Opinion
F063230
01-23-2013
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY PACKARD, Defendant and Appellant.
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Fresno Super. Ct. No. F10904477)
OPINION
THE COURT
Before Kane, Acting P.J., Poochigian, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 3, 2011, a Fresno County jury found appellant Anthony Ray Packard guilty in count 1 of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and in count 2 of receipt of a stolen motor vehicle (Pen. Code, § 496d, subd. (a)). After rendition of the verdict, appellant admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b)).
Appellant's codefendant, Keith McCray, was convicted of similar offenses and has a separate appeal pending before this court (No. F063988).
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On August 31, 2011, the court denied appellant probation and sentenced him to a total term of four years in state prison. The court imposed the middle term of two years for unlawful taking of a vehicle (count 1) and two consecutive one-year enhancements for the prior prison terms.
On September 1, 2011, appellant filed a notice of appeal.
STATEMENT OF FACTS
On the morning of August 29, 2010, Amanda Bowerman saw her 1996 green Honda Accord being driven away from her home near Ashlan and Cedar Avenues in Fresno. The car had been locked and parked in the driveway of her home, and Bowerman had not given anyone permission to use the vehicle. She contacted the Fresno Police Department and reported her car stolen. On the afternoon of August 30, 2010, Fresno Police Officer Maldonado located Bowerman's car in front of an apartment complex in the 3300 block of North Maple Avenue. Officers from the HEAT (Help Eliminate Auto Theft) task force began a surveillance of the vehicle.
On the evening of August 30, Fresno Police Sergeant Timothy Tietjen and California Department of Insurance Detective Christine Diep, who comprised one unit of the surveillance team, followed the stolen vehicle. When the Accord stopped in traffic to make a turn, Sergeant Tietjen and Detective Diep positioned their vehicle so that Diep could see the occupants of the Accord. Diep identified Keith McCray as the driver and appellant as the passenger.
Another surveillance unit, composed of California Highway Patrol Officers Chad Moran and Chris Fief, later found the Accord parked and unoccupied in the area of South Kirk and Grove Avenues. When the Accord began to leave that location, Officers Moran and Fief followed in an unmarked truck. The officers eventually stopped their surveillance of the vehicle but remained in the area. A short time later they saw the Accord turn into an AM/PM convenience store. Moran identified appellant as the driver of the Accord at that point in time. The Accord parked at the store, and two occupants got out of the car and entered the store. Sergeant Tietjen instructed Moran and Fief to "take them down in the store." Moran and Fief entered the store and handcuffed appellant and McCray.
A search of appellant's person yielded a "shaved key," which Officer Maldonado characterized as a key altered to fit the ignitions of older-model Honda, Nissan, Toyota, and Saturn-type vehicles. Officers determined that appellant's address was the apartment complex in the 3300 block of North Maple. Appellant gave officers three different stories about his acquisition of the Accord. He first said a friend named "Fernando" gave him the car at an address on Shields Avenue. He next said the Accord was left running with the keys inside at his Maple Avenue apartment complex. He last said he had gotten the car from a "white guy" in his apartment complex.
McCray told officers he did not know the Accord was stolen. He said he had only been in the car for about 10 minutes, and that appellant had picked McCray up from his home on South Kirk Avenue, just south of Grove Avenue. McCray testified that he and appellant drove straight from the McCray home to the AM/PM store. When officers advised McCray that they had seen him drive the Accord, McCray changed his story and said appellant picked him up 20 minutes before going to the store. McCray claimed there was another black man in the car prior to appellant's visit to the McCray home. McCray said appellant and the unidentified black man drove the car around the neighborhood, and that suggested that officers must have seen the other black male driving the Accord.
An examination of the interior of the Accord revealed that the plastic molding in the ignition area was missing, the steering column was exposed, and the ignition system itself was hanging out by its wires.
DISCUSSION
I. THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERROR BY DENYING APPELLANT'S MOTION TO BE PHYSICALLY UNRESTRAINED DURING TRIAL
Appellant contends the trial court abused its discretion by denying his motion to be physically unrestrained during trial.
A. Procedural History
On July 26, 2011, codefendant McCray filed a motion in limine to allow him to appear at trial without physical restraints (Pen. Code, § 688). On that same date, appellant's trial counsel joined in McCray's motion, noting, "I don't think Mr. Packard has ever shown any tendency to be disruptive or to try to leave the courtroom." The trial court began the motion hearing by describing the physical restraints placed on appellant and McCray. The court noted that the restraints were referred to as tethers and not shackles, and that the cloth tethers secured each defendant's feet to the floor through an I-bolt. The court further noted that each defendant was sitting at a counsel table with a curtain. The court explained that it had conducted more than 10 trials in that particular courtroom and had "never once heard a tether or a noise from a tether."
The court went on to explain that the proceedings before him did not entail visible shackles such as belly chains and noted that the arms, wrists, and hands of each defendant would be completely unshackled. The court described the configuration of the courtroom and noted that two deputies would be present during the trial, with one deputy seated to the right of the court and the second seated at the bailiff's table.
Deputy Sheriff Tim Van Houwelingen said that McCray posed a "very real and serious security threat to the officers, court personnel, and the public if appropriate security measures are not taken." Deputy Van Houwelingen said he had researched McCray's criminal history and noted that McCray had caused a disturbance in a third floor holding cell awaiting a court appearance in 2010. Deputy Van Houwelingen advised that he had not researched appellant's background, and the court acknowledged that appellant's counsel had "just joined the motion" in the courtroom. The deputy suggested: "I think if we ... tether one leg ... we can hide the tether well enough from any prospective juror."
The trial judge stepped down from the bench, entered the gallery, and described his view of the defense table and the seated defendants for the record. The judge noted that he was six feet tall, and that he was viewing the defense table from "every angle." The court noted: "[T]he deputies have volunteered that they will have the right leg unshackled, so only one leg will be shackled. That is the leg under the table. [¶] I -frankly, I can't see anything.... [¶] ... [¶] ... I'm ordering that the first two rows be kept empty. The third row, the floor of the courtroom is not visible.... [¶] [I]n an abundance of caution . when the jurors come in and are standing up, I will have all the parties including each attorney remain seated. I will ask you [defense counsel] to remain seated in front of your client's leg, so I can't imagine the way that the jurors could see your client's - and then they [the jurors] will sit down. So once the jurors are seated, that is not visible."
The court made further factual findings for the record, noting:
"[T]he physical makeup of this courtroom places the jurors within approximately 15 feet of each defendant. It places the prosecutor within ten feet. Each counsel shoulder to shoulder. The Court within approximately 12 feet. And perhaps, the two most vulnerable people in the courtroom
based upon physical location, judicial assistant is to the right of the Court, even closer to the defendants, and the court reporter is sitting in the well of the courtroom within almost arm's reach of the defendants when jury selection is occurring because she has to wheel her chair in front of the bench. There is no division at all between the court reporter and the defendants in custody. [¶] I understand completely the rulings in the Supreme Court Cases of [People v.] Hernandez [(2011) 51 Cal.4th 733] and ... [People v.] Stevens [(2009) 47 Cal.4th 733], which appear to address this. I believe it is a balancing process.... [¶] ... [¶] I fully realize the need for the defendants to have a fair and impartial jury. I fully recognize and I fully respect their right to a fair trial. That is why their hands are completely unshackled. As I said, there are no belly chains. There are leg tethers only. That is on one leg of each defendant. And, once again, if the defendants choose to testify, then they will be completely unshackled, because then I recognize the interest shifts. And if they are testifying on the stand, then the Court does need to balance while testifying their need to testify from a perception of complete freedom in the sense they may express themselves completely while testifying, which both of the cited cases address. [¶] If that becomes necessary, I will make additional findings, if appropriate. If we need to change the custodial situation, at that point when a defendant is on the stand testifying, the need for him or her to testify without shackles is a different perspective."
The court concluded: " ... I will rule that the defendants' hands and arms remain completely unshackled. There would be no visible chains at all. The tethers in the courtroom do not make noise. Though the defendants will remain seated. I will order the first two rows of the public courtroom to remain completely open, so that there will be no jurors seated there. The closest juror will be approximately 20 feet away from the defendants. And, again, while nothing is perfect, I believe that the Court has taken the necessary steps to ensure that the shackling not be visible to the jurors."
B. Applicable Law
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.... ' [Citation.]" (People v. Cox (1991) 53 Cal.3d 618, 651, fn. omitted, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; see also People v. Miller (2009) 175 Cal.App.4th 1109, 1118.) "[D]ue process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case." (Deck v. Missouri (2005) 544 U.S. 622, 632.) However, it is also well settled "that the use of physical restraints in the trial court cannot be challenged for the first time on appeal." (People v. Tuilaepa (1992) 4 Cal.4th 569, 583; see also People v. McDaniel (2008) 159 Cal.App.4th 736, 743.) A defendant must make an appropriate and timely objection to his shackling. (People v. Tuilaepa, supra, at p. 583.)
A defendant's record of violence does not by itself justify shackling. (People v. Cunningham (2001) 25 Cal.4th 926, 986; People v. Duran (1976) 16 Cal.3d 282, 293; but see People v. Medina (1995) 11 Cal.4th 694, 730 .) "The decision of a trial court to shackle a defendant will be upheld by a reviewing court in the absence of an abuse of discretion. [Citations.] When the record does not reflect 'violence or a threat of violence or other nonconforming conduct' by the defendant, a trial court's order imposing physical restraints will be deemed to constitute an abuse of discretion. [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 987.) However, courtroom shackling, even if error, is harmless if there is no evidence that the jury saw the restraints or that the shackles impaired or prejudiced the defendant's right to testify or participate in his or her defense. (People v. Anderson (2001) 25 Cal.4th 543, 596.)
Such is the case here. As respondent notes, the court took "painstaking efforts" to ensure that jurors, both prospective and empanelled, did not see or hear the leg tethers on appellant and his codefendant. The court specifically ordered that there be no physical restraint of appellant and noted there were no shackles or tethers on appellant's hands, wrists, arms, or belly. The court cited the case precedents applicable to shackling of criminal defendants and engaged in a careful balancing of the need for security in a courtroom of modest physical dimensions with the constitutional rights of the appellant and his codefendant. The court further indicated that appellant would be completely unrestrained if he elected to testify and noted that it would change the "custodial situation" as needed during the course of the trial.
Under the foregoing facts and circumstances, we cannot say error occurred. Even if error somehow occurred, it was harmless absent any evidence the jury saw the tethers beneath the defense table.
DISPOSITION
The judgment is affirmed.