IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD LEE MASON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F06522)
The opinion of the court was delivered by: Mauro, J.
P. v. Mason
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was visibly shackled during a jury trial in which he was convicted of possession of heroin while in prison. He contends on appeal that the trial court abused its discretion in permitting him to be visibly shackled during trial.
We agree that on this record, there was an insufficient showing of manifest need to support the visible shackling of defendant. Nonetheless, because the charge in this case and the evidence of the charged crime conveyed to the jury that defendant was incarcerated, and because there was strong evidence of guilt, we conclude there was no prejudice. We will affirm the judgment.
Defendant was serving a prison sentence for a 1998 murder conviction. Correctional Officers Wade Critz and Nicholas Romo were monitoring inmates returning from the visiting room when they saw defendant insert an object in his rectum.
Officers conducted a body cavity search, but no contraband was discovered. Defendant was dressed in a contraband jumpsuit, placed in a body cavity surveillance cell and continuously monitored. During an inspection, defendant told the correctional officer, "I need to urinate and I'll give you what you want." Defendant sat on the toilet and a "black capsule" fell out of his rectum into the "contraband chair."*fn1 The capsule contained three cellophane wrapped packages containing a total of over 11 grams of heroin.
Defendant was charged with possession of heroin in prison. (Pen. Code, § 4573.6.)*fn2 It was also alleged defendant had two prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12.) The prior convictions were bifurcated.
Before trial, defense counsel requested a security hearing because defendant was "in very visible restraints." Defense counsel noted defendant was seated with his "arms clasped across his lower belly with handcuffs prominently placed on his left and right wrists." There was a chain around his waist and a visible padlock on the chain. His ankles were also shackled and connected by a chain, but those shackles were not visible. Defense counsel said that the position of the restraints would prevent defendant from taking notes during trial and would make it obvious that he was in restraints. Defense counsel confirmed that when seated in the jury box, both handcuffs were visible and it was evident defendant's hands were locked across his belly.
Correctional Officer David Cade testified that defendant was classified as a level four maximum custody inmate and his escape risk was calculated as an extremely high escape risk. This classification was based on a points system which utilized defendant's commitment offense, any offenses committed while in prison and defendant's disciplinary history. Defendant's commitment offenses were first degree murder and discharging a firearm into an inhabited dwelling. While in prison, defendant engaged in two assaultive incidents, mutual combat with another prisoner in 2000 and resisting staff in 2001. There were no assaultive incidents after 2001. Also while in prison, defendant was convicted in 2009 of possession of marijuana and charged with the current offense of possession of heroin.
In arguing against the restraints, defense counsel averred that he had represented defendant in earlier proceedings and there had not been any problems relative to defendant's conduct in court.
The court noted it had to balance "the absolute necessity of a fair trial for [defendant] against the safety and security of court personnel, [correctional] staff, and the members of the public . . . . [¶] What concerns the court about [defendant's] history is the nature of the prior incidents, the fighting, the resistance, the committing offense. And then the hiding of the marijuana which occurred previously -- the possession of marijuana and the alleged hiding of the heroin here. [¶] From the preliminary hearing transcript it does appear that there was certainly probable cause to believe that [defendant] did in fact hide the heroin. And so it does appear that his willingness to observe the rules and regulations is certainly in question. [¶] His security level is rather high. 52 points being a --qualifying someone for the level four -- or 52 plus. He is at 67. [¶] So with all of those things taken into consideration, . . . it does appear that there is manifest need for restraints. [¶] And so the court will allow them to be used."
Later, in the course of a discussion regarding defendant's clothing, defense counsel again noted that the handcuffs were still visible and the chain across defendant's belly rattled "like Marley's ghost" when he moved. The court agreed the handcuffs were visible.
Using CALCRIM No. 204, the trial court instructed the jury that the restraints on defendant were not evidence, that defendant was restrained because he was a prisoner, and that the jurors must completely disregard this circumstance in deciding the issues in the case.
The jury found defendant guilty as charged, and after bifurcated proceedings, found the prior conviction allegations true. The trial court denied defendant's motion to strike his prior convictions and sentenced defendant to 25 years to life. The trial court did not award presentence custody credits because defendant was serving a prison term at the time of his offense.
Defendant contends the trial court abused its discretion in ordering him to remain visibly shackled during the trial. We agree.
Physical restraints may interfere with a defendant's ability to communicate with his lawyer and participate in his own defense. (Deck v. Missouri (2005) 544 U.S. 622, 630-631 [161 L.Ed.2d 953, 963].) In addition, "[v]isible shackling undermines the presumption of innocence and the related fairness of the factfinding process." (Ibid.) Accordingly, a criminal defendant may be shackled at trial in the presence of the jury only as a last resort and only upon a showing of manifest need. (People v. Duran (1976) 16 Cal.3d 282, 290-292 (Duran).)
Manifest need may be demonstrated by "a showing of unruliness, an announced intention to escape, or '[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .'" (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In general, Duran has been read to require "that a defendant make specific threats of violence or escape from court or demonstrate unruly conduct in court before in-court restraints are justified." (People v. Valenzuela (1984) 151 Cal.App.3d 180, 192-193 (Valenzuela), and cases cited therein.) The restraints must be as unobtrusive as possible while remaining as effective as necessary. (People v. Mar (2002) 28 Cal.4th 1201, 1217; People v. Jacla (1978) 77 Cal.App.3d 878, 885 (Jacla).)
We review the trial court's decision to impose restraints for an abuse of discretion. (People v. Mar, supra, 28 Cal.4th at p. 1217.) And in doing so, we are sympathetic to the need to maintain adequate courtroom security and to avoid putting the court and the public at unreasonable risk. Nonetheless, as the California Supreme Court explained, "despite our traditional deference to the trial court in this area, some extraordinary security practices carry an inordinate risk of infringing upon a criminal defendant's right to a fair trial." (People v. Stevens (2009) 47 Cal.4th 625, 632.) Accordingly, "visible physical restraints must survive heightened scrutiny and be justified by a particular need." (Id. at p. 633.) It is an abuse of discretion to permit the visible shackling of a defendant based solely on his violent background without any showing he would be violent in court, would attempt to escape court, or would disrupt court proceedings. (Duran, supra, 16 Cal.3d at pp. 292-293; Valenzuela, supra, 151 Cal.App.3d at pp. 195-196; Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 536; Jacla, supra, 77 Cal.App.3d at p. 885.)
In this case, the record indicates that defendant has not been violent in over seven years. Moreover, there is no evidence of a recent threat of violence, a threatened or actual escape attempt, or any courtroom disruption. The trial court relied on the prison point system and defendant's commitment offense, prison history and recent possession offenses, but more was needed to overcome heightened scrutiny and establish manifest need in this case.
Moreover, there is no showing that visible shackles were the least obtrusive, yet still effective, means of controlling any perceived threat from defendant. Under the circumstances, this record does not demonstrate manifest need for visible restraints.
When a trial court permits a defendant to be visibly shackled without manifest need, reversal is required unless it is established beyond a reasonable doubt under the Chapman*fn3 harmless error standard that the shackling did not contribute to the verdict. (People v. Ervine (2009) 47 Cal.4th 745, 773.)
In this case, we conclude defendant's visible shackling did not contribute to the verdict. Although visible shackles may convey to the jury that defendant is a dangerous person who must be separated from the rest of the community (People v. Stevens, supra, 47 Cal.4th at p. 632), the charge and the evidence in this case confirmed for the jury that defendant is in prison. Nonetheless, the trial court instructed the jury with CALCRIM No. 204, and we assume the jury followed this instruction. In addition, the evidence of defendant's guilt was extremely strong. Eyewitnesses saw defendant place something in his rectum, and he was placed in a secure jumpsuit and contraband room. Defendant informed officers that if allowed to use the bathroom, "I'll give you what you want." Defendant then excreted a capsule from his rectum containing over 11 grams of heroin.
Defendant does not challenge the evidence on appeal and he does not identify a defense that was impacted by the visible shackles. He did not testify at trial and he does not argue that this was because he was shackled. He does not allege that his ability to communicate with his lawyer or participate in his own defense was adversely affected by the shackles. This record does not establish that defendant's visible shackles "shocked [the jury] or affected their assessment of the evidence."
(People v. Tuilaepa (1992) 4 Cal.4th 569, 585.) Accordingly, the error in shackling defendant was harmless.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. HULL , J.