Opinion
Superior Court County of San Luis Obispo No. F379843, Michael L. Duffy, Judge
Gerald J. Miller, 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, Senior Assistant Attorney General, Paul M. Roadarmel. Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Daniel Trebas appeals an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender (Pen. Code, §§ 2962, 2966) following his conviction of continuous sexual abuse of a child (§ 288.5). We conclude, among other things, that the trial court did not abuse its discretion by ordering Trebas to wear a leg restraint during his jury trial. We affirm.
All statutory references are to the Penal Code.
FACTS
Trebas filed a petition in the superior court to challenge a Board of Prison Terms (BPT) determination that he was a mentally disordered offender (MDO). We affirmed the trial court's order which committed him to the California Department of Mental Health (CDMH) for treatment.
Trebas filed a second petition to challenge a new BPT decision to recommit him as an MDO. Before trial, the prosecutor requested that Trebas wear restraints because he would be "a risk to public safety." She noted that the trial court had previously determined that Trebas needed to be placed in restraints at his initial MDO certification trial, "custodial officers" considered him to be a "potential security problem," he was a large man with martial arts training, and he was a "flight risk" as he had "absconded [sic] from his parole and [sex offender] registration requirements." She said that he had exhibited symptoms of his mental disorder in pretrial proceedings as he was "rambling" and had shown signs of "hostility." She claimed that as a result of his mental condition, he would have "strong urges to get out of custody."
Trebas, who was representing himself, said he needed his hands to be free to handle the paperwork in his case. The court said: "Once the jury is here we'll release both hands. I don't want to risk that you'll decide to flee the court." Trebas responded: "I have never fled and I have never been physically violent. If anything, my martial arts experience helps me maintain a sense of discipline and self-control." The court said: "That's good. I hope that continues to be the case. But, regardless of that, I'm making a finding, given your martial arts training, your size, and the significance of the hearing, I think you are a flight risk. So I'll have one leg secured. We'll release your hands and you'll be able to deal with your paperwork."
At trial, Allan Roske, a clinical psychologist at Atascadero State Hospital, testified that Trebas "suffers from schizoaffective disorder bipolar type, with hypomanic features." It qualifies as a severe mental disorder. He had a history of sexually molesting children. His mental disorders were not in remission. Trebas did not follow his treatment plan. In Roske's opinion, Trebas posed a substantial danger of physical harm to others as a result of his mental disorders.
The prosecutor introduced a May 23, 2005, psychiatric assessment report which indicated that while in custody Trebas repeatedly used razors to cut himself and he lacked the skills to consistently cope with his "suicidal behavior." The psychiatric team concluded that Trebas needed to "eliminate" his "potential for violence towards [him]self or others." They said he has "a general plan to prevent or avoid [assault], but cannot consistently demonstrate the necessary coping skills."
Hearing on Jury Instructions
At the conclusion of the trial, out of the presence of the jury, Trebas asked the court to instruct jurors that he had been placed in restraints. The trial judge questioned the necessity of the instruction; "I don't believe the jury knows that you are restrained in any way." Trebas responded, "I would still request it."
The court gave the jury a modified version of CALCRIM No. 204, which states: "The fact that physical restraints may have been placed on the Petitioner 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."
DISCUSSION
I. The Restraints
Trebas contends that his recommitment order must be reversed because the trial court improperly ordered him to wear restraints during trial. The Attorney General claims Trebas waived this issue by not objecting after the court made its pretrial order which required him to wear a leg restraint. The Attorney General is correct.
Trebas told the court before trial that he wanted both of his hands free because he was representing himself and he had "a lot of paperwork." The court accommodated his request by not requiring him to wear hand restraints. But it also stated that one of his legs would be restrained. After the court made this ruling, Trebas did not object. The Attorney General notes that failure to object to a restraint order after it is made waives the issue. (People v. Fisher (2006) 136 Cal.App.4th 76, 79 [any error was waived because appellant did not object to wearing a leg restraint].)
Trebas argues that his statements about not being a flight risk and not being violent constitute a valid objection to the subsequent leg restraint order. We disagree. (People v. Cleveland (2004) 32 Cal.4th 704, 740 [to preserve the issue defendant must specifically object to the type of restraint selected by the court].) But even assuming he made an adequate objection, the result is the same.
"[T]he rules attendant to shackling in a criminal proceeding apply to MDO proceedings. '"[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. . . .'" [Citations.]" (People v. Fisher, supra,136 Cal.App.4th 76, 80.) A manifest need is present where there is a showing of unruliness, disruptive behavior, "nonconforming conduct," or where there is a risk that the defendant may escape. (Ibid.) Where a "defendant had not acted in a violent manner during his prior courtroom appearances, a trial court properly may order the imposition of restraints where there is evidence of 'other nonconforming conduct.' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 988.) "A court's decision to place a defendant in physical restraints will not be overturned on appeal unless there is a "showing of a manifest abuse of discretion." [Citations.]" (People v. Fisher, supra, at p. 80.)
Trebas correctly notes that the trial court's reliance on the factors of his size, his martial arts training and the importance of the hearing are not sufficient, by themselves, to justify the use of restraints. (People v. Seaton (2001) 26 Cal.4th 598, 651-652.) But "'". . . a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." . . .' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 976.) The Attorney General claims that the factors relied on by the trial court combined with the additional facts mentioned by the prosecutor support the order.
Trebas responds that the prosecutor's showing for the need for restraints was insufficient because it was based on speculation. A prosecutor may request an order for restraints based on his or her representation of facts which show the need for them. (People v. Medina (1995) 11 Cal.4th 694, 731.) But there must be evidence to support the prosecutor's claims. (People v. Anderson (2001) 25 Cal.4th 543, 607.) In deciding whether the trial court abused its discretion, we review "the totality of the record" to determine if there is any evidence showing a need for restraints. (People v. Cox (1991) 53 Cal.3d 618, 651.)
Trebas contends he was not a security risk because there was no evidence that he had ever been unruly while in custody and the prosecutor's claims were "imaginary." But the prosecution had a report from Dr. Steven Terrini, a California Department of Corrections (CDC) psychologist, who said that while in custody Trebas had violated orders and had been "physically assaultive" to CDC staff.
The prosecutor also noted that because Trebas was representing himself, he had access to sharp objects, such as pens and pencils. Trebas claims there is no evidence he would ever use such objects in a violent manner. But the prosecutor introduced the May 23, 2005, psychiatric report. It indicated that on multiple occasions while in custody, Trebas had used razors to cut his wrists, his chest, his legs and his abdomen. It reflected that Trebas could not "consistently demonstrate the necessary coping skills" to deal with his "suicidal behavior." Restraints may be imposed where there is evidence of a defendant's suicidal behavior. (People v. Combs (2004) 34 Cal.4th 821, 838 [leg restraints were proper where psychiatric report mentioned defendant's suicidal behavior]; see also People v. Ramirez (2006) 39 Cal.4th 398, 450 [restraints were proper where defendant made suicidal remarks and cut himself to draw an image with his blood].) Here the risk was heightened because of Trebas's access to sharp writing objects and his martial arts skills.
Trebas claims there is no evidence that he was a flight risk. But the prosecutor noted that he had "absconded" to violate his parole conditions. He established numerous residences across the state, but had not complied with his sexual offender registration and reporting requirements and he gave a false name to police. The prosecutor introduced records showing that Trebas had used a series of aliases. Records Trebas submitted to the trial court in pretrial motions supported the accuracy of the prosecutor's representations.
In addition, prior to trial, the prosecutor noted that Trebas exhibited "hostility" and was "rambling." She produced a transcript of the MDO trial in 2005, where Dr. Terrini said Trebas had repeatedly exhibited signs of "psychotic behavior." A defendant's "psychological instability" is a factor which may support the need for restraints. (People v. Allen (1986) 42 Cal.3d 1222, 1263-1264; see also People v. Ramirez, supra, 39 Cal.4th at p. 450 [restraints were proper because of defendant's "bizarre" behavior while in custody].) Moreover, the May 23 psychiatric report showed that he had problems controlling his potential for violence.
Trebas notes that in her request for restraints, the prosecutor did not mention his conduct while in custody, nor did she refer to any psychological reports. But even if her reasons to have restraints were deficient, the result does not change. The trial court may order restraints on its own motion where the record supports the need for them. (People v. Duran (1976) 16 Cal.3d 282, 293, fn. 12 [imposition of restraints in a proper case is normally a judicial function in which the prosecutor plays no necessary part].) Here before opening statements, the parties discussed the May 23 report and the court indicated that it intended to admit it at trial. That report documented Trebas's suicidal history of cutting himself with razors and his problems in coping with suicidal tendencies and his potential for violence. From this, the court could reasonably infer there was a need for restraints as Trebas would be subjected to the stress of a five-day trial about his sexual history. (People v. Guerra (2006) 37 Cal.4th 1067, 1103; People v. Ramirez, supra, 39 Cal.4th at p. 450; People v. Allen, supra, 42 Cal.3d at pp. 1263-1264.)
In addition, the trial court knew Trebas's history as it had previously committed him for treatment in 2005 because of his schizoaffective disorder, paranoia, delusional thinking, nonconforming behavior and refusal to take medications. Experts testified about his psychological instability at his initial MDO commitment trial. (People v. Allen, supra, 42 Cal.3d at pp. 1263-1264.) In that case, the trial court ruled that Trebas needed to wear restraints. Trebas appealed the commitment order from that case, but did not challenge the propriety of that restraint order. He has not shown why the trial court could not properly consider, as a factor in support of its order, its prior ruling that he had to be restrained in his first MDO case. He has not shown that the court's order in this case was an abuse of discretion. (People v. Fisher, supra, 136 Cal.App.4th at p. 80.)
But even if the court erred, the result is the same. "[U]njustified shackling is considered harmless error 'where there was no evidence it was seen by the jury.' [Citations.]" (People v. Fisher, supra, 136 Cal.App.4th at p. 80; People v. Cleveland, supra, 32 Cal.4th at p. 740.) Trebas claims the jury saw the leg restraint during trial and the court's instruction on restraints was ineffective because it was given after "the close of evidence." But he only speculates that jurors could see it. A defendant who claims jurors saw restraints must support this claim from the record. (People v. Ward (2005) 36 Cal.4th 186, 206.) "[W]e will not assume this occurred in the absence of affirmative evidence. [Citation.]" (Ibid.; People v. Medina, supra, 11 Cal.4th at p. 732 ["We cannot assume from a silent record that the jury viewed defendant's restraints."].) Here there is no evidence that jurors could see it and the court found there was nothing to indicate that they knew about it at trial.
Trebas notes that during trial he mentioned the issue of restraints. True, he told the court that because he had to be transported in shackles and had to take pain pills, afternoon court sessions were preferable. But no juror heard these remarks because that proceeding took place out of the jury's presence.
Trebas claims the trial judge belatedly instructed the jury on the restraint issue. But the court found an instruction was unnecessary because jurors did not know he wore restraints. It gave the instruction out of an abundance of caution only after Trebas insisted, even though Trebas had no evidence that jurors saw it. The court followed the correct procedure. "[W]hen the restraints are concealed from the jury's view, this instruction should not be given unless requested by defendant since it might invite attention to the restraints and thus create prejudice which would otherwise be avoided." (People v. Duran, supra, 16 Cal.3d at p. 292.) Moreover, Trebas has not shown that the instruction was incorrect, inadequate or that giving it at the end of trial was ineffective. (People v. Pride (1992) 3 Cal.4th 195, 240-241; People v. Medina, supra, 11 Cal.4th at p. 732.) We presume the jury followed the court's admonitions. (People v. Ledesma (2006) 39 Cal.4th 641, 684.) Trebas urged the court to give this admonition, even if it was error to do so.
Trebas claims the restraint prejudicially hindered his ability to present his case and receive a fair trial. But the record does not show prejudice. Trebas was an aggressive advocate at trial. He extensively cross-examined Roske, raised objections, made motions, filed briefs, presented legal arguments and gave a closing argument to the jury. His only pretrial request regarding restraints was to have his hands free and the court accommodated him. Trebas did not testify and he was not "heavily manacled," he only wore a minimal leg restraint. (People v. Cox, supra, 53 Cal.3d at p. 652; People v. Jackson (1993) 14 Cal.App.4th 1818, 1829, fn. 13.)
Moreover, the record does not support Trebas's claim that the restraints had an impact on the outcome. Trebas introduced medical reports, but at trial he did not call any expert witnesses to testify on his behalf. The trial only involved the examination and cross-examination of the prosecution's witness. Roske's testimony and the May 25 report fully supports the order which recommitted Trebas as an MDO. Any alleged error is harmless. (People v. Cleveland, supra, 32 Cal.4th at p. 740; People v. Jackson, supra, 14 Cal.App.4th at pp. 1830-1832; Chapman v. California (1967) 386 U.S. 18, 24.)
The judgment is affirmed.
We concur: YEGAN, J. PERREN, J.