Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Rafael A. Arreola, Albert T. Harutunian III, Judges, Super. Ct. No. SCD178150
IRION, J.
A jury convicted Adron Lee Bates of selling cocaine base (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 1203.073, subd. (b)(7)) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The trial court sentenced Bates to 20 years in prison.
At the same time, the trial court sentenced Bates in People v. Bates (Super Ct. San Diego County, 2006, No. SCD186232 (hereafter case SCD186232) based on his convictions for resisting officers during the proceedings in this case. Bates's appeal of his conviction in case SCD186232 is the subject of a separate appeal in this Court, case No. D048359.
Bates contends that his conviction should be reversed because he was forced to appear at trial in his jail clothes. In the alternative, Bates contends that defense counsel offered ineffective assistance of counsel by not requesting that Bates be permitted to appear in civilian clothes.
We conclude that Bates's arguments are without merit, and accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
While conducting a plainclothes surveillance operation in downtown San Diego, two transit enforcement officers for the San Diego Trolley observed Bates transact a sale of rock cocaine. Specifically, Officer Zambrano, who was standing no more than three feet away from Bates, saw a man approach Bates and ask, "What do you got?" Bates replied, "I have my last deuce-five." Officer Zambrano then saw the man give Bates money in exchange for a small white rock that Bates took out of the waistband of his pants. Officer Rodriguez, who was standing approximately 10 feet away, saw the same thing.
When Bates started to walk away, Officers Zambrano and Rodriguez identified themselves to Bates. Bates then dropped to the ground and started chewing and trying to swallow a $20 bill and five $1 bills. After a few minutes of choking on the money, Bates finally spit it out at the urging of the officers. The man who had given Bates the money was apprehended holding a rock of cocaine, which weighed .11 grams.
Bates was prosecuted for selling cocaine base (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 1203.073, subd. (b)(7)) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5).
Bates testified at trial. He admitted to being a heavy user of rock cocaine and admitted to prior convictions for, among other things, selling drugs. However, he claimed that during the transaction for which he was being prosecuted, he was a potential buyer of cocaine, not a seller. Specifically, Bates testified that he had given $25 to a man for a rock of cocaine, but after seeing the size of the rock, he asked for his money back because the rock was worth less than $25. Thus, according to Bates, the exchange of money the officers witnessed was the return of his $25 from the seller rather than his receipt of $25 in exchange for a sale. He also claimed that he put the money in his mouth because he thought Officers Zambrano and Rodriguez were trying to rob him.
The jury apparently disbelieved Bates's testimony and convicted him on both counts.
II
DISCUSSSION
Bates's contends that his conviction should be reversed because he appeared throughout trial dressed in jail clothes rather than civilian clothes.
A. Factual Background
To evaluate Bates's argument, we first review the circumstances under which Bates appeared for trial in jail clothes.
On Friday, September 24, 2004, jury selection was supposed to commence. Bates was brought to the courtroom before the prospective jurors arrived. Defense counsel brought to the trial court's attention that Bates was dressed in jail clothes. Although the trial court had provided a "dress-out" order, Bates's mother had run into problems when trying to deliver Bates's civilian clothes to the jail. While defense counsel was discussing this situation with the trial court, Bates reacted violently and he threw the table in front of him. The trial court continued the proceedings to the next court day — Monday, September 27, 2004.
This violent outburst and Bates's subsequent resistance to law enforcement officers' attempts to subdue him, is the subject of one of the counts on which Bates was convicted in case SCD186232, which is the subject of the separate appeal. (Fn. 1, ante.)
On Monday morning, Bates was brought into the courtroom in his civilian clothes. He again created a disturbance, and the trial court was later informed that Bates's intention was to create a disturbance during which he would throw feces at defense counsel and the judge. As a result of Bates's actions, his civilian clothes became soiled with feces. The trial court made a finding that Bates was intentionally disrupting the court, and it continued the trial until the next morning, at which point Bates was outfitted with a belt capable of delivering an electric shock if he did not behave appropriately.
The civilian clothes were available because Bates's mother arrived with them and gave them to defense counsel moments after Bates created the disturbance on September 24, 2004.
Bates's actions in resisting the officers who tried to subdue him during this outburst formed the basis of the second count on which Bates was convicted in case SCD186232.
The next morning, September 28, 2004, Bates appeared in jail clothes. His civilian clothes were soiled with feces, he had not obtained any replacement clothes, and there was no indication that any replacement clothes would become available that day. The trial court proceeded with trial, but stated that it would explain to the prospective jurors during voir dire that Bates was appearing in jail clothes and that it would excuse any juror who expressed any bias or prejudice against Bates because he was in custody.
The record does not contain a transcription of the jury voir dire proceedings. Thus, we do not have a record of what the trial court discussed with the jury concerning Bates's jail clothes. However, the trial court later reiterated on the record that it had discussed that issue with the jury.
Neither Bates nor defense counsel asked to have the trial continued to allow Bates to obtain another set of civilian clothes. Nor did Bates or defense counsel make any objection to having the trial proceed with Bates in jail clothes. Further, although the prosecutor raised the issue of Bates's jail clothes at the beginning of the next court day, i.e., Wednesday, September 29, 2004, neither Bates nor defense counsel spoke up at that point to raise any objection to Bates appearing in jail clothes. Although trial (excluding jury deliberations) took place over the course of three days, and the trial court made clear that Bates would be permitted to wear civilian clothing if such clothing was available, at no point during trial did Bates change into civilian clothing.
On appeal, Bates argues that he objected when the trial court indicated that it would proceed to trial while he was wearing jail clothes. We do not agree that the record contains any such objection by Bates. While it is true that immediately after the trial court finished explaining that it would discuss Bates's appearance in jail clothes with the jury, Bates stated, "I am not going to have a fair trial, and I'm not going to go along with this here. I want to go to trial. I want to have a fair trial." Taken out of context, Bates's statement could be read to indicate that he was objecting to appearing in jail clothes. However, when considered in context, it is evident that Bates was not referring to his jail clothes. Instead, Bates was troubled about proceeding to trial with his assigned defense counsel. Indeed, upon further dialogue with the trial court, Bates asserted that he had a conflict of interest with his defense counsel and asked the trial court to hold a Marsden hearing. The trial court held a Marsden hearing. In his lengthy discussion with the trial court, both before and during the Marsden hearing, Bates never objected to the fact that he was appearing in jail clothes.
B. Bates Waived His Right to Appear in Jail Clothes by Not Objecting or Asking for a Continuance
With this background in mind, we evaluate the legal merit of Bates's argument that his constitutional rights were infringed when he was required to appear at trial in jail clothes.
Requiring a defendant to appear at trial in jail clothes violates a defendant's constitutional right to due process and equal protection. (Estelle v. Williams (1976) 425 U.S. 501, 503-506 (Estelle); People v. Taylor (1982) 31 Cal.3d 488, 495 (Taylor).)
However, "[a]lthough the right to be tried in civilian clothing is a constitutional right valuable to a fair trial, the right may be waived by a failure to timely object or otherwise bring the matter to the court's attention." (Taylor, supra, 31 Cal.3d at p. 495.) "[A]lthough the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." (Estelle, supra,425 U.S. at pp. 512-513.)
Here, neither Bates nor defense counsel objected to the fact that Bates was appearing in jail clothes. Nor was there any request for a continuance so that Bates could obtain replacement clothes for those that he had soiled. Accordingly, we conclude that Bates waived his right to appear in civilian clothes by not making an objection.
Bates argues that he did not waive the right to wear civilian clothes because the trial court would have denied him a continuance to allow him to obtain replacement clothing, and thus any objection would have been futile. We disagree. As we will explain, the record does not establish that an objection or request for a continuance to obtain replacement clothing would have been futile.
On the morning that Bates appeared in jail clothes after soiling his civilian clothes, the potential jurors had not yet arrived in the courtroom. The trial court had a lengthy discussion with Bates about the need for him to behave in the courtroom. The trial court stated that it had treated Bates with respect and had cooperated with him in granting "a number of continuances . . . for good cause, good reason." It explained to Bates, "I've been cooperating with you, and I'm still willing to cooperate with you. That's my job." The trial court asked that Bates also cooperate and warned that if Bates did not, he would be barred from the courtroom or have voltage applied through the electric belt.
After that discussion ended, the trial court asked if anyone wanted to put anything on the record. At that point, the prosecutor — not Bates or defense counsel — noted that Bates was wearing jail clothes. In response, the trial court stated that it had been informed that Bates had soiled his civilian clothing and thus was appearing in jail clothes, but that it would explain the situation to the prospective jurors and excuse any juror who would be prejudiced toward Bates under the circumstances. Never during this discussion did Bates or defense counsel ask for a continuance to try to obtain civilian clothing, and never did the trial court indicate that it would not entertain a continuance for that purpose. Based on this record, there is no indication that it would have been futile for Bates to ask for a continuance or to object to the fact that he was appearing in jail clothes.
Immediately after the September 27, 2004 disturbance, the trial court ruled that Bates was intentionally disrupting the courtroom and stated that it would not "put up with it anymore." In this context, the trial court stated, "I don't grant anymore continuances after granting several continuances." However, there is no indication that the trial court was aware that Bates's civilian clothes would be unavailable the next day when it made this statement, and thus we do not believe that by making this statement the trial court expressed an intention to foreclose defense counsel from asking for a short continuance to obtain replacement clothing when it became clear that Bates's civilian clothes were soiled.
C. Reversal Is Not Warranted Based on Ineffective Assistance of Counsel
Bates argues that defense counsel's failure to make an objection to Bates's appearance in jail clothes or to request a continuance to allow Bates to obtain replacement clothing deprived Bates of effective assistance of counsel.
1. Applicable Law
We begin by summarizing the standards applicable to a claim of ineffective assistance of counsel. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216, 218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
Further, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation"].)
2. Defense Counsel Could Have Had a Rational Tactical Reason for Failing to Object and Ask for a Continuance
As a first ground for rejecting Bates's claim of ineffective assistance of counsel, we determine that the record does not demonstrate that there could be no rational tactical reason for defense counsel's failure to object to Bates appearing in jail clothes or to request a continuance to enable Bates to obtain a replacement for the clothing that he had soiled.
Significantly, "there may be instances where for tactical reasons the defendant may wish to be tried in jail garb." (Taylor, supra, 31 Cal.3d at p. 496.) For instance, in certain cases it may "reasonable to presume trial counsel evaluated the strengths and weaknesses of the case and concluded having appellant appear in jail clothing would gain him needed sympathy from the jury." (People v. Williams (1991) 228 Cal.App.3d 146, 151 [rejecting claim of ineffective assistance of counsel]; see also Estelle, supra, 425 U.S. at p. 508 ["The cases show . . . that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury"].)
In this case, where the Bates's defense centered around his claim to be a drug addict who was wrongly accused of selling drugs when he was actually trying to buy them, it is not unreasonable for defense counsel to have determined that it would be wise to appeal to the sympathy of the jury by having Bates appear in jail clothes. Defense counsel may have made the tactical decision that having Bates appear in his jail clothes, which could elicit sympathy, was a wiser approach than antagonizing the trial court by asking for another continuance after Bates's courtroom disturbances had already required the trial to be continued for two consecutive court days.
In addition, in light of Bates's testimony that "[a]s soon as I get out of prison, [I] go right back to smoking crack cocaine," defense counsel may have believed that in the unique circumstance of this case, Bates's testimony would hold more weight with jurors if they realized that Bates was currently in custody and thus was not likely to be under the influence of crack cocaine during his testimony.
3. Bates Has Not Established a Reasonable Probability of a Different Outcome Absent Defense Counsel's Failure to Object
As a second ground for rejecting Bates's claim of ineffective assistance of counsel, we conclude that Bates has not established a reasonable probability that the result of the proceedings would have been different had defense counsel objected to Bates appearing in jail clothes or asked for a continuance to obtain replacement clothing. (See Strickland, supra,466 U.S. at p. 694.)
The potential prejudice to a defendant who appears for trial in jail clothes is that "[t]he clothing inexorably leads to speculation about the reason for defendant's custody status, which distracts the jury from attention to permissible factors relating to guilt. In most instances, parading the defendant before the jury in prison garb only serves to brand the defendant as someone less worthy of respect and credibility than others in the courtroom." (Taylor, supra, 31 Cal.3d at p. 494.) In addition, "beside[s] the potential prejudice raised in the minds of the jurors, the defendant may be handicapped in presenting his defense by the embarrassment associated with his wearing jail garb." (Id. at p. 495.)
With this potential prejudice in mind, we conclude that the effect of Bates's jail clothes on the jury could not reasonably have influenced the outcome of the case in light of other prejudicial evidence regarding Bates's background, which the jury learned of during Bates's own testimony. Bates admitted on direct examination to many facts that were more damaging to his credibility that the fact that he was currently in custody. Bates admitted that he had been a heavy crack cocaine user since he was 14 years old (i.e., for the last 24 years), that he had numerous prior convictions, including two convictions for selling drugs within the last three years, that he had been out of jail for less than two weeks at the time that he was arrested for the instant offense, that he was high on crack cocaine at the time of his arrest, and that "[a]s soon as I get out of prison, [I] go right back to smoking crack cocaine." The fact that Bates was in custody at the time of his trial would not have significantly added to the harm to Bates's credibility created by the presentation of all of those facts to the jury.
In light of the fact that Bates testified to these facts on direct examination, we conclude that the "embarrassment associated with his wearing jail garb" (Taylor, supra, 31 Cal.3d at p. 495) does not appear to have affected Bates's defense, as he willingly testified at trial and admitted many other embarrassing facts about himself.
Further, the evidence of Bates's guilt was overwhelming. Two officers standing in close proximity to Bates witnessed the drug sale, and numerous pieces of evidence, including Officer Zambrano's testimony about what was said during the drug sale, contradicted Bates's account of what occurred.
Based on all of these facts, we conclude that a different outcome would not have been reasonably probable if defense counsel had objected to the jail clothes.
Moreover, Bates has not established that any civilian clothing would have been available to him, even if defense counsel had requested and obtained a continuance for Bates to change into civilian clothing. On the second day of trial, the trial court asked Bates if his family had taken him any replacement civilian clothing, and Bates answered that they had not. Further, although the trial court made clear that Bates would be permitted to wear civilian clothing if he obtained any replacements for those that he soiled, at no point during the three-day trial did Bates exercise the right to appear in civilian clothing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.