People v. Lewis

• Decision Date: 07 June 1983
• Citation: 192 Cal.Rptr. 257,144 Cal.App.3d 267
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George William LEWIS, Defendant and Appellant. Crim. 42616.

Page 257

192 Cal.Rptr. 257

144 Cal.App.3d 267

PEOPLE of the State of California, Plaintiff and Respondent, v. George William LEWIS, Defendant and Appellant.

Crim. 42616.

Court of Appeal, Second District, Division 7, California.

June 7, 1983.

As Modified June 21, 1983.

Hearing Denied Aug. 11, 1983.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Diane M.L. Tan, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Former Atty. Gen. and John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and John R. Gorey, Deputy Attys. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

Defendant George William Lewis appeals from a judgment upon a jury conviction of violation of Penal Code section 246, unlawfully discharging a firearm at an inhabited and occupied dwelling house, house, car and camper. The issues on appeal are whether the trial court committed prejudicial error (1) in removing appellant Lewis from the courtroom and holding him in the lockup during his trial in view of the fact that appellant refused to participate in the trial and expressed a desire to be placed in lockup and (2) in failing to instruct the jury sua sponte to disregard appellant's absence from the courtroom in reaching a verdict, given the fact that the jurors were examined for possible prejudice during voir dire by both the trial judge and defense counsel. Based on a review of the totality of the record and the specific facts in this case, we conclude that the trial court was justified in removing defendant from the courtroom and that the lack of instruction does not constitute reversible error.

I. FACTS AND PROCEEDINGS BELOW

On the first day of trial, immediately after the swearing in of the prospective jurors and in their presence appellant Lewis stated that he objected to the composition of the jury venire because there were no blacks in it and stated that he would not participate in the trial. ¹ The trial judge then asked the members of the prospective jury to step outside into the hallway. With the prospective jury panel excluded, appellant reiterated that he would not participate in the trial unless there were some blacks on his jury, that he would be disruptive of the proceedings unless he was bound and gagged in the courtroom, and that he would prefer to remain outside the courtroom during the trial proceedings. ² Defense counsel moved for mistrial since all the prospective jurors had heard appellant's objections to the absence of blacks in the jury venire. The court indicated it would be willing to obtain 35 new jurors if appellant would remain in the courtroom and take part in the trial. The court could not guarantee, however, that the new panel would include any black members. Appellant reaffirmed his intention to disrupt the proceedings and his preference to be in the lockup than to participate in the trial. ³ On the basis of appellant's statements, the court ordered that the trial proceed with appellant in the lockup and denied the motion for mistrial.

Appellant was absent from the courtroom while the selection of the jury commenced. Appellant was able to listen to the proceedings in the adjacent lockup by means of a loud speaker system. During the voir dire examination the trial judge asked prospective members of the jury whether appellant Lewis' statement or absence from the courtroom would affect their ability to render an impartial decision. ⁴ The jurors responded in the negative. The trial court also admonished the jury during voir dire that the incident involving appellant was not to be discussed or considered by them in determining appellant's guilt or innocence. During voir dire, defense counsel also asked prospective jurors as a group ⁵ and individually whether any one could not be fair in view of appellant's comments. Each juror answered in the negative.

At the beginning of each session of court, the trial court asked appellant Lewis whether he wished to participate in the trial. Appellant indicated through defense counsel that he wished to remain in the lockup. Appellant absented himself during the entire trial. The jury was advised at each session that appellant was in a room adjacent to the courtroom, listening to the trial proceedings by means of a speaker. ⁶

The jury deliberated approximately five hours, with an intervening weekend, and returned a verdict of guilty.

II. ISSUES ON APPEAL

We assume no error was committed in composing the venire assembled for this trial. We emphathize with appellant's concern upon seeing no members of his race among the venire. But there is no absolute right to trial by a jury of one's own race or even to a jury reflecting a cross-section of the community. California adheres "to the long-settled rule that no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals." (People v. Wheeler (1978) 22 Cal.3d 258, 277, 148 Cal.Rptr. 890, 583 P.2d 748, citing People v. White (1954) 43 Cal.2d 740, 749, 278 P.2d 9; People v. Breckenridge (1975) 52 Cal.App.3d 913, 920, 125 Cal.Rptr. 425; People v. Spears (1975) 48 Cal.App.3d 397, 122 Cal.Rptr. 93.)

Defendant's right is to have the venire composed through a process calculated to produce a representative cross-section. (Peters v. Kiff (1972) 407 U.S. 493, 500, 92 S.Ct. 2163, 2167, 33 L.Ed.2d 83 [jury must be drawn from sources which produce a " 'fair possibility for obtaining a representative cross-section of the community.' "]; People v. Jones (1973) 9 Cal.3d 546, 556, 108 Cal.Rptr. 345, 510 P.2d 705; Adams v. Superior Court (1974) 12 Cal.3d 55, 59-60, 115 Cal.Rptr. 247, 524 P.2d 375.) He also is entitled to a venire drawn from the district where the crime occurred. (Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446; People v. Jones, supra, 9 Cal.3d 546, 554-557, 108 Cal.Rptr. 345, 510 P.2d 705; People v. Taylor (1975) 46 Cal.App.3d 513, 525, 120 Cal.Rptr. 762 [upholding trial by jury drawn entirely from Northwest District of Los Angeles County]; People v. Casillas (1973) 33 Cal.App.3d 1078, 1080, 109 Cal.Rptr. 579.) Furthermore, defendant has a right to have the jury itself selected from the venire in a manner which does not exclude members of his race through peremptory challenges based on group bias. (People v. Wheeler, supra, 22 Cal.3d 258, 277-79, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Fuller (1982) 136 Cal.App.3d 403, 186 Cal.Rptr. 283.)

What happened in this case apparently was the eventuality foreseen by the California Supreme Court in Wheeler. "The best the law can do to accomplish those steps with the least risk to the representative nature of the jury pool is to take them by random means, i.e., by drawing lots. We recognize that in a predictable percentage of cases the result will be a wholly unbalanced jury, usually composed exclusively of members of the majority group. This is inevitable, the price we must pay for juries of a workable size." (22 Cal.3d at p. 277, 148 Cal.Rptr. 890, 583 P.2d 748.)

Appellant was advised at the time of trial that he could raise the absence of blacks among the venire as an issue on appeal. However, appellant asserts no such contention in his brief. No facts nor allegations have been brought to our attention suggesting venire are composed or juries selected in the Van Nuys Superior Court in ways which discriminate against blacks. Thus we have no basis for considering this issue on appeal.

Appellant instead makes three other contentions on appeal: (1) there was no "manifest need" to remove defendant from the courtroom or restrain appellant and therefore the trial court committed prejudicial error by removing defendant from the courtroom; (2) the trial court's failure to instruct the jury sua sponte to disregard appellant's absence from the courtroom in determining his guilt or innocence compounded the previous error; and (3) because the error was not harmless beyond a reasonable doubt, the conviction must be reversed.

III. DEFENDANT WAS PROPERLY ALLOWED TO BE ABSENT FROM THE COURTROOM DURING HIS TRIAL WITHOUT A SHOWING OF "MANIFEST NEED"

Our Supreme Court has held that no person charged with an offense can 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, 290-91, 127 Cal.Rptr. 618, 545 P.2d 1322.) The Court defined the term " 'physical restraints' " to include "all forms of handcuffs, shackles, manacles, leg irons, and other restraining devices. " (Id. at 288, fn. 5, 127 Cal.Rptr. 618, 545 P.2d 1322. Emphasis added.) Appellant, in the case at hand, contends that removal of the defendant from the courtroom constitutes the use of a "restraining device" as contemplated by Duran and that therefore a showing of manifest need was required before defendant could be removed from the courtroom.

In Duran, the Supreme Court traced the origin of the rules governing the use of physical restraints in English common law and subsequent holdings of California cases. In the early cases reviewed by the Court, in the Duran case itself, and in the cases following Duran, the courts have been concerned with the use of devices, such as shackles, leg irons, handcuffs or manacles, which are applied directly to the defendant's person rather than with removal of the defendant from the courtroom. (People v. Duran, supra, [defendant in wrist and ankle restraints]; Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 177 Cal.Rptr. 1 [defendant handcuffed]; People v. Zatko (1978) 80 Cal.App.3d 534, 145 Cal.Rptr. 643 [defendant shackled]; People v. Jacla (1978) 77 Cal.App.3d 878, 144 Cal.Rptr. 23 [defendant shackled].)

An entirely different set of constitutional...