Opinion
E032099, E032921.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. MARCOS CASEY GUILLEN, Defendant and Appellant. In re MARCOS CASEY GUILLEN, on Habeas Corpus.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci and Laura D. Stilwell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Marcos Casey Guillen appeals after he was convicted of the murder of Richard Marquez, and other charges. He contends the trial court violated his constitutional rights by having him wear a restraining device, known as a stun belt, during trial. He also contends the trial court failed to advise him of his constitutional rights, in violation of In re Yurko, before taking his admission of the truth of his prior convictions.
In re Yurko (1974) 10 Cal.3d 857, 112 Cal. Rptr. 513, 519 P.2d 561.
Defendant has also filed a separate petition for habeas corpus on the stun belt issue, arguing that his trial counsel was constitutionally ineffective in failing to object to the use of the stun belt.
We affirm the judgment and deny defendants petition for habeas corpus relief.
FACTS AND PROCEDURAL HISTORY
Defendant was at the apartment of his girlfriend, Veronica Chacon, on the evening of April 15, 2000. Michelle and Richard Marquez, and Janette Diaz, stopped by. They brought beer with them. Gilbert Sanchez was already there; he sat cleaning shoes on the living room floor.
At some point, everyone was in the living room. Some of the guests were drinking beer. Defendant was watching a movie. Richard Marquez complained, "[why] we always got to watch these n——r movies? [Sic.]" Defendant became enraged; he challenged Richard, "what are you try [sic] to say, that Im a n——r?" Defendant jumped up, whipped off his shirt, leapt over the coffee table and began pummeling Richard. Sanchez joined in.
Michelle screamed at defendant and attempted to break up the affray. Chacon did nothing. When Michelle began hitting him, defendant broke off the attack and ran into Chacons bedroom.
Richard stood up. Michelle urged him, "Lets go." Defendant went to the bedroom closet, retrieved a gun, and ran back into the living room, holding the cocked gun at his side. Angrily, he told the Marquezes that they "had seconds to get out." Attempting to defuse the situation, Michelle assured defendant, "No, no, were sorry. Its okay. Were going to leave right now." Defendant glared at Michelle, saying, "you f—— ing b—-h. You hit me." Defendant struck Michelle in the face, and then shot Richard.
Richard was felled by the shot, and eventually died of his wounds. Michelle called 911 and attempted to minister to Richard. Defendant gathered his belongings and left the apartment, just as the police arrived. Moments later, defendant returned, with police in pursuit. According to Michelle, defendant quickly told Chacon to say "that it wasnt him, that he didnt do it." Michelle remonstrated with Chacon and defendant, however, that "it was him. You did do it." Chacons testimony was similar. She said that defendant urged her, in Spanish, to give police a false name for him; defendant also made a slashing motion across his throat, which Chacon interpreted as a threat to her if she spoke to police.
Police responded to a disturbance call at Chacons apartment at 1:09 a.m. on April 16, 2000. Officer Steven Nieves saw two men, defendant and Sanchez, run from Chacons apartment toward a car. Defendant and Sanchez were about to enter the car when Officer Nieves drew his weapon and told them to stop. Defendant stopped, raised his hands, and dropped something to the ground. Then defendant and Sanchez ran away, in different directions.
Officer Nieves pursued defendant as he ran up the stairs, toward Chacons apartment. Defendant burst in, followed by Nieves, who tackled him in the living room. Several people were in the apartment. Someone called out, "Hes not the one."
Police officers returned to the car defendant had been about to enter. The car was actually stolen; the gun was recovered from the car. Inside Chacons apartment, police seized a pair of shorts. A wallet with defendants identification and a clear plastic baggie of methamphetamine were in the pocket of the shorts.
Defendant testified in his own behalf at trial. Defendants version corroborated much of the prosecutions evidence. Defendant was watching a movie while Chacon and Richard Marquez talked and drank beer. Richard made several racial slurs, which defendant tried to ignore. Richard persisted, asking, "How come were watching this n——r movie?" Defendant, offended, challenged Richard, asking "if he was calling me a n——r?"
Defendant acknowledged that he had stood up, taken of his shirt and "moved toward" Richard. They engaged in a mutual combat, until Michelle Marquez joined in. She struck defendant in the back. Defendant fell forward onto Richard, but managed to break away, run to the bedroom, and retrieve his gun from the closet. Defendant told the guests to "get the f—— out." Defendant "racked" his gun, telling the others that they had "three seconds" to leave.
According to defendant, Michelle came toward him; he responded by hitting her with his left hand. Then Richard got up and put his hand in his pocket. Fearing an imminent attack, defendant shot Richard. Defendant gathered up his belongings and left. Outside, he met Sanchez, and the two walked to their (stolen) car. Defendant, seeing that the police had arrived, raced back to Chacons apartment. Police arrested him there.
Defendant denied telling anyone to lie to the police or telling anyone not to say anything. He admitted, however, that the shorts the police seized were his, as were the wallet and methamphetamine found in the pocket.
Defendant claimed that he shot Richard Marquez as a "last resort," because he was in fear for his own safety. A defense toxicologist opined, on the basis of Richards blood alcohol level at the time of his death, that he had probably ingested 14 beers within the two hours preceding the shooting.
Defendant was charged with one count of murder, one count of spousal abuse, one count of auto theft, one count of drug possession, two counts of unlawful possession of a firearm by a felon, and one count of dissuading a witness.
The spousal abuse charge was based upon an earlier incident in which defendant supposedly threw a table at Chacon; the jury acquitted defendant on this charge and it will not be discussed further. The jury also acquitted defendant of the vehicle theft charge. The vehicle defendant and Sanchez ran to, when running away from the scene of the shooting, was discovered to have been stolen. Defendant testified that Sanchez drove him to Chacons apartment in the car. Defendant knew the ignition had been punched out, and he had reason to believe the car might be stolen, but he did not question Sanchezs possession of the car. Again, as defendant was acquitted of the vehicle theft charge, it will not be discussed further.
As to the murder count, the information alleged that defendant had personally discharged a firearm, causing death or great bodily injury. The information further alleged that defendant had suffered a prior serious felony conviction; during trial, the pleading was amended to add an allegation that defendant had suffered a prior "strike" conviction under the three strikes law.
The jury found defendant guilty of the first degree premeditated murder of Richard Marquez, and found true the firearm use enhancement. The jury also found defendant guilty of methamphetamine possession, both counts of being a felon in possession of a firearm, and the dissuading-a-witness charge. Defendant admitted the prior conviction allegations. He also asked for immediate sentencing; the court imposed an 11-year determinate sentence term, plus a consecutive term of 75 years to life, consisting of 25 years to life for murder, doubled to 50 years to life as a second-striker under the three strikes law, plus an additional 25-years-to-life term for the firearm enhancement.
Defendant now appeals, contending that his federal and state due process rights were violated by requiring him to wear a restraining device, a stun belt, during trial. He also argues the court erred in failing to advise him of his constitutional rights before taking his admission of the truth of the prior conviction allegations.
Defendant has, in addition, filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel (IAC), concerning his trial attorneys failure to object to requiring defendant to wear the stun belt at trial.
We affirm the judgment on appeal and reject defendants habeas corpus petition, for the reasons which appear below.
ANALYSIS
I. Defendants Appeal
A. Requiring Defendant to Wear the Stun Belt Was Proper
Defendant urges that an insufficient foundation of "manifest need" was made to justify requiring him to wear the restraint. He further argues that requiring him to wear the stun belt during trial, and particularly while he himself was testifying, impaired his ability to participate effectively in his own defense. For example, the device may have prejudicially affected his demeanor while testifying.
1. Standard of Review
The decision whether to shackle or otherwise restrain a defendant in a criminal trial is subject to review for abuse of the trial courts discretion. The question for the trial court, in deciding generally whether restraints should be employed, is whether there is a "manifest need" for the restraints. "Manifest need arises only upon a showing of unruliness, an announced intention to escape, or evidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . ."
People v. George (1994) 30 Cal.App.4th 262, 269; citing People v. Duran (1976) 16 Cal.3d 282, 291, 293, 127 Cal. Rptr. 618, 545 P.2d 1322, footnote 12.
People v. Duran, supra, 16 Cal.3d 282, 291.
People v. Cox (1991) 53 Cal.3d 618, 651, 280 Cal. Rptr. 692, 809 P.2d 351, quoting People v. Duran, supra, 16 Cal.3d 282, 292, footnote 11.
"The showing of nonconforming behavior in support of the courts determination to impose physical restraints must appear as a matter of record and, except where the defendant engages in threatening or violent conduct in the presence of the jurors, must otherwise be made out of the jurys presence. The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion."
People v. Duran, supra, 16 Cal.3d 282, 291.
Even if the court abuses its discretion, however (e.g., if the reasons justifying the imposition of restraints do not appear of record), reversal is not necessarily required. The California Supreme Court has never clearly articulated the standard of prejudice for erroneously shackling, or otherwise restraining, a defendant. In People v. Jackson, this court indicated that the proper standard for harmless error in shackling or restraint cases depends upon "whether the shackling resulted in deprivation of any federal constitutional right of sufficient stature to require reversal based upon the rule of Chapman v. California . . . ."
People v. Jackson (1993) 14 Cal.App.4th 1818.
People v. Jackson, supra, 14 Cal.App.4th 1818, 1828.
"The first element of the test is therefore whether the error resulted in the deprivation of a federal constitutional right, i.e., the right to due process." We discerned that, in some instances, the California Supreme Court has treated the erroneous shackling of a defendant as "not rising to the level of constitutional error." In the case of mechanical restraints, such as chains and shackles, "unless the record affirmatively shows that the jury saw the restraints," for example, "we believe the error is not constitutional error, and it should therefore be tested under the Watson[ ] [i.e., reasonable probability] test." Conversely, we held, "when a trial court abuses its discretion in shackling a defendant, [and the] evidence establishes that the jury saw the restraints . ., the error rises to the level of constitutional error[,] to be tested under the Chapman[ ] [beyond a reasonable doubt] test."
People v. Jackson, supra, 14 Cal.App.4th 1818, 1829.
People v. Jackson, supra, 14 Cal.App.4th 1818, 1829.
People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.
People v. Jackson, supra, 14 Cal.App.4th 1818, 1829.
Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 828, 17 L. Ed. 2d 705].
People v. Jackson, supra, 14 Cal.App.4th 1818, 1830.
"Thus," we there stated, "while a brief glimpse of defendant in shackles would not constitute prejudicial error (People v. Tuilaepa, supra, 4 Cal.4th 569, 584; People v. Rich, supra, 45 Cal.3d 1036, 1083-1084), the use of physical restraints in the courtroom without a prior showing of the manifest need for such restraints violates Duran (People v. Duran, supra, 16 Cal.3d 282, 290-291, 127 Cal. Rptr. 618, 545 P.2d 1322.) When such restraints are visible to the jury for a substantial length of time without meeting the Duran requirements, this trial court error may deprive defendant of his due process right to a fair and impartial jury, and may affect the presumption of innocence. (People v. Jacla, supra, 77 Cal. App. 3d 878, 888.) Accordingly, when such error occurs, it rises to the level of constitutional error. The prejudicial effect of such error must therefore be tested by applying the Chapman standard."
People v. Jackson, supra, 14 Cal.App.4th 1818, 1830.
Where electronic, as opposed to mechanical, restraints are employed, the considerations affecting the assessment of which standard to apply may be somewhat different, but we believe the basic approach is sound: the first element of the prejudice test depends upon whether the error resulted in a deprivation of due process or other federal constitutional right. If not, then the Watson standard of prejudice applies; if so, then prejudice must be assessed under the Chapman standard of review.
2. The Trial Court Did Not Abuse Its Discretion in Requiring Defendant to Wear the Stun Belt
At issue is the use of an electronic restraint, a REACT belt, or so-called stun belt. The California Supreme Court in People v. Mar, described the device: "Stun belts are used to guard against escape and to ensure courtroom safety. This device, manufactured by Stun-Tech, is known as the Remote Electronically Activated Control Technology (REACT) belt. The type of stun belt which is used while a prisoner is in the courtroom consists of a four-inch-wide elastic band, which is worn underneath the prisoners clothing. This band wraps around the prisoners waist and is secured by a [hook-and-loop] fastener. The belt is powered by two 9-volt batteries connected to prongs which are attached to the wearer over the left kidney region. . . . [Citations.]
People v. Mar (2002) 28 Cal.4th 1201.
"The stun belt will deliver an eight-second, 50,000-volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belts metal prongs may leave welts on the wearers skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures. [Citations.]"
People v. Mar, supra, 28 Cal.4th 1201, 1214-1215.
The Mar court held that the principles of Duran, requiring a showing of manifest need before the court may order a defendant restrained with conventional chains or shackles, also apply to the decision to require a defendant to wear a stun belt in court.
People v. Duran, supra, 16 Cal.3d 282.
People v. Mar, supra, 28 Cal.4th 1201, 1219-1220.
At a minimum, this decision requires a "manifest need" for restraint, based upon a showing of unruliness, an announced intention to escape, prior escape attempts, or other "" . . . nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .""
People v. Hill (1998) 17 Cal.4th 800, 841, 952 P.2d 673.
The face of the record shows that jury voir dire began on the morning of July 3, 2002. Presumably, defendant was present in court on that date. After the lunch recess, one of the jail deputies asked the court to view a videotape of defendant, taken that morning. The court did view the videotape, and reported that it depicted defendant "in the holding cell going through a series of maneuvers which would — probably could be described as boxing maneuvers, take-down maneuvers, things of that nature, which caused some concern to the sergeant. So he asked me to view [it], which I have now done. And Id be happy to let you [i.e., counsel] view [it] as well. [P] But in light of what I have seen and in light of what the sergeant has told me he thinks this means, Id be inclined to have the [REACT] belt . . . affixed to [defendant]. And Id be happy to let counsel ask any questions of me or of the sergeant or view the videotape, whatever you want to do. But thats my inclination at this point."
Defense counsel stated that he had no personal concerns about needing protection from defendant, and asked, "are there any other options other than the belt, such as a knee brace," or suggested the possibility of having more than one deputy in the courtroom to alleviate security concerns. Counsel stated, "If the deputies are worried about me, I dont think they need to be. And then there are other measures. I just particularly dont like the belt."
The court asked the jail officer to "address that as to the various levels of security." The sergeant explained that "having a second deputy is an option. We have, you know, different chairs where they can be strapped to. [Sic.] But it restricts their movement. And when you have the jury coming in and out, obviously, thats not something that we want to have. [P] I think the belt is the least intrusive and is by far the most secure means we have of controlling the subject who turns violent on deputies, or as — again, on an attorney. And we use it often and never have any problems with it. [P] But what it does do, it allows one deputy to be in here, and that is their entire focus, is that subject. So, you know, for the Courts security and the security of, you know, the public and — and the attorneys, it has proven to be not only the best at subduing a subject, but the best deterrent also."
Defense counsel was "content to leave matters of security to the Court and to the deputies. Thats their area. My only concern is, obviously, that its not obvious to the jurors." The sergeant recommended using the belt, "just to be on the side of caution, and from what the video depicts, I think, be prudent."
The sergeant conceded that defendant "might have been" simply "blowing off steam"; defendant echoed this characterization: He "assured [the court], Im not a threat to anybody or anybody in the audience. I dont need that security. I was just blowing off some steam. Im not going to do anything whacked out [sic] or retarded. I11 maintain in the chair."
The court invited the sergeants recommendation concerning the various security options; the sergeant did not "put any one of these above another as . . . none of them are a use of force[.]" "It is a deterrent. And the best deterrent that we have is the [REACT] belt."
The court asked the sergeant to bring one of each of two types of belts — reportedly, one attached to the wearers leg, while the other was a waist belt — to the courtroom by the afternoon recess. The court stated, "can we go ahead and proceed at this point with the two deputies and then take this issue up at the next break, which would be approximately 3 oclock." No further discussion appears on the record concerning the stun belt, or any other restraining device, until, on the morning of July 15, 2002, the parties discussed defendants apparent refusal to sign a "waiver" for the stun belt. A deputy reported that defendant "is refusing to sign the waiver for the [REACT] belt, which basically acknowledges that — what the belts all about." "So, you know, if he refuses to sign it and it does have to be activated, basically he hasnt signed anything saying what — you know, what the belts all about." The court determined that the belt "was affixed to [defendant] now," although a second deputy stated that defendant "hasnt signed it all week." The court decided that "were okay to go ahead and have it attached. . . . I think the waiver is simply an acknowledgment that he understands what it is and what the consequences are if he does act out in some way." Defense counsel sought an assurance that "they are not asking him to agree to wear it," to which the court responded, "No. No. I hope its not asking that." The prosecutor suggested that, "if its just notification, frankly, someone can read it to him on the record." No such "waiver," or advisement, was read on the record, however, and nothing else was said about the matter for the rest of the trial.
Defendant here contends the showing of violent, disruptive, or other "nonconforming" behavior was insufficient to demonstrate a manifest need for restraint, under the principles of Duran and Mar. We reject the claim.
To the extent defendant argues the court made no finding, as required in Duran, of a "manifest need" for security restraint, we disagree. The court indicated on the record that it had reviewed the videotape of defendants conduct in the holding cell.
The court described defendants actions as "boxing" or "takedown" maneuvers. Certainly, this behavior was both highly unusual and indicative of violence. Defendant did not behave in this manner while simply being housed in the county jail in his normal jail cell; rather, he was in a "holding cell," in the very process of being escorted to the courtroom. The moves defendant practiced would certainly be useful for fighting and escape, and, at the very least, demonstrated defendants violent, disruptive or other nonconforming behavior.
There is no necessity that the restraint be based solely upon courtroom conduct; out-of-court conduct may properly form the basis of a decision to employ restraints. "It is not necessary that the restraint be based on the conduct of the defendant at the time of trial." Thus, for example, where a prisoner had resisted being brought to court, refused to dress for court, and had to be taken bodily from prison to court, shackling — based solely on such out-of-court conduct — was justified.
People v. Livaditis (1992) 2 Cal.4th 759, 774, 831 P.2d 297.
People v. Hillery (1967) 65 Cal.2d 795, 806, 56 Cal. Rptr. 280, 423 P.2d 208.
In another context, the California Supreme Court explained, "[the] defendants three reported fistfights in prison, together with his extensive criminal history, are sufficient to support the trial courts order to shackle defendant, inasmuch as they demonstrate instances of violence or nonconforming conduct while in custody. The trial court was therefore within its discretion to order the shackling of defendant." The court went on to note that the defendant "claims . . . that shackling is justified only when a defendant has attempted to disrupt courtroom proceedings or to escape from jail . . . . We have never placed such preconditions on the trial courts exercise of its discretion. When, as in this case, there were multiple instances of violent and nonconforming behavior while in jail, as well as an extensive background of criminal and violent activity, we will generally not second-guess the trial courts decision to restrain a defendant."
People v. Hawkins (1995) 10 Cal.4th 920, 944, 897 P.2d 574.
People v. Hawkins, supra, 10 Cal.4th 920, 944.
The court was rightly concerned about the security risks defendants behavior posed. These concerns were expressed on the record. Even if the court failed to make an express finding of manifest need, employment of some kind of restraint was certainly justified by the circumstances appearing of record. The court did not abuse its discretion in deciding to restrain defendant.
Defendant also urges that, even if the court was justified in ordering some restraint, its decision to use the stun belt did not comply with the additional requirements set forth in the California Supreme Courts subsequent decision in People v. Mar, supra. Thus, for example, he argues there was no showing that the court had determined defendant was medically fit to wear the stun belt.
We reject this contention as well. First, although defense counsel suggested using a leg brace instead, he raised only a vague objection to the use of the stun belt, saying he "just . . . didnt like" the stun belt. Indeed, counsel acknowledged that his primary concern was "that its not obvious to the jurors." Counsel therefore waived any error concerning the use of the stun belt.
People v. Saunders (1993) 5 Cal.4th 580, 589-590, 853 P.2d 1093.
Second, the trial here took place before the California Supreme Court issued its decision in Mar. It was only after that decision that it became clear that courts should not simply assume that the stun belt, because it was not visible, was the least intrusive means of restraint. The Mar court expressly indicated that its discussion was intended to provide guidance for future cases; the trial court here was not required to be clairvoyant, or to anticipate that it should have taken additional factors, such as a defendants medical fitness to receive a shock, into account in making its selection of a restraining device.
People v. Mar, supra, 28 Cal.4th 1201, 1225-1226.
Third, even if the court erred, for example, in failing to consider defendants medical condition when ordering use of the stun belt, the trial took place without incident. Defendant was not shocked; the medical risks of shock thus never came into play.
So far as appears from the record on appeal, no juror was aware of the restraint; further, nothing appears of record which could show that the use of the REACT belt had any effect on the conduct of the trial. The sole basis of concern is that defendant may have been distracted by having to wear the belt, such that he was unable to pay attention to the proceedings, that he was unable to aid his counsel, or that his demeanor while testifying was affected by his subjective concerns over the belt. None of these matters are apparent on the record. Defendant is unable to show that any constitutional right was affected; any conceivable error was therefore harmless, under either the Watson or the Chapman standard.
Any further claims concerning the stun belt are deferred to resolution on defendants petition for writ of habeas corpus.
B. Any Error in Taking Defendants Admission of His Prior Conviction Allegations Was Harmless
Soon after the jury began deliberations, defendant on the record admitted the truth of his prior conviction allegations. The court neglected to advise defendant on the record of his constitutional rights. This failure was error under In re Yurko.
In re Yurko, supra, 10 Cal.3d 857.
Error in accepting an admission or guilty plea, without an on-the-record advisement of rights, is subject to harmless-error analysis: if this court can determine that the admission was nonetheless "voluntary and intelligent under the totality of the circumstances," any error in failing to advise defendant of his rights is deemed harmless.
People v. Howard (1992) 1 Cal.4th 1132, 1175, 824 P.2d 1315.
As the People here point out, defendant had just participated in a full-blown jury trial on the current offense; presumably also, he was aware of his constitutional rights as to his prior conviction at the time he suffered that conviction. The colloquy on the record indicates defendants awareness that he could have had the truth of the prior tried to a jury or to the court; he readily chose to admit the prior instead.
Under the totality of the circumstances appearing on the record, defendants admission of the prior conviction was voluntary and knowing.
C. Summary
Insofar as defendants appeal is concerned, we find no merit in his contentions; the judgment is accordingly affirmed.
II. Defendants Petition for Habeas Corpus
Defendant has petitioned for a writ of habeas corpus, reiterating his claims that the use of the stun belt was improper. He contends that his trial counsel was constitutionally ineffective for failing to raise a proper objection to the use of the stun belt. He also argues that he was denied due process of law, and a fair trial, because the use of the stun belt may have affected him psychologically; that is, his worry over the use or accidental discharge of the stun belt affected his demeanor while testifying before the jury.
To establish the IAC and due process claims, defendant and his trial counsel have each submitted declarations in support of the habeas corpus petition.
Counsels declaration stated that he "did not want [defendant] to wear the stun belt for several reasons. First, the belt is worn against the skin and therefore [is] very uncomfortable. Second, the stun belt is bulky and worn on the lower back[,] making it impossible to sit back in ones chair. Third, the stun belt is visible under [the defendants] clothing every time he stands up (I had [defendant] stand up every time the jury left and re-entered the court room). Fourth, the stun belt caused [defendant] apprehension in that he was concerned the stun belt would shock him inadvertently. Finally, there are several other, less aggressive, means at the deputies disposal that would alleviate the deputies concerns." Counsel further averred that he intended to object on the record to requiring defendant to wear the stun belt.
Defendant declared, "I was forced to wear a stun belt from the first day of trial. I was also forced to wear a stun belt when I testified before the jury."
We discuss the claims in inverse order:
A. Defendant Has Failed to Demonstrate a Violation of His Due Process Rights
In People v. Mar, supra, the California Supreme Court noted the potential due process problems arising from requiring an unwilling defendant to wear a stun belt while testifying before the jury:
"Requiring an unwilling defendant to wear a stun belt during trial may have significant psychological consequences that may impair a defendants capacity to concentrate on the events of the trial, interfere with the defendants ability to assist his or her counsel, and adversely affect his or her demeanor in the presence of the jury. In addition, past cases both in California and in other jurisdictions disclose that in a troubling number of instances the stun belt has activated accidentally, inflicting a potentially injurious high-voltage electric shock on a defendant without any justification. The potential for accidental activation provides a strong reason to proceed with great caution in approving the use of this device. Further, because the stun belt poses serious medical risks for persons who have heart problems or a variety of other medical conditions, we conclude that a trial court, before approving the use of such a device, should require assurance that a defendants medical status and history has been adequately reviewed and that the defendant has been found to be free of any medical condition that would render the use of the device unduly dangerous."
People v. Mar, supra, 28 Cal.4th 1201, 1205-1206.
Defendants declaration fails to implicate any of the concerns articulated in Mar. He does not state that he had any medical condition which might have rendered the stun belt dangerous to him. As it turned out, the belt was never activated, either intentionally or accidentally. The trial record reflects that the deputies in charge of monitoring stun-belted prisoners used the device "often" and had "never have any problems with it."
Defendant himself does not declare that he had any worries or concerns over having to wear the belt. He does not aver that it affected his concentration or demeanor in any way. He states only that he was made to wear the belt during trial, and while he testified.
Defense counsel does state that the belt "caused [defendant] apprehension," because he was "concerned the stun belt would shock him inadvertently," but the declaration does not provide any basis for counsels knowledge of defendants subjective state of mind — a matter which defendant himself fails to address.
Credibility was undoubtedly important to defendants theory of the case at trial. Indeed, the inherent weakness of his theory of the defense — e.g., "imperfect self-defense" on behalf of the aggressor in an altercation — demonstrates that he was relying almost exclusively on "credibility," or perhaps sympathy, to carry the day.
Defendant claimed he shot as a "last resort," because he feared for his own safety, but he never denied most of the objectively observable facts of the killing: that is, Richard Marquez made a remark, to which defendant took exception. Defendant admitted he stood up, stripped off his shirt, and physically attacked Richard. They then engaged in what defendant described as a mutual combat, until Michelle Marquez joined in, striking defendant in the back.
Defendant broke off the fight, and went into another room, where he had to search through the closet to get his gun. He then volitionally returned to the living room, "racked" his gun, and ordered the Marquezes to leave within "three seconds."
Defendant claimed that he saw Richard Marquez move aggressively toward him, and claimed that Richard put his hand in his pocket. This was the sole significant fact as to which defendant differed from the other witnesses, and as to which his credibility was vital. Defendant then fired.
There was, ultimately, no evidence that Richard was armed. All the evidence certainly indicated that defendant was the initial aggressor, and that defendant was the one who, rather than breaking off the fight when he had the chance, ratcheted up the violence by arming himself and returning to the scene. He escalated matters yet again by "racking" his gun and issuing an ultimatum. The credibility of defendants fears, when Richard Marquez made a move toward him, with his hand in his pocket, had little or nothing to do with the outcome at trial.
In short, defendants petition fails to establish that requiring him to wear the stun belt had any effect whatsoever on his trial, either objectively or subjectively.
B. Counsel Was Not Ineffective
Defendants IAC claim also fails, inasmuch as he can show no possible prejudice from counsels alleged failure to object more effectively to the use of the stun belt.
Trial counsels declaration in support of the habeas corpus petition is interesting both for what it includes and for what it omits. Counsels "first" concern was that the belt would be "uncomfortable" because it was worn next to the skin. Comfort was also counsels "second" concern, because defendant would be unable to lean back in his chair while wearing the belt. Slight discomfort is not a proper ground for habeas corpus relief.
Next, counsel claimed that "the stun belt is visible under [defendants] clothing every time he stands up" in court. The purport of this claim is unclear.
The claim that the belt "is visible" is speculative and conclusional, except as to counsel himself. Notably, counsel does not claim or show that any jurors noticed that defendant was wearing the stun belt. Although counsel indicates that he had defendant stand up frequently in the jurys presence — i.e., each time the jurors entered or left the courtroom — the declaration states nothing about how defendant was positioned (e.g., directly facing the jurors, rather than in profile), or whether the jurors looked toward him, or whether they would have been in a position to see a bulge under defendants clothing. Even if counsel were able to demonstrate that some jurors had seen a bulge under defendants clothing, nothing indicates that anyone would have any reason to conclude that the bulge was a restraining device, rather than, for example, a back brace or other innocuous medical appliance. Finally, counsels practice of having defendant stand repeatedly in the jurys presence belies the stated concern that the belt would be visible to the jurors. In short, the declaration fails to prove, or even to suggest, that the jury was aware of the use of the restraining device.
Counsels purported concern that the stun belt caused defendant "apprehension" is unsupported; the declaration provides no foundation for counsels supposed "knowledge" concerning defendants state of mind.
The mere existence of other, less onerous, means of security does not, of itself, demonstrate that the court erred in requiring defendant to wear the stun belt.
Counsel states that he intended to object, and to object effectively, to the use of the stun belt. He hints, without directly stating, that he had no tactical or other reason for failing to make the objection. If we accept, for the sake of the argument, that counsels self-accusation demonstrates that his conduct fell below an objective standard of reasonableness (i.e., the "deficient performance" prong of Strickland), the IAC claim nevertheless founders on the "prejudice" prong. Nothing in counsels declaration demonstrates that defendant was prejudiced in any way by counsels alleged failure to object more articulately. As we have already indicated, in analyzing defendants due process claim, "there is no reasonable probability that, but for counsels unprofessional error in failing to," for example, object more clearly to the use of the stun belt, "petitioner would have enjoyed a more favorable outcome of the trial."
Strickland v. Washington (1984) 466 U.S. 668, 684-685 [104 S. Ct. 2052, 80 L. Ed. 2d 674].
In re Avena (1996) 12 Cal.4th 694, 726, 909 P.2d 1017, citing Strickland v. Washington, supra, 466 U.S. 668, 694 [104 S. Ct. 2052, 80 L. Ed. 2d 674, 697-698].
C. Summary
Defendant has failed to show either that his counsel was incompetent, or that he was denied due process of law, by the courts decision to require him to wear the stun belt during trial.
DISPOSITION
The judgment on appeal is affirmed. The petition for writ of habeas corpus is denied.
We concur: McKinster Acting P.J., and Gaut J.