Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge, Super. Ct. No. 04 CRSP 676979.
Rudolf Kraft, III, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
After defendant John David Bagent served a prison term for child molestation, he was tried on a petition for commitment and found to be a sexually violent predator; the court committed him to the state hospital pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). His only claim on appeal is that the trial court abused its discretion when it allowed three uniformed deputy sheriffs to remain in the courtroom during the trial, stating that it had no power to exclude them. Perceiving no prejudice to Bagent, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
The District Attorney filed the SVPA petition on March 24, 2004. It alleged that Bagent was a prison inmate soon to be released on parole and that there was probable cause to believe he would engage in sexually violent criminal behavior upon release. The petition was supported by a declaration setting forth two convictions alleged to qualify Bagent for commitment as a sexually violent predator. These were the molestations of a four-year-old girl in 1996 and a three-year-old girl in 1994. Both convictions were entered on December 4, 1996, and both were for violations of Penal Code section 288, subdivision (a) (lewd or lascivious act upon a child under 14 years old).
Before trial, the trial court received a memorandum from the sheriff’s department requesting that Bagent be shackled during trial. The memorandum asked that Bagent be shackled on his “[l]egs, belly, as that term is used, and arms,” but the sheriff’s department later decided not to ask for “the upper shackling.” The request was based on Bagent’s 1994 misdemeanor violation of Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon other than a firearm), among other things.
The court denied the request. “[T]here is no record of [Bagent] engaging in any activity within the Fresno County Jail subsequent to his return after being declared competent to categorize him in [any way] as a security risk or having a record of inappropriate conduct at the jail,” the court stated. After a review of relevant case law, the court concluded there was not “anywhere near a showing that would justify shackling.”
Later that same day, three sheriff’s deputies appeared in the courtroom. Defense counsel discussed this with a prospective juror during voir dire and also made an objection to the court:
“MR. CHRISTENSEN: The only other thing is—I know the—we appreciate the Court’s ruling on the security issue this morning. My client and I both thought that it would be wise to put on the record that, although, these are all very nice, friendly guys; we don’t believe that three deputies are needed; that there is the potential for prejudice.
“And I know I dealt with it in my voir dire, but—and I understand that it may not be within the Court’s control, but just, for the record, we would like to state that that is the situation. There is the appearance potentially of prejudice.”
The court declined to bar any of the deputies from the courtroom, expressing a belief that it had no power to do so:
“THE COURT: Well, it is, as I understand it, not within the Court’s control to determine the number of officers or deputies that are in the courtroom for any particular reason .…”
The court and defense counsel then discussed the possibility of a cautionary jury instruction. The court declined to give one on its own motion and defense counsel declined to request one:
“THE COURT: [T]here is not a [sua sponte] responsibility to instruct the jury to disregard the presence of deputies, unless there is an unreasonable number. That is rather squishy. [¶] I note that any one of these three could take care of themselves in any kind of circumstance, knowing them as I do, but I would—you have mentioned it. [¶] Mr. [Christensen], I would mention it again, but I feared if you request—but, I fear that if I then over emphasize it, and there will be some other reason for concern. What is your pleasure, sir?
“MR. CHRISTENSEN: I have stated my concern. I will just leave it then. I know that it is none of these guys’ decision.
“THE COURT: I understand.
“MR. CHRISTENSEN: It is just an objection to, basically … their supervisors and the Sheriff’s policy, which, in this case, we think is completely unnecessary.”
The court had discussed the matter with a sheriff’s department supervisor and intended to do so again:
“THE COURT: I believe I made my concerns known off the record to the supervising—is that the sergeant deputy?
“THE BAILIFF: Deputy 4.
“THE COURT: Deputy 4. I would just—and I appreciate that we all want to be safe, and I appreciate the effort that is made, but I will be discussing the issue further with—I guess it is still the supervising lieutenant just out of my own curiosity. I am always concerned if there appears to be some disagreement as to the protocol for reaching the determination. We’ll discuss that later—
“MR. CHRISTENSEN: Thank you.
“THE COURT: —with the appropriate Sheriff staff. Anything else?
“MR. CHRISTENSEN: No.”
The issue never again arose during the trial. So far as we can determine from the record, the deputies remained throughout the trial.
At trial, both sides presented expert testimony. The People’s two experts both rendered diagnoses of pedophilia and opined that there was a substantial risk Bagent would reoffend. They also discussed a 1985 incident, apparently resulting in a misdemeanor sexual battery conviction, in which Bagent allegedly molested his five-year-old daughter, and they rendered an additional diagnosis of antisocial personality disorder. Bagent’s expert opined that Bagent was not a pedophile, did not have antisocial personality disorder, and had only a three percent risk of reoffending. Bagent himself testified that he experienced no urges to engage in sexual activity with children.
The jury found the allegations in the petition true. The court committed Bagent to Coalinga State Hospital for two years ending September 5, 2008.
DISCUSSION
Bagent argues that the court was mistaken when it assumed it had no power to control the number of deputies in the courtroom and that, because of this mistake, the court failed to exercise discretion it should have exercised. We will assume, for the sake of argument, that this is correct. We turn to the question of prejudice.
The parties both assume that the harmless-beyond-a-reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 applies here, not the less-stringent standard of People v. Watson (1956) 46 Cal.2d 818. We will assume the same.
Two reasons lead us to reject Bagent’s claim that he was prejudiced by the trial court’s belief that it had no control over the number of deputies the sheriff’s department placed in the courtroom. First, although the court said it had no control over the matter, it also found (in the course of deciding not to give a jury instruction sua sponte) that the number of deputies—three—was not unreasonable. No finding beyond this would have been necessary to support an exercise of discretion in favor of allowing the three deputies to remain. “[T]he presence of armed guards in the courtroom [does] not require justification on the record ‘[u]nless they are present in unreasonable numbers.’ (People v. Duran [16 Cal.3d 282, 291, fn. 8].)” (People v. Jenkins (2000) 22 Cal.4th 900, 995; see also People v. Ainsworth (1988) 45 Cal.3d 984, 1003.) Given the court’s finding of reasonableness, it is safe to conclude that if it had exercised its discretion, it would have ruled that the deputies could stay.
Bagent asserts that the trial court believed one deputy was enough; he claims the court would have excluded the others if it had known of its discretion to do so. This assertion is based on the court’s remark that the deputies “could take care of themselves” individually and on the fact that the court had concerns and had made them known off the record to the supervising deputy. We do not interpret the court’s comments as indications that it wished to exclude some of the deputies. Though the court thought the reasonableness standard was “squishy,” it still declined to instruct the jury sua sponte. It is apparent from the court’s remarks that it declined to do this because it believed the number of deputies was not unreasonable.
In his reply brief, Bagent argues that the trial court’s comment not only did not constitute a finding that the number of deputies was reasonable, but “was, in fact, an implicit finding to the contrary.” He says the court thought it did have a sua sponte duty to instruct the jury on the subject because the number of deputies was unreasonable, but still wanted to give defense counsel the option of avoiding the instruction. As we have already indicated, that is not our understanding of the transcript. Further, if the court thought it had a duty to instruct sua sponte, it would not have been logical for it to ask counsel if he wanted to request the instruction. A sua sponte duty to give a jury instruction is a duty to give it with or without a request.
Second, Bagent has presented no grounds upon which we could conclude that, despite the court’s finding of reasonableness, the presence of the three deputies was, in reality, prejudicial. To begin with, the case law rejects the proposition that the mere presence of extra law enforcement officers in the courtroom is inherently prejudicial to a defendant. The California Supreme Court has stated: “We have explained that pursuant to United States Supreme Court authority, ‘the use of identifiable security guards in the courtroom during a criminal trial is not inherently prejudicial,’ in large part because such a presence is seen by jurors as ordinary and expected because of the many nonprejudicial inferences to be drawn from the presence of such security personnel. (People v. Miranda [(1987) 44 Cal.3d 57, 114-115].)” (People v. Jenkins, supra, 22 Cal.4th at p. 998.)
A trial on an SVPA petition is not a criminal trial, but we see no reason why different standards would apply. Bagent agrees, analogizing this case to People v. Vance (2006) 141 Cal.App.4th 1104, 1113-1114, which held that the standards governing physical restraint of criminal defendants also apply to SVPA defendants.
Instead of applying a rule of inherent prejudice from the presence of officers, “[w]e examine on a case-by-case basis the question of whether a defendant actually has been prejudiced by the presence of security officers.” (People v. Jenkins, supra, 22 Cal.4th at p. 998.) The defendant bears the burden of showing this to be true. (Holbrook v. Flynn (1986) 475 U.S. 560, 572 [“[I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over”]; People v. Hayes (2000) 21 Cal.4th 1211, 1269 [“Appellant has not demonstrated actual prejudice”].)
Bagent has not carried this burden. He contends that the case was a contest of experts on the subject of whether he was dangerous and that, in this context, the jury was especially susceptible to being influenced by a suggestion of his dangerousness arising from the extra security. We agree that the jury’s perception of a defendant’s dangerousness is crucial in an SVPA trial, but it is important in many other kinds of trials also. Beyond the deputies’ mere presence, Bagent has pointed to nothing in the present case to show any influence by the extra deputies on the jury’s perception of Bagent’s dangerousness. There is no evidence that the officers were particularly obtrusive or did anything out of the ordinary that might transmit a message about Bagent’s dangerousness. In the only part of the voir dire transcript referenced in the parties’ briefs, one prospective juror was asked whether security personnel would influence her view of Bagent; the juror said no. As in Hayes, “[n]o juror who actually sat on the case is identified as being a person who believed that the security precautions were instituted because the defendant was dangerous .…” (People v. Hayes, supra, 21 Cal.4th at p. 1268.)
In fact, while making his argument about the trial court’s failure to exercise its discretion, Bagent incidentally concedes the lack of evidence of prejudice: “[B]ecause the trial court did not actually exercise its discretion, the record contains no appropriate findings that would support an argument that the presence of the three armed deputies was not prejudicial. Instead, the only information we have is that provided by appellate counsel revealing that there were three deputies guarding [defendant].” (Italics added.) Given that the presence of extra law enforcement officers is not inherently prejudicial and that Bagent has the burden of showing actual prejudice, the lack of information Bagent describes is fatal to his claim. His implication that the lack of information is the trial judge’s fault is not well taken; as we have said, extra security personnel need not be justified on the record if their numbers are not unreasonable.
Perhaps “trial counsel” is intended. The point is the same either way.
In sum, any failure on the trial court’s part to exercise its discretionary control over the number of law enforcement officers in the courtroom during trial was harmless beyond a reasonable doubt. The court found the number of deputies to be reasonable and would have agreed to let them stay if it had recognized its discretion to do so; their presence was not inherently prejudicial; and there is no evidence of actual prejudice. Based on our holding, we need not discuss the People’s argument that Bagent forfeited the issue by not raising it a second time in the trial court.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Gomes, J.