Opinion
D058201 Super. Ct. No. SCD221637
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW HAMILTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Margie G. Woods, Judge. Affirmed.
A jury found Matthew Hamilton guilty of three counts of robbery and three counts of attempted robbery. The jury also found Hamilton personally used a deadly weapon while committing the robberies and attempted robberies. In a bifurcated trial, the court found true allegations that Hamilton had suffered: (1) three prior prison terms (Pen. Code, § 667.5, subd. (b)); (2) three separate convictions for serious felonies (Pen. Code, § 667, subd. (a)(1)); and (3) 12 serious/violent felony convictions within the meaning of the Three Strikes law. The court sentenced Hamilton to prison for 92 years to life, plus a determinate term of 81 years.
On appeal, Hamilton contends the trial court erred by: (1) denying his motion for mistrial after a police officer testified he performed a "parole-type search" of Hamilton's bedroom; and (2) denying his new trial motion based on his claim that three jurors inadvertently observed him being handcuffed and shackled during a court recess. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
The prosecution presented evidence that Hamilton entered three commercial establishments in the same general area within a five-day period and robbed, or attempted to rob, employees in the stores.
The first crime occurred at a sports bar on May 31, 2009 at about 2:00 a.m. As two employees were closing the bar, a man carrying a shotgun with a shortened barrel walked up to one of the employees in the back alley. The gunman wore dark clothing, dark colored gloves, and a mask over his face. The mask appeared to be a watch cap with eye holes cut out of it. The gunman then followed the employee inside the bar. When the other employee saw the gunman, she ran out the front door. The gunman then ran away.
The second crime occurred later that evening at a taco shop located in the same shopping center as the sports bar. At about 10:30 p.m., two employees were leaving through the back door after closing the shop, when a man wearing a mask with eye holes and holding a short-barreled shotgun pushed his way into the shop. The gunman demanded money, and when one of the employees told him they had no money, the gunman ordered the other employee to lie on the floor and threatened to shoot him if they did not give him the money. After the employees explained that all the money was in a safe for which they had no key, the gunman ordered the employees into the shop's walk-in freezer and jammed the door shut with a stick.
The third crime occurred five days later on June 5 in a mini-mart store located close to the sports bar and taco shop. At about 9:00 p.m., three employees were closing the store. Suddenly, a masked man walked into the store carrying a "rifle" and a gray duffel bag, and demanded that the employees put money from the cash registers into his bag. The gunman then marched the three employees to the store's safe and, in response to his demands, the employees put money from the safe into his duffel bag. After telling the employees to stay in the walk-in cooler, the gunman left. Shortly after, the employees called the police. A video recording of the gunman entering the store and forcing the employees to load his bag with money and marching them to the cooler that night was played for the jury.
About nine days after the mini-mart robbery, on June 14, the police department was contacted because of a tamper alert on Hamilton's GPS ankle bracelet. Later that day, police officers found Hamilton at his niece's home, which is within walking distance of the three stores that were robbed. The police officers searched Hamilton's bedroom, and found two shotgun shells, mail addressed to Hamilton, and three dark colored gloves. Hamilton was arrested later that day.
As detailed below, the court permitted evidence that Hamilton was required to wear a GPS monitor, but did not allow evidence regarding the reason for the monitoring.
While reviewing surveillance footage of the mini-mart robbery, Detective Tim Johnson noticed the gloves in the video matched the gloves recovered from the search of Hamilton's bedroom. Detective Johnson also obtained GPS information that Hamilton was in the area of the robberies at the time of the robberies.
Nine days after the first search, on June 23, Detective Johnson and several other police officers conducted a second search of Hamilton's bedroom, specifically looking for items used by the gunman during the three robberies. This search revealed a loaded sawed-off shotgun, a gray duffel bag with a strap, and a black ski mask with holes cut into it. A DNA analysis of samples from the ski mask revealed it had DNA from at least two contributors but that Hamilton was the predominant contributor.
Several of the store employees from the three stores identified the gloves, ski mask, gray duffel bag, and shotgun as the items used or worn by the perpetrator, and also gave physical descriptions of Hamilton that matched his general body-type (tall and thin).
Hamilton was thereafter charged with committing the robberies/attempted robberies at the three stores. In addition to the items found in his bedroom, an important part of the prosecution case at trial was information from a GPS tracking device that Hamilton was required to wear. The GPS information showed that Hamilton was at the location of each robbery/attempted robbery at the time of each incident.
At trial, the GPS information was presented primarily through the testimony of John Silva, Hamilton's parole agent. Pursuant to in limine rulings, the jury was not told Silva was Hamilton's parole agent, and instead Silva said he was employed in a position that requires him to supervise people who are wearing GPS tracking devices. Silva indicated that Hamilton had worn a GPS ankle device for about 10 months and it was Silva's job to monitor the signals from this device. In response to defense counsel's questions, Silva said that before Hamilton was required to wear the GPS monitor, Silva told Hamilton the device would track his movements and there would be a tamper alert if Hamilton attempted to remove or otherwise manipulate the device.
Defense
Hamilton testified at trial that he was a transient who lived out of his car and stored his belongings at his niece's home (where his bedroom was searched on June 14 and June 23). Hamilton acknowledged he knew his GPS tracking device recorded his location at all times. He denied that he committed the crimes, and claimed that he would walk in the area around his niece's home for up to three hours each day and coincidentally happened to be near the stores that were robbed at the times of the robberies. Hamilton admitted that in 1981, he was convicted of a felony theft-related offense, and in 1984, he was convicted of two felony theft-related offenses.
Hamilton's niece testified the room searched by the police on June 14 and 23 contained items belonging to several people including Hamilton. She said Hamilton slept in his car and only stored some of his property in the room. The niece also testified that the officers were searching her home because Hamilton "broke his supervision." Hamilton admitted he owned the ski cap and gloves that were found in the bedroom, but denied cutting eye holes in the cap and denied that many of the other items found in his bedroom were his property.
During closing arguments, defense counsel focused on the evidence showing the officers did not find most of the incriminating items until the second search, suggesting that the police had engaged in some form of misconduct and/or that the items found during the second search belonged to someone else in the home. Defense counsel also argued that it did not make sense that Hamilton would have committed the robberies because he knew the GPS device was tracking his every movement.
DISCUSSION
I. Motion for Mistrial
Hamilton contends the court abused its discretion in denying his motion for mistrial based on a police officer's reference to a "parole-type search" in his testimony.
A. Background
Before trial, Hamilton moved to exclude all GPS evidence, arguing that its prejudicial effect outweighed its probative value because the jury would "automatically know that he is a sex offender." Hamilton also moved to prohibit any mention that he was on parole, arguing this evidence was irrelevant and similarly prejudicial.
The court denied the defense motion on the GPS evidence, finding the evidence was highly relevant to the prosecution's case. The court thus ruled the prosecution could introduce evidence that Hamilton was wearing a GPS tracking device at the time of the charged crimes and the evidence of Hamilton's location disclosed by this device. However, the court ordered this evidence sanitized, including that counsel and witnesses should call the GPS anklet a "GPS tracking device" and should not refer to the reason that Hamilton was wearing the device. The court also ruled Hamilton's parole status was inadmissible. The prosecutor responded that she would adhere to these rulings and would instruct her witnesses not to call the initial search of Hamilton's bedroom a "parole search."
During trial, the prosecutor and the 16 prosecution witnesses strictly complied with these rulings, except for one indirect reference to parole by police officer Patrick Heller. Officer Heller was one of numerous officers participating in the first search of Hamilton's bedroom (on June 14). During direct examination, the prosecutor asked Officer Heller about the reason for this initial search. Specifically, the prosecutor asked: "Was the purpose of your search a more general search or were you searching for specific evidence related to those three robberies that I've just described?" Officer Heller replied: "Just a general parole-type search." (Italics added.) Defense counsel immediately objected, and the court sustained the objection. The court told the jury it was "admonished not to consider the last statement of the witness." The court then directed the prosecutor to repeat the question, and the prosecutor asked: "Was your search just of a general nature?" Officer Heller responded "Yes."
Later that day, outside the presence of the jurors, Hamilton moved for a mistrial arguing that Officer Heller's testimony violated the court's order that neither counsel nor the witnesses should refer to the fact that Hamilton was on parole. Hamilton's counsel argued that the court's admonishment could not "cure the defect" because "it's going to be in [the jurors'] mind[s]." Hamilton's counsel asserted that this testimony "hindered" Hamilton's opportunity for a "fair trial."
The court denied the motion. The court found the brief remark would not be reasonably interpreted by the jury to mean that Hamilton was on parole because Officer Heller was merely referring to a "parole- type search" and he did not suggest Hamilton was on parole or that there was any applicable search waiver. (Italics added.) The court further found that given the court's prompt admonishment and the "overall . . . state of the evidence and . . . of the case," there could not have been any undue prejudice arising from the remark warranting a mistrial.
B. Analysis
When improper testimony is presented to the jury, the court should grant a motion for mistrial if the party's chance of receiving a fair trial was irreparably damaged. (People v. Silva (2001) 25 Cal.4th 345, 372.) The question whether "the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court." (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) " ' "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (Ibid.)
Here, the reference to the subject of parole was brief and ambiguous. Officer Heller responded to a question regarding the manner in which the search of Hamilton's bedroom was conducted, and not to a question regarding Hamilton's status as a parolee. The court immediately admonished the jury to disregard the statement and directed the prosecutor to repeat the question.
Hamilton argues because the jury heard the statement that he was on parole, you cannot " 'unring a bell.' " However, the trial court found that a reasonable juror would not construe the statement to mean that Hamilton was on parole, and this finding is supported by the record. Officer Heller said only that the search was a "parole-type" search, and in his next answer he clarified that he was referring to a general type of search.
Further, a jury is presumed to follow an admonition to disregard improper evidence. (People v. Williams (1995) 40 Cal.App.4th 446, 456; People v. Allen (1978) 77 Cal.App.3d 924, 934.) There is no basis in the record to rebut this presumption and conclude the jury disregarded the court's admonition. Moreover, there is no suggestion of any bad faith on the part of the witness or the prosecutor. At the beginning of trial, the prosecutor said she would instruct her witnesses on the court's in limine rulings, and the prosecutor later confirmed that she had told her witnesses not to mention Hamilton's parole status. Officer Heller was the only witness who made any reference to parole, and there was no indication he intentionally failed to follow the prosecutor's instructions.
Moreover, even assuming the jury refused to abide by the court's admonition and the jury interpreted the "parole-type search" remark to mean Hamilton was on parole, the court did not abuse its discretion in finding the remark did not preclude a fair trial. Most significantly, the jury already knew that Hamilton was wearing a GPS device on his ankle, he was subject to 24-hour GPS tracking, and the police were immediately called when he attempted to manipulate this device. Based on this evidence (the admissibility of which is not challenged here), the jury knew and understood that Hamilton was subject to 24-hour law enforcement monitoring and supervision. Whether that supervision is called parole or GPS tracking was not material for purposes of the issue on appeal. Because the jury already knew Hamilton was being closely supervised by law enforcement, there is no likelihood that the inadvertent reference to parole had an impact on the jury's consideration of the case.
We note further that Hamilton's argument that he would not have testified (and told the jury of his prior felony convictions) but for Officer Heller's fleeting reference to parole is speculative. There is nothing in the record supporting a reasonable conclusion that Hamilton was compelled to testify because of Officer Heller's single reference to a "parole-type search."
II. Motion for a New Trial
Hamilton contends the trial court erred in denying his new trial motion based on his claim that three jurors inadvertently observed him being handcuffed and shackled.
A. Background
After the jury reached its verdict in the case, the court discharged the jury. The next day, at a hearing to schedule the bifurcated trial on the prior allegations, defense counsel informed the court that after the jury was discharged, Hamilton told her that "sometime prior to deliberations the jury had seen him in his handcuffs and shackles." Defense counsel said that she "guess[ed]" she wanted to move for a new trial because "Mr. Hamilton could have been prejudiced . . . ." The court recommended that counsel make a motion at the next hearing and support the motion with more detailed information, including "who was there, what was there and what were the circumstances . . . ." The court also noted that, absent additional facts, a juror's inadvertent viewing of a defendant being restrained during a court recess is generally insufficient to warrant a mistrial or a new trial.
At a hearing held about six days later, defense counsel said she wanted to renew Hamilton's new trial motion. She stated that "Mr. Hamilton . . . inform[ed] me that while he was being cuffed, three jurors saw him in the process of being cuffed and shackled. Apparently, [the jurors] were walking through the hallway . . . I think to go to lunch, prior to deliberating." Counsel said that the jurors then continued walking through the hallway. The court asked whether counsel had any other information to support this claim, and defense counsel responded: "According to my client, I believe that there was . . . some court staff in the courtroom at that time. [¶] . . . [¶] Your Honor was in the courtroom, according to Mr. Hamilton, . . . and the deputy, who was in the process of actually putting the cuffs on him. [¶] . . . [¶] And the clerk." Defense counsel said she had not had the opportunity to interview the clerk or the deputy, and this was the first time that Hamilton had informed her that "Your Honor was actually in the courtroom."
On this record, the court denied the new trial motion. The court noted that it did not witness this claimed incident, nor was there corroboration from any other witness or the jurors. The court further stated that even assuming the jurors momentarily saw Hamilton being put into handcuffs and restraints, there was no legal basis for a new trial based on this "chance observation."
B. The Trial Court Properly Denied Hamilton's Motion for a New Trial
A court has broad discretion when ruling on a new trial motion. (People v. Guerra (2006) 37 Cal.4th 1067, 1159.) A court's ruling will not be disturbed " ' "unless a manifest and unmistakable abuse of discretion clearly appears." [Citation.]' " (Id. at p. 1160.)
The court did not abuse its discretion here. Hamilton was not restrained during the court proceedings and was dressed in civilian clothing during the trial. Hamilton claimed the jurors briefly saw him during a lunch recess while he was being handcuffed and shackled, presumably when the deputy was getting ready to escort him to a detention facility for the lunch break.
Under well-settled legal principles, there is nothing about this momentary observation showing undue prejudice. Although " '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. Stevens (2009) 47 Cal.4th 625, 633), the California Supreme Court has repeatedly held that a juror's brief observation of a defendant in restraints for the purpose of transporting the defendant outside the courtroom does not constitute prejudicial error. (People v. Cunningham (2001) 25 Cal.4th 926, 988; People v. Tuilaepa (1992) 4 Cal.4th 569, 584; People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2.) "The customary practice of utilizing physical restraints while transporting a prisoner from place to place, e.g., from jail to courtroom and back, is a matter of common knowledge and generally acknowledged as acceptable for the protection of both the public and defendant." (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141.) Thus, if jurors happen to observe a handcuffed defendant during transportation to and from the courtroom, this observation, without more, does not support a prejudice finding. (See People v. Cunningham, supra, 25 Cal.4th at p. 988; People v. Tuilaepa, supra, 4 Cal.4th at p. 584.)
Moreover, the court had a reasonable basis to reject Hamilton's factual assertions. At the first hearing, the court provided Hamilton's counsel time to investigate the matter to produce corroborating information showing the jurors saw Hamilton being restrained. However, at the second hearing, Hamilton's counsel acknowledged she had no additional evidence. Counsel did not produce any supporting juror declarations or ask for additional time to obtain the declarations or to interview the court clerk or deputy. The trial judge also indicated that although Hamilton said the judge was in the courtroom at the time, she did not recall witnessing the claimed incident.
Additionally, Hamilton's motion was untimely because he waited until after the jury was discharged to inform his counsel, even though he said he was aware of the claimed viewing before the jury began their deliberations. By waiting, Hamilton precluded the court from admonishing the jurors or implementing any other remedial measures to eliminate any possible prejudice that may have been caused.
DISPOSITION
The judgment is affirmed.
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HALLER, Acting P. J.
WE CONCUR:
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MCINTYRE, J.
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IRION, J.