Opinion
D071068
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. KEVON SAMSON SMITH et al., Defendants and Appellants.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant Kevon Samson Smith. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Andre Ramon Johnson. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1404500) APPEAL from judgments of the Superior Court of Riverside County, Richard T. Fields, Judge. Affirmed as modified. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant Kevon Samson Smith. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Andre Ramon Johnson. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendants Kevon Samson Smith and Andre Ramon Johnson, Jr. appeal from judgments of conviction after a jury trial. Smith and Johnson were convicted of burglary after entering a home and taking property from inside the home.
On appeal, Johnson contends that the trial court prejudicially erred in ordering that he be shackled at trial. Johnson asserts that the record does not demonstrate the requisite "manifest need" that he be restrained during his jury trial.
Smith and Johnson jointly contend that the trial court's order that they pay the victim $600 in victim restitution should have specified that they were jointly and severally liable for the restitution.
We conclude that Johnson's contention that the trial court erred in ordering that he be restrained at trial is without merit. With respect to the defendants' joint contention that the trial court's victim restitution order should have specified that the defendants are jointly and severally liable for the amount, the People concede this point. We accept the concession and modify the trial court's judgments to so specify. We therefore affirm the defendants' judgments as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
In the early afternoon of April 10, 2014, Smith, Johnson, and another man entered C.R.'s home in Perris, California, after she had locked all of the doors and windows and left for work. The men ransacked the house and took personal papers, medications, $600 in cash, a PlayStation, a Wii game system, a tablet computer, jewelry, various CDs and DVDs, a gold-colored handbag, a bedsheet, a pillow case, and a spare set of car keys.
Police and neighbors of the victim recovered the bedsheet and some of the other stolen items. Ultimately, everything except the $600 in cash, the car keys, and a bag were recovered and returned to the victim.
In addition to recovering some of the stolen goods, the police located a loaded .38 caliber revolver underneath a pickup truck in the parking lot for the cell phone store where Johnson was apprehended. A surveillance camera had recorded Johnson sitting on a curb and reaching forward in the same location where the gun was found, just before he entered the cell phone store. B. Procedural background
A Riverside County Superior Court jury convicted Johnson and Smith of first degree burglary (Pen. Code, § 459) and convicted Johnson of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury acquitted Johnson of participating in a criminal street gang (§ 186.22, subd. (a)) and found not true the gang allegations asserted with respect to the two counts on which Johnson was convicted.
All further statutory references are to the Penal Code unless otherwise indicated.
Johnson admitted having suffered a prior serious felony conviction and a prior strike conviction (§ 667, subds. (a), (c) & (e)(1)).
On January 29, 2015, the trial court sentenced Johnson to a total term of 14 years and 4 months in prison. That same day, the trial court sentenced Smith to the middle term of four years for the burglary conviction. The court ordered Johnson and Smith to pay $600 in victim restitution (§ 1202.4, subd. (f)).
Smith and Johnson filed timely notices of appeal.
III.
DISCUSSION
A. The trial court did not err in ordering that Johnson be shackled at trial
Johnson contends that the trial court prejudicially erred in ordering that he be shackled during trial. According to Johnson, his conduct was not sufficient to demonstrate a manifest need that he be restrained. We disagree.
1. Additional background
On October 21, 2014, prior to trial, Johnson orally made a third Marsden motion. Johnson had been unhappy with his attorney's representation. The trial court denied the motion. After the trial court denied the Marsden motion, Johnson began "using profane language." While addressing the court, Johnson said, among other things, "That's bull crap." The trial court admonished Johnson, indicating that his language was unacceptable in the courtroom.
After Johnson's outburst and the trial court's admonition, Johnson's attorney, Charles Kenyon, asked to be allowed to state something on the record. The trial court and Attorney Kenyon then engaged in the following colloquy:
"Mr. Kenyon: Your Honor, [Johnson's] made some communications to me which I think indicate the possibility he may attempt to do harm to me or to someone else in the courtroom just now.
"The Court: Okay. Can you tell me specifically what was stated?
"Mr. Kenyon: He said, 'Wait until these cuffs come off,' and he looked right at me. It's the second time he's made the comment. This time he was looking right at me. When I said, Excuse me? He said something like, 'Good luck in trial.' Very obviously I think he's trying to intimidate me or threaten me, hoping I will recuse myself in the case somehow, or get off the case, ask to be relieved."
Johnson then began speaking out loud, asking the court whether he could "step out for a brief moment" or "use the bathroom." He continued, making derogatory comments about his attorney, and about the "whole justice system [being] racist." He called his attorney a "liar" and continued to complain about a number of things related to the court system, his attorney, and his case.
After Johnson made these remarks, the court stated, "The gentleman's been speaking sort of continuously, and the Court's allowing him to do so. It's clear the gentleman is extremely agitated." Johnson replied, "I'm agitated. I'm angry. I'm everything now."
At this point, the trial court explained:
"It's clear that the gentleman is completely irrational, speaking out of turn, completely agitated.
"The Court finds credible the statements of Mr. Kenyon that the defendant has made statements to the effect of, 'Wait until these handcuffs get off.'
"The Court has an obligation for court security. It's the Court's obligation. I tell people, we never shackle a person, no matter what they're charged with. We never[,] unless there's a manifest need[,]
[w]e never start with the presumption of shackling or anything else. It doesn't matter. We have had capital trials. Not even a second thought of that unless there's some showing of manifest need.
"It's clear to me that with respect to Mr. Johnson, it would be extremely foolish on the part of the Court to allow him to sit next to his counsel unshackled. I have little doubt, if given the opportunity - and sitting right next to him, it only takes a split second. And I've had it happen in court - he would jump up and strike Mr. Kenyon. And given his nonchalance about the whole situation, I don't think it really matters to him whatever the consequences to that will be."
Johnson then spoke again, and the following exchange occurred:
"Defendant Johnson: It does matter. I want to go home to my family.
"The Court: So -
"Defendant Johnson: It does matter. It matters a lot.
"The Court: Under People versus Duran. The gentleman's talking.
"Defendant Johnson: Can you hear me out? Do you hear me out?
"The Court: The gentleman is talking over the Court.
"Defendant Johnson: I'm a man. I've got rights.
"The Court: [To the reporter:] Please just report the Court for a moment.
"I do want the record to report, while I'm speaking, he's talking out over me.
"[¶] . . . [¶]
"So we're going to try to use the least restrictive means to start. And if you continue with this disruptive behavior, and the Court finds it necessary for the protection of all to raise the level of restraints, then the Court will do so.
"[¶] . . . [¶]
"So, under People versus Duran, 16 Cal.3d 282. The defendant cannot be subjected to physical restraints of any kind in the courtroom while the jury's present unless there's a showing of manifest need for such restraints.
"The Court here believes there's a manifest need for restraints based on a number of factors. The defendant's extremely agitated behavior in the Court's presence, right here in the Court's presence. And this is not the first time the gentleman's spoken over the Court. Extremely agitated. Agitated in a way where the Court believes he's volatile. He might do anything at any time.
"The defendant's direct threat to counsel, [']Wait until these cuffs come off,['] and this being the second time. Of course, we're prepared. I told everyone upfront, we're prepared to unshackle all of the defendants. Make sure they're here unshackled, and never have a thought of having a person shackled, if I didn't believe it was not absolutely necessary, and a manifest need for the protection of all.
"And the Court is responsible for the security in this courtroom of the parties appearing before the Court. That's why the Court has to make a determination as to whether or not a person's shackled.
"And so in this case, the Court's going to have to require some shackling. I would like to figure out - maybe I can consult with the sheriff's department. I'll have input from counsel, what's the least restrictive start to shackling? It may be just hand restraints so that he can't punch any of the lawyers here, including, particularly, his own counsel.
"Defendant Johnson: I do not want to punch nobody, your Honor. I did not say that. Why you not believing me?
"The Court: All right. So, Counsel -
"Defendant Johnson: Why you not believing me, your Honor? Why you not believing me? I'm your brother.
"The Court: Your behavior is disrupting me.
"Defendant Johnson: I understand my behavior, because I'm getting lied on. You going to believe that?
"The Court: Deputies, I'm going to order the gentleman shackled. And I would like to start - perhaps the best way would be the hands. And to the extent we could -
"Defendant Johnson: I want to go pro per.
"The Court: To the extent we have the shackles not visible.
"Defendant Johnson: I want to go pro per.
"The Court: It is the Court's desire. We're going to start with hand shackles.
"Defendant Johnson: I want to go pro per.
"The Court: We're going to start with hand shackles. [¶] . . . [¶] And I'm actually concerned for your safety, Mr. Kenyon. [¶] . . . [¶] All right. So the gentleman will be shackled to start. [¶] . . . [¶] [T]he Court's making a finding of manifest need for restraints."
Following this exchange, the court considered Johnson's request to represent himself. The court informed Johnson that he could not represent himself if he was unable to comply with the rules of the court. The court took a brief recess, but instructed the court reporter to continue to report what occurred in the courtroom. Johnson proceeded to "tear[ ] off his shirt's buttons and untie[ ] his tie." Johnson continued to ramble. At one point he said, "Why you keep looking at me, Bro? I'm not messing at you. You should stop looking at me like that, man, for real. You provoke me. And your Honor ain't going to do nothing. He don't care. All you just sitting here staring at me. He ain't staring at me, but you is. Leave me alone, for real."
The transcript does not indicate to whom Johnson's comments were directed. --------
Johnson's hostility toward Attorney Kenyon continued. In court the next day, Johnson addressed Kenyon by stating, "You're gay. You're gay." The trial court again admonished Johnson. In response, Johnson repeated, "I don't care."
A few days later, just prior to opening statements and outside of the jury's presence, Johnson requested that one handcuff be removed so that he could take notes and tell Kenyon what to say. The following colloquy occurred:
"The Court: Based on everything I've observed, based on the comments you've made, based on the Court's concern for the safety of all parties and the reasons I've previously set forth on the record - and you've added to that. You've told me to shut up. You've said other things completely inappropriate, including making inappropriate terms regarding sexual orientation. Telling the judge to shut up. It's clear to me that you have no particular regard for the courtroom protocols. And I've previously found a manifest need that you remain shackled. It's all stronger now, having observed you. My wish would be it would have been otherwise. But -
"Defendant Johnson: So what about my fairness of a trial? I can't even communicate with my attorney during trial.
"The Court: You certainly can speak to your counsel.
"Defendant Johnson: He going to be listening to the argument. So how can I talk to him, your Honor?
"The Court: That's always the case. [¶] The defendants need to allow . . . the attorney to be paying attention to the evidence. When we take breaks, you can talk to him. You can certainly talk to him in the morning. You can talk to him at any time we take a break. We take a break every hour and a half. You can bring things to his attention. [¶] But the Court feels there's a manifest need you remain shackled, so I'm not going to unshackle you."
Johnson then made another Marsden motion, which the trial court, once again, denied. In response, Johnson started shouting at the court before telling Kenyon, "You the worst. You the worst. You shit."
At the conclusion of the trial, Kenyon requested that the trial court instruct the jury with CALCRIM No. 204 ("Defendant Physically Restrained"). The trial court agreed to give the instruction, and ultimately told the jury, with respect to Johnson's shackling,
"The fact that physical restraints have been placed on a defendant is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
2. Legal standards
"[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 (1976) 16 Cal.3d 282, 290-291, fn. omitted.) A "manifest need" for restraints is shown when a defendant has been unruly, announced an intention to escape, or when the evidence shows the defendant would likely disrupt the judicial process. (People v. Wallace (2008) 44 Cal.4th 1032, 1050 (Wallace); People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032; People v. Seaton (2001) 26 Cal.4th 598, 651.) A showing of a "manifest need" for restraints may also be satisfied by evidence that the "defendant plans to engage in violent or disruptive behavior in court." (People v. Anderson (2001) 25 Cal.4th 543, 595 (Anderson)). "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." (Wallace, supra, at p. 1050, internal quotations omitted.)
The due process clause of the United States Constitution prohibits the use of visible shackles unless they are justified by an essential state interest (e.g., courtroom security) specific to the defendant. (Deck v. Missouri (2005) 544 U.S. 622, 624, 632 (Deck); People v. McDaniel (2008) 159 Cal.App.4th 736, 742 (McDaniel).) If a trial court requires a defendant to wear shackles that will be seen by the jury without adequate justification, it is federal constitutional error unless the People prove beyond a reasonable doubt the error did not contribute to the verdict. (Deck, supra, at p. 635; McDaniel, supra, at p. 742; Chapman v. California (1967) 386 U.S. 18, 24.)
3. Analysis
Johnson contends that "no 'manifest need' or compelling circumstance of any kind was demonstrated," because, he asserts, he "was never violent and simply had trouble remaining silent." However, the record contains abundant evidence to support the trial court's decision to order that Johnson be shackled at trial. Most significantly, the trial court found that Johnson had threatened violence against his attorney when he looked at his attorney and said, " 'Wait until these cuffs come off.' " Indeed, it is difficult to imagine what else Johnson could have been implying with his statement about his "cuffs com[ing] off," other than a threat that he intended to harm his attorney when given the opportunity. Johnson's unruly behavior after he made the threat supported the court's conclusion that Johnson was likely to lash out at his attorney if he were not restrained. Again, a "manifest need" for restraints "may be satisfied by evidence, for example, that the defendant plans to engage in violent or disruptive behavior in court." (Anderson, supra, 25 Cal.4th at p. 595, italics added.) Johnson's conduct during the pretrial proceedings, including telling the judge to "shut up" and pulling his shirt off in such a manner that the buttons were torn off, indicated that Johnson not only planned to, but was in fact engaging in, disruptive behavior in court. This record clearly shows that Johnson made a threat of violence and engaged in other nonconforming conduct. Under these circumstances, the trial court did not abuse its discretion in ordering that Johnson be restrained at trial.
We reject Johnson's suggestion that the trial court could have ordered some alternative form of restraint, rather than shackles. Johnson suggests that the court could have ordered a waist chain that would not have been visible to the jury, citing Castillo v. Stainer (9th Cir. 1992) 983 F.2d 145, 149, or that the court could have assigned an extra bailiff to cover the courtroom, citing Holbrook v. Flynn (1986) 475 U.S. 560, 568. However, the court was concerned that Johnson would strike his attorney while seated next to him, stating, "I have little doubt, if given the opportunity - and sitting right next to him, it only takes a split second. And I've had it happen in court - he would jump up and strike Mr. Kenyon." Given the court's reasonable concern, based on Johnson's conduct in the courtroom and his statements directed at his attorney, a waist chain that did not restrain Johnson's hands would not have been effective in ensuring Johnson's attorney's safety. Similarly, an additional bailiff assigned to the courtroom could not have prevented Johnson from engaging in a split-second attack on the attorney seated next to him. The record supports the trial court's determination that shackles were the most appropriate form of restraint to address the specific threat of violence that Johnson posed. B. The restitution order should have specified that Johnson and Smith are jointly and severally liable for the $600 victim restitution
Both Johnson and Smith contend that liability for the $600 in victim restitution that the trial court ordered in this case should have been specified to be joint and several as between the defendants. The trial court did not state whether the obligation was to be joint and several.
The People agree with the defendants that the judgments should reflect that the $600 in victim restitution obligation is to be joint and several, so that the victim receives a total of $600. We accept the People's concession and order that the judgments be modified to reflect that Johnson and Smith are to be jointly and severally liable for a single $600 victim restitution obligation.
IV.
DISPOSITION
The judgments are modified to order that Johnson and Smith shall be jointly and severally liable for a single $600 victim restitution obligation. The judgments are otherwise affirmed.
The trial court shall amend the abstracts of judgment to reflect the above modification and shall forward copies of the modified abstracts of judgment to the Department of Corrections and Rehabilitation.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.