People v. Barnum, C031302.

CourtCalifornia Court of Appeals
Citation86 Cal.App.4th 731,104 Cal.Rptr.2d 19
Decision Date29 January 2001
Docket NumberNo. C031302.,C031302.
PartiesThe PEOPLE, Plaintiff and Respondent, v. Mark BARNUM, Defendant and Appellant.
104 Cal.Rptr.2d 19
86 Cal.App.4th 731
The PEOPLE, Plaintiff and Respondent,
Mark BARNUM, Defendant and Appellant.
No. C031302.
Court of Appeal, Third District.
January 29, 2001.
Certified for Partial Publication.*
Review Granted April 18, 2001.

[104 Cal.Rptr.2d 21]

Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Arnold Erickson and David S. Adams, Deputy States Public Defender, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Margaret Venturi and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted defendant of battery by an inmate on a noninmate and resisting an executive officer with force, and found true four prior convictions under the Three Strikes law. (Pen.Code, §§ 4501.5, 69, 667, subds.(b)-(i).)

In the published portion of this opinion we hold the fact a trial was conducted in a state prison does not, of itself, establish the trial was unfair. We also conclude a trial court need not advise a self-represented defendant about his right not to testify. In the unpublished portion, we reject defendant's other contentions of error. We shall affirm.


The main issue at trial was whether guards acted properly when they took defendant from his cell, or acted with excessive force, which gave defendant and his cellmate the right to defend themselves. The cellmate pleaded guilty.

Officers John Cartier and Richard Eubanks had recently been assigned to the

104 Cal.Rptr.2d 22

building in which defendant was housed and the prior guards had not regularly inspected the cells for contraband. Cartier and Eubanks began searching several cells each evening after dinner, sweeping the building clean, so they could then institute regular, random, cell searches. On July 19, 1997, they selected the cell shared by defendant and inmate Hendricks. Defendant had a reputation as a hothead, so they called Officer Lorenzo Abella from another building. After the officers got defendant and Hendricks out of the cell, defendant began swearing. He approached Cartier, who put his hand up to keep defendant at bay. Defendant "moved in" to Carrier's hand, then slapped it away. When Cartier tried to handcuff defendant, a fight erupted in which Carrier's throat was scratched and Abella's head was slammed into a rail, after which defendant and Hendricks pummeled Abella's back until Eubanks sprayed them with a chemical.

Defendant elicited from a sergeant that Abella, apparently, left his post to assist the search, and showed the officer who investigated the matter did not interview any inmates. He elicited testimony from prisoners (including himself) that, if believed, showed his cell was selected in retaliation for a squabble which occurred during dinner, in which a guard belittled a dead rap music artist and, in reply, a prisoner belittled John Wayne. Some claimed the guards employed excessive force.

The prosecution impeached the prisoners with their prior convictions and pointed out implausibilities in their stories.

The jury returned the following note: "We, the Jury believe that Mr. Mark Barnum is guilty on both counts. However, we also believe that the events were precip[it]ated by improper handling of prec[eding] events and could have been prevented by the following of proper established protocols."


Defendant's primary contention of error is the trial should not have been conducted on the grounds of a state prison.

Defendant does not show prejudice. "No judgment shall be set aside ... for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)

This case presented a credibility contest, centered on whether the guards acted lawfully or provoked the inmates. The location of the trial did not necessarily change anything. The jury was going to learn defendant was an inmate.

Counsel presents several snippets from the relevant section of the California Standards of Judicial Administration in an effort to bolster his case. However, when the full section is consulted, it does not aid defendant.

We set out the relevant section in full:

"(a) Facilities used regularly for judicial proceedings should not be located on the grounds of or immediately adjacent to a state penal institution unless the location, design and setting of the court facility provide adequate protection against the possible adverse influence that the prison facilities and activities might have upon the fairness of judicial proceedings. In determining whether adequate protection is provided, the following factors should be considered: (1) the physical and visual remoteness of the court facility from the facilities and activities of the prison; (2) the location and appearance of the court facility with respect to the adjacent public areas through which jurors and witnesses would normally travel in going to and from the court; (3) the accessibility of the facility to the press and the general public; and (4) any other factors that might affect the

104 Cal.Rptr.2d 23

fairness of the judicial proceedings, "(b) Unless the location, design and setting of the facility for conducting court sessions meet the criteria established in subdivision (a): (1) court sessions should not be conducted in or immediately adjacent to a state penal institution except for compelling reasons of safety or convenience of the court, and (2) should not be conducted at such a location in any event when the trial is by jury, or when the testimony of witnesses who are neither inmates nor employees of the institution will be required." (Cal. Stds. of Jud. Admin., § 7.5 (hereafter § 7.5).)

The Judicial Council has not expressed a preference that prisons not be used as courthouses, only that adequate safeguards be employed when they are so used. Because we presume official duty is performed (Evid.Code, § 664), and because the record does not demonstrate otherwise, we presume all proper steps were taken in accordance with section 7.5, including ensuring accessibility to the public and press and ensuring "the location, design and setting of the court facility provide adequate protection against the possible adverse influence that the prison facilities and activities might have upon the fairness of judicial proceedings."

Counsel states the trial court, ruled the trial would not be in the prison, but then mysteriously and off the record changed its mind. The record citation supplied in support of this assertion is to a pretrial hearing brought in multiple cases, regarding the policy of denying contact attorney visits to prisoners in administrative segregation. The court denied the motion, but did order "private consultation." The court went on, in an aside, and stated "as I said, I sympathize with counsel. I realize I'm not dealing with an unusual situation, even though we are here hearing this hearing on the grounds of High Desert State Prison, and [in] many cases, that will be deemed prejudicial itself, we will not have a trial here. [¶] But under the circumstances, that will be the ruling, [on visits]." The court did not rule "we will not have a trial here," meaning, in this case. The court was saying that in "many cases, that will be deemed prejudicial itself," and in such cases "we will not have a trial" in the prison.

We granted defendant's request for judicial notice of an order of the Presiding Judge of the Lassen County Superior Court. It states: "Upon the application of the Superior Court, the Judicial Council and Administrative Office of the Courts of the State of California have found justified the assignment of a judge to the court to preside over `Three Strikes' trials as assigned by this court; and this court has found it in the public interest to provide for a regular extra session of the Superior Court for [t]his purpose as authorized by law (Government Code 69790[).]" These sessions are to be known as Department Five, "to which are apportioned the criminal cases pending before the court, commonly known as `strike' cases, which arise from alleged acts occurring in a facility of the State Department of Corrections in Lassen County." Such cases are to be heard either "at the court facility located on the grounds of High Desert State Prison (Government Code sections 69741(b) and 69792,) or, as the same may be available and directed by the Presiding Judge, the main Courthouse in the City of Susanville."

Only "strike" cases are subject to this rule, and they are the cases posing the greatest security threats, as a class. On its face the order does not state that all such cases are to be heard in prison. If a defendant can articulate prejudice to his case, presumably the trial court will not employ this rule, or at least the defendant will have made a record of the problem, thus preserving it for appellate review. This defendant did neither.

To the extent we interpret defendant's brief as making an argument for per se reversal whenever a trial is conducted on prison grounds, the authorities cited in support of such claim do not withstand

104 Cal.Rptr.2d 24

scrutiny. As the trial court indicated in the ruling just discussed, it is sometimes, but not always, prejudicial to conduct a trial on prison grounds. Therefore each case must be considered on its facts. For the reasons stated above, we assume all reasonable steps to minimize any unfairness were taken in this case, therefore defendant's claim fails. We briefly discuss some of the authorities mentioned by counsel, to refute the claim of a "per se" rule of prejudice.

Another panel of this court recently rejected an attack on the practice of holding certain trials...

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