Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04CR5653
RAYE, J.Defendant Jimmie Dale Harmon was charged with two counts of assault with a deadly weapon by a prisoner (Pen. Code, § 4501; counts I and II), two counts of possession of a sharp instrument in prison (Pen. Code, § 4502, subd. (a); counts III and IV), and nine strike allegations. The court dismissed count II during the trial. The jury could not reach a verdict on count I but convicted defendant on both weapons possession counts. The jury sustained eight of the strike allegations, and the court sentenced defendant to imprisonment for 50 years to life.
The court subsequently dismissed count I in the interest of justice.
On appeal, defendant contends there is insufficient evidence to convict him of possession of a sharp instrument as alleged in count IV, being shackled throughout the trial violated his right to due process, and the court erred prejudicially by denying his posttrial motion for jury information. We shall affirm.
BACKGROUND
Defendant exercised his right to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].) The court later determined defendant would be shackled during the trial, basing its decision on his history of violent conduct, the nature of the charged offenses, his previous outbursts in the courtroom, and the concerns of security officials.
On December 18, 2002, defendant was an inmate at Mule Creek State Prison (Mule Creek). At around 2:15 p.m., Correctional Officers Michael Davis and Louis Free were at the officers’ station in building three while inmates came in from the yard. Defendant was on the opposite side of the officers’ station at the time.
One of the prisoners, inmate Jacobs, came in from the yard carrying two large, one-gallon bags of items bought from the prison canteen. As Jacobs neared the officers, defendant walked toward Jacobs and swung at his jaw, just below the ear. A bleeding Jacobs looked at defendant and twice exclaimed, “He stuck me.”
Defendant tossed a “shank,” or weapon, toward a nearby shower before he was apprehended. Officer Jason Meyer secured the weapon, a piece of flat metal six and one-half inches long and sharpened to a point.
On May 24, 2005, Correctional Officer Pedro Chanelo searched defendant’s cell in Mule Creek’s administrative segregation unit. Officer Chanelo found a partial razor blade in a plastic container on a lower shelf; a hollowed-out book on the same shelf; and a piece of white plastic, sharpened or melted to a fine point, hidden in two wet T-shirts in the sink. The officer also found three spears fashioned from rolled-up newspapers held together by torn sheets. The spears ranged from two feet five and one-half inches to three feet ten and one-half inches long. They were rolled into a tip, but no hard plastic points or razor blades were attached.
Officer Chanelo testified that the spears were heavy and firm, and one could attach the broken razor blade or the sharpened plastic to one end of them. A sharp object could be dipped into feces or urine and would then only need to break the skin to injure the intended victim. A prisoner could also use the elastic from his underwear as a slingshot to throw the sharpened plastic like a dart.
The court originally admitted the rolled-up newspaper spears but later withdrew them and instructed the jury the spears were not weapons themselves, and they could only consider the razor blade and piece of plastic as weapons. The court also allowed the People to argue the razor blade and sharpened plastic could be attached to an implement.
DISCUSSION
I. Sufficiency of the Evidence
Defendant was charged in count IV with possessing “sharp instruments, to wit., three inmate manufactured spears and a stabbing weapon.” He contends there is insufficient evidence supporting his conviction in count IV because the court withdrew the rolled-up newspaper spears from consideration. We disagree.
In reviewing claims of insufficient evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Lewis (1990) 50 Cal.3d 262, 277.)
Penal Code section 4502, subdivision (a) provides, in pertinent part, that it is a felony if a prison inmate “possesses or carries upon his or her person or has under his or her custody or control... any dirk or dagger or sharp instrument....” “To show a violation of this statute, the prosecution must prove the defendant was confined in a state prison and that he had knowledge of the prohibited object in his possession.” (People v. Strunk (1995) 31 Cal.App.4th 265, 272.)
The purpose of Penal Code section 4502, subdivision (a) is to protect inmates and correctional staff from assaults with dangerous weapons by prisoners. (People v. Custodio (1999) 73 Cal.App.4th 807, 812.) It was “adopted on the justifiable theory that there is greater danger of imprisoned felons becoming incorrigible and resorting to violence if they are permitted to carry upon their persons deadly weapons.” (People v. Wells (1945) 68 Cal.App.2d 476, 481.) The statute “applies to instruments that can be used to inflict injury and that are not necessary for an inmate to have in the inmate’s possession.” (Custodio, supra, 73 Cal.App.4th at p. 812.)
Although the court withdrew the rolled-up newspapers, substantial evidence supports defendant’s conviction. A broken razor blade is a sharp object, capable of inflicting injury, that a prisoner has no reason to possess. The evidence also established the razor blade and the sharpened piece of plastic could be contaminated with materials available to prisoners and thus injure another by merely breaking the skin. The sharpened plastic in defendant’s possession was also capable of inflicting injury by being shot like a dart from a slingshot fashioned from the elastic in an inmate’s underwear.
Defendant argues this theory of guilt cannot support his conviction because it does not conform to the offense as charged in the information, possession of three spears and a stabbing weapon. Although framed as a question of substantial evidence, this issue instead addresses whether there was a material variance between the allegations of the information and the evidence adduced at trial.
Defendant objected to the variance between the pleading and proof in count IV. The court denied the objection, finding the preliminary hearing gave defendant sufficient notice.
Every fact or circumstance essential to proof of the charged crime must be alleged and proved. (People v. Williams (1945) 27 Cal.2d 220, 225-226.) A conviction cannot stand when there is a material discrepancy between the accusatory pleading and the proof of guilt, but a variance in criminal law “is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.” (Ibid.) “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” (Pen. Code, § 960.)
“‘[I]n modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend.’” (People v. Jones (1990) 51 Cal.3d 294, 317, quoting People v. Gordon (1985) 165 Cal.App.3d 839, 868-869.) According to the preliminary hearing testimony, the officer found the three newspaper spears, a broken razor blade, and a sharpened one-inch piece of plastic in defendant’s cell. The razor blade was single edged, was not attached to a handle, and had been broken in half. The plastic “tip” was about an inch long and sharpened or melted to a point that could penetrate the skin. Although razor blades were issued to some inmates at Mule Creek, a razor blade was considered a deadly weapon if possessed by an inmate in administrative segregation. The sharpened plastic was also described as a weapon.
The evidence at the preliminary hearing put defendant on notice that he was being charged with possession of the broken razor blade and sharpened plastic as sharp instruments themselves. This theory of guilt is supported by substantial evidence and we reject defendant’s contention.
II. Shackling Defendant
Defendant contends the court erred in ordering him shackled during trial because he never posed a threat of escape or demonstrated a propensity for violence. We disagree.
A. Pretrial Proceedings
The People’s motion to have defendant physically restrained at trial asserted that defendant had demonstrated through his criminal history and prison conduct an inability to control his rage, emotions, and violence. The prosecution noted defendant was already serving a 64-year sentence following 1984 convictions of robbery, forcible rape, forcible sodomy, and forcible oral copulation and thereafter incurred a 1986 conviction for possession of a weapon while in prison. The motion also asserted that defendant had numerous rules violations involving threats to inmates and, as a result, had been in administrative segregation at Mule Creek from 2002 until he was transferred to Corcoran State Prison and placed in the secured housing unit at that facility. The court asked correctional officers what concerns they would have if the court removed defendant’s hand shackles. An officer replied that defendant had been locked up in administrative segregation or secured housing for the last three years, out of the general population, and had always been shackled when moved, “So our concern is that he is an Ad. Seg./SHU inmate that should be secured at all times.”
The motion was made against the backdrop of a history of violent and disruptive conduct by defendant. Though not directly referenced in the prosecution’s motion, the trial court also had evidence from the preliminary hearing that defendant had committed two unprovoked assaults on fellow inmates: an attack to an inmate’s head with a six-inch-long shank, and punching another inmate on a separate occasion.
The court had also observed three prior outbursts by defendant. At the preliminary hearing held in April 2005, defendant interrupted a correctional officer’s testimony and indicated he wanted to be removed. He interrupted again, alleging he was not being adequately represented. The court told defendant to sit down, and he told the court it would have to proceed without him. The court told counsel to continue, but defendant interrupted two more times with similar comments. After the court again told counsel to continue, defendant interrupted and asked to be transported out of the courtroom. Defense counsel was later allowed to withdraw.
Defendant’s second outburst took place at a November 2005 hearing on the People’s motion to consolidate. Defendant, now representing himself, moved for a continuance, alleging he was unprepared and uncomfortable with the judge. He accused the court of bias and prejudice. The court’s effort to continue with the motion to consolidate was interrupted by defendant, who spoke at length about his inability to prepare for the consolidation motion because of allegedly inadequate access to the prison law library and the bad faith of prison officials. The court denied defendant’s motion for a continuance, but defendant interrupted three more times before the court threatened to revoke his in pro. per. status.
Further interruptions led the court to order defendant removed from the courtroom as he was not allowing anyone else to talk. Defendant soon returned, and the hearing concluded without further incident.
During a discussion with the prosecutor over a procedural matter, the court noted defendant’s “desire to take up as much time as possible and give the Court as bad a time as he possibly can on every single issue....”
Defendant had a third outburst at a May 2006 hearing on motions in limine when the People moved to have defendant in restraints during the trial. As the court asked what type of restraints would be involved, defendant repeatedly interrupted, saying he could not continue to participate as the denial of his motion for a continuance made “everything else after this just unfair[.]” Defendant asked the court for permission to leave, declaring: “You can have a trial.” The court ignored defendant, and after a correctional sergeant said defendant was not violent during the trips to court, the court denied the motion but reserved the right to change its mind.
The court later indicated that leg restraints would remain on defendant. This is not the order to shackle defendant that is the subject of this appeal, but an earlier order made in anticipation of a trial that was eventually continued.
Notwithstanding the favorable ruling, defendant’s interruptions continued, with defendant declining to participate in the “unfair” proceedings, repeatedly asking permission to leave and, upon denial, telling the court: “Well, your Honor, then have the officers then physically remove me from the court.” After defendant continued to interrupt, the court declared it could have him bound and admonished him not to disrupt the proceedings. The interruptions continued. When the court asked defendant “please do not interrupt,” defendant replied: “Insult what’s being done here. You are truly insulting me, sir, you are truly insulting me.” As his tirades grew more lengthy and heated, defendant said, “This court is out of order,” and told the court: “If you think I’m going to cooperate, you got another thing coming. I’m telling you have got to listen now, you got to listen. You can do whatever you wish, your Honor, but I’m telling you that this is the way we’re going to proceed from this point on.”
The court told defendant he was “disrupting the proceedings” and that if it continued, he could be bound and gagged during trial. Defendant’s further interruptions and protests that he would not participate led the court to ask the prosecutor if equipment was available that would allow defendant to participate in the trial remotely through video.
Defendant apologized to the court at the conclusion of the hearing but also said the court owed him an apology. And when the prosecutor later spoke, defendant replied: “Will you stop it, man. I’m getting tired of your mouth.”
The court took note of these previous outbursts in ruling on the motion to have defendant physically restrained. The court said defendant “tends to react” when he does not get his way in court and granted the People’s motion.
B. Subsequent Events
Before voir dire, the court admonished the jury not to consider defendant’s restraints as evidence of guilt. The admonition was repeated during voir dire and after the jury was sworn. During the examination of the first witness, defendant asked for his handcuffs to be loosened because he could not take adequate notes. When an officer indicated he could loosen the restraints on one side, Juror No. 162625 said, “If you do that, I’m walking out of here.” Asked to explain, the juror said she would leave if the officer loosened the restraints. The officer then told the court he could extend the lanyard on defendant’s left arm, which would be safe for everyone in the courtroom, but the juror retorted, “Not me.”
Defendant then moved for a mistrial, claiming the juror “showed clear bias.” The juror responded, “I didn’t have it before.” The court told defendant one of its functions was to protect everyone in the courtroom and denied another mistrial motion from defendant.
Later that day, defendant exclaimed that he was shackled and followed by officers as he approached an easel, which prejudiced the jury. The court overruled the objection, noting it had admonished the jury not to consider his being shackled or in prison attire. Outside the jury’s presence, the court restated its reasons for shackling defendant: his criminal record, violent behavior in prison, the concerns of security officials, and his courtroom outbursts. At the beginning of the next day, the court dismissed Juror No. 162625 because she was holding the court hostage on what level of restraints to place on defendant. The court also denied defendant’s mistrial motion and the People’s request to voir dire the juror.
Defendant then asked the court to release his writing hand. The court consulted with the correctional officers, stating that while the decision was the court’s, it did not “know anything about security.” A correctional officer told the court defendant would not be allowed to be free under their procedures, but this was the court’s decision to make. The court said defendant had performed well at trial. Defendant pointed out no one had specified any recent history of violence on his part and asserted he had held a job in Mule Creek administrative segregation for two years. However, the court rejected defendant’s request, finding the charged assault offense refuted defendant’s claim of nonviolent conduct in prison.
At the end of the trial, the court threatened to revoke defendant’s in pro. per. status after finding he was threatening the bailiff and arguing with the court. Later, the court asked defendant if he was threatening the court.
The court revisited the shackling issue at the sentencing hearing, declaring it had agonized over the decision. It expressed concern that there were “no real guidelines to follow,” but noted the leading California Supreme Court decision in this area and recited the decision’s holding at length. The court concluded by restating its reasons for shackling defendant: defendant’s history of violence, his having nothing to lose as he was serving an effective life sentence, the brutality of the charged offenses of assault by a prisoner, his outbursts in court, his refusal to wear civilian clothing, and the opinion of the correctional officers that shackling defendant was absolutely necessary.
C. Analysis
A defendant cannot be physically restrained in the jury’s presence absent a showing of a manifest need for the restraints. (People v. Hill (1998) 17 Cal.4th 800, 841.) Manifest need may arise from “a showing of unruliness, an announced intention to escape, or ‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained....’ [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “The showing of nonconforming behavior... must appear as a matter of record.... 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 (1976) 16 Cal.3d 282, 291.) “The burden is on the People to establish in the record the manifest need for the shackling. [Citation.]” (People v. Vance (2006) 141 Cal.App.4th 1104, 1112.)
A defendant’s behavior outside the courtroom may justify the use of restraints within the courtroom. (People v. Price (1991) 1 Cal.4th 324, 402-404.) While a record of violent crime cannot alone justify a decision to permit shackles, the court may consider evidence of violent or nonconforming conduct while in custody. (People v. Hawkins (1995) 10 Cal.4th 920, 944 (Hawkins), disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.) We review the trial court’s decision to impose restraints for an abuse of discretion. (People v. Mar (2002) 28 Cal.4th 1201, 1217.)
Defendant argues shackling was an abuse of discretion as his prior convictions were too remote, charged offenses can never justify shackling, his disruptive behavior was mild and outweighed by the numerous court appearances he made without disruption, and the People never identified any specific example of a plan to escape or to commit a violent act in court. He also claims the court ceded its discretion to the correctional officers, and the juror’s outburst demonstrates the shackling was prejudicial.
Defendant’s numerous prior convictions show a history of violent conduct. Although his violent offenses were committed in 1984, he has been in prison continuously since then, serving a 68-year sentence. His 1986 prior conviction for possession of a weapon by a prisoner shows an inability to follow the law while in prison. The preliminary hearing evidence of his unprovoked assaults on fellow inmates was relevant. The two charges of possession of a weapon by a prisoner give further evidence of defendant’s danger by showing his willingness and ability to obtain dangerous weapons when confined. This history of violent crime and evidence of his violent conduct in prison are themselves sufficient to justify the court’s decision to shackle defendant. (See Hawkins, supra, 10 Cal.4th at p. 944 [defendant’s three fistfights in prison and extensive criminal history are sufficient to justify shackling].)
The People’s inability to convict defendant of either assault charge does not diminish their relevance. The second assault count was dismissed because the victim refused to testify, and the court was “shocked” that the jury did not convict defendant on the assault charge in count I.
There is also ample evidence of defendant’s willingness to disrupt the courtroom when he did not get his way. While his behavior was primarily verbal, it was nonetheless highly disruptive, causing the court to remove him from the courtroom one time and to threaten to have him bound and gagged on another occasion. Even though there were many instances during this prolonged case in which defendant did not disrupt the courtroom, there is no minimum ratio of disruptive to acceptable behavior before a court may restrain a disruptive defendant. Defendant’s three pretrial outbursts were too many and too severe for the court to ignore.
Nor did the court abdicate its discretion to security personnel. Although it properly relied on the correctional officers’ expertise in security matters, the court nonetheless made clear the decision to shackle defendant was its alone to make. Rather than deferring to the officers’ request to have defendant shackled, the court gave explicit reasons justifying its decision. The law requires no more.
In any event, defendant was not prejudiced by the shackling. The evidence of his guilt was overwhelming. Three officers saw defendant toss the shank he used to attack inmate Jacobs, and the sharpened plastic and broken razor blade were found in a cell occupied solely by defendant. We are convinced beyond a reasonable doubt that the jury would have returned the same verdict had defendant not been shackled. (Deck v. Missouri (2005) 544 U.S. 622, 635 [161 L.Ed.2d 953, 966].) Indeed, the lack of prejudice is demonstrated by the fact that the jury did not convict defendant on count I despite strong evidence of his guilt.
III. Juror Information
Defendant revoked his in pro. per. status after his conviction, and standby counsel was appointed to represent him. Pursuant to Code of Civil Procedure section 237, defense counsel moved for disclosure of the jurors’ addresses and telephone numbers to determine whether the other jurors were affected by the comments of Juror No. 162625. The court rejected the motion, finding that the jurors’ right to privacy greatly outweighed any benefit to defendant, and stating that granting the motion would be an “unwarranted fishing expedition.”
Defendant claims it was an abuse of discretion to deny his motion. We disagree.
In People v. Rhodes (1989) 212 Cal.App.3d541 (Rhodes), this court discussed the competing policy interests regarding access to juror information and developed the following test:
“[U]pon timely motion, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial....
“Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror’s right to privacy outweigh the countervailing public interest served by disclosure of the juror information as a matter of right in each case.” (Rhodes, supra, 212 Cal.App.3dat pp. 551-552.)
Although there have been subsequent statutory developments (see Stats. 1992, ch. 971, §§ 2-3, pp. 4597-4598 [adding Code Civ. Proc., § 237 & amending Code Civ. Proc., § 206]), the Rhodes passage quoted above states the appropriate test. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1093-1094; People v. Carrasco (2008) 163 Cal.App.4th 978, 990 [“the Rhodes test survived the [statutory] amendments”].)
The burden of establishing good cause lies with the movant (People v. Granish (1996) 41 Cal.App.4th 1117, 1131), and we review the trial court’s ruling for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317).
While Juror No. 162625 committed misconduct, that juror was dismissed early in the trial. Defendant has produced no evidence that any of the jurors who rendered the verdict committed misconduct. His contention that the other jurors, who were repeatedly instructed not to consider defendant’s shackling, were influenced by the offending juror’s outburst is speculation, which does not justify sacrificing the jurors’ privacy.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.