Opinion
A146085
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. MINH DANG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRPB155033)
Defendant Minh Dang appeals from a judgment upon a jury verdict finding him guilty of unlawful possession of drug paraphernalia in prison. (Pen. Code, § 4573.6.) He contends his due process right to a fair trial was prejudicially impaired because he was unjustifiably and visibly shackled throughout the trial. We agree and reverse the judgment.
All undesignated statutory references below are to the Penal Code.
Section 4573.6 provides in pertinent part as follows: "(a) Any person who knowingly has in his . . . possession in any state prison . . . any controlled substances, the possession of which is prohibited by [the California Uniform Controlled Substances Act], [or] any . . . paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without . . . authoriz[ation] . . . is guilty of a felony punishable by imprisonment . . . for two, three, or four years."
I. BACKGROUND
On January 15, 2015, Correctional Officer Casey Reilley searched the cell that defendant shared with another inmate at Pelican Bay State Prison (Pelican Bay). Hidden in items stored on the shelf assigned to defendant for his personal belongings, Officer Reilley found what appeared to be an inmate-manufactured hypodermic needle, and spare parts for a duplicate. Defendant was cooperative when questioned about these items, admitting they belonged to him.
Officer Reilley and three other prison staff members (the prosecution's witnesses) testified that they had seen many such items previously, and had only known them to be used in injecting controlled substances, typically heroin. It was hard for inmates to get hollow, medical-grade needles, they maintained, making such needles very valuable for intravenous drug use. In contrast, it was easy for inmates to get guitar wires or coaxial cable, they observed and, therefore, inmates generally used those materials to create tattoo guns. Two of those prosecution's witnesses, and defendant's consultant, retired Pelican Bay Lieutenant, Steven Reppond, agreed, however, nothing would prevent an inmate from using the items found in defendant's cell as tattoo guns, the purpose for which defendant maintained he had constructed them.
A third prosecution witness did not know whether the items could be used as a tattoo gun.
Whether fashioning a hypodermic needle or a tattoo gun, witnesses agreed, inmates typically began with the body of a ballpoint pen. For hypodermic needles, the ball-type piece of the pen is used as a plunger to push narcotics into the body. A plunger is not needed for a tattoo gun, however, prosecution witnesses asserted, because the user simply dipped the needle into the ink before using it to pierce the skin. The items found in defendant's cell included pieces typically used as plungers. Additionally, tattoo guns generally have attached motors taken from CD players or other mechanical items inmates may disassemble, although prosecution witnesses agreed they sometimes found tattoo guns without attached motors and inmates sometimes borrowed motors from each other. The items discovered during the search of defendant's possessions did include plungers, but did not have motors attached, and Officer Reilley found no ink on the items and no ink supply in defendant's cell.
Testifying on his own behalf, defendant offered explanations about the part described as a plunger, the motor, and the ink. He asserted that he used the so-called plunger as part of a mount to hold the motor, and that he borrowed the motor from his CD player when he needed it. He was able to purchase the needle for just six dollars, he testified, and did so because he preferred a thin point, although he had used guitar wires also, before the prison stopped selling them. The thicker the wire, the more it hurt to get a tattoo, defendant explained, and a needle was the only option for tattoos requiring fine work, for example, tattoos that some inmates got on their eyeballs or eyelids, or inside their mouths. He did not need to store ink in his cell, he added, because he could manufacture it when he wanted it by burning items he possessed (for example, chess pieces or handballs) under his bunk, scraping the resulting black powder off the bottom of the bunk, and mixing the powder with shampoo and water.
Witnesses agreed that inmates constantly adapted as the prison refined its strategy for managing their conduct.
Although tattooing and possession of tattoo paraphernalia were serious prison rule violations (see Cal. Code Regs., tit. 15, § 3315, subd. (a)(3)(D)), prosecution witnesses agreed it remained common for inmates to get tattooed in prison. If an inmate was a really good tattoo artist, he could make a lot of money, charging $50 or more per tattoo, depending on the size of the piece. Defendant testified he had given himself one tattoo before he went to prison in 2008, and then added seven to nine more over the next seven years while in prison.
Although prison records did not indicate whether defendant had tattoos when first incarcerated, Officer Reilley agreed defendant had visible tattoos by the time of trial, apparently acquired in prison, as they were all one color.
In contrast, there was no evidence defendant had a history of drug use. The prison did not send the items found in the search of his cell to be tested for drugs because the items contained no liquid residue. Nor did prison officials search his body for evidence of intravenous drug use. But prosecution witnesses agree no drugs were ever found in defendant's cell, he had no prior disciplinary record for drug use, drug testing performed on him the day of the search was negative for any controlled substances, and six random drug tests conducted between the date of the search and the trial produced the same result. Although intravenous drug use at Pelican Bay typically involved heroin, and heroin users typically nod out or appear asleep, there were no reports of defendant exhibiting such symptoms, and prison records confirmed defendant maintained a regular job at the prison, working daily.
Defense expert Reppond testified that, if convinced an inmate possessed a similar instrument for injection of controlled substances, he would have interviewed the inmate, particularly if the latter appeared cooperative, to determine the source of the controlled substances being brought into the prison, monitored him to be sure he had not stored such substances in a body cavity, and placed him in administrative segregation pending completion of an investigation. There is no record such steps were taken in this case.
Defendant testified he had worked five to seven days a week at various prison jobs since shortly after his arrival at Pelican Bay four years earlier.
Officer Reilley prepared a rules violation report after he searched defendant's cell. About three weeks later, on February 6, 2015, Correctional Lieutenant Terrance Buchanan conducted a prison disciplinary hearing regarding the matter. He testified defendant was charged with possession of drug paraphernalia, pled guilty, and offered a statement that the "hype kits" found in his cell belonged to him and not to his cellmate. According to Lieutenant Buchanan, defendant never suggested the items found in his cell were tattoo guns. Defendant was disciplined for the rule violation, losing television and telephone privileges and yard time.
At trial, defendant denied having used the term "hype kits," maintaining that he only told the lieutenant, "Whatever they found in my cell that day was all mine. It wasn't my cellie's stuff."
The district attorney subsequently charged defendant with unauthorized possession of drug paraphernalia in prison in violation of section 4573.6, a felony. The charging document included special allegations that defendant had two prior convictions for violent and serious felonies (i.e., attempted second degree murder, and assault with a firearm with enhancements for personal use of a firearm and causing great bodily injury). (Id., §§ 245, subd. (b), 667, subds. (b)-(i), 1170.12, 12022.5, 12022.7.) On July 21, 2015, after a two-day jury trial, the jury found defendant guilty of the charge and found both special allegations to be true. The following month, the trial court sentenced defendant to the lower term of two years for violating section 4573.6, doubled pursuant to sections 667(b)-(i) and 1170.12, with the resulting four-year term to be served consecutively to the 32-years-to-life term that defendant already was serving. This timely appeal followed.
II. DISCUSSION
Over defendant's objection, the trial court ordered that he be partially restrained with shackles during trial. On appeal, defendant contends the trial court abused its discretion in ordering him shackled during trial and thereby violated his federal constitutional rights. We conclude the contention has merit.
A. Background
On June 22, 2015, the prosecution filed a motion to physically restrain defendant during trial, attaching a recommendation from Pelican Bay Correctional Officer Jacqueline Hernandez, a court liaison officer. Officer Hernandez recommended defendant be fully restrained, i.e., fastened to a security chair using a black security restraint box, with one chain around his waist and a second attaching to handcuffs and leg irons. Alternatively, she offered the option of having the waist chain connect to the other restraints, with a longer (12-inch) chain running to defendant's writing hand.
At the readiness conference on July 9, 2015, Officer Hernandez testified that she based her recommendation primarily on the nature of the offenses for which defendant originally had been sentenced to state prison and on one incident for which he was disciplined while in prison. The prior offenses had occurred in 2007, when defendant was 18. After others with him began yelling gang-related taunts at a group that was returning from purchasing snacks at a grocery store, defendant fired a semi-automatic weapon twice in the air and then towards the group, hitting a young man twice in the head. The victim sustained severe brain damage as a result, had about four percent of his brain removed, was completely paralyzed on one side, was confined to a wheelchair, and had difficulty communicating. Defendant was convicted of attempted second degree murder and assault with a semi-automatic firearm with enhancements (the 2007 criminal offenses), and sentenced to life in prison, with no eligibility for parole before February 2040. His subsequent disciplinary record in prison included one violation involving violence. In January 2011, prison officials observed him with seven other inmates hitting another inmate in the front and back of his head and upper torso, causing a traumatic brain injury for the victim.
Defense counsel opposed the motion for physical restraints, arguing it would be unfairly prejudicial if the jury were to see defendant chained in the courtroom during trial, a result particularly likely to occur if his hands were chained. He questioned Officer Hernandez at the readiness conference, and she confirmed there was no record defendant had ever been violent or disruptive in court, or during transportation to or from court, and no record he had ever attempted to escape. Officer Hernandez also testified that defendant was part of Pelican Bay's general population, subject to "close B" restrictions, signifying he was permitted to leave his cell unshackled to go to his prison job each day unaccompanied, and to attend programs in the evening. Finally, defense counsel asserted, without contradiction from the prosecution, that defendant was strip searched and checked for weapons each time he came to court.
Although Officer Hernandez testified that defendant had been shackled each time he was transported to or from court, she also observed generally that shackling inmates did not always prevent them from behaving violently.
In contrast, inmates who are classified as maximum security must be shackled when they leave their cells, and those classified as "close A" are not permitted to leave their cells after dark.
The trial court was unpersuaded. Although expressing some frustration with the prison, because it "seem[ed] to always recommend full restraints for everybody," essentially eliminating the value of its input, the trial judge nonetheless found a manifest need for physical restraints here. He relied for this finding on the brutality of the conduct underlying defendant's 2007 criminal offenses and 2011 prison assault, observing that both victims had sustained brain injuries and that defendant had acted in concert with others both times. Additionally, the trial judge expressed concern about the courtroom layout, noting that jurors would have to walk within about three feet of defendant, when he was seated with his counsel, "barely the width of the counsel table." If defendant extended his hands, the judge noted, they would reach "within a matter of inches" of the jurors at the closest point. The trial judge also observed that the court had a "history with Pelican Bay inmates attacking counsel." From where defendant was sitting, the trial judge recalled, a different Pelican Bay inmate in an unrelated case "pulled a knife out of his rectum and stabbed his counsel." "So I'm very, very concerned about the danger," the trial judge explained.
Based on these concerns, the trial judge ordered defendant shackled to a security chair during trial, with leg shackles, a waist chain, and one hand chained. Defendant's writing hand would remain free. If he kept his shackled hand in his lap, the trial judge noted, there was "a good chance" the jury would never see the restraints, although the judge later acknowledged jurors might still see them . Even if they did, however, the judge reasoned, it would not be "terribly prejudicial" because jurors would hear that defendant was an inmate at Pelican Bay, which "everyone in the community" knew housed the state's most dangerous inmates. The trial judge ordered the security chair draped with cloth, to minimize the likelihood jurors would grasp its purpose when viewing it from behind, particularly during jury selection. He also gave instructions allowing those in the courtroom to remain seated when the trial judge entered the courtroom, and when the jury entered or departed. Defendant was permitted to appear for trial in civilian clothes, and two correctional officers were seated directly behind him at all times during the trial.
On the first day of trial, the trial judge observed that the jury "probably" would be able to see defendant's restraints when they passed him going to and from the jury room and, therefore, granted defendant's request for an instruction on the topic. Before opening statements and again before the jury began deliberations, the judge consequently instructed the jury: "The fact that physical restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard the circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations."
B. Legal Principles and Standards
"A trial court has broad power to maintain courtroom security and orderly proceedings, and its decisions on these matters are reviewed for abuse of discretion. [Citation.] That discretion, however, must yield to principles of due process. [Citation.]" (People v. Simon (2016) 1 Cal.5th 98, 115.) Both the federal and state Supreme Courts have recognized that "some extraordinary security practices carry an inordinate risk of infringing upon a criminal defendant's right to a fair trial . . . . For example, visible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community. (Deck v. Missouri (2005) 544 U.S. 622, 630 [(Deck)]; see [People v.] Duran [(1976)] 16 Cal.3d [282], 290 [(Duran)].) . . . In addition to their prejudicial effect on the jury, shackles may distract or embarrass a defendant, potentially impairing his ability to participate in his defense or serve as a competent witness on his own behalf. ([Deck], at p. 630; Duran, at pp. 288-290; People v. Harrington (1871) 42 Cal. 165, 168.)" (People v. Stevens (2009) 47 Cal.4th 625, 632-633.)
"Because physical restraints carry such risks, the United States Supreme Court has long considered their use inherently prejudicial. [Citations.] Thus, a criminal defendant may not appear before the jury in shackles unless the trial court has found that the restraints are justified by a state interest specific to the particular trial. [Citation.]" (People v. Stevens, supra, 47 Cal.4th at p. 633.) Similarly, the California Supreme Court has ruled 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." [Citation.]' " (People v. Covarrubias (2016) 1 Cal.5th 838, 870; see also Pen. Code, § 688 ["No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge"].) Both Supreme Courts agree that "[a] criminal defendant may be shackled at trial only as a last resort . . . . [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 403, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165; accord Deck, supra, 544 U.S. at p. 628.)
In this context, therefore, "the trial court's discretion is relatively narrow. [Citation.]" (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) " ' " '[M]anifest need' arises only upon a showing of unruliness, an announced intention to escape, or '[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .' " ' " (People v. Seaton (2001) 26 Cal.4th 598, 651; see also People v. Ceniceros (1994) 26 Cal.App.4th 266, 277 [generally a defendant must "make specific threats of violence or escape from court or demonstrate unruly conduct in court before in-court restraints are justified"].) "[T]he mere fact that the defendant is a prison inmate, standing alone, does not justify the use of physical restraints." (People v. Miller (2009) 175 Cal.App.4th 1109, 1114 (Miller).) The People have the "burden . . . to establish in the record the manifest need for the shackling," and "[t]he trial judge must make the decision to use physical restraints on a case-by-case basis." (Ibid.)
C. Analysis
The record before us fails to demonstrate the requisite manifest need. The court expressed concern about the configuration of the courtroom, which would require the jurors to walk past defendant in very close proximity to him. There was no evidence that defendant had behaved in an unruly fashion while in court or on the way to court, that defendant had announced an intention to escape, or had attempted to escape, or that defendant had behaved or had threatened to behave in a violent or nonconforming manner that disrupted the judicial process.
The trial court relied primarily on crimes for which defendant had been incarcerated eight years earlier (in 2007), and a violent incident while he was in custody more than four years earlier (in 2011) as a basis for ordering restraints. In both instances, defendant acted as a member of a group, either with other gang members, or with other inmates. But there was no evidence defendant had been involved in any violence during the four years preceding the trial in this matter, nor that he retained any gang or other group affiliation that might motivate him to behave violently in the courtroom during trial. Defendant was tried alone in this matter. There were no co-defendants, and the record contains no evidence suggesting he was involved with other inmates in any plan to commit violence or escape while in the courthouse.
While undoubtedly reprehensible, the two past incidents of violence did not alone suffice to establish that defendant could only be effectively controlled, and others in the courtroom could only be effectively protected, if defendant was shackled throughout the trial. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 986 ["A defendant's record of violence, or the circumstance that he or she is a capital defendant, does not by itself justify shackling"].) For confirmation of this point, we need look no further than the California Supreme Court's seminal decision in People v. Duran, supra, 16 Cal.3d. 282. There, as here, the prison inmate on trial previously had been convicted of a violent crime, namely, robbery (see Pen. Code, § 667.5, subd. (c)(9) ["Any robbery" qualifies as a violent crime]). (Duran, supra, at p. 293.) There, as here, the inmate allegedly had attacked another inmate while incarcerated. (Id. at p. 287.) In reviewing the decision to shackle the defendant's legs and one of his hands during trial, the Supreme Court noted the record contained "no showing that [he] threatened to escape or behaved violently before coming to court or while in court." (Id. at p. 293.) The fact that he was a state prison inmate, had been convicted of a violent crime, and was charged with committing a violent crime in prison, the court ruled, "did not, without more, justify the use of physical restraints." (Ibid.) It "was an abuse of discretion to shackle [the] defendant" during trial on that record, the Supreme Court ruled. (Ibid.) Applying this reasoning, we reach the same conclusion here.
In Duran, the inmate was being tried for the alleged assault, which involved use of a dirk or dagger. (Duran, supra, 16 Cal.3d at p. 287.)
In doing so, we do not overlook a notable difference between the two cases. Unlike in Duran, the trial here court did not summarily rule on the question of shackling. (See Duran, supra, 16 Cal.3d at p. 293 [The trial court's summary denial of the defendant's motion to release defendant from his shackles "was not based upon a showing of record and implie[d] a general policy of shackling all inmate defendants accused of violent crimes"].) To the contrary, in this case, the trial court examined the factual basis for the prosecution's motion to physically restrain defendant, and explained its reasoning on the record. In granting the motion, however, the court was guided by its experience with a different Pelican Bay inmate who had concealed a weapon in his rectum and used it to attack his counsel in court. And in dismissing the potential for prejudice if defendant were shackled, the trial judge reasoned that "everyone in the community" already knew Pelican Bay inmates are the state's most dangerous.
The court also properly gave instructions intended to minimize the jury's ability to see defendant's shackles and, concluding jurors "probably" still would see them also instructed jurors to disregard them.
As the Supreme Court repeatedly has stated, however, a " 'court cannot adopt a general policy of imposing [physical] restraints upon prison inmates charged with new offenses unless there is a showing of necessity on the record.' [Citation.]" (People v. Mar (2002) 28 Cal.4th 1201, 1218.) Because the use of physical restraints in the courtroom is "inherently prejudicial," the decision "must be justified by a particularized showing of manifest need (People v. Hernandez (2011) 51 Cal.4th 733, 742 (Hernandez), italics added), i.e., by an "individualized suspicion" that a specific defendant would engage in nonconforming conduct in the courtroom if not physically restrained. (People v. Seaton, supra, 26 Cal.4th at p. 652.) Neither "the courthouse layout" (ibid.)—nor, by extension, a courtroom's layout—can establish individualized suspicion. And, as noted, defendant's two past incidents of violent conduct, did not on their own suffice. (Duran, supra, 16 Cal.3d at p. 293; People v. Cunningham, supra, 25 Cal.4th at p. 986.)
Here, in contrast to cases in which shackling was justified, there was no violent assault on security personnel, no continuing pattern or recent incident of custodial violence or possession of weapons, no record at all of violence or other nonconforming conduct related to judicial proceedings, and no extensive criminal history of violent acts. (Compare People v. Lomax (2010) 49 Cal.4th 530, 559-560 [defendant's unprovoked violent attack on bailiff in courtroom holding cell justified requiring electronic security belt during trial]; People v. Wallace (2008) 44 Cal.4th 1032, 1050 [defendant's involvement in five jailhouse fights while awaiting trial in county jail and possession of illegal razors justified use of restraints during trial]; People v. Hawkins (1995) 10 Cal.4th 920, 937, 943-945 [capital defendant on trial for two separate murders, with extensive history of violent crime, who had recently engaged in three fistfights and other disruptive behavior while in custody could properly be restrained at the waist], overruled in part, on other grounds, in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Medina (1995) 11 Cal.4th 694, 730 [defendant's history of attempted and completed escapes and violent conduct in the courtroom and in custody justified use of restraints during portion of trial]; People v. Stankewitz (1990) 51 Cal.3d 72, 95-97 [defendant's past escape attempt, current plan to escape and shoot sheriff's deputies, violent conduct in the courtroom and in custody, and threats against the trial judge and bailiffs justified use of leg restraints]; People v. Billie (Apr. 4, 2017, B265958) ___ Cal.App.5th ___ [defendant's "well documented" "history of violence in response to disputes with others," his attacks on fellow inmates while in federal prison on prior charges, his attacks on fellow inmates including his own cellmate while in county jail awaiting trial, and his possession of razor blades in jail, justified use of restraints during trial]; see also, e.g., Duran, supra, 16 Cal.3d at p. 291 [citing cases].) The trial court did not base its restraints decision in any part on defendant's demeanor in court (see, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1032 [defendant's reported attack on another inmate with a typewriter and threats to kill deputies justified use of restraints, when combined with the trial court's observation that the defendant's demeanor indicated he was "not a compliant person"]), and there was no suggestion he would be unable to control himself in court (see, e.g., People v. Price, supra, 1 Cal.4th at p. 404 [defendant's multiple acts and threats of violence against jail officials or while being transported to court supported conclusion he was "experiencing increasing difficulty in controlling his violent impulses," justifying use of restraints in courtroom]). To the contrary, the record indicated that defendant was cooperative when his cell was searched, and pragmatic at the subsequent prison disciplinary hearing. Rather than displaying anger, he immediately assumed responsibility for the items found in his cell, denying any responsibility on his cellmate's part.
Accordingly, we conclude the trial court abused its narrow discretion in this context by requiring defendant to be shackled during trial.
D. Harmless Error
"The United States Supreme Court has held that the unjustified imposition of visible physical restraints violates a criminal defendant's right to due process under the Fifth and Fourteenth Amendments to the federal Constitution. [Citation.] In such a case, the defendant need not demonstrate actual prejudice because the high court has held that shackling is an inherently prejudicial practice. [Citations.] Accordingly, when a trial court orders visible shackles without adequate justification, the People must show beyond a reasonable doubt that the error did not contribute to the verdict. [Citations.]" (People v. Hernandez, supra, 51 Cal.4th at p. 745, italics omitted; see Chapman v. California (1967) 386 U.S. 18 (Chapman).) The People have not met their burden in this case.
The Attorney General argues that the error was harmless beyond a reasonable doubt because nothing in the record suggests the "mere presence of the restraints prejudiced the jury" against defendant. There is no record the jury regularly saw the restraints, or that particular attention was drawn to them, the Attorney General notes, and the jury did not see defendant walking to or from the witness stand in restraints to testify. Any brief glimpses jurors may have had of the restraints were unlikely to shock or prejudice them against defendant in any event, the Attorney General submits, because jurors already knew he was a Pelican Bay inmate and the trial court had instructed them to disregard the shackles. Defendant remained able to participate in his own defense, as he had one hand free to take notes and chose to testify. Finally, the Attorney General maintains, the evidence of his guilt in this matter was "strong." We are unpersuaded.
The first argument fails to take account of the U.S. Supreme Court's conclusion, which our own Supreme Court has reiterated, that "shackling is 'inherently prejudicial,' " and a defendant unjustifiably required to wear visible shackles, therefore, "need not demonstrate actual prejudice" to establish a constitutional violation. (Deck, supra, 544 U.S. at p. 635; Hernandez, supra, 51 Cal.4th at p. 746.) In this case, despite efforts to minimize their visibility, the trial court acknowledged jurors "probably" would see defendants' shackles and jurors undoubtedly were aware of the restraints in any event as they were twice instructed to disregard them. On appeal, the Attorney General does not dispute the shackles were visible or that jurors were aware of them. She nonetheless makes the argument that defendant was not actually prejudiced as a result, citing People v. Anderson (2001) 25 Cal.4th 543. Anderson did not apply the Chapman harmless-beyond-a-reasonable-doubt standard, however, as there was "no evidence or claim the jury ever saw" or knew the defendant in that case was restrained. (Id., at p. 596.)
In Anderson, the defendant was only required to wear a single leg brace, concealed under his trousers, during a penalty retrial and did not testify. (Anderson, supra, 25 Cal.4th at p. 596.) --------
Nor did the fact the jury inevitably learned defendant was a prison inmate ameliorate the prejudicial impact jurors might have to seeing or being advised he was present in court in shackles. As the Sixth District observed in People v. McDaniel (2008) 159 Cal.App.4th 736, "it is not the fact that the defendant is a prison inmate that makes shackling prejudicial; rather, it is the jurors' visual, psychological, and emotional response to seeing a defendant so physically restrained and differentiated from everyone else and the natural tendency to wonder whether the defendant is a violent and dangerous person, and worry about safety. As the majority in Deck noted, the negative distraction caused by seeing a shackled defendant undermines the presumption of innocence and the fairness of the factfinding process. [Citation.]" (McDaniel, at p. 746.) We think the same reasoning applies where, as here, a jury is advised "physical restraints have been placed on the defendant" who is sitting at counsel table before them.
As for the instruction telling the jury to disregard the shackles, "we may presume that jurors can follow such an admonition [citation], [but] 'if reviewing courts automatically find that an admonition and presumption that jurors follow it cure the failure to make a determination that shackling is necessary, trial courts could shackle prison inmates as a matter of routine, knowing that a subsequent admonition and appellate presumption would in most cases render any abuse of discretion harmless. . . . [Thus,] a blanket application of the presumption could, as an unintended consequence, undermine the trial court's sua sponte obligation to make a determination on the record that shackling is reasonably necessary.' [Citation.]" (People v. Miller, supra, 175 Cal.App.4th at p. 1117.)
Our Supreme Court also has recognized that wearing restraints "may preoccupy the defendant's thoughts, make it difficult for the defendant to focus his or her entire attention on the substance of the court proceedings, and affect his or her demeanor before the jury—especially while on the witness stand." (People v. Mar, supra, 28 Cal.4th at p. 1219, italics added; see also People v. Hill (1998) 17 Cal.4th 800, 846 [shackling "may affect a defendant's mental state during trial," impairing his or her "ability to cooperate or communicate with counsel"], overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) As the court stated "over 100 years ago in People v. Harrington[, supra,] 42 Cal. 165, . . . 'any order or action of the Court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense; and especially would such physical bonds and restraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness and testifying in his own behalf.' " (Duran, supra, 16 Cal.3d at p. 288.) Accordingly, the fact that defendant here testified and had a hand free to take notes does not eliminate the inherently prejudicial impact of having been restrained throughout the trial.
Finally, the case against defendant was far from open and shut. As defendant points out, to convict him of the charged offense, the jury had to find he possessed "paraphernalia intended to be used for unlawfully injecting . . . controlled substances." (Pen. Code, § 4573.6, subd. (a), italics added.) Though four prosecution witnesses testified they had only known items of the kind found in defendant's cell to be used for intravenous injection of controlled substances, two of those witnesses, and defendant's consultant, retired Lieutenant Reppond, agreed nothing would prevent an inmate from using the same items as tattoo guns. Defendant testified he constructed the items found in his cell to use as tattoo guns. He coherently explained his design, and said he had used similar tools to give himself eight to ten tattoos, at least some of which a prosecution witness confirmed were visible during trial.
Although the prosecution witnesses expressed the lay opinion that the items found in defendant's cell were intended to be used as drug paraphernalia, the prosecution presented no evidence defendant had ever injected controlled substances or sold or provided items of the kind found in his cell to other inmates for any purpose including intravenous drug use. Nor was there any evidence that the specific items found in defendant's cell had been used to inject controlled substances. Prosecution witnesses acknowledged no drugs ever were found in defendant's cell, he had no disciplinary record of drug use, his drug test results were negative, and he worked daily in prison without any report he exhibited symptoms of intravenous drug use.
On this evidence, we cannot say with assurance—beyond a reasonable doubt—that requiring defendant to wear shackles during trial without adequate justification did not contribute to the verdict, and we do not find that the trial court's abuse of discretion was harmless. Accordingly, we reverse the judgment.
III. DISPOSITION
The judgment is reversed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.