Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023948 John G. Evans and Mark Mandio, Judges.
Judge Mandio, on his own motion, heard and granted consolidation of defendant’s two separate cases. In limine, Judge Evans heard defendant’s objections and upheld Judge Mandio’s ruling.
Joanna Rehm, 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, and Lilia E. Garcia, Raquel M. Gonzalez, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
Following a jury trial, defendant and appellant Lawrence Adam Dunn was convicted of violating Vehicle Code section 20001, subdivision (a), a felony, by failing to perform his duty following an accident that caused injury to another person. Additionally, he was convicted of two misdemeanors, namely, resisting arrest (Pen. Code, § 148, subd. (a)(1)) and reckless driving (Veh. Code, § 23103, subd. (a)). In a bifurcated trial, the court found it was true that defendant had been convicted of first degree burglary (Pen. Code, § 459), a serious and violent felony within the meaning of Penal Code sections 667, subdivisions (c), (e)(1), and 1170.12, subdivision (c)(1). The court sentenced defendant to four years in state prison. He appeals.
I. PROCEDURAL BACKGROUND AND FACTS
On August 30, 2007, defendant was charged with reckless driving based on an incident that occurred on July 5, 2007. Nearly one year later, on June 24, 2008, an information was filed charging defendant with felony hit and run resulting in serious permanent injury and resisting arrest based on an incident occurring on December 4, 2007. On January 20, 2009, the court dismissed the serious injury penalty enhancement and over defense objection ordered the cases consolidated.
A. The December 4, 2007, Incident (Case No. SWF023948)
Rosa Rosales was driving northbound on Grape Street near Vine in Riverside County on December 4, 2007, at approximately 7:30 p.m. Defendant was driving in front of Rosales when he turned east onto Vine and made a U-turn heading back towards Grape. When he re-entered the intersection of Grape and Vine, he failed to stop and hit Rosales’s car. The cars ended up side by side on an incline, with the passenger’s side of Rosales’s car next to the driver’s side of defendant’s car. Rosales was in “a lot of pain.”
Rosales called her family and 911. The front of her car was damaged and smoking. While she was on her cell phone, defendant got out of his car through the passenger side, examined the damage to his car, and then drove away. He did not exchange information or ask Rosales if she needed help.
Rosales’s father and brother arrived. A fire truck and ambulance also arrived, and the ambulance later took Rosales to the hospital. Rosales’s brother noticed a trail of oil, which he followed to a residence where defendant’s car was parked. He called his sister and spoke to California Highway Patrol (CHP) Officer William Kibbett, who had just arrived at the accident site. Rosales’s brother told the officer to follow the trail of oil.
The officer followed the oil to defendant’s car, which had fresh damage and smoke coming from the engine. The officer approached defendant while defendant was standing by the car and asked him what happened. Defendant acknowledged that he was the driver of the car and that he had “hit a wall.” The officer thought defendant was being evasive. The officer also noticed that defendant was slow to respond and needed to lean against the car to stand up. The officer believed he had enough probable cause to arrest and detain defendant. He attempted to place defendant in a “bent-wrist hold” and told defendant he was under arrest. In response, defendant tensed up, pulled out, turned, and took a “combative stance, ” saying he did not do anything. The officer used pepper spray on defendant. When defendant attempted to cover his face, the officer tripped defendant and pushed him to the ground. Defendant continued to resist. Eventually, the officer was able to handcuff defendant.
Gabriel Elirani, defendant’s neighbor, heard defendant arrive home because the car’s suspension was making a lot of noise and the car’s horn was stuck on. Elirani saw defendant get out using the passenger door, go inside the home, get help, and return to the car. An officer arrived and ordered defendant to get out of the car, but defendant refused. Defendant struggled against being arrested. Another officer arrived with a police dog. Defendant continued to resist arrest. Elirani saw an officer pepper spray defendant and then handcuff him. Rosales’s brother testified that he could not hear anything between the officer and defendant, but the officer never punched, hit or drew his gun on defendant despite having a difficult time trying to arrest him.
Defendant was taken to the same hospital where Rosales was taken. Rosales identified him as the driver of the other car in the accident. CHP Officer Oskar Gerbig prepared the diagram of the accident scene.
B. The July 5, 2007, Incident (Case No. SWM067123)
On July 5, 2007, retired CHP Officer William Burrows was driving on Interstate 15 around 12:00 noon when he saw defendant driving recklessly. Defendant was driving his car on the shoulder of the road. He was approaching fast behind Burrows’s pickup truck. Defendant forced the car directly behind Burrows to move over to avoid being side swiped. Defendant passed Burrows, who was driving about 70 to 75 miles per hour. While on the road shoulder, defendant approached the Baxter Road exit but did not exit. Instead, defendant used the road shoulder “as his own private expressway.” Burrows called 911.
Defendant became “bottlenecked” in slower traffic past Baxter Road, and Burrows was able to get defendant’s license plate number. After the bottleneck, defendant continued driving on the shoulder of the road, passing vehicles in the No. 3 lane at over 80 miles per hour. Defendant also made abrupt lane changes. Further down the freeway, Burrows noticed defendant’s car and two other vehicles stopped. One of the vehicles was a pickup truck, which was straddling the No. 1 and No. 2 lanes. The driver was standing by defendant’s window, gesturing and yelling. Burrows pulled over to the shoulder and reported the incident to dispatch. Defendant pulled over behind Burrows and “spooked” him. Defendant was blowing his horn, making waving gestures with his hand, and laughing. Burrows exited the freeway and defendant followed him, still honking and mockingly waving his hands. Defendant continued driving until he was stopped by police. Burrows also stopped and made a citizen’s arrest for reckless driving.
Officer Gerbig, who had prepared the diagram of the accident scene in the prior case, assisted in this case by performing field sobriety tests on defendant. The officer opined that defendant was not under the influence of alcohol or drugs. He testified that defendant denied driving recklessly or “spooking” Burrows.
II. CONSOLIDATION
Defendant’s initial contention is that his reckless driving case should never have been consolidated with his case involving felony hit and run and resisting arrest, because the two cases were not of the same class of crimes within the meaning of Penal Code section 954.
A. Standard of Review
The standard of review for a motion for consolidation under Penal Code section 954 is abuse of discretion: “When... the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion.... [Citations.] In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges;... [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161.) The state’s strong interest in joinder affords the trial court broad discretion in ruling on consolidation. (People v. Cummings (1993) 4 Cal.4th 1233, 1284.)
B. Additional Background Facts
Based on the July 5, 2007, incident, a misdemeanor complaint was filed in case No. SWM067123, wherein defendant was charged with reckless driving. Based on the December 4, 2007, incident, a felony complaint was filed in case No. SWF023948, wherein defendant was charged with hit and run and resisting arrest. It was also alleged that defendant inflicted great bodily injury and suffered a prior strike conviction. Amendments to the information were made to correct mistakes. On November 18, 2008, the court, on its own motion, scheduled a hearing to decide whether to consolidate the two cases.
On January 20, 2009, defense counsel argued that the offenses were not of the same class of crimes. He claimed consolidation would prejudice defendant if he decided to testify on only one of the charges and it would allow the jury to infer his criminal disposition. He argued there was no cross-admissibility of evidence and the reckless driving case would bolster the felony hit and run case. In response, the prosecutor argued that the felony hit and run and the reckless driving both involved driving, and “leaving the scene of the accident would be in the same class as reckless driving.” She explained that consolidation would promote judicial economy because one witness in the misdemeanor case was also a witness in the felony case. She also noted that the facts were not unduly prejudicial. Defense counsel rebutted that consolidation violated due process.
The trial court allowed consolidation, stating: “I do believe these are of the same class of crimes. They’re both Vehicle Code offenses involving driving, and I think, to some extent, reckless behavior, whether it occurs before a potential accident or after an accident.... [¶] I also believe the consolidation will not prejudice the defendant, and that this is an appropriate case to consolidate.”
Later on, defendant was allowed to speak directly to the judge. He claimed that consolidation was prejudicial, violated due process, constituted double jeopardy, and was “breaking the law.” In response, the trial court explained that all evidence against defendant is prejudicial, but the issue is whether it is unfair. The court also explained that the evidence that would result from consolidation was not unfair, and that consolidation promoted judicial economy and efficient administration of justice.
In limine on March 5, 2009, defense counsel renewed defendant’s objection to consolidation of his cases and submitted written opposition. Upholding the prior ruling, the trial court refused to sever the charges, finding that the offenses were of the same class or had common characteristics. The court further found that “the charges are not unduly inflammatory, ” and this was not a situation in which a weaker case would be bolstered by joinder.
C. Analysis
The parties disagree on whether the offenses are in the same class of crimes. Defendant points out that Vehicle Code section 20001 (hit and run) is a reporting statute, whereas Vehicle Code section 23103 (reckless driving) is a driving statute, i.e., it punishes a defendant’s overt acts while he is driving. Thus, he argues that how he drove his vehicle is irrelevant in one statute but highly relevant in the other. The People disagree, contending that the two offenses involve the act of driving and reckless behavior. We agree with the People. Although a violation of Vehicle Code section 20001 requires both parties involved in an accident to file a report, in this case defendant’s overt acts while he was driving caused the accident. Thus, the offenses did run in the same class of crimes.
Defendant next argues that, even if we find the offenses are in the same class of crimes, the trial court erred in denying separate trials because the potential for prejudice outweighed any cost savings associated with consolidation. He asserts that if the actual outcome was a denial of due process, the appellate court must reverse the judgment even if the original ruling to consolidate was correct. (Williams v. Superior Court (1984) 36 Cal.3d 441, 447-448.)
Specifically, defendant contends that, while he may have testified in the reckless driving case, he would not have testified in the hit-and-run case, because the issue was one of his knowledge, i.e., whether he knew that he hit a car and/or whether he knew the other party was probably injured. Turning to the record before this court, we reject defendant’s contention. According to the evidence, defendant’s car ended up side by side with Rosales’s car, with her passenger side next to his driver’s side. Defendant got out of his car to view the damage; however, the evidence shows he could not have gotten out of his car via the driver’s side door without encountering Rosales’s car. As a witness testified, when defendant was home, he had to use the passenger door to get out of his vehicle. Given the evidence, we agree it was highly unlikely that defendant would have testified in this case, because if he had testified that he had hit a wall and not Rosales’s car, such testimony may have been more inflammatory than his silence.
As for the reckless driving case, defendant claims that, because there was only one witness, he was “prepared to meet his testimony directly by testifying on his own behalf.” Specifically, “his position would be that he was being chased, and that’s why he was driving as he was.” However, according to the testimony of a retired CHP officer, there was no mention of defendant being chased by anyone. Furthermore, at one point Burrows testified that when he pulled to the side of freeway, defendant stopped behind Burrows and “spooked” him. Defendant was laughing and making waving gestures with his hand. Burrows exited the freeway and defendant followed him, still honking and mockingly waving his hands. Defendant continued driving erratically until he was stopped by police. Given this evidence, even if defendant had testified he was being chased, it is highly unlikely such testimony would have been given any weight in view of his actions towards Burrows. Moreover, the fact that defendant was being chased did not justify his reckless driving.
Furthermore, based on the showing made at the hearing stage, the trial court could have reasonably found there was not a sufficiently inflammatory effect from trying the reckless driving and hit-and-run crimes together. Even if we assume the hit-and-run case was slightly weaker than the reckless driving case, consolidation was still justified in view of the other factors, including that the cases shared one witness, Officer Gerbig. Also, the evidence presented at trial did not demonstrate that the actual outcome resulted in a denial of due process. The evidence was about defendant’s driving, namely, that he was driving recklessly in one case and had caused an accident and left without reporting it in the other. The evidence was not particularly inflammatory. Ultimately, the hit-and-run case was as strong as the reckless driving case. Defendant’s car left a trail of oil that led to defendant. Defendant admitted driving his car and hitting something. The accident occurred at an intersection and there was no evidence of a wall being anywhere around the site. Furthermore, defendant’s attempt to avoid being arrested corroborated Rosales’s testimony and the prosecution’s theory that defendant knew he had hit Rosales’s car.
Defendant’s claim that Burrows’s reference to an accident in the reckless driving case following the court’s in limine ruling excluding any such reference, is without merit. The court instructed the jury to disregard Burrows’s testimony, and we presume the jury followed the court’s direction. (People v. Gray (2005) 37 Cal.4th 168, 217.)
Defendant has failed to show that the trial court abused its discretion by consolidating the reckless driving and the drug and burglary crimes. Nor has defendant shown that the consolidation resulted in a trial that violated his right to due process. (People v. Mendoza, supra, 24 Cal.4th at pp. 160-163.)
III. INSTRUCTION ON EFFECT OF OFFICER’S USE OF EXCESSIVE FORCE
Defendant contends the trial court erred when it instructed the jury on the use of unreasonable or excessive force by a peace officer. Specifically, he complains the instructions given (CALCRIM Nos. 2656 and 2670) lack the clarity of the comparable CALJIC instructions. He further faults the trial court for misreading a word (unlawful versus lawful arrest) in CALCRIM No. 2670 and thus failing to instruct the jury that excessive force negates a lawful arrest. The People argue that defendant’s failure to object at the trial level forfeits his claims on appeal.
A. Additional Background Facts
At the beginning of the jury instructions, the trial court stated: “Pay careful attention to all of these instructions and consider them together.” Regarding the charge of resisting arrest, the trial court instructed the jury in the language of CALCRIM No. 2656 (Resisting Peace Officer, Public Officer, or EMT). That instruction was immediately followed by CALCRIM No. 2670 (Lawful Performance: Peace Officer). In a nutshell, those instructions informed the jury that (1) defendant was charged with resisting a peace officer, (2) the prosecution had the burden of proving beyond a reasonable doubt that Officer Kibbett was lawfully performing his duties as a peace officer, and (3) Officer Kibbett was not lawfully performing his duties if he was unlawfully arresting or detaining defendant or using unreasonable or excessive force.
B. Forfeiture
The People contend defendant has forfeited his claims on appeal because he failed to raise any objection to the language in CALCRIM No. 2656 or No. 2670, or to the court’s misreading of a single word in CALCRIM No. 2670. In general, “the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given. [Citations.]” (People v. Rundle (2008) 43 Cal.4th 76, 151.)
Nonetheless, assuming arguendo that the issue was not waived, we further find that the conflicting references between unlawful and lawful arrest caused no prejudice to defendant.
C. Analysis
As the People point out, CALCRIM Nos. 2656 and 2670 express the same pertinent legal principles contained in CALJIC Nos. 16.101 (Resisting Arrest), 16.110 (Performing or Discharging Duties of Officer-Burden of Proof) and 16.111 (Use of Excessive Force by Officer). As noted above, the jury was instructed that the prosecution had the burden of proving beyond a reasonable doubt that Officer Kibbett was lawfully performing his duties as a peace officer, and that Officer Kibbett was not lawfully performing his duties if he was unlawfully arresting or detaining defendant or using unreasonable or excessive force. The trial court specifically stated the jurors “may not find the defendant guilty unless [they] all agree[d] that the People have proved that the defendant committed at least one of the alleged acts of resisting, ... a peace officer who is lawfully performing his duties, ...” (Italics added.) The jurors were told the prosecution bore the burden of proof, and if the prosecution failed to meet that burden, then the jurors “must find the defendant not guilty of resisting a peace officer.”
Considering the language in the instructions, we reject defendant’s argument and conclude the jurors were clearly and correctly instructed that if the officer uses excessive or unreasonable force, and defendant only uses reasonable force, then defendant is not guilty.
Notwithstanding the above, defendant faults the trial court for using the word “unlawful” instead of “lawful.” Specifically, the court stated, “A peace officer is not lawfully performing his duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise unlawful [sic, lawful] arrest or detention.” Despite the trial court misspeaking, it did inform the jury that it would provide a copy of the instructions to use in the jury room.
The People argue that the misreading of a single word was harmless because the jury was provided with the written instructions to use in the jury room that correctly stated the language in CALCRIM No. 2570. (People v. Osband (1996) 13 Cal.4th 622, 717 [in capital case, written instructions for use in deliberations room govern where they conflict with the oral instructions]; People v. Crittenden (1994) 9 Cal.4th 83, 138 [judge’s misreading was harmless where the jury was given written version and could not have misinterpreted the instruction]; People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113 [no prejudice found where accurate written instructions were provided to the jury for use during deliberations].) We agree with the People. “Here, the trial court’s instructions were delivered to the jury orally and in writing. Because the jury had access to the correct written instructions while deliberating, any error in reading the instructions was harmless.” (People v. Rodriguez, supra, at p. 1113.)
IV. DENIAL OF MOTION TO CONTINUE
Following the denial of defense counsel’s opposition to consolidation, she moved to continue the trial so that she could file a Pitchess motion for discovery of complaints of excessive force against Officer Kibbett, because “what [the officer] says happened differs from my client’s account of what happened.” Defense counsel informed the court she had intended to make the Pitchess motion earlier, but in the course of preparing numerous other motions in the case, she had neglected to do so until reminded by defendant. The trial court took the matter under submission and later denied the request to continue. On appeal, defendant contends the trial court abused its discretion in denying defense counsel’s request for a continue.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535.
A. Standard of Review
The denial of a motion for a continuance is reviewed for an abuse of discretion. (People v. Wilson (2005) 36 Cal.4th 309, 352.)
B. Additional Background Facts
In the reckless driving case (No. SWM067123), on September 26, 2007, defense counsel filed an “Informal Request for Defense Discovery.” Counsel also made a Pitchess motion regarding the personnel records of retired Officer Burrows. Counsel included a declaration, a “Certificate in Support of Subpoena Duces Tecum” and a proposed order. The motion was opposed, and on February 1, 2008, it was denied.
In the hit-and-run case (No. SWF023948), on July 21, 2008, defense counsel also filed an “Informal Request for Defense Discovery.” This case was consolidated with the reckless driving case on January 20, 2009. On the same date, defense counsel stated, “defense is ready. We would object to further delay....” The trial court ordered the case to trail to January 28, indicating the last day for trial was January 30.
On January 28, 2009, when the case was called, defendant immediately stated, “Your Honor, at this time I’m firing my attorney.” A Marsden hearing was held. The motion was denied. The court trailed the case for January 30 in order to appoint a conflicts panel attorney to address defendant’s request to challenge the Marsden ruling by pretrial writ. The court noted that January 30 was the last day for trial. When the judge suggested “the safe thing to do” was to get a 10-day time waiver, he asked defendant if he was willing to waive time. Defendant conditionally replied, “If we can do this: Have a time waiver of 10 days, have the judicial review, as well as writ review.” The trial court stated that it could not guarantee such review, and further stated that it was not going to ask defendant to waive time “right now.” Defense counsel stated, “That’s my request not to waive time.”
People v. Marsden (1970) 2 Cal.3d 118.
On February 23, 2009, defendant and a conflicts panel attorney appeared before the trial court in a follow-up hearing related to the Marsden issue. Later on the same day, both sides announced ready. Because there were no courtrooms available that day, the case trailed to the last day, March 5.
On March 5, 2009, all parties announced ready, and the last day for trial to commence was that day. The case trailed on the court’s own motion to the afternoon, when it was sent to Indio for trial to begin that same day.
In the Indio court, Judge Evans heard several in limine motions prior to the start of jury voir dire. At that point, defense counsel asked for a continuance to file a Pitchess motion. Counsel stated her motion involved the charge of resisting arrest and Officer Kibbett, with the goal of discovering personnel records related to any complaints about excessive use of force or about “the dishonesty of reports.” Both sides informed Judge Evans that earlier in the day, defense counsel had informed the master calendar judge she was requesting a continuance of the trial in order to pursue a Pitchess motion. The prosecutor reported that, during a discussion held in chambers, the master calendar judge indicated he would deny the requested continuance. The prosecutor informed Judge Evans that he opposed the continuance, “[g]iven that the case is over a year old.”
Judge Evans denied the motion without prejudice and said he would review it before trial started on Monday, March 9, 2009. Defense counsel stated the Pitchess was not addressed because of “sort of an oversight.” Counsel explained there were several motions and other issues during communications with defendant, and thus, the Pitchess issue “sort of fell to the wayside.”
The jury was sworn on March 9, 2009. On March 10, 2009, the issue of a Pitchess-related continuance was again addressed. Judge Evans replied, “Evidence Code Section 1043 and 1046 require a written motion, supporting affidavits, and proof of service. My understanding is that the service must be made on the governmental agency in possession of the records. There’s really nothing in the file that shows that any of that was done. [¶] Service is also required to be done 16 days prior to the date of a hearing. And so that time has expired as well. [¶] It’s also my understanding that-I didn’t know whether or not defendant was willing to waive his time. It was my understanding this was a last-day case; it had to start the day you came into my department. [¶] So I have considered that. I did that before the trial started. If you’re renewing that motion at this time, the motion is denied.” Defense counsel acknowledged she had not filed a Pitchess motion, and thought “it probably was impractical for the Court to grant [the motion to continue] at that point, given we are all here, and there were jurors.” The judge denied the request for a continuance “on other grounds.”
C. Analysis
Looking at the record before this court, defendant had ample time to file a Pitchess motion so that a motion to continue was not necessary. Prior to the cases being consolidated, a Pitchess motion was brought in the reckless driving case; however, not so in the hit-and-run case. Many times defendant announced ready and/or was reluctant to waive time. Even when time was waived on January 30, 2009 (for the purpose of having separate counsel advise defendant on whether to pursue a writ to challenge the Marsden ruling, and the case was continued to March 5), no Pitchess motion was prepared. Even when the case was on its last day for trial, defense counsel did nothing more than request a continuance to prepare and file a Pitchess motion. There was no indication that defendant was willing to waive time. Given these circumstances, we cannot say the trial court abused its discretion in denying the motion to continue.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Alternatively, defendant faults his trial counsel for failing to timely file a Pitchess motion to obtain the records of Officer Kibbett.
A defendant who claims ineffective assistance of counsel must establish that his counsel’s performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that, but for counsel’s errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) Here, we will assume without deciding, that counsel’s performance was deficient. Thus, we turn to the second prong of whether there was a reasonable probability that a more favorable determination would have resulted.
Here, according to the evidence, Officer Kibbett was a 27-year veteran officer. When he attempted to place defendant in a bent-wrist hold, defendant resisted by tensing, turning, and pulling away. In response, Officer Kibbett went for his pepper spray, not his baton. When defendant turned away, the officer tripped defendant to get him to the ground where he could then be handcuffed. The entire time, the officer was telling defendant to stop struggling. Witnesses agreed the officer did not use any physical violence on defendant. Rosales’s brother testified that he could not hear anything between the officer and defendant, but that the officer never punched, hit or drew his gun on defendant despite having a difficult time trying to arrest him. Elirani agreed defendant was resisting arrest; he was not being cooperative. Defendant did not testify. Not only was there substantial evidence of defendant’s resisting arrest, but there was no evidence of any excessive force being used by Officer Kibbett. Accordingly, defendant cannot show a reasonable probability that a more favorable determination would have been made had his counsel timely brought a Pitchess motion. Therefore, his ineffective assistance of counsel claim fails.
VI. DEFENDANT IN HANDCUFFS
Finally, defendant complains some jurors saw him handcuffed during a break in the proceedings, which tainted the presumption of innocence and violated his due process right to a fair trial. We disagree.
A. Additional Background Facts
On March 11, 2009, after the close of the evidence and the court’s preliminary instructions to the jury, defendant again requested new counsel. After the trial court denied his request and defense counsel’s Penal Code section 1118.1 motion (motion for judgment of acquittal), defendant personally addressed the court. He claimed that, while returning to the courthouse, walking through the alley handcuffed, four jurors saw him and some or all of them “stated that ‘we are here’ or... ‘We’re here’ or ‘We made it.’” He further claimed the deputy said, “Uh-oh, that’s no good; that’s bad.” Defendant claimed this was jury tampering and requested the four jurors, or the jury, be dismissed. Defense counsel informed the court that she was looking into the matter and would be making a motion on that point.
On the next day, after the jury was further instructed and the prosecution gave its opening statement, the record shows the issue was raised outside the presence of the jury. Defense counsel moved for a mistrial. Alternatively, she asked to be allowed to question the jurors to “simply ask if they saw anything unusual yesterday.” She acknowledged she had not yet asked defendant or the deputy whether they could identify the four jurors who allegedly saw defendant in handcuffs. In response, the prosecutor stated that questioning the jurors might result in calling more attention to something the jurors may have already concluded, i.e., that defendant was in custody.
The court took the matter under submission. Later in the day, following closing argument, the court repeated part of CALCRIM No. 104 (Evidence), stating: “I want to remind you before I give you the final instruction that you must disregard anything that you see or hear or saw while court was not in session, even if it was done or said by one of the parties or one of the witnesses. If you did see something, you must disregard it and not consider it for any purpose at all.” The court then continued with CALCRIM No. 3550 (Pre-deliberation Instructions).
After the jury retired to deliberate, defense counsel informed the court that defendant again wanted to address the court. Counsel stated that defendant “had indicated to me that... while he was physically shackled and being transported by the deputy, that he believes four jurors actually saw him and made some comment directed at him, like, ‘We’re here; we made it, ’ or something to that effect.” Counsel requested a mistrial on the grounds that it was likely defendant would be prejudiced and would not receive a fair trial.
The court denied the motion, noting the jury issue was discussed in chambers and it was agreed the court would, and did, further instruct the jury with a portion of CALCRIM No. 104.
B. Analysis
As noted above, there is no evidence, other than defendant’s belief, that any juror actually saw him in handcuffs as he was walking through the alley during a break. Even if one or more jurors actually saw defendant in handcuffs as he was being escorted, 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. It 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 it 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 or 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.)
After it was brought to the attention of the trial court that one or more jurors might have seen defendant in handcuffs while walking in the alley, the court held an in chambers discussion with counsel. The prosecutor aptly noted that questioning the jurors might result in calling more attention to something the jurors may have already concluded, i.e., that defendant was in custody. Thus, it was agreed the issue would be addressed by giving the jury a special instruction that repeated a portion of CALCRIM No. 104. The record confirms that such special instruction was given. While defendant criticizes the trial court for not asking jurors if they had seen him handcuffed, we conclude that such questioning, as the prosecutor pointed out, may have resulted in calling more attention to the fact that defendant was in custody. Accordingly, we reject defendant’s claim of prejudicial error. (People v. Duran, supra, 16 Cal.3d at p. 287, fn. 2. [brief observations of a defendant in shackles by one or more jurors is generally not prejudicial error].)
VII. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J. KING J.