(Super. Ct. No. 09F06522)
The opinion of the court was delivered by: Mauro, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...