Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. BAF004491, Phillip J. Argento, Judge. (Retired judge of the Los Angeles Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and carrying a concealed weapon (§ 12020, subd. (a)(4)) In bifurcated proceedings, defendant admitted suffering four prison priors (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)) and a strike prior (§ 667, subds. (c) & (e)). The sentencing court dismissed all but the serious prior and sentenced defendant to 8 years and 8 months in prison. Defendant appeals, claiming the evidence was insufficient to support his convictions and the trial court erred in denying his motion for a new trial. We reject his contentions and affirm the judgment, while directing the trial court to amend the abstract which contains an error brought to our attention by defendant.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts will be set forth in our discussion of the insufficiency of the evidence issue.
Issues and Discussion
1. Insufficiency of the Evidence
A Assault with a Deadly Weapon
The victim testified that on September 7, 2005, he was living at a residential care facility for men with substance abuse problems. During the victim’s last week there, defendant was also a resident and the victim saw him 3-4 times that week. The victim saw and heard defendant a few times each day during their common time at the facility. On August 30th or September 1, the victim saw defendant showing other residents a t-shaped tire tool with a sharpened end and a black plastic handgrip.
The victim testified that he arrived and filled out the form to be admitted to the facility on August 30th. The man who ran the facility testified that the victim checked in on August 30 and defendant checked in on September 1.
The victim added that he spoke to defendant little, if at all, while at the facility, but he heard his voice during the time they were there together.
The man who ran the facility testified that all weapons are confiscated from residents when they enter the facility, and when the defendant checked in on September 1, he had the sharpened tire tool, which was confiscated and kept in a locked storage shed until he left on the 7th, when it was returned to him. The man also testified that when he checked in, defendant had a bag of clothing.
According to the victim, on the 7th of September, he and his companion and defendant and his companion checked out of the facility, boarded a bus and rode to Banning. All four men got off the bus five miles before the Highland Springs stop, where the victim could transfer to a bus, eventually arriving in Ontario. The victim cashed in some cans he had brought from the facility and he bought and drank a 32 ounce bottle of beer. At the liquor store where the victim had purchased the beer, a Native American man had given the victim a grocery bag, containing men’s clothing and a pair of boots, which the victim had seen defendant give the man 10 minutes previously, before defendant departed with his companion. The victim and his companion then walked to the Highland Springs bus stop. The victim, who was a little intoxicated, saw defendant and his companion at the stop. Defendant, who was very upset, thinking the victim had stolen the bag defendant had given the Native American man, asked the victim why he had the bag. Defendant and the victim stood toe to toe and argued for a moment—defendant accusing the victim of stealing the bag and the victim trying to tell defendant what had happened. As the approaching bus neared the stop, the victim turned away from defendant and felt a sharp pain in his back. No one else was near the victim at the time. As defendant stabbed the victim, he whispered in his ear, “Next time, you’ll be dead.” The defendant appeared to be intoxicated and the victim could smell it on his breath. The victim fell to the ground and could not breathe. He ended up in a nearby shoe store, where a call to 911 was placed.
The bus driver corroborated this. She added that the four men spoke to each other on the bus. The victim testified variously that he and defendant spoke twice to each other while on the bus and he and his companion neither sat with defendant and his companion nor spoke to each other.
The bus driver testified that only two men, defendant and the victim, got off at this stop.
The victim testified that he heard defendant speak to this man.
A police officer testified that as the victim lay on the floor of the shoe store, in pain, after being stabbed, he told the officer that “they” (he did not specify who this included) got off the bus near the shoe store. The victim did not tell the officer that he had walked from the spot both he and the bus driver testified he had disembarked to the stop near the shoe store.
Defendant makes much of this, claiming that it, along with the victim’s “serious addiction problem” undermines his credibility. First, there was no evidence that the victim would not have been able to recall clearly what happened just because he was a “little intoxicated.” As to the victim’s asserted “serious addition problem” there was no evidence, other than the victim’s presence at the facility, which is a rehabilitation facility for drug and alcohol problems, that the victim had a serious addiction problem on the day of the crimes. The victim was not even asked when he last consumed drugs before the crimes. He did, however, deny that at the point “[w]hen [he reached] the Highland Springs bus stop” that he had consumed drugs of any kind.
However, the victim also denied at trial that he was in an argument or fight before he was stabbed. He told a police detective who interviewed him at the hospital hours after he arrived there that he had gotten into an argument with defendant over a bag of clothes, which defendant said were his, and defendant told the victim, “I’m going to kill you[,]” then stabbed him. The victim said he had been stabbed with a t-shaped object with a black handle.
The victim testified that his companion and defendant’s companion were “present” when he was stabbed, but it is unclear exactly what he meant by this. Later, the victim testified that the two companions “weren’t around” and “weren’t in the vicinity” when he and defendant argued and when he was stabbed, they were on the opposite side of the bus bench from him and defendant, 8 to 10 feet away.
The victim told a police detective that he was in fear for his safety after defendant threatened him.
The parties stipulated that a bottle of bourbon and a bottle of coffee drink were found. The bourbon bottle was half empty and both were found at the bus stop.
At the hospital, the victim picked out a picture from a 6-photo “line-up” but said he was not 100 percent sure. At trial, he blamed this on the fact that he was awaiting surgery, in pain, “somewhat” medicated, groggy, and “really out of it” at the time. However, when shown a copy of the same photo lineup by an investigator from the district attorney’s office on December 5, 2006, the victim picked out defendant’s picture. The victim said that at the hospital, he told a police officer that he had been stabbed with “what looked like . . . some type of tool, not an ice pick . . . [that] . . . had a black T handle.” He thought or “believed” it was the tire tool defendant had had at the facility.
An officer who had observed about 100 stab wounds testified that the victim’s was a small diameter puncture wound, which could have been caused by a pencil, pen or screwdriver.
The victim conceded that at some point, he had told police that the stabber was a Native American male with short cropped hair. A police officer testified that, indeed, while the victim was in the shoe store awaiting paramedics, he said that a male Apache Indian, wearing blue Levis and a college logo shirt, had stabbed him. The victim added that he and the stabber had been on a bus that they had taken from the facility and he had gotten off the bus near the shoe store. He said he did not know why he had been stabbed. At the time, the victim was in a lot of pain and was having trouble breathing.
On December 1, 2006, a defense investigator interviewed the victim at his place of employment, where the majority of employees were parolees. The interview took place behind a closed door in an office, but the victim was accompanied by his supervisor, who had summoned the victim in the presence of the latter’s co-workers, telling him who was there to question the victim. The victim testified that he was nervous and intimidated because of the proximity of his parolee co-workers and lied to the investigator, telling him he did not see his attack coming, he did not know why he was stabbed and did not get a good look at the stabber. He also said that he thought the stabber was a male Hispanic, but he was not sure. He added that he could not identify the stabber the day of the crimes or the day of the interview. The victim testified that he did not want his co-workers to think that he was a snitch—that he feared repercussions if he told the truth.
The defense investigator corroborated this.
The defense investigator corroborated the victim’s account of the circumstances surrounding the interview, but said that the victim did not appear to be nervous or intimidated. He added that the victim denied having an argument or being in a fight before the stabbing. He also testified that the victim said he did not remember being shown a photo lineup in the hospital, but he was shown a collection of photographs, which he narrowed down to three that he thought looked like the stabber. He added that the victim said he did not know who stabbed him.
The victim said the same to an investigator from the district attorney’s office.
The victim testified that although he remained a little afraid at trial, he was 100 percent sure the stabber was defendant. He said he was identifying defendant by the latter’s voice, as defendant was standing behind him when he stabbed him and the victim did not see him do it. He said he was familiar with the voices of his companion, defendant and defendant’s companion. He added that defendant was thinner and had less hair at the time of the crimes than he had at trial. The object the victim identified as the weapon defendant had used to stab him was found in the trash can at the bus stop.
An investigator for the district attorney’s office testified as an expert that confidential informants and people who are known by others to be testifying or giving the police information are reluctant to talk about crimes others commit due to their fear of retaliation. He said they also change their stories due to their fear of retaliation.
“‘“‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]’” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 590.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] . . . [U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) With these principles in mind, we address defendant’s contention that the evidence supporting his conviction for assault with a deadly weapon was insufficient because the victim’s testimony was so improbable and unbelievable that a rational trier of fact could not have found it sufficient.
Defendant begins by asserting that there was insufficient evidence that he was the person who stabbed the victim because, he asserts, the victim never saw defendant approach or stab him, he gave numerous conflicting stories and his testimony was improbable and unbelievable.
As to his first assertion, it is not an accurate reflection of what is in the record. The victim testified as follows, “[Defendant] was . . . like toe to toe with me at that time, and he was telling me, ‘I know you stole them clothes.’ And I said, ‘No.’ And I was trying to tell him what had happened with the clothing, and then the bus came and he was the only one around.” The victim was asked, “ . . . [W]hich way were you facing . . . right before you were stabbed?” The victim replied, “I was turned around from him about to walk to the bus.” The victim was also asked, “Was there anyone else near you at the time that you were stabbed beside the defendant?” to which he replied, “No.” The victim also testified as follows,
This testimony was in response to the prosecutor’s question, “How do you know it wasn’t [your companion or defendant’s companion] that stabbed you?”
While defendant correctly asserts in his reply brief that the victim never expressly stated that he was stabbed immediately after the argument or how much time elapsed between the argument and the stabbing, the jury could reasonably infer from this testimony and the testimony quoted in the text just before it (see fn. 17, ante, p. 7) that one followed the other immediately in time.
“[Defendant’s words, ‘Next time, I’m going to kill you.’] . . . were more whispered than spoken because [defendant] was right in my back. [¶] . . . [¶]
“Q [DEFENSE COUNSEL]: He stood and whispered words to you and then stuck you?
“A [THE VICTIM]: It was about the same time.
“Q [DEFENSE COUNSEL]: Okay. You didn’t see him actually stick you though, did you?
“A [THE VICTIM]: I couldn’t. It was in my back, sir.
“Q [DEFENSE COUNSEL]: You didn’t turn around and look, did you?
“A [THE VICTIM]: I know who it was, sir. [¶] . . . [¶]
“Q [DEFENSE COUNSEL]: When you heard these words, “Next time I’m going to kill you,” did you move away?
“A [THE VICTIM]: I was walking, sir.
“Q [DEFENSE COUNSEL]: Okay. In which direction were you walking?
“A [THE VICTIM]: Towards the bus, bus stop towards the – where the bus was going to stop.
“Q [DEFENSE COUNSEL]: You were walking towards the bus as it approached the bus stop; right?
“A [THE VICTIM]: Yes, sir.
“Q [DEFENSE COUNSEL]: And you didn’t begin running when you heard those words?
“A [THE VICTIM]: It was at the same time that he stabbed me that I heard those words, sir. It was – and I didn’t see him coming, sir. I wasn’t watching him coming.
“Q [DEFENSE COUNSEL]: So in essence you’re identifying him
“A [THE VICTIM]: Walking this way.
“Q [DEFENSE COUNSEL]: --by voice; is that correct? You’re identifying him by his voice because you didn’t see him do it; right?
“A [THE VICTIM]: Yes, sir.
“Q [DEFENSE COUNSEL]: Is that correct?
In his reply brief, defendant asserts that the victim was never asked when he last saw his companion and defendant’s companion on the opposite side of the bus bench from the victim and defendant, thus suggesting one of them might be the stabber. Yet, he acknowledges the victim’s testimony that there was no one other than defendant near him when he was stabbed.
Next, defendant calls into question the victim’s testimony that, based on previous familiarity with defendant’s voice, he recognized it when defendant whispered in his ear just before stabbing him. As is pointed out in the statement of facts above, the victim did, in fact make conflicting statements about the number of times he heard defendant’s voice while they were at the facility together—once testifying that he sawdefendant three or four times during their common time there and another time testifying that he saw defendant a few times every day during this time and he heard defendant speak to others a few times a day. The fact that defendant derives from this conflict the conclusion that “[i]t is doubtful that [the victim] . . . heard [defendant’s] voice to the extent to which he testified” does not necessarily undermine the victim’s testimony that he recognized defendant’s voice when he whispered in his ear just before stabbing him. Defendant forgets that, as recounted above, the bus driver testified that the victim, defendant and their two companions spoke to each other while on the bus. Additionally, the victim’s description of the sequence of events leading up to the stabbing leaves the clear impression that he was face to face with defendant seconds before the stabbing while they were arguing about the bag, the victim turned away from defendant and began walking towards the approaching bus, and, with no one else around, he was stabbed by the one person who was sufficiently angry at him at that moment to have a motive to stab him. Considering this evidence, we cannot agree with defendant that the victim’s claim to have been familiar with defendant’s voice was unworthy of belief and, even so, that defendant’s exclusive proximity to the victim at the time of the stabbing and his exclusive motive for stabbing him made the victim’s familiarity with defendant’s voice crucial.
Defendant also challenges the victim’s ability to recognize his voice based on previously hearing him speak aloud to others because when he stabbed the victim, defendant whispered and did not speak aloud. However, defendant offered no evidence at trial that one who is familiar with the voice of another would not also be able to identify that person’s voice while whispering. Defendant’s first-time-on-appeal argument in this regard falls “on deaf ears.”
Defendant also asserts that the victim’s medical condition while he was in the facility rendered it doubtful that the victim observed “[defendant] showing the tire tool to other men before [it] was confiscated.” On this matter, the victim testified that, despite having one eye swollen shut from a beating when he arrived at the facility, he could see out of the other eye. He added that he was able to read and fill out the paperwork for his admission to the facility on August 30th. As stated before, the victim testified that it was on that, or the following day, that he saw defendant with the tire tool. Therefore, we cannot agree with defendant that the evidence shows that it was doubtful that the victim made this observation.
Defendant next attacks the victim’s testimony that he had been stabbed with defendant’s tire tool. Absent from his reference to portions of the record concerning the victim’s testimony on this point is mention of the fact that the tire tool was found in the trash can at the scene of the stabbing. This evidence, which was not dependent on the jury’s acceptance of the victim’s testimony, more than supports his testimony that he believed he was stabbed with defendant’s tire tool.
Based on nothing more than points we have already addressed, defendant asserts that the victim’s “guess” that defendant was the stabber, “based on hearing his voice” was insufficient evidence to support the conviction. Of course, as we have already pointed out, there was the additional evidence of the exclusive proximity of defendant to the victim at the time of the stabbing and the fact that defendant, alone, had motive to stab the victim at the time of the crimes, matters defendant does not mention.
As defendant correctly points out, the victim made one less than positive and other conflicting statements about his identification of defendant as the perpetrator, matters we have pointed out in our recitation of the facts. The victim also explained at trial why he made these statements and the prosecution offered the testimony of an expert witness as to why some of them were made. These matters related to the credibility of the victim, a question for the jury to determine. Certainly, they did not render the victim’s testimony unworthy of belief.
Defendant also attacks the reliability of the six pack photo lineup shown to the victim, which contained two pictures of defendant. The victim testified that he did not look at the picture of defendant other than the one he picked out and when shown it at trial commented that the picture he chose “looked more like” defendant at the time of the crimes and the other did not look like defendant, although it did look like the way he looked at trial. Defendant cites to no portion of the record in which he attempted to have this document, and all evidence based on it, excluded based on its suggestiveness. We also note that defense counsel solicited from the police detective who compiled it, testimony that putting two pictures of the same person in a six picture lineup was unfair and he argued this point to the jury. We have seen two copies of the photo lineup and the two photos of defendant look nothing alike. Even if some jurors might have thought otherwise, had defendant been a stranger to the victim, we might be more inclined to accept defendant’s argument that the composition of the lineup made the victim’s identification of defendant less believable. However, defendant was not a stranger to the victim and there was no evidence at trial that he was not at the scene of the stabbing. Additionally, the discovery of his tire tool at the scene also linked him to the crimes independently of the victim’s testimony.
We note that the detective who compiled the photo lineup testified that he was unaware, when he showed it to the victim, that it contained two pictures of defendant.
Defendant said it best himself, “ . . . [The victim’s] identification of [defendant] in the photo line-up has little, if any, evidentiary value.”
Defendant asserts that the fact that the victim was admittedly a little intoxicated from the beer he consumed and referred to defendant a few times at trial as “John” which was not defendant’s first name, but the first name of defendant’s companion, suggest that it was defendant’s companion and not defendant who stabbed the victim. However, as defendant, himself, points out, the victim was a recovering drug addict, living on the edges of society—hardly a dream witness for the prosecution. The victim explained that he referred to defendant as “John” because he thought that was his first name, but he did not actually know the defendant’s name at the time of the crimes. There was no evidence whatsoever that defendant’s companion had a motive to stab the victim, that he had possession of defendant’s tire tool, that he was near the victim at the time of the stabbing or that he, in fact, stabbed the victim. Moreover, as we have already noted, the victim testified he was familiar with the voice of defendant’s companion, yet he identified the voice of the stabber as that of defendant.
The victim testified that he drank the beer at the liquor store and two hours elapsed between being there and seeing defendant at the Highland Springs bus stop. The bus driver testified she saw the victim soon after the stabbing, which was two or three hours after she dropped the victim and defendant off near the liquor store.
The victim was specifically asked whether his companion or defendant’s companion might have been the stabber. He replied, “ . . . I know it wasn’t [one of them]. They weren’t around the area. It was just me and [defendant].”
Defendant complains that there was no evidence to corroborate the victim’s testimony that his companion and defendant’s companion were 8 to 10 feet away when he was stabbed. Nor, may we say, was there any evidence to contradict it. He also points out that there were no fingerprints retrieved from the abandoned tire tool. Both of these matters were for the jury to consider. Neither separately nor when considered together do they render the victim’s testimony unworthy of belief.
Defendant points to two conflicts between the victim’s trial testimony and the testimony of other witnesses, which we have already described above. Again, these do not render his testimony unworthy of belief. Defendant, himself, concedes, as he must, that conflicts in the evidence must, at this juncture, be resolved in support of the verdicts. (See People v. Maury (2003) 30 Cal.4th 342, 396.)
Defendant also makes much of the fact that the victim’s statements to the defense investigator conflicted with his trial testimony. Again, both he and the prosecution’s expert explained why this was so and it was for the jury, and not this court, to accept or reject this explanation. The fact that the victim testified that he remained afraid to testify at trial does not, as he now asserts, makes his trial testimony as unbelievable as his statements to the defense investigator. The victim had more time to reflect on his position before testifying at trial and he was being questioned, at least initially, by a person who was not out to prove him to be a liar.
b. Carrying a Dirk or Dagger Concealed on the Person
Resurrecting his argument that there was insufficient evidence that he was the stabber, defendant asserts there was insufficient evidence he possessed the tire tool. Having rejected his first argument, we necessarily reject the second.
Defendant also asserts that there is insufficient evidence that he concealed the tire tool on his person. He twice asserts that it was in the bag of clothing the victim got from the Native American man. However, this makes no sense, as there was no testimony how it got out of the bag and into defendant’s hands just before he stabbed the victim. Moreover, it contradicts the victim’s testimony that he looked into the bag when he got it and saw only clothes and a pair of boots, but not the tire tool. We recognize that during his testimony, the victim, at one point, said he recognized the tire tool from his time at the facility and he thought that was what he was stabbed with “because it was in my bag. It was in my bag.” However, on cross examination, defense counsel asked the victim, “You earlier testified, if I heard you correctly, that you saw that instrument in the bag, didn’t you?” The victim replied, “No, sir. I said I saw it at [the facility].” Evidence that the tire tool was concealed on defendant’s person was established by the victim’s testimony that he did not see it on defendant’s person on the day of the crimes and had last seen it before the stabbing six or seven days earlier at the facility. This testimony is corroborated by the fact that if defendant had had the tire tool where the victim could have seen it either while they were on the bus together or during their argument before the stabbing, the victim would not have had to guess that it was the implement defendant used to stab him—he would have known, for certain. If defendant kept the tire tool in the bag he later gave to the Native American man before he handed the bag over to the man, and the jury based its verdict solely on this possession, and not on his subsequent possession of it secreted upon his person, it would still be sufficient to support the verdict. Defendant cites no case holding that having a dirk or dagger in a bag one is carrying does not constitute a violation of section 12020, subdivision (a)(4).
Even the jury appeared perplexed by this testimony, asking the trial court whether the victim had testified that the tire tool was in his “bag” or in his “back.” This was, no doubt, caused by the fact that during argument to the jury, defense counsel ignored his own follow up question to the victim clarifying this testimony and argued that the tool remained in the bag defendant gave the Native American man so it must have been the latter that stabbed the victim.
Ironically, defendant cites to this page of the transcript in his discussion of this issue, but appears to have not read this portion of it. Although in his reply brief, defendant acknowledges the victim’s clarification of the point during cross-examination, he interprets this only as another conflict in his testimony and not as a correction. He criticizes the People for offering no explanation for the original statement. We have one: The victim might have assumed defendant had the tire tool in the bag when he left the facility or was on the bus because the victim said he did not see the tool that day. Later, the bag became the victim’s when the Native American man gave it to him. Thus, before defendant gave the bag to the Native American man, the tire tool was in the bag, which became the victim’s. Defendant’s attempt, for the first time in his reply brief, to suggest that there was another bag, i.e., one that he may have gotten when he purchased the bottle of beer at the liquor store, has no foundation whatsoever in the evidence.
During argument to the jury, defense counsel said, “No testimony by anybody who observed [defendant] with this dirk or dagger on his person at the . . . bus stop or anyplace else.”
Contrary to defendant’s assertion, there is no evidence that the jury’s verdict was based upon the presence of the tire tool in the bag while the victim had it in his hand.
2. Denial of New Trial Motion
After less than two hours of voir dire, defense counsel informed the trial court that defendant believed prospective jurors had seen him being escorted to the courtroom in restraints. He moved for a mistrial. The trial court gave an instruction on the matter, to which defense counsel agreed, and gave counsel permission to voir dire the prospective jurors about what they saw. The court instructed the prospective jurors as follows, “It’s been called to my attention that one or more of you may have seen [defendant] restrained by deputy sheriffs. I’m going to give you an instruction on that which of course you must obey as prospective jurors. [¶] The situation arises in part because [this] is an older courthouse and things can’t be handled in the same way [as at the regular courthouse]. You’re not to speculate for the reasons why . . . . [¶] Here is the instruction: The fact that physical restraints have been placed on [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.”
Later, the trial court denied the motion for mistrial without prejudice to allow defendant to bring a motion for a new trial should he be convicted.
During a break in the testimony of the second prosecution witness, defense counsel renewed his mistrial motion and informed the trial court that defendant said he had been brought into the courtroom in shackles in the presence of “a number” of jurors. One of the deputies that escorted defendant said only one juror was present and she did not see defendant. The prosecutor pointed out that there was no evidence any of the jurors saw defendant in shackles. The trial court again denied the motion without prejudice so a motion for a new trial could be brought. At defense counsel’s request, the cautionary instruction read to the prospective jurors was read to the jury at the end of trial.
After defendant was convicted, he moved for a new trial on the basis that jurors had seen him in shackles, he said, “on at least two occasions.” The trial court denied the motion, finding that even if some jurors saw defendant shackled, it would not have prejudiced him.
In claiming that his motion for a new trial should have been granted, defendant asserts, “Here there was evidence that prospective jurors, and subsequently sworn jurors, had observed [defendant] in shackles as he was being escorted by an armed deputy to the courtroom.” Unfortunately, there is no support in the record that anyone on the jury ever saw defendant in shackles. While it is true that in its effort to avoid prejudice to defendant arising from any juror seeing him in shackles the trial court alerted all the jurors to the fact that physical restraints had been placed on him, he cites no authority that such knowledge requires reversal of his conviction. The fact that an armed bailiff is a constant presence in any criminal courtroom implies the same thing as a defendant coming and going from the courtroom in shackles and, certainly, that does not require reversal of a criminal conviction.
Defendant reads too much into the record by asserting that the deputy who escorted him into the courtroom during voir dire “affirmed that [he] had been observed by some of the potential jurors[.]” In fact, the record, concerning the deputy’s observations are is follows,
Even if one of more jurors actually saw defendant in shackles as he was escorted into the courtroom, defendant acknowledges that the California Supreme Court has noted that brief observations of a defendant in shackles by one or more jurors is generally not prejudicial error. (People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2.) In People v. Jacobs (1989) 210 Cal.App.3d 1135, the Court of Appeal said, “ . . . [O]ur Supreme Court has not held that it is incumbent on the trial court to instruct the jury sua sponte that the appearance of a defendant in physical restraints has no bearing on the determination of guilt in the situation where prospective jurors or jurors may have viewed, or have viewed, defendant in physical restraints merely while he is being taken to or from the courtroom. [¶] The customary practice of utilizing physical restraints while transporting a prisoner from place to place, e.g., from jail to courtroom and back, is a matter of common knowledge and generally acknowledged as acceptable for the protection of both the public and defendant. In has, in fact, been established that it is legally permissible to transport a prisoner to the courtroom in physical restraints. [Citations.] Moreover, our Supreme Court has noted that is has been generally recognized that brief observations of a defendant in physical restraints by one or more jurors or veniremen either inside or outside the courtroom do not constitute prejudicial error. [Citations.] [¶] Accordingly, we hold that where one of more jurors or veniremen merely witnessed defendant being transported to or from the courtroom in visible restraints the trial court has no duty, sua sponte, to instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt. [¶] On the other hand, if the defense had requested such an instruction, the trial court would be required to instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt.” (Id. at p. 1141.) As we already noted, defense counsel agreed to have the instruction read to the prospective jurors and asked that it be read to the jurors.
Defendant criticizes the trial court for not asking jurors if they had seen him shackled, but we note that defense counsel never requested this and historically, the handling of such a delicate matter has depended largely on the tactical decisions of defense counsel as to how best to handle it.
Disposition
The abstract of judgment shows that defendant was convicted, as to count 2, of “Manuf/Import/Sal[.]” We direct the trial court to amend this to read “carry concealed weapon[.]” In all other respects, the judgment is affirmed.
We concur: McKINSTER J., MILLER J.
“Q THE COURT [to defense counsel]: Was [defendant] able to identify specific people on this panel [of prospective jurors who saw him in shackles]?
“A [DEFENSE COUNSEL]: [M]y understanding is, and Deputy can correct me, . . . that they’re all gathered out here in front of the entrance to Department 3. . . . [¶] I assume it was the entire panel, Deputy[,] correct?
“A [THE DEPUTY]: I don’t believe it was the entire panel . . . . [W]e’re supposed to walk them down the hallway and into the courtroom . . . probably 15, 20 minutes . . . [before we get here]. [¶] I go above and beyond what is expected. I walk them actually through courtroom 2 so they have less visual contact with them. I’ve informed [defendant] that he needs to put his chains in[side his pockets], do it the best he can in keeping them out of the . . . eyes of the jury.”
When defendant insisted that he had been seen by prospective jurors, the deputy responded, “As far as the crowd [outside in the hall], there’s a big trial going on, 200 people expected to be there . . . . Those were the people gathered in the hallway.” There is nothing in the record before us to show that even if some of the prospective jurors saw defendant in shackles, they ended up on the jury. Contrary to defendant’s assertion, it is not evident that many prospective jurors “making the observation on that occasion were ultimately seated as jurors . . . .”
Defendant’s insistence that seated jurors saw him in shackles during the trial is equally unsupported by the record, despite evidence that defendant’s restraints were visible had any of the jurors actually saw him from a close enough vantage point to notice them. (Defendant states that “Defense counsel pointed out that she had observed [defendant] with a deputy . . . .” However, defense counsel was a man.) Defendant’s assertion that based on the fact that if a juror had gotten close enough to defendant to see his shackles “it is likely that one or more jurors had seen [defendant] in shackles on that occasion” is insufficient to prove any did.