that the charged offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c).

At trial, defendant's version of the events differed significantly from Belarde's. He testified that Belarde first approached him two or three days before March 11, 2007, when he was drinking a beer and panhandling outside Lone Tree Liquors. After they drank and talked, he went to her house but stayed no longer than half an hour. On March 11, after he spent time drinking and panhandling with Belarde outside the liquor store, defendant decided to leave because Belarde was "getting loud." He testified he had consumed two 16-ounce beers over the course of the day. When defendant started to walk to a nearby bus stop, Belarde followed, hooking her arm through his. She asked him to give her money but he refused. She "paw[ed]" at him and kept putting her arm around his waist after he pushed it away. Belarde repeated her request for money, telling defendant he was a "nice guy" and "making motions" toward the wallet in his back pocket. When defendant pushed her away, she became angry and called him names. Defendant put out his arm to keep Belarde away but she pushed it aside and reached for his wallet. He got mad and pushed her "pretty much harder than before," and she "went down on one knee." Defendant tried to walk faster but Belarde "just came at me just wild, screaming," hitting his back and reaching for his wallet. Angry, he turned and grabbed Belarde in a headlock, but she broke free. She came at him again, "swinging wildly and then yelling all kinds of stuff." Defendant testified that he grabbed Belarde by the back of the neck and her jeans and "threw her on her face." He explained he was "pretty pissed" and "just slammed her, threw her." He saw her land on her face but "didn't mean to do that." When Belarde stood, she was bleeding and swearing. Defendant denied punching Belarde or "throw[ing] any blows" and denied having used the stick she identified. Defendant agreed that Belarde sustained "serious injuries" but insisted he was defending himself and did not intend to cause them. Soon, a group of people approached from a nearby gas station. Defendant panicked, ran down the street to a church parking lot, and hid behind some bushes. He feared that he would be arrested and no one would believe his story.

In a videotaped interview shown to the jury, defendant admitted he hit Belarde but claimed he acted in self-defense. He said he did not know Belarde and insinuated that she was a prostitute who had pursued him. He told the police Belarde had dragged him and chased him down the block and also claimed Belarde had tried to stab him, but at trial he admitted these statements were lies. Defendant initially told the police he had bloodied his knuckles in a fall, but at trial he said he scraped them when crawling through bushes.

Defendant took the witness stand near the end of an afternoon. A courtroom deputy followed him to the stand and stood behind him while he testified. This procedure had not been mentioned or discussed with the attorneys beforehand. Defense counsel did not object to the deputy's presence that afternoon but raised the issue before defendant's testimony resumed the following morning. Counsel explained she did not object before because she was afraid of highlighting the issue for the jury. She protested that the deputy's stationing was "inappropriate" because defendant was "the only witness who . . . had an armed guard behind him when he testified." Counsel said she had never seen this procedure used "[i]n the 50 or so trials [she had] done." The court countered: "I've seen it happen in every trial I've ever done and that is because of security. And the defendant, as all defendants, even in a petty theft, if they sit there, a bailiff is supposed to sit behind them for security of the jury, for security of everyone." When counsel complained there had been no showing defendant was a security risk and compared the deputy's presence to shackling, the court disagreed, noting defendant was accused of aggravated assault "with a very bad injury." Referring to defendant's testimony the previous day, the court stated, "I was actually afraid you were going to have him stand up and point to something, and he would get really close to a juror." The court concluded, "No, the deputy will sit back there. He's not shackled, nothing. It's just what happens in every case that I've ever tried."

Defense counsel objected that the deputy's presence was "highly prejudicial" and asked that the court "at least make an individualized finding" that the security measure was warranted based on defendant's "own individual factors, and not just because he's here and charged with a crime." Counsel noted that defendant had not behaved violently while in custody or during court proceedings, and in fact he had no history of violence except for the alleged incident with Belarde. Because nothing else suggested that defendant had a violent disposition, counsel argued it was highly prejudicial for him to walk to the stand accompanied by an armed guard. The court responded: "Well, I disagree, and it's a discretionary call. And he had an 18-page rap sheet. And I think he deserves what every defendant deserves, and that is security for himself and for all the rest of us." Counsel protested that many of the offenses on the rap sheet were restraining order violations arising from defendant's relationship with his ex-wife. The court responded that these violations indicated defendant's "inability to follow the orders of the Court," a fact that was "[k]ind of important." When asked if it had reviewed the restraining order violations to see whether defendant had acted violently, the court responded, "I don't need to. He--what he does is he does not follow the orders of the Court."

After defendant testified, his attorney asked the court to read the jury a modified version of CALCRIM No. 204 that would instruct them to ignore defendant's custodial status. The court refused, observing that defendant had not been shackled or restrained, but rather was sitting in court "in plain clothes" and "reading a book." Despite the absence of this instruction, defense counsel explained to the jury in closing argument that defendant's custodial status was irrelevant. She emphasized that although defendant was "the only person who ha[d] an armed guard standing behind him" when he testified, and this seemed to communicate that he was guilty, it was the jurors' duty to ignore these circumstances and decide the case by impartially examining the evidence and applying the presumption of innocence.

The jury convicted defendant of assault with force likely to produce great bodily injury and found that he had personally inflicted great bodily injury in committing the offense. The jury did not find that defendant had used a deadly weapon. He was sentenced to five years in prison. On appeal, defendant claimed the trial court abused its discretion and violated his due process rights by stationing a uniformed, armed deputy at the witness stand during his testimony. He also asserted several points of error concerning the great bodily injury enhancement.*fn1 Defendant argued in a related petition for writ of habeas corpus that he was denied effective assistance of counsel by his attorney's delayed objection to the stationing of the deputy and by counsel's failure to ask the court to strike the great bodily injury enhancement.

In an opinion issued shortly before our decision in Stevens, supra, 47 Cal.4th 625, a divided panel of the Court of Appeal concluded the stationing of an armed deputy at the witness stand during defendant's testimony was reversible error.*fn2 As a result of this decision, the court did not reach issues raised in defendant's petition for writ of habeas corpus and dismissed that petition as moot.*fn3 Justice Haerle dissented. Although he joined the majority in criticizing the trial court's stated reasons for stationing a deputy at the witness stand, Justice Haerle urged that any lack of clarity in the record had to be interpreted in favor of a conclusion that the court had properly exercised its discretion.

We granted review to determine whether the stationing of the deputy was error and, if so, ...


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