People v. Jackson

• Decision Date: 20 April 1993
• Docket Number: No. E009514,E009514
• Citation: 18 Cal.Rptr.2d 586,14 Cal.App.4th 1818
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony JACKSON, et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 586

18 Cal.Rptr.2d 586

14 Cal.App.4th 1818

PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony JACKSON, et al., Defendants and Appellants.

No. E009514.

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

April 20, 1993.

Certified for Partial Publication ^*

Rehearing Denied May 6, 1993.

Review Denied July 15, 1993.

[14 Cal.App.4th 1821] Handy Horiye, San Diego, under appointment by the Court of Appeal, for defendant and appellant Anthony Jackson.

Anthony J. Dain, San Diego, under appointment by the Court of Appeal, for defendant and appellant Nehemiah Robinson.

Jan Stiglitz, San Diego, under appointment by the Court of Appeal, for defendant and appellant Barry Conway.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Robert M. Foster and M. Howard Wayne, Supervising

Deputy Attys. Gen., for plaintiff and respondent

OPINION

HOLLENHORST, Acting Presiding Justice.

I

Defendants Conway, Robinson, and Jackson were each convicted by a jury of various attempted murder, kidnapping, burglary, attempted robbery, and assault offenses arising out of an attempted robbery of a check-cashing business, and a subsequent shoot-out with sheriff's deputies.

On appeal, they each raise numerous trial and sentencing issues. We consider those issues in the sequence in which they arose at trial.

II-III ^**

IV TRIAL ISSUES

1. Shackling of Defendants During Trial.

All three defendants argue that the trial court abused its discretion and committed prejudicial error because they were shackled during the trial.

The facts are relatively undisputed. Defendants were not shackled during voir dire. However, at the beginning of trial they were in leg irons which were visible to the jury. Defendants objected to the sudden shackling.

a. The Hearing of October 10, 1990.

In response to the defendants' objections, the trial court said: "Well, the security in this trial is going to be left up to the sheriff and my bailiff." After further discussion, the court said: "Okay. Look, let me short-circuit you. I understand your concerns. The safety and concerns concerning custody of the defendants, the conduct of this trial that's--the security is going to be left up to the sheriff. Now, I will interfere if it appears to the court that it is going to deny them a due process and a fair trial.... [p] I'm not going to superimpose my judgment on the sheriff's.... I'm not inclined at this point to tell the sheriff what to do or not to do." (Emphasis added.) Subsequently, the court said, "[W]e all can observe that they have made a change in their security. I have indicated to the bailiff that it's her job. And she's in charge of security in this courtroom. And they have made a decision along with the rest of the sheriff's office to proceed in this fashion. I don't intend to change that here this morning." (Emphasis added.)

b. The Hearing of October 16, 1990.

At the beginning of proceedings on October 16, 1990, the prosecutor expressed his belief that the record was insufficient to support the shackling order. He was allowed to present testimony outside the presence of the jury to augment the record.

The first witness, a deputy sheriff, testified that he overheard defendant Robinson tell the other two defendants: "When I get out, I'm going to stick every cop I see." He had also been told by other court personnel that the defendants were going to attempt an escape with outside help.

Another deputy testified that he was escorting defendant Robinson in the jail when Robinson "extended his hand and his arm, pointing his finger out making it look like a gun and then went 'boom' and stared me down...." He also heard defendant Jackson state that, when he took the stand, "he was going to go off...." ³ The deputy was also concerned with courtroom security due to "the fact that there is [sic ] three defendants, the setting of a courtroom, the natures of the crimes involved." On cross-examination, the deputy stated that his supervisors made the decisions on shackling, although he was unable to identify the individual that made those decisions in this case.

A detective testified that defendants were suspects in three murders and an armed robbery case. He testified that defendant Robinson was a gang member, and that he had been informed that defendants Robinson and Conway had outside resources to assist in an escape.

On cross-examination, the detective stated that he did not know who was in charge of security for the trial, or who was making the day-to-day security decisions. The cross-examination also brought out an additional justification for increased security when the detective testified that he also had information that defendant Robinson was considering an escape attempt with a man who was on trial for murder in an adjoining courtroom.

The trial court then decided, without hearing testimony by the defense, that enough evidence had been presented "to justify the request by the sheriff in that [sic ] to implement security measures and that's shackling the defendants."

The trial court subsequently attempted to rehabilitate itself by stating, after the luncheon recess on October 16, 1990, that "I don't want to leave you with the impression that the security and the decision to or not to shackle the defendants has been left entirely to the sheriff's department. And perhaps I misspoke when I said that.... [p] I've not aberrated [sic ] the authority of the court to decide whether or not the shackles should be employed.... [p] ... I want to make it understood that at no time has the sheriff employed shackles without first seeking permission of the court."

c. Applicable General Principles.

Section 688 states: ⁴ "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."

In People v. Cox (1991) 53 Cal.3d 618, 651, 280 Cal.Rptr. 692, 809 P.2d 351, our Supreme Court held that the trial court erred in failing to make a proper record before ordering defendant restrained during the proceedings. The court reaffirmed the basic rule of People v. Duran (1976) 16 Cal.3d 282, 290-291, 127 Cal.Rptr. 618, 545 P.2d 1322, that 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 a manifest need for such restraints.' " (People v. Cox, supra, 53 Cal.3d 618, 651, 280 Cal.Rptr. 692, 809 P.2d 351.) The court defined "manifest need" as a need that "arises only upon 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....' " (Ibid.)

In Duran, our Supreme Court reviewed the prior cases and said: "We believe that possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant's decision to take the stand, all support our continued adherence to the Harrington [People v. Harrington (1871) 42 Cal. 165] rule. We reaffirm the rule that 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 a manifest need for such restraints." (People v. Duran, supra, 16 Cal.3d 282, 290-291, 127 Cal.Rptr. 618, 545 P.2d 1322.) Our Supreme Court also said, "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. 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." (Id., at pp. 291-292, 127 Cal.Rptr. 618, 545 P.2d 1322.)

The court found that the shackling of the defendant in that case was an abuse of discretion because: "No reasons for shackling the defendant appear on the record. There is no showing that defendant threatened to escape or behaved violently before coming to court or while in court. The fact that defendant was a state prison inmate who had been convicted of robbery and was charged with a violent crime did not, without more, justify the use of physical restraints. As our discussion heretofore indicates, the trial judge must make the decision to use physical restraints on a case-by-case basis. The court cannot adopt a general policy of imposing such restraints upon prison inmates charged with new offenses unless there is a showing of necessity on the record. The court's summary denial of the motion to release defendant from his shackles was not based upon such a showing of record and implies a general policy of shackling all inmate defendants accused of violent crimes. We therefore conclude that it was an abuse of discretion to shackle defendant." (People v. Duran, supra, 16 Cal.3d 282, 293, 127 Cal.Rptr. 618, 545 P.2d 1322. See, generally, 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2484, pp. 2982-2984.)

d. The Trial Court Abused its Discretion.

The trial court here abused its discretion in abdicating its responsibility for courtroom security to the bailiff and/or sheriff's personnel. Even if we accept the trial court's later statement that it did not abdicate its responsibility, it erred in imposing shackles without a prior on-the-record determination of the need for shackles. ⁵

Duran requires that the trial court, not security personnel, make the determination that there is evident necessity for the restraints used. (People v. Jacla (1978) 77 Cal.App.3d 878, 885, 144 Cal.Rptr. 23.) "[T]he determination to impose restraints and the nature of the restraints to be imposed are judicial functions...