Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Ct. No. 1100345, Marie S. Silveira, Judge.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
Superior Court Case No. 1052553
On August 22, 2003, the Stanislaus County District Attorney filed an information in superior court charging appellant Stephen Allen Frederick as follows: count 1--possession of a controlled substance for sale (Health & Saf. Code, § 11378) with a prior serious felony (Pen. Code, § 667, subd. (d)) and a prior prison term (§ 667.5, subd. (b)) and counts 2 and 3--misdemeanor resisting arrest (§ 148, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On August 15, 2006, the court dismissed counts 2 and 3 in the interests of justice (§ 1385).
We note the three-year delay between the time of the filing of the information and the trial of the charges. The prosecutor and defense counsel attributed the delay to a number of pending cases, continuances, and re-settings involving the appellant.
On the same date, the court bifurcated trial of the special allegations relating to count 1 and jury trial commenced.
On August 22, 2006, the jury returned a verdict finding appellant guilty as charged in count 1.
On August 23, 2006, the court, sitting without a jury, conducted a trial of the special allegations and found the priors to be true.
Superior Court Case No. 1100345
On January 26, 2006, the Stanislaus County District Attorney filed information No. 1100345 in superior court charging appellant Stephen Allen Frederick with petty theft with a prior (§ 666) while free on bail in four separate pending cases (§ 12022.1) and with a prior serious felony conviction (§ 667, subd. (d)) and prior prison term (§ 667.5, subd. (b)).
On September 5, 2006, jury trial commenced. On September 6, 2006, appellant admitted the prior theft conviction. On September 7, 2006, the jury returned a verdict and found appellant guilty of petty theft.
On September 8, 2006, the court conducted a bifurcated bench trial and found all of the special allegations to be true.
Appellant was originally set for sentencing on March 2, 2007. After granting numerous continuances in 2007 and 2008, the court conducted a sentencing hearing in case Nos. 1100345 and 1052553 on November 5, 2008.
On November 5, 2008, the superior court consolidated the sentencing hearing in case No. 1100345 with case No. 1052553, denied appellant probation, and imposed a total term of nine years and four months in state prison. In case No. 1052553, the court imposed the term of two years on the underlying offense, doubled that term due to the prior strike conviction, and imposed a one-year prior prison term enhancement. In the present case, No. 1100345, the court imposed a consecutive term of eight months on the underlying offense, doubled that term to one year and four months due to the prior strike conviction, and added an on-bail enhancement of two years and a prior prison term enhancement of one year.
On November 7, 2008, the court filed a minute order noting its omission with respect to the imposition of sentence on three enhancements (§ 12022.1) in case No. 1100345.
On November 12, 2008, the court conducted a further sentencing hearing, struck one of the section 12022.1 enhancements, imposed two years on each of the remaining enhancements, and then stayed those two enhancements (§ 12022.1, subd. (d)). The court awarded 1, 056 days of custody credits in case No. 1052553 and 153 days of custody credits in this case.
Notices of Appeal
On October 31, 2006, appellant filed a notice of appeal (No. F051573) in superior court case No. 1100345. On July 23, 2007, this court granted appellant’s request to dismiss the appeal as “premature and abandoned.”
On December 5, 2008, appellant filed a timely notice of appeal in case No. 1100345.
On or about January 26, 2009, appellant’s trial counsel submitted a notice of appeal to the superior court in case No. 1052553, but the court did not file stamp the notice.
On February 20, 2009, appellant filed an application for constructive filing of notice of appeal in case No. 1052553.
On July 16, 2009, this court denied appellant’s application by minute order.
On August 6, 2009, this court directed counsel to file informal letter briefs as to whether the notice of appeal in case No. 1100345 was sufficient to cover the judgment in case No. 1052553.
On October 1, 2009, this court filed an order deeming the notice of appeal submitted on or about January 26, 2009, in case No. 1052553 to be timely filed.
On March 18, 2010, this court dismissed case No. F058725 (superior court case No. 1052553) upon appellant’s request.
Although this court ultimately dismissed case No. F058725, this court granted appellant’s request to take judicial notice of the documents filed in superior court case No. 1052553 (appellate case No. F058725).
STATEMENT OF FACTS
Although appellant abandoned this appeal, we include a brief factual recitation of the underlying offense to give context to the combined sentencing proceedings of November 5, 2008.
The following facts are taken from the probation officer’s report and recommendation filed December 3, 2009:
“On January 2, 2003, at approximately 3:17 a.m., a Modesto Police Officer, while on routine patrol, observed a vehicle parked against a curb in the 1700 block of Sylvan Avenue. The vehicle was running, however, it was unattended. Believing that the vehicle may have been stolen or possibly being burglarized, the officer turned his vehicle around to investigate. As the officer approached the suspect vehicle the second time, he observed a male, later identified as the defendant, Steven Frederick, wearing a black leather jacket standing near the vehicle. The officer attempted to talk with the defendant and inquire about the vehicle, however, the defendant fled on foot between two residences on Sylvan Avenue. The officer gave chase, however, lost sight of the defendant as he entered the alley. An immediate perimeter was established which met with negative results. In checking the alley, the officer located the black leather jacket near a parked pick-up truck. [¶] The officer confiscated the black leather jacket and found four baggies containing an off-white substance. The substance later tested positive for methamphetamine and weighed approximately 21.2 grams.”
Case No. 1100345
On November 7, 2005, Brian Albonetti worked as a loss-prevention officer at the J.C. Penney Store in Vintage Faire Mall in Modesto. Albonetti was stationed in a room where he monitored store videos from about 30 surveillance cameras. Albonetti saw appellant walk into the store and started tracking his movements on camera. Multiple cameras captured appellant’s movements inside the store on VHS tape (People’s Exh. No. 1).
Appellant wore a pair of Nike shoes into the store. He went to the shoe department, opened a box of new Nike shoes, put the new shoes on his feet, and then put his old shoes in the new box. Appellant then picked up the box containing the old shoes and walked around for awhile in the shoe department. Appellant opened another box of new shoes, removed one new shoe, and tried it on. Appellant eventually put the second new pair back in its box and walked around the store in the first new pair of shoes. As appellant did so, he carried two boxes, one containing his old shoes and one containing the second pair of new shoes. Appellant finally put the box with the second new pair back on the shelf and walked to the register with the box containing his old shoes.
Appellant gave the cashier the box and some cash. Appellant then cancelled the purchase and the store employee returned appellant’s cash and the box containing the old shoes. Appellant took the box and walked toward the store escalators. Appellant touched the rear pockets of his pants, walked back to the shoe department, put the box with his old shoes on the display shelf, and gestured to someone off camera. Appellant then walked out of the store and into the parking lot in the first pair of new shoes. Albonetti and his partner, Nolan Thomason, followed appellant into the parking lot outside. They saw him jog toward cars about 50 feet away.
Albonetti and Thomason caught up with appellant, identified themselves as loss prevention officers, and accused him of not paying for the new shoes. Albonetti said appellant was not combative but was aggressive and struggled a bit. Appellant told the pair, “I’m going to get my cell phone.” Appellant said he was with a girl who had been depicted on the surveillance video before he put on the first new pair of shoes. Albonetti led appellant back into the store and called Modesto Police. Albonetti determined that appellant had enough cash on his person to have paid for the first new pair of Nike shoes.
Modesto Police Officer Jesse Garcia was assigned to Vintage Faire Mall on November 7, 2005. At 6:19 p.m. Garcia received a call to proceed to the loss prevention office at the J.C. Penney Store. Garcia met appellant, read appellant his Miranda rights and appellant agreed to talk with Garcia. Appellant said he selected a pair of tennis shoes and walked around the store with them on. When Garcia asked whether appellant left the store without paying for them, appellant said he was not given an opportunity to make the purchase. Appellant said he went into the parking lot to talk with his girlfriend but could not give her name to Garcia. Albonetti told Garcia “there was a female, but she left the area before I arrived.”
Miranda v. Arizona (1966) 384 U.S. 436.
Defense Evidence
Leanna Werner testified that she and appellant went to Vintage Faire Mall on November 7, 2005. Appellant drove Werner’s car to the mall, parked within the first three spaces in front of the store, and kept her keys. Appellant and Werner separated in the store because she wanted to shop for sunglasses and something else and appellant wanted to get something to eat. After they separated, Werner tried to call appellant on his cell phone several times but he did not answer. She eventually returned to the department store to look for appellant.
A woman approached Werner, identified herself as security personnel for J.C. Penney, and told Werner that appellant had been taken into custody. The woman had Werner’s car keys in her possession. The woman returned Werner’s keys and escorted her to the automobile “because she said that [appellant] wanted his cell phone.” Werner opened the car door and found appellant’s cell phone “lying right on the front seat.”
Werner admitted that she had been convicted of a petty theft on September 23, 2005. Werner said she had not talked to appellant very much after his arrest because she herself was in jail.
The parties stipulated that appellant’s “cell phone was in Ms. Werner’s car on November 7, 2005, at the date and time in question.”
DISCUSSION
I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY ALLOWING WERNER TO TESTIFY IN HER JAIL CLOTHING RATHER THAN HER STREET CLOTHING.
Appellant contends the trial court erred by allowing defense witness Leanna Werner to testify in jail clothing rather than street clothing.
A. Procedural Background
The prosecutor rested his case on the afternoon of September 6, 2006, the second day of jury trial. The next morning, appellant and his counsel advised the court they wanted to call Werner to testify as a defense witness. The prosecutor objected on the ground that appellant did not timely disclose Werner’s identity as a potential defense witness. The prosecutor also noted that defense counsel had similarly called an undisclosed witness in another trial involving appellant.
Defense counsel explained he did not interview Werner until he saw her in Stanislaus County Jail on the previous evening. Counsel did not disclose her identity to the prosecutor until he “found that her testimony could be relevant” and that she was willing to testify. Defense counsel noted that Werner had pending charges on other matters and that her name had been brought up during the course of appellant’s trial. The court ultimately allowed Werner to testify as a defense witness and noted that the prosecution could impeach her credibility with evidence of past convictions.
After the court made its ruling, the following exchange occurred:
“MR. YEOMAN [defense counsel]:... I would like to make a motion that Ms. Werner be allowed to dress out in the clothes that she was brought into custody with before she testifies.
“THE COURT: Any comment on that, Mr. Fontan?
“MR. FONTAN [deputy district attorney]: I’ve never seen that done with a jailhouse witness, but –
“THE COURT: I’m denying it. This came up at the absolute last minute. I was lucky that we could even get this person to come over here to be available to be a witness. I have no idea what her status is and so forth. And other cases that I’ve done when the person is in custody, they come dressed out just in their regular clothes. There’s a jury instruction that addresses it and specifically tells the jurors not to have any consideration for that status. [¶] So the request to have her dressed out is denied.”
Werner took the stand and testified she was convicted of petty theft in Stanislaus County on September 23, 2005. She also told the jury that since appellant’s arrest on November 7, 2006, “I have not talked to him very much at all because I’ve been in jail, and I don’t really know where he’s been.” Werner said appellant had not called or visited her at the jail.
B. Governing Law
The right to due process and a fair trial is abridged if the accused is compelled to stand trial before a jury while wearing identifiable prison clothing. The appearance of the defendant in such clothes impairs the presumption of innocence and compromises the credibility of a defendant who takes the stand as a witness. If a defendant makes a proper and timely objection, he or she has a constitutional right to be tried in civilian clothes. (People v. Froehlig (1991) 1 Cal.App.4th 260, 263-264.)
The appearance of a defense witness attired in prison clothes does not adversely affect the presumption of innocence or carry with it the inference that the defendant is a person disposed to commit crimes. The credibility of a defense witness observed by the jury in prison attire may be suspect, but the prejudicial impact upon the defense is considered less consequential. Nevertheless, a defendant’s tardiness in seeking to change the attire of his or her witness is a countervailing consideration which must be balanced against the defendant’s right upon timely request to presentation of a defense witness free from the stigma of prison clothes. (People v. Froehlig, supra, 1 Cal.App.4th at p. 264.)
Under Penal Code section 1050, criminal trials are given precedence over civil proceedings, and are to be expedited “to the greatest degree that is consistent with the ends of justice.” (§ 1050, subd. (a).) Both defendant and counsel must demonstrate that they exercised due diligence and all reasonable efforts to prepare for trial. (People v. Grant (1988) 45 Cal.3d 829, 844.) Every court has the inherent power, in furtherance of justice, to regulate the proceedings of a trial before it; to effect an orderly disposition of the issues presented; and to control the conduct of all persons in any manner connected therewith. The exercise of this power is a matter vested in the sound legal discretion of the trial court. The exercise of such discretion is subject to reversal on appeal only in those instances where there has been an abuse of that discretion. (People v. Miller (1960) 185 Cal.App.2d 59, 77.)
C. Discussion
At the conclusion of proceedings on September 6, 2006, the court directed the jury to return to court the following day at 10:00 a.m. At 10:47 a.m. on September 7, 2006, defense counsel advised the court of his intent to call Leanna Warner. Appellant did not raise the issue of witness clothing until shortly before the court called upon counsel to present the defense case. The court denied counsel’s motion, observing: “This came up at the absolute last minute. I was lucky that we could even get this person to come over here to be available to be a witness. I have no idea what her status is and so forth.” Given defense counsel’s last-minute conduct and the fact the jury had been kept waiting for at least three-quarters of an hour, we cannot say the trial court abused its discretion by denying the defense request for Leanna Werner to be given time to dress in civilian clothing. The fact that counsel did not make the request until the witness was scheduled to give her testimony weighed heavily against appellant’s right to any sort of delay in trial or continuance. (People v. Froehlig, supra, 1 Cal.App.4th at p. 265.)
The trial court did not err by denying appellant’s last-minute request that defense witness Werner be allowed to wear civilian clothing on the stand.
II. DEFENSE COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO THE SHACKLING OF WERNER WHEN SHE TESTIFIED.
Appellant contends his trial counsel was ineffective by failing to object to the shackling of Leanna Werner at the time of her testimony before the jury.
A. Procedural Background
At the conclusion of the evidence, the trial court instructed the jury with modified CALCRIM No. 337 [witness in custody or physically restrained] as follows:
“When Leanna Werner testified, she was physically restrained. 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. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’ testimony according to the instructions I have given you.”
During their arguments to the jury, counsel did not mention Werner or her in-custody status. Counsel simply reminded the jurors about their stipulation that appellant’s cell phone was located in Werner’s automobile.
B. Specific Contention
Appellant initially concedes: “A defendant’s failure to object to the imposition of physical restraints ordinarily waives the issue on appeal. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.)” Appellant then goes on to argue: “To the extent this court finds the failure to object to the use of restraints waived this issue, appellant received ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 24.)”
Appellant submits the use of shackles was entirely unjustified as there was no showing on the record of the need for restraints in this case. Appellant contends the trial court abused its discretion by allowing Werner to be shackled while testifying for the defense.
C. Law Regarding Ineffective Assistance of Counsel
The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “ ‘ample opportunity to meet the case of the prosecution.’ ” (Strickland v. Washington, supra, 466 U.S. at pp. 684-686 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.)
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Generally, the failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) In California, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
D. Law Regarding Shackling
1. Shackling of a Defendant
Generally, 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 manifest need for such restraints. (People v. Mar (2002) 28 Cal.4th 1201, 1216-1217, citing People v. Duran (1976) 16 Cal.3d 282, 290-292.) Shackling affects the presumption of innocence. If a defendant is restrained and the jury sees the defendant in this condition, the error is of constitutional significance and is tested under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Ceniceros (1994) 26 Cal.App.4th 266, 278-281 (Ceniceros).)
2. Shackling of a Defense Witness
The decision whether to shackle witnesses is left to the sound discretion of the trial judge. (Ceniceros, supra, at pp. 278-281.) The prejudicial effect of shackling defense witnesses is less consequential than that suffered if the defendant is personally restrained. The shackling of a witness does not directly affect the presumption of a defendant’s innocence and weighs little in the assessment of his or her credibility. (People v. Duran, supra, 16 Cal.3d at p. 288, fn. 4.)
The erroneous shackling of a defense witness under the circumstances presented here does not result in the deprivation of a specific federal constitutional right or so impair the trial process that it resulted in a deprivation of due process. Therefore, the effect of this error must be evaluated under the Watson standard. (Ceniceros, supra, at pp. 278-280.) Under that standard, the reviewing court must believe “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
E. Discussion
As appellant acknowledges with respect to the substantive issue, the use of physical restraints in the trial court cannot be challenged for the first time on appeal. Appellant’s failure to object to Werner’s restraints and to make a record in the trial court waives the claim here. (People v. Tuilaepa, supra, 4 Cal.4th at p. 583.) As to the effectiveness of trial counsel, the Supreme Court has held: “If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
The record on appeal does not reflect why trial counsel declined to object to the physical restraints. No one asked counsel on the record to provide an explanation for his failure to object. Counsel may have concluded the restraints were the inevitable result of his last-minute request to summon Werner as a defense witness. Counsel may have also determined the restraints were relatively unobtrusive and the trial court’s admonition under modified CALCRIM No. 337 -- “You must completely disregard this circumstance in deciding the issues in this case.…” -- was adequate under the totality of the circumstances. Where a trial court admonishes jurors not to consider the presence of shackles in assessing the credibility of a witness, the jury is presumed to have followed the direction of the court and obeyed the law. (Ceniceros, supra, 26 Cal.App.4th at p. 281.)
In any event, the surveillance video (People’s Exh. No. 1) depicted appellant switching his old shoes with new Nike shoes from the J.C. Penney store. The video also showed him walking through the store as if he was going to buy the shoes and further showed him quickly departing the store with the new shoes on his feet. Given these graphic images on tape, defense counsel could have also reasonably concluded that the presence or absence of restraints on the defense witness were essentially immaterial.
Appellant has failed to show prejudice arising from trial counsel’s performance and his assertion of ineffective assistance must be rejected.
III. APPELLANT WAS SENTENCED TWICE FOR THE SAME PRISON PRIOR.
Appellant contends and the People concede the superior court should have imposed a single enhancement under section 667.5, subdivision (b).
Respondent explains:
“Here, the trial court consolidated the sentencing hearing in the present case with the sentencing hearing in case number 1052553. [Citation.] Both cases involved a finding that appellant previously served a prior prison term in case number 1003978. [Citations.] The trial court imposed an enhancement of one year in the present case and another enhancement of one year in case number 1052553. [Citation.] However, since both enhancements under section 667.5, subdivision (b) were based on the same prior prison term, the court should have only imposed a single enhancement under that subdivision in arriving at an aggregate sentence. As a result, respondent does not oppose this Court modifying the judgment by striking one of the two enhancements under section 667.5, subdivision (b).”
The trial court is directed to strike one of the two section 667.5, subdivision (b) enhancements, to amend the abstract of judgment accordingly, and to transmit certified copies of the amended abstract to all appropriate parties and entities.
DISPOSITION
The judgment is affirmed. The superior court is directed to strike one of the two section 667.5, subdivision (b) enhancements, to amend the abstract of judgment accordingly, and to transmit certified copies of the amended abstract to all appropriate parties and entities. The judgment is affirmed all other respects.
WE CONCUR Levy, Acting P.J., Hill, J.