People v. Condley

• Decision Date: 23 May 1977
• Docket Number: Cr. 7875
• Citation: 138 Cal.Rptr. 515,69 Cal.App.3d 999
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Boyd Gerald CONDLEY and Allan Darrell Cummins, Defendants and Appellants.

Page 515

138 Cal.Rptr. 515

69 Cal.App.3d 999

PEOPLE of the State of California, Plaintiff and Respondent, v. Boyd Gerald CONDLEY and Allan Darrell Cummins, Defendants and Appellants.

Cr. 7875.

Court of Appeal, Fourth District, Division 2, California.

May 23, 1977.

Hearing Denied July 21, 1977.

Lawrence M. Gassner, Upland, under appointment by the Court of Appeal, for defendant and appellant Boyd Gerald Condley.

Geoffrey Rotwein, San Francisco, under appointment by the Court of Appeal, for defendant and appellant Allan Darrell Cummins.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

MORRIS, Associate Justice.

The defendants were convicted by a jury of escape from lawful custody. (Pen.Code, § 4532, subd. (b).) They appeal. Judgment affirmed.

Statement of the Case

Defendants, Boyd Gerald Condley and Allan Darrell Cummins, were indicted on charges of attempted escape from state prison (Pen.Code, § 4530, subd. (b)) and escape from lawful custody of the San Bernardino County Sheriff (Pen.Code, § 4532, subd. (b)).

Cummins was represented by counsel, and Condley represented himself. The defendants' motion to sever the attempted escape from the escape charge was granted.

On March 30, 1976, judgments were entered against both defendants on the charge of escape from lawful custody, and the attempted escape from state prison count was dismissed.

Both defendants were shackled during the entire trial. At the beginning of the trial on February 19, 1976, the trial court denied defendants' motions to be relieved of the shackles. On March 2, 1976, following the Supreme Court ruling in People v. Duran, 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322, defendants moved for mistrial on the grounds of prejudice resulting from their having appeared before the jury in shackles. The motion was denied.

Statement of Facts

On November 7, 1975, defendants were in the lawful custody of the San Bernardino County Sheriff's office, and were being transported from county jail to the West End Substation to await court appearances in Ontario.

At approximately 6:45 a.m. while the deputies were temporarily absent, defendants slipped out of their handcuffs and fled the bus through a rear window. Condley was recaptured almost immediately. Cummins was apprehended around 11 a.m. when sheriff's deputies responded to a report that Cummins had been seen.

Both defendants admitted escaping from the bus but relied on the limited defense of necessity as set forth in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, asserting that they had been threatened by officers at the county jail on November 6, 1975. The defendants had made no previous report of the alleged threats.

The defendants' version of the circumstances surrounding their admission to county jail on November 6, 1975, was that they were searched; that several of Cummins' pencils were broken; that a photo of Cummins' girlfriend was destroyed and his letters scattered on the floor; that a deputy stated, 'We don't coddle state prisoners here, we beat them'; that as many as eight officers grouped around defendants; that other threats were made which Cummins could not recall; that Condley heard someone say 'Sooner or later we are going to get a chance at you and your friends'; that following their admission a sandwich was thrown to Cummins and he was told 'to sit (his) ass down or (the officer) would beat (him) down.'

The officers' testimony describes the incident as a routine search of prisoners and property prior to admitting them to county jail; that pencils are broken because the metal eraser ends are used by prisoners to pick locks; that the photo was contraband (i.e., a nude photo); that no threats were made; and that defendants were never surrounded by a large number of officers.

Discussion

1. Physical Restraints

In denying defendants' motion to be relieved of physical restraints, the trial judge stated: 'I think in view of the facts in this case, there have been many escapes in the history of these defendants, that I have a certain duty to my court, my staff and I am going to stand by that duty.' The record reveals that the trial judge made his decision to impose restraints under the following circumstances:

(1) Defendants were on trial for escape from lawful custody.

(2) Defendants at the time of the November 7, 1975, escape were in lawful custody for attempted escape from a state prison. Both defendants were indicted on this charge (Pen.Code, § 4530, subd. (b)).

(3) The amended indictment alleged Condley had prior felony convictions for escape by means of force or violence (Pen.Code, § 4530, subd. (a); driving a motor vehicle without consent of the owner (Veh.Code, § 10851); second degree burglary (Pen.Code, § 459); and robbery (Pen.Code, § 211).

(4) The amended indictment alleged that Cummins had prior felony convictions in 1975, for second degree burglary (Pen.Code, § 459) and, in 1972, for first degree robbery (Pen.Code, § 211).

(5) Both the escape and the escape attempt were joint efforts of these defendants, and the defendants were being tried jointly.

In People v. Duran, supra, 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322, the Supreme Court held that a defendant cannot be subjected to physical restraints in the courtroom while in the jury's presence unless there is a showing of 'manifest need of such restraints.' It was further stated that 'The showing of nonconforming behavior in support of the court's determination to impose physical restraints must appear as a matter of record and, except where the defendant engages in threatening or violent conduct in the presence of the jurors, must otherwise be made out of the jury's presence. The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.' (Id., at pp. 290--291, 127 Cal.Rptr., at pp. 624, 545 P.2d, at pp. 1328.)

A mere showing that each defendant had prior felony convictions involving the use of force or violence would be insufficient to establish the 'manifest need' required to justify the use of restraints. (People v. Duran, supra, 16 Cal.3d 282, 293, 127 Cal.Rptr. 618, 545 P.2d 1322.) However, when these violent propensities are viewed in the context of two very recent joint escape attempts for which both defendants were indicted, as well as Condley's 1964 conviction under Penal Code section 4530, subdivision (a) (escape by means of force or violence), we have reached the threshold of 'manifest need' required by Duran.

The Supreme Court pointed out in Duran that a showing that the accused is a violent person is not the sole justification for imposing restraints stating: 'An accused may be restrained, for instance, on a showing that he plans an escape from the courtroom or that he plans to disrupt proceedings by nonviolent means. Evidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained may warrant the imposition of reasonable restraints if, in the sound discretion of the court, such restraints are necessary.' (People v. Duran, supra, 16 Cal.3d 282, 292--293, fn. 11, 127 Cal.Rptr. 618, 625, 545 P.2d 1322, 1329.)

The court in Duran cited as examples of 'manifest need,' cases wherein the defendants expressed an intention to escape (People v. Kimball, 5 Cal.2d 608, 611, 55 P.2d 483); where there is evidence of an escape attempt (People v. Burnett, 251 Cal.App.2d 651, 655, 59 Cal.Rptr. 652); or where a defendant attempts to escape from county jail while awaiting trial on other escape charges (People v. Stabler, 202 Cal.App.2d 862, 863--864, 21 Cal.Rptr. 120; and see People v. Duran, supra, 16 Cal.3d 282, 291, 127 Cal.Rptr. 618, 545 P.2d 1322.)

The test on appeal is whether the trial court abused its discretion (People v. Duran, supra, 16 Cal.3d 282, 293, 127 Cal.Rptr. 618, 545 P.2d 1322). In Duran, the Supreme Court concluded that shackling based on the fact that defendant was charged with violent crimes, in the absence of a record showing other reasons for shackling the defendant, was an abuse of discretion. The Supreme Court cautioned that trial courts should not adopt a general policy of imposing restraints upon prison inmates charged with new offenses and that the determination to impose restraints should be made on a case-by-case basis.

In the instant matter the trial judge's imposition of restraints on defendants did not emanate from a general policy but was based upon the circumstances of this case. Furthermore, the trial court in imposing restraints did so in such a manner as to be as unobtrusive as possible, thereby minimizing any prejudice. The defendants' legs were shackled in such a manner that the restraints were out of the view of the jury, and when the defendants took the stand or otherwise moved from place to place, the court recessed so that the shackles could not be observed by the jury.

Under the circumstances, the trial court did not abuse its discretion in requiring defendants to be shackled throughout their escape trial.

Defendants argue that while the substantive rule in Duran was merely a restatement of existing law (see People v. Harrington, 42 Cal. 165, 168 and also People v. Kimball, supra, 5 Cal.2d 608, 55 P.2d 483), the rule requiring a record was new. Therefore, defendants contend that after Duran was decided on February 26, 1976, the court should have declared a mistrial since the hearing was not in compliance with the Duran rule. The trial began on February 19, 1976, and continued until March 2, 1976. The original defense motion to relieve the defendants of the restraints and the court's ruling thereon was made on February 19, 1976. On March 2, 1976, after both the prosecution and the defense had rested,...