Opinion
C083817
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANK MARQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F02609)
In July 2016, defendant Frank Marquez was charged with two counts of battery on a nonconfined person while an inmate in California State Prison at Folsom. The information further alleged that defendant sustained two prior serious felony convictions for the purpose of the three strikes law. A jury found him guilty of one count, and the court sentenced him to two years in prison.
On appeal, defendant contends the trial court erred in: (1) permitting him to be shackled in the presence of the jury; and (2) denying his motion for mistrial following a witness's statement to the jury that he was shackled. We disagree on both points and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the underlying facts are not relevant to the issues on appeal, we do not discuss them.
Prior to trial, defendant's trial counsel requested that defendant be unshackled during trial. At that time, defendant was shackled with belly chains and manacles. The trial court held a hearing on defense counsel's request. At the hearing, Correctional Officer Raymond O'Rilley requested that defendant be restrained with leg irons, a waist chain, and a restraint chair because defendant had a history of violence toward California Department of Corrections and Rehabilitation (department) staff, including obstructing or delaying an officer in 2012, battery on a peace officer without weapons or significant injury in 2013, two incidents of obstructing an officer in 2014, and battery on a peace officer in 2016. Additionally, Officer O'Rilley testified that defendant did not have a history of attempted or planned escapes, disruptions in the courtroom, or violence toward other inmates or jail or court staff. Further, Officer O'Rilley advised the court that the jury "shouldn't be able to see anything if [the restraints are] done correctly." Officer O'Rilley testified that at the time of trial, defendant was being housed in the "Psyche [sic] Service Unit." As a result, defendant never had contact with staff, correctional peace officers, medical staff, or other inmates unless in full restraints because of his violent behavior. When asked by the court if there was any reason that defendant might act adversely toward spectators or witnesses in the case, Officer O'Rilley said, "[n]ot to [his] knowledge." Nor did he have any knowledge of defendant committing other nonconforming or disruptive incidents while in custody. Officer O'Rilley stated that it was his department's policy that inmates remain in restraints while outside of prison and that they requested the same in this case.
Trial counsel advised the court that his primary concern was the wrist shackles. Specifically, counsel represented that he was unable to speak to defendant at counsel table because of hearing impediments. Thus, if defendant needed to communicate, he had to write a message to counsel on a piece of paper. Counsel requested that defendant be allowed to do this. The trial court noted that it was hard for the court, looking at defendant face-to-face, to see his shackles unless he held up his arms, but concluded that the jury could see wrist shackles at some point. As a result, the court asked if one wrist could be unshackled without compromising security. Officer O'Rilley indicated that "would work."
The trial court took the information into consideration and found "that there [was a] sufficient showing that restraints are justified in this particular instance." Also, the trial court granted defense counsel's "request that only one arm, or wrist, be shackled so that [defendant] may write with his writing hand."
A jury trial began on November 30, 2016. During trial, Correctional Sergeant William Pike was asked to identify defendant by something he was wearing. Sergeant Pike stated, "[h]e is in the brown jumpsuit and has handcuffs on his wrists." Trial counsel moved for a mistrial based on the correctional officer's remark about defendant wearing handcuffs, arguing that the handcuffs worn by defendant were plainly visible to the jury. The trial court denied counsel's motion, reasoning that defendant had not been prejudiced by an "inartful description by the officer at the time he was asked to identify the defendant." In addition, at the end of trial, the trial court instructed the jury in relevant part as follows: "In Sacramento County two correctional officers are always present behind a state prison inmate who is on trial; and every state prison inmate is placed in restraints, including handcuffs, during trial. [¶] The fact that physical restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations." (CALCRIM No. 204)
The jury returned with a verdict of guilty as to one count. As to the other count, the jury was unable to reach a decision, eventually resulting in a mistrial on that charge. Then, in a bifurcated trial, the jury found true both prior serious felony conviction allegations. At the sentencing hearing, the trial court dismissed one count and sentenced defendant on the other count to a term of one year (one-third the middle term), doubled to two years based on one prior strike conviction, to run consecutively to the term of imprisonment defendant had been serving when he committed the offense. Defendant filed a timely notice of appeal.
DISCUSSION
I
The Court Did Not Err In Shackling Defendant
Defendant argues that the trial court abused its discretion in permitting him to be shackled in the presence of the jury. According to defendant, "the court's decision was contrary to established authority and accordingly, an abuse of its discretion, given the prejudice befalling the defendant in chains." We disagree.
"[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 manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).) A " '[m]anifest need' " arises if there is a showing of unruliness, possibility of escape, or other possible disruption by the defendant. (People v. Hill (1998) 17 Cal.4th 800, 841; see also Pen. Code, § 688 ["No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge"].) We will reverse a trial court's decision to shackle a defendant only on a showing of "a manifest abuse of discretion." (Duran, at p. 293, fn. 12.)
"[V]isible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community." (People v. Hernandez (2011) 51 Cal.4th 733, 742.) As a result, a trial court must decide whether there is a particularized, manifest need for the physical restraints on a case-by-case basis. (See Duran, supra, 16 Cal.3d 282 at pp. 290-291; see also Deck v. Missouri (2005) 544 U.S. 622, 629 [161 L.Ed.2d 953, 963] ["[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial"].)
In making this determination, the trial court's assessment is not restricted to the defendant's courtroom behavior, but the court may base its decision on 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. Hill, supra, 17 Cal.4th at p. 841.)
Further, "when the imposition of restraints is to be based upon conduct of the defendant that occurred outside the presence of the court, sufficient evidence of that conduct must be presented on the record so that the court may make its own determination of the nature and seriousness of the conduct and whether there is a manifest need for such restraints; the court may not simply rely upon the judgment of law enforcement or court security officers or the unsubstantiated comments of others." (People v. Mar (2002) 28 Cal.4th 1201, 1221.) In other words, a "trial court may not delegate to law enforcement personnel the decision whether to shackle a defendant." (People v. Seaton (2001) 26 Cal.4th 598, 651.)
Defendant argues that the trial court abused its discretion because "there was zero evidence of any nonconforming conduct or planned nonconforming conduct, which might disrupt the judicial process if unrestrained." Defendant reasons that the trial court "presumably relying upon [defendant's] criminal history and conduct in prison[,]" is insufficient justification for shackling the defendant in this case. Further, defendant argues that, similar to Duran, the trial court here "had . . . no showing whatsoever that [defendant] had threatened to escape or behave[] violently before coming to court or while in court." Defendant contends that the trial court's "conclusion simply ignores the factual findings that there was no history of any escapes, or court disruptions, or danger to others during any court proceedings, nor was there any likelihood of such occurring during the present trial." In addition, he argues, "[u]nder such circumstances . . . there was insufficient justification for restraints . . . [and] no manifest necessity to keep him in chains." We disagree.
Defendant's reliance on Duran is misplaced. In Duran, our Supreme Court concluded that "[n]o reasons for shackling the defendant [had] appear[ed] on the record." (Duran, supra, 16 Cal.3d 282 at p. 293; see also People v. McDaniel (2008) 159 Cal.App.4th 736, 745 [concluding that there was an abuse of discretion where "the trial court did not initiate any procedure to determine whether shackling was necessary or make any findings on the record to justify shackling"].) Moreover, our Supreme Court has noted that the requirement set forth in Duran " 'is satisfied by evidence that the defendant has threatened jail deputies, possessed weapons in custody, threatened or assaulted other inmates, and/or engaged in violent outbursts in court.' " (People v. Williams (2015) 61 Cal.4th 1244, 1259, quoting People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032, italics added.) Additionally, "[t]he court need not have waited until such violence occur[s] before ordering restraints." (People v. Pride (1992) 3 Cal.4th 195, 233; see id. at p. 232 [concluding that restraints were justified where evidence of multiple outbursts over six-month period supported inference that the defendant was having increasing difficulty controlling violent impulses]; cf. People v. Ceniceros (1994) 26 Cal.App.4th 266, 278 [restraints not justified where only explicit reason given for restraints was that the court had spoken with bailiff who determined they were necessary for courtroom security]; People v. Prado (1977) 67 Cal.App.3d 267, 275 [reasoning that the trial judge justifying courtroom restraints because of " 'inadequate facilities' " did not establish " 'evident necessity' "].)
Here, the trial court set forth the correct applicable standard: "A defendant cannot be physically restrained in the jury's presence except on a showing of, quote, 'manifest need.' Restraints cannot be imposed absent a showing of violence, threat of violence, or other nonconforming conduct by the defendant. [¶] The judge is required to exercise discretion and then make findings before ordering that restraints may be utilized, . . ." In addition, the court took into consideration that defendant has a history of violence toward department staff, including obstructing or delaying an officer in 2012, battery on a peace officer without weapons or significant injury in 2013, two incidents of obstructing an officer in 2014, and battery on a peace officer in 2016. Officer O'Rilley testified that at the time of trial, defendant was being housed in the correction department's "Psyche [sic] Service Unit." As a result, defendant never had contact with staff, correctional peace officers, medical staff, or other inmates unless in full restraints because of his violent behavior. Taking this information into consideration, the court made the determination that restraints were justified in this instance. In addition, the trial court granted defense counsel's "request that only one arm, or wrist, be shackled so that [defendant] may write with his writing hand."
Given that the foregoing facts demonstrated no need for defendant to be restrained due to a risk of escape, the question is whether the trial court could have reasonably concluded the foregoing facts demonstrated a manifest need for defendant to be restrained during trial in a security chair with belly chains, leg shackles, and a wrist shackle to maintain security in the courtroom. We believe the answer to that question is "yes."
Here, defendant engaged in multiple instances of violence toward correctional officers dating back to 2012, and as recent as 2016. We conclude that the evidence on the record supports the trial court's determination of a manifest need for restraining defendant. Under these circumstances, we cannot say the trial court abused its discretion -- i.e., acted outside the bounds of reason (see People v. Catlin (2001) 26 Cal.4th 81, 122) -- in finding there was a manifest need for defendant to be restrained during trial.
Defendant argues that what the trial court told the jury, prior to giving the CALCRIM No. 204 instruction, was evidence of abuse of discretion. Specifically, the trial court stated that: "[i]n Sacramento County two correctional officers are always present behind a state prison inmate who is on trial; and every state prison inmate is placed in restraints, including handcuffs, during the trial." Defendant contends this statement "underlines the court's abuse of its judicial discretion in the present case" because if the statement was true "[i]t would . . . make the findings of the court as to this particular inmate-defendant a sham," and if the statement was not true "then the court deliberately misled the jury." Again, we disagree.
With regard to this argument, it is important to understand what information we do and do not consider in determining whether the trial court abused its discretion in ordering the defendant restrained. The admonition the trial court gave preceding the jury instruction is irrelevant to that inquiry. What is relevant for our purposes is only the information made known to the trial court before it decided to keep defendant restrained during trial. Moreover, the trial court had asked defendant's trial counsel whether he objected to any of the proposed jury instructions, to which he responded, "No." Thus, defendant's argument based on the court's statement to the jury is without merit.
Accordingly, we conclude the trial court did not err in allowing defendant to be shackled in the presence of the jury.
II
The Court Properly Denied Defendant's Motion For Mistrial
Defendant contends the court erred in denying his motion for mistrial after Sergeant Pike identified defendant by his handcuffs during his trial testimony. We disagree.
"A motion for ' "mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction." ' " (People v. Montes (2014) 58 Cal.4th 809, 888.) "Whether a particular incident is so prejudicial that it warrants a mistrial 'requires a nuanced, fact-based analysis,' which is best performed by the trial court. [Citation.] We review the trial court's order denying a motion for mistrial under the deferential abuse of discretion standard. [Citation.] 'Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.)
There was no abuse here. There is no violation of a defendant's constitutional rights when the shackling, even if visible, is justified by "special circumstances, including security concerns." (Deck v. Missouri, supra, 544 U.S. at p. 633 .) "In those instances when visible restraints must be imposed the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant's guilt." (Duran, supra, 16 Cal.3d at pp. 291-292.) Moreover, "unless the guilt question is close, allowing the guilt phase jury to briefly view a shackled defendant is ordinarily deemed nonprejudicial error." (People v. Medina (1995) 11 Cal.4th 694, 731.)
Here, we have already explained the trial court was justified in requiring the defendant to wear restraints for security reasons. Further, although the jury was made aware of defendant's restraints through an officer's testimony, the trial court instructed the jurors not to consider the defendant's physical restraints when making their determination. (See Duran, supra, 16 Cal.3d at p. 292 [concluding that the instruction that restraints should have no bearing on the determination of the defendant's guilt must only be given once the restraints are visible].) Certainly one brief comment about defendant's restraints is not the type of incident reasonably likely to inflame the passions of the jurors to the point they would be unable to follow the court's instruction to not consider the restraints in determining defendant's guilt. Thus, actual prejudice is not demonstrated where a court, with adequate justification, orders the defendant to wear shackles, and gives the proper limiting instruction, after the shackles are made apparent to the jury by an officer's "inartful description" of the restraints. (See People v. Lopez (2013) 56 Cal.4th 1028, 1079-1081 [concluding that where defendant was wearing restraints that were not visible to jurors, deputy sheriff's fleeting and ambiguous reference to possibility that defendant might be in restraints did not trigger sua sponte duty to instruct jurors that restraints did not indicate defendant was a violent person disposed to commit the charged crime].)
Finally, as to prejudice, the jury knew defendant was in custody because he was charged with battery on a nonconfined person while an inmate in prison.
Under these circumstances, we do not find the trial court's ruling to be an abuse of discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. We conclude that the motion for mistrial was properly denied.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.