Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03703
BUTZ, J.A jury found defendant Jose Mario Armendariz guilty of murder in the first degree (count one) and aggravated assault by a life prisoner with malice aforethought causing death (count two). (Pen. Code, §§ 187, subd. (a), 4500.) The court sentenced defendant to a term of life without the possibility of parole on count two, and a term of 25 years to life on count one (which the court stayed under section 654).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion and violated his constitutional rights in (1) restraining him during trial; (2) denying him the right to be present and the right to testify at trial; and (3) denying his Marsden motion. We shall affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL BACKGROUND
On May 25, 2005, defendant was a state prison inmate who shared a cell with Ramon Escobar. On that date, defendant and Escobar had recently returned to their cell from the recreation yard-and the cell door had been locked with only the two of them inside-when correctional officers heard defendant shouting in Spanish. Officers ran to the cell.
The responding officers looked into the cell and saw Escobar lying in a large pool of blood. Defendant, who was standing in the cell, had blood covering most of his clothing but no significant injuries.
Escobar was pronounced dead at the scene. Officers noticed that a substantial amount of Ramen noodles were strewn throughout the cell and on Escobar’s body. Also inside the cell, a rope made from a towel or sheet was attached to the upper bunk.
A pathologist performed an autopsy on Escobar’s body. The pathologist found Escobar had sustained blunt force trauma to his head, and had ligature furrows on his neck, possibly from the use of the rope that was found in the cell. Escobar was also found to have had a small amount of food in his trachea (airway). The pathologist concluded the cause of death was blunt force injuries to the head and ligature strangulation.
A criminalist compared the pattern from the soles of defendant’s shoes to the injuries on Escobar’s head and concluded that defendant’s shoes may have caused the injuries.
DISCUSSION
I. Use of Restraints at Trial
On appeal, defendant contends the trial court abused its discretion in restraining him during trial because there was no showing of manifest need. We conclude that any such error was harmless.
On the first day of trial, before the jury heard testimony, the court heard testimony from Correctional Sergeant Daniel Rosensteel regarding the possible shackling of defendant during trial.
Sergeant Rosensteel testified that some inmates attempt to take weapons or handcuff keys into the courtroom, but Rosensteel had no evidence to suggest that defendant would bring a weapon or handcuff key to trial.
When asked whether defendant posed any type of risk, Sergeant Rosensteel stated that because defendant was already serving a sentence of 36 years to life for first degree murder and attempted murder, there was a risk that defendant may attempt to escape. Rosensteel testified: “[E]specially when you’re dealing with an inmate who is serving a life sentence[,] [t]hat’s our highest concern when it comes to escape.” Rosensteel also testified that defendant had been found guilty of a Department of Corrections rules violation for murder of another inmate (the present offense) and that because of this violent history, defendant posed a risk.
Sergeant Rosensteel suggested that defendant be placed in a blackened-out belly chain which would be hidden under his shirt and attached to the chair. For defendant’s legs, blackened-out leg irons that would be hidden under defendant’s pants were recommended. Following Rosensteel’s advice, the trial court ordered that defendant be placed in the blackened-out belly chain and leg irons during trial.
In People v. Duran (1976) 16 Cal.3d 282 (Duran), our Supreme Court “reaffirm[ed] the rule that 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.... [I]n any case where physical restraints are used those restraints should be as unobtrusive as possible, although as effective as necessary under the circumstances. [¶]... The showing of nonconforming behavior in support of the court’s determination to impose physical restraints must appear as a matter of record.... 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.” (Id. at pp. 290-291, citations & fns. omitted.)
More recently, the United States Supreme Court has held that a trial court’s determination of the need for restraints “must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial.” (Deck v. Missouri (2005) 544 U.S. 622, 633 [161 L.Ed.2d 953, 965].) “[P]hysical restraint of defendants” cannot be condoned “simply because they are prisoners already incarcerated on other charges or convictions.” (Duran, supra, 16 Cal.3d at p. 293.)
“[W]hen the imposition of restraints is to be based upon conduct of the defendant that occurred outside the presence of the court, sufficient evidence of that conduct must be presented on the record so that the court may make its own determination of the nature and seriousness of the conduct and whether there is a manifest need for such restraints; the court may not simply rely upon the judgment of law enforcement or court security officers or the unsubstantiated comments of others.” (People v. Mar (2002) 28 Cal.4th 1201, 1221.) “A trial court abuses its discretion if it abdicates this decisionmaking responsibility to security personnel or law enforcement.” (People v. Hill (1998) 17 Cal.4th 800, 841.)
And, in People v. Seaton (2001) 26 Cal.4th 598, 652, the court stated, “The circumstance that defendant was charged with a violent crime... does not establish a sufficient threat of violence or disruption to justify physical restraints during trial”; there must be individualized suspicion of nonconforming conduct to order physical restraints.
Here, the trial court stated the restraints were “well justified, the circumstances being the ones enumerated” by the prosecution-“the fact [of] the previous convictions for murder and attempted murder, the fact that [defendant] is serving a life sentence without the possibility of parole[,][] [and the current charge].”
The trial court acknowledged the prosecutor’s correction that defendant had a possibility of parole on his current sentence.
Thus, in restraining defendant, the trial court relied on defendant’s violent convictions, his current life sentence, and the violent crime for which defendant was on trial. But even if we assume for the sake of argument that the trial court did not rely on enough individualized evidence of violence, escape risk or other nonconforming conduct, we would not reverse; the restraints imposed here were harmless.
The Duran court described the nature of the prejudice suffered where restraints are used without the required showing of manifest need. The negative impact of physical restraints includes “possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand....” (Duran, supra, 16 Cal.3d at p. 290.) However, a juror’s brief observation of physical restraints is not prejudicial. (Id. at p. 287, fn. 2; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 584.)
Nothing in the record indicates that any juror here had knowledge that defendant was restrained during trial as defendant’s restraints had been “blackened-out.” Based on the reasoning from Duran, that a brief observation is not prejudicial, the trial court’s error was not prejudicial.
Defendant, however, contends that the trial court’s decision to restrain him “prejudicially affected [his] decision not to testify.” This argument is without merit. As we shall see, defendant took the stand to testify on his own behalf but refused to answer his counsel’s questions. There is nothing in the record indicating that defendant’s choice not to testify had anything to do with being restrained. Therefore, restraining defendant during trial did not amount to prejudicial error.
II. Right to be Present and to Testify
At the outset of defendant’s testimony, the trial judge excluded defendant from the courtroom for disruptive behavior. Defendant contends the trial court unconstitutionally denied him his right to be present and to testify at his trial. We disagree.
A. Right to Be Present
“A criminal defendant’s right to be in the courtroom throughout trial is basic to the guarantees of both the state and federal Constitutions. [Citation.] A defendant can lose this right, however, ‘if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.’” (People v. Pena (1992) 7 Cal.App.4th 1294, 1309 (Pena).) “The trial court has the power to exclude a defendant from personally attending court proceedings where the defendant, having been warned that his persistent disruptive behavior would cause his removal, still engages in conduct which disrupts the trial proceedings.” (People v. Hayes (1991) 229 Cal.App.3d 1226, 1233.)
At trial, defendant took the stand as the last witness. Defendant answered one question, confirming that he currently was a state prison inmate, and then made an unsuccessful Marsden motion (outside the jury’s presence) to replace his appointed counsel. When defendant retook the stand, his counsel proceeded to question him but he refused to answer the questions and instead repeatedly stated that he had fired his attorney. The trial judge informed defendant that he in fact had not fired his attorney and that his appointed counsel would remain as such. Defendant was notified that he had the right to testify but would have to answer counsel’s questions in order to exercise that right. He was also warned that if his disruptive behavior continued, he would effectively waive his right to be present during the trial. Defendant said he understood and that he wanted to testify.
Defense counsel resumed questioning and defendant again refused to answer the questions and restated that he had dismissed his counsel. The trial judge ruled that because defendant refused to answer questions while on the stand, he had knowingly and intelligently waived his right to testify. Defendant was asked to return to his seat next to his attorney. However, defendant stated that he would not sit next to his attorney because he had fired him. The trial judge found it would be impossible to proceed with defendant present and banished defendant from the courtroom, explaining that defendant had the right to return if and when he decided to behave himself.
After defendant had been removed from the courtroom, the parties proceeded to closing arguments. Defendant did not return to the courtroom until the jury had reached its verdict.
Defendant’s actions were similar to those of the defendant in Pena. In Pena, the defendant made several outbursts. (Pena, supra, 7 Cal.App.4th at pp. 1309-1310.) On multiple occasions the trial judge in Pena ordered the defendant to remain quiet; at one point the defendant said, “No, I won’t shut up anymore,” and the court excluded the defendant from the courtroom. (Id. at pp. 1308-1309.) The appellate court held that the trial court had not abused its discretion in removing the defendant from the courtroom because the defendant had been warned multiple times to behave and to remain quiet but he chose to continue interrupting. (Id. at p. 1310.)
In both the present case and Pena, the defendants made numerous disruptions in court. Both trial judges warned the defendants that if they continued to disrupt the court, they would be removed from the courtroom and, in each instance, the defendants continued to disrupt the court. Therefore, based upon the reasoning from Pena, the trial court here did not abuse its discretion in removing defendant from the courtroom.
Defendant quotes a federal appellate court decision to argue that “[b]ehavior that is merely disruptive is insufficient... to justify removal.” (Tatum v. United States (D.C. 1997) 703 A.2d 1218, 1223.) However, in Tatum, the defendant was much less disruptive than defendant here. The defendant in Tatum caused “only three main interruptions: (1) laughing during the testimony of [a police officer]; (2) nodding in response when [a witness] directly asked him a question while she was testifying; and (3) repeating two words spoken by [a witness] that were apparently not understood by counsel or the court reporter.” (Id. at p. 1224.) The Tatum court reasoned that this behavior was not “likely to obstruct the progress of the trial”; and, furthermore, because the case was a bench trial, “[t]here was no jury whose verdict might have been swayed by his conduct.” (Ibid.) In the jury-tried case before us, defendant was much more disruptive than the defendant in Tatum; thus, that decision is inapposite.
Even assuming that removing defendant from the courtroom was in error, defendant’s argument that the error was prejudicial has no merit.
In Pena, the court stated, “[The defendant] was outside the courtroom for only the remainder of closing arguments and the reading of the jury instructions. Because [the defendant] was in the courtroom during the presentation of all the evidence, his constitutional right to ‘confront’ witnesses was not impinged upon by his removal.” (Pena, supra, 7 Cal.App.4th at p. 1310.) The court concluded that “[the defendant] can claim no prejudice from his exclusion.” (Ibid.)
Here, defendant, by testifying on his own behalf, was going to present evidence as the last witness. However, because of his own actions, defendant did not testify and was removed from the courtroom. Thus, like the Pena defendant, he was present when the evidence was presented and was only absent for the closing arguments. Thus, his right to confront witnesses was not infringed and there was no prejudicial error.
B. Right to Testify
In a related argument, defendant contends the trial court also denied him his right to testify. We disagree.
As noted, defendant took the stand but would not answer his counsel’s questions. The trial judge had informed defendant that he had the right to testify, but in order to exercise that right he would need to answer counsels’ questions on direct and cross-examination “in accordance with the standard procedures and in accordance with the rules of evidence.” Defendant, knowing that he needed to answer defense counsel’s questions to exercise his right to testify, chose not to answer. Therefore, defendant was not denied his right to testify.
III. Marsden Motion
Defendant’s final contention on appeal is that his Marsden motion was improperly denied. We disagree.
When a defendant seeks to discharge his court-appointed counsel on the basis of inadequate representation, the court must allow defendant to explain the basis of his claim and to relate specific instances of counsel’s ineffectiveness; this is referred to as a Marsden motion. (People v. Smith (2003) 30 Cal.4th 581, 604; Marsden, supra,2 Cal.3d 118.) “A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 (Jones).)
We review a denial of a Marsden motion under the deferential abuse of discretion standard. (Jones, supra, 29 Cal.4th at p. 1245.) “Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (People v. Webster (1991) 54 Cal.3d 411, 435.)
Defendant argues that his trial counsel failed to investigate whether Escobar was going to “hit” (stab) defendant. Defendant claims he had heard from someone in the prison yard that Escobar was going to “get” him, and he provided his counsel with nicknames of inmates that he believed had information on Escobar. Defense counsel contacted correctional officers who supposedly knew the true identities of the inmates named by defendant, but the officers refused to speak with him. Because defense counsel could not obtain information from the correctional officers, he intended to elicit this information from defendant when defendant took the stand.
Defendant also wanted his attorney to investigate an alleged report on Escobar from the prison in which Escobar had previously been incarcerated. Defendant wanted to know more about why Escobar had been transferred to defendant’s prison and more about Escobar’s history at the previous prison. Defense counsel responded that he did not look further into the report for a couple of reasons. First, counsel stated that defendant did not even know if there was a report at Escobar’s previous prison; and, second, even if such a report existed, counsel believed it to be of minimal relevance to defendant’s case.
In denying defendant’s Marsden motion, the trial judge found defense counsel’s “explanations to be logical, believable, and reasonable,” and was “satisfied that [defense counsel] ha[d] represented [defendant] adequately and competently and w[ould] continue to do so....”
Defendant has not shown that defense counsel failed to provide adequate assistance. Defendant asked defense counsel to speak with inmates, for whom he gave only nicknames; when defense counsel attempted to find the inmates, the correctional officers refused to speak with him. Furthermore, defense counsel intended to elicit the information (that defendant hoped these inmates would provide) when defendant took the stand and testified in his own defense. Defendant’s argument that his attorney should have looked into Escobar’s history from another prison is also without merit. Defense counsel said he believed this information to be of very little relevance, if any, and that defendant would be asked about this subject when he testified. Finally, the circumstances of Escobar’s death, the massive injuries he sustained, and the lack of injuries to defendant, showed that defendant acted aggressively rather than defensively toward Escobar.
Therefore, the trial court did not err in denying defendant’s Marsden motion.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, Acting P. J., MAURO, J.