Opinion
NOT TO BE PUBLISHED
Received for posting 7/28/08
Appeal from a judgment of the Superior Court of Los Angeles County, No. SA055774, Katherine Mader, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Appellant Henry Lee Taylor Saxton appeals from a judgment entered after a jury found him guilty of count 1, first degree burglary in violation of Penal Code section 459; count 2, forcible oral copulation in violation of section 288a, subdivision (c)(2); count 3, possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1). The jury found true that appellant personally used a firearm as to counts 1 and 2 pursuant to sections 12022.53, subdivision (b), and 12022.5, subdivision (a). The jury found that another person was present during the burglary as to count 1. As to count 2, the jury found that appellant committed forcible oral copulation during a burglary, pursuant to section 667.61, subdivision (b). In a bifurcated proceeding, the jury found that appellant had suffered three prior prison terms under section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Appellant contends that the trial court erred by: (1) denying appellant’s request for a hearing regarding the need to use restraints on appellant during the trial; (2) denying a defense motion to preclude the prosecution from arguing that appellant had not made efforts to retest a DNA sample; and (3) refusing a defense request to instruct the jury with CALCRIM instructions.
FACTS AND PROCEDURAL HISTORY
On October 27, 2003, appellant broke into Lourdes M.’s house and forced her to orally copulate him at gunpoint, while continuously threatening to kill her. Lourdes M. noticed that appellant wore a gold chain and a large crucifix around his neck and that he was wearing a navy blue jogging suit, with a cotton T-shirt underneath. She tried to study his face closely so that she would be able to identify him later. After he ejaculated, appellant told Lourdes M. to brush her teeth. Lourdes M. spat on the side of the sink so that her saliva might be used to identify appellant. Appellant filled two duffel bags full of toys, clothes and jewelry, and left the house. Lourdes M. called the police, who removed sperm from the sink, which was analyzed and matched appellant’s DNA.
On November 22, 2003, officers arrested appellant when he jumped out of his car and tried to escape during a routine traffic stop. Appellant was wearing navy blue pants, a white tank top, and wore a gold necklace.
Lourdes M. identified appellant at the preliminary hearing and at trial.
DISCUSSION
I. The trial court did not abuse its discretion by ordering appellant to be restrained without a formal hearing.
Appellant contends that the trial court’s refusal to conduct a formal hearing regarding the need to restrain him in the courtroom denied appellant his right to due process of law. He also contends that the decision to use restraints without a required showing of necessity infringed his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We disagree with appellant’s contentions.
“‘“[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. Ward (2005) 36 Cal.4th 186, 206.) A brief observation of the defendant in shackles has generally been recognized as not constituting prejudicial error. (Id. at p. 207.) The trial court initiates whatever procedures it deems sufficient to determine whether restraints are necessary. (People v. Mar (2002) 28 Cal.4th 1201, 1217.) We review the trial court’s determination for a showing of manifest abuse of discretion. (Id. at p. 1217.)
We first note that no formal hearing is necessary, as long as the trial court bases its determination on facts. (People v. Mar, supra, 28 Cal.4th at p. 1218.) Next, restraints have been considered justified in a range of circumstances where: a defendant expressed an intent to escape, threatened to kill witnesses, and secreted a lead pipe in the courtroom; a defendant wrote letters that he intended to procure a weapon; resisted being brought to court, refused to dress for court, and had to be taken bodily from jail to court; a defendant attempted to escape from county jail; a defendant shouted obscenities, kicked at the counsel table, fought with officers, and threw himself on the floor. (People v. Mar, supra, at pp. 1216-1217.)
The record shows that the trial court carefully considered the situation based on the facts and its own observations. On March 5, 2007, Sergeant Tony Taylor testified that appellant had a lot of confrontations with the deputies at the jail. Sergeant Taylor requested extra deputies or a stealth belt. He also testified that a shank was found in appellant’s cell on October 10, 2005, and that appellant had threatened to shank a deputy. Appellant’s trial counsel then stated that appellant was found not guilty in a subsequent jury trial on that matter. Next, the trial court noted that appellant had refused to come out of his cell for a hearing one week prior to trial, until the trial court signed an extraction order. The trial court entertained discussion on the choice of extra deputies or a stealth belt, which would be hidden from the jurors. Appellant’s trial counsel chose the stealth belt. Later, in a discussion with appellant outside the presence of the jury, the trial court noted that appellant was seated, and the belt was not visible. It also noted that appellant did not want to take advantage of the opportunity to introduce himself to the jurors so they would not believe he was restrained in any way. The trial court found a manifest need to restrain appellant. Appellant challenged the trial court’s finding, prompting the trial court to comment on his aggressive manner.
Despite appellant’s argument that his refusal to come out of his cell and his agitation about being restrained did not support the need for restraints at trial, we conclude that the trial court did not abuse its discretion in authorizing the restraint. Appellant exhibited confrontational behavior, previously threatened to shank a deputy, refused to leave his cell, and spoke in an angry, aggressive manner to the trial court. In any event, there is no evidence that the jury ever saw the restraint, and we conclude that there was no prejudice. (People v. Ward, supra, 36 Cal.4th at p. 207.)
II. The trial court did not err in denying appellant’s motion to preclude the People from arguing that appellant had not made efforts to retest the DNA sample.
Appellant contends that the trial court erred in admitting evidence that there was sufficient DNA matter for the defense to retest the sample and in allowing the People to argue that the failure of the defense to retest that evidence was evidence of appellant’s guilt. Appellant urges that as a result, the burden of proof shifted to the defense. We disagree.
First, “[p]ointing out that contested physical evidence could be retested [does] not shift the burden of proof.” (People v. Cook (2006) 39 Cal.4th 566, 607.) In Cook, the court held that the People’s direct examination of a criminalist of whether the defense could have subjected bullets to its own testing by an independent laboratory did not shift the burden of proof. (Ibid.) And, the People’s comment in closing argument that the defense had the right to call criminalists to testify, but did not, was simply an example of the People’s ability to make fair comment on the state of the evidence, and did not result in burden shifting. (Id. at p. 608.) Similarly, here, on direct examination, the People asked its criminalist if there was enough material from the sample from the sink to permit DNA retesting. In closing, the People pointed out that the People, and not the defense, had the burden of proof, and argued that if there had been any problem with the way the sample was handled, the defense could have retested the sample. Moreover, the trial court also instructed the jury that the burden of proof is on the People to prove the defendant guilty beyond a reasonable doubt and we presume the jurors followed the instruction. (People v. Osband (1996) 13 Cal.4th 622, 717.) Thus, the burden of proof did not shift to the defense.
We also conclude that the trial court did not abuse its discretion in admitting the evidence that the DNA was available for retesting pursuant to Evidence Code section 352, which provides that all relevant evidence is admissible unless the trial court finds in its discretion that its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
The trial court denied appellant’s motion to preclude the prosecution from learning whether the defense had employed an expert who could have retested DNA; eliciting testimony that the defense employed such an expert; arguing to the jury that the defense chose not to retest the DNA; or introducing evidence that material was available for DNA retesting.
The evidence that DNA material was available for retesting was not particularly inflammatory. And, the availability of DNA for retesting was relevant to allow the People to respond to attacks on the reliability of the DNA evidence by showing that appellant did not pursue retesting. In any event, any error was harmless, because there is no reasonable probability that appellant would have achieved a more favorable result had the evidence not been admitted or had the People been precluded from commenting on the evidence during closing argument. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was no evidence that the DNA sample was contaminated or improperly handled. The eyewitness identification was strong and appellant’s flight from the police indicated consciousness of guilt. And, as noted, the trial court instructed the jury that the People had the burden of proof.
III. The trial court did not err by instructing the jury with CALJIC instead of CALCRIM.
Appellant contends that the trial court abused its discretion in denying defense counsel’s request to use CALCRIM instead of CALJIC. We disagree.
In People v. Thomas (2007) 150 Cal.App.4th 461, 465-466, Division 8 of this appellate district dispensed with the contention that the adoption of the CALCRIM instructions rendered the CALJIC instructions outdated. The court held that the trial court probably should have used CALCRIM rather than CALJIC, but the trial court did not commit error because the use of the CALCRIM instructions was not mandatory but strongly encouraged, citing California Rules of Court. (Ibid.) California Rules of Court, rule 2.1050(e) provides that “[u]se of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.”
Division 8 of this appellate district concluded that the Judicial Council’s adoption of the CALCRIM instructions did not render the CALJIC instructions invalid, outdated, or inadequate, and that “[n]o statute, or rule of court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions.” (People v. Thomas, supra, 150 Cal.App.4th at pp. 465-466.)
We reject appellant’s argument that the trial court abused its discretion in instructing with the CALJIC instructions. While appellant urges that the trial court failed to give a reason for its exercise of discretion in using CALJIC instead of CALCRIM, our review of the record indicates that the parties and the trial court spent much time reviewing and discussing the instructions before defense counsel ever raised his objection to using CALJIC instructions. The record shows that after extensive discussion of CALJIC jury instructions during which both the People and the defense agreed to certain instructions and the defense objected to or requested modifications which were agreed to by the parties and trial court, defense counsel made an overall objection to CALJIC instructions on the ground that they were superseded by CALCRIM. The trial court then stated that it “believe[d] the use of CALJIC versus CALCRIM is discretionary.” We conclude that the trial court acted well within its discretion to refuse to switch to CALCRIM after selecting and discussing the CALJIC instructions.
And, appellant’s additional contention on appeal that certain instructions given in CALCRIM are superior to CALJIC was not raised before the trial court and he has waived that objection on appeal. (People v. Toro (1989) 47 Cal.3d 966, 977-978 [disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3].)
In any event, appellant has not shown a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Brown (2000) 77 Cal.App.4th 1324, 1335.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.