Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Nos. F05900492-0; F01662211-2. Gary D. Hoff, Judge.
John F. Schuck, 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, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Roger Dana Hausmann of two counts of providing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), one count of misdemeanor battery (Pen. Code, § 242), and one count of misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). The trial court imposed an aggravated term resulting in a 10-year commitment to state prison.
All further statutory references are to the Penal Code unless otherwise noted.
Hausmann argues reversal is required because (1) he appeared at trial in a red jail jumpsuit; (2) the trial court erroneously imposed a $20.00 court security fee; and (3) imposition of the aggravated term violated his Sixth Amendment right to a jury trial. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The incident giving rise to the charges against Hausmann began as a consensual encounter between Hausmann and two minor acquaintances, Patricia C. and Marlena H.
Patricia testified that she had known Hausmann for about a year before accepting a ride with him on January 15, 2005. Hausmann picked up Patricia and then Marlena. The three bought some fast food and then went to purchase marijuana. It was Hausmann’s idea to purchase the marijuana, and he paid for it. Patricia and Marlena smoked the marijuana while Hausmann drove around.
After a while, it was time for Patricia and Marlena to go home. Hausmann wanted to drop off Patricia first, but the girls wanted Hausmann to take Marlena home first. An argument ensued. Hausmann grabbed Marlena by the hair and started threatening the girls. Patricia took off her shoe and started hitting Hausmann. The girls continued fighting and trying to exit the vehicle. Hausmann kept locking the doors and striking Marlena. Patricia escaped, but Hausmann locked the doors before Patricia could pull Marlena out of the vehicle. Hausmann drove off with Marlena still in the vehicle. Patricia ran to a store and asked the store clerk to call the police.
Marlena testified that she had lived next door to Hausmann for about seven months. They talked to each other occasionally and Hausmann occasionally gave Marlena rides. On January 15, 2005, Patricia came by with Hausmann and asked Marlena if she wanted to go for a ride. Marlena agreed, and the three left in Hausmann’s vehicle. They drove around for a while before stopping in west Fresno where Hausmann purchased some marijuana. The girls smoked the marijuana while Hausmann drove them around. Patricia and Hausmann eventually started arguing about Hausmann’s driving.
Hausmann apparently agreed to take the girls home, but he wanted to drop off Patricia first and then take Marlena home. Marlena was not comfortable with Patricia being dropped off first. An argument ensued. Hausmann began making verbal threats in an angry tone. He began driving at a faster speed. Marlena was scared, so she shifted the automatic transmission into park while the vehicle was moving. When the vehicle stopped, Hausmann struck Marlena. Marlena and Patricia fought back and tried to get out of the vehicle. Hausmann kept locking the doors to prevent their escape. Patricia successfully opened her door and got out, but Marlena was still inside the vehicle. Patricia opened the front passenger door and attempted to pull Marlena out of the vehicle. Hausmann reached over and pulled Marlena back into the vehicle and drove off. Hausmann held Marlena’s head down with one hand and drove the vehicle with the other hand. Marlena continued to fight with Hausmann. He let go of Marlena because he had to use both hands to control the vehicle. Marlena began kicking Hausmann in the face. Marlena was able to open the door and jump out while the vehicle was moving. Hausmann attempted to grab Marlena, but succeeded only in grabbing her jacket. Hausmann drove off. Marlena was scratched and bruised from the fall.
A passing motorist stopped to help Marlena. The motorist asked Marlena if she wanted to go home, but Marlena insisted on finding Patricia. The two drove around looking for Patricia until they spotted some police cars driving down the street with their lights and sirens operating. Marlena deduced that Patricia had called the police, and she was proven correct when they followed the police cars to Patricia. Marlena later was taken to the hospital.
Dezarae L. Johnson testified that she was traveling northbound on Fresno Street when she was passed by Hausmann’s vehicle. The vehicle was swerving back and forth between the two lanes. Johnson saw the brake lights of the vehicle light up, and a woman tumbled out of the vehicle. The vehicle did not come to a complete stop. A piece of the woman’s clothing came off as she tumbled out of the vehicle. It looked like the woman was struggling to get out of the vehicle. The vehicle sped off. Johnson stopped and offered the woman help. The woman, Marlena, was confused, scared, and very worried about Patricia. She seemed to be in shock. The two found Patricia after driving around for a while.
Officer Ron Flores was part of the team assigned to arrest Hausmann. Flores was approximately the fourth person to enter the bedroom in which Hausmann was hiding. Flores heard other officers order Hausmann to show his hands and come out of the closet. When Hausmann failed to respond, Flores was called up. Hausmann was standing in the back of the closet with his hands behind his back. Hausmann was not responding to commands, so Flores shot Hausmann with a taser to ensure officer safety. Hausmann fell forward to the ground. Other officers attempted to grab Hausmann’s hands to restrain him, but Hausmann continued to fight. Flores shot Hausmann with the taser a second time, but Hausmann continued to resist. Only after being shot a fourth time with the taser did Hausmann submit. The entire time the officers were in the apartment, they were yelling at Hausmann to come out with his hands in the air. After Hausmann was restrained, the officers discovered he was not armed. Flores did not observe any open wounds or blood on Hausmann. Nor did he see anyone kick Hausmann.
Saying that Hausmann was shot a second time is somewhat misleading. Flores explained that a taser shoots two darts attached to the taser “gun” by small wires. When the darts hit the subject, they embed in his or her skin. A 50,000-volt shock is immediately sent through the wires into the subject. If the subject continues to resist, the officer may pull the trigger on the taser gun a second time and another 50,000-volt shock is sent through the wires into the subject. No additional darts are shot out of the taser gun. Apparently, the trigger on a taser gun may be pulled repeatedly, with each pull sending an additional 50,000 volts through the wires and into the subject.
Hausmann testified that on January 15, 2005, Marlena approached him about picking up Patricia. The three drove around for a while, including a stop to purchase marijuana, which Patricia purchased. Hausmann purchased some small cigars and the girls used the cigars to smoke the marijuana while Hausmann drove. After a while, Patricia wanted to go to a specific residence. Marlena became agitated, so Hausmann decided it would be better to take Marlena home. When Hausmann told Patricia he was going to take Marlena home, Patricia became upset and started hitting Hausmann. Patricia took some money from Hausmann’s jacket and jumped out of the vehicle. Hausmann drove off to avoid additional attacks by Patricia. After a while, Marlena stated she wanted to go back to Patricia. Hausmann agreed, but Marlena became upset when Hausmann did not return quickly enough to Patricia and Marlena opened her door. Hausmann stopped the vehicle and Marlena jumped out.
Hausmann’s attempts to find Marlena failed, so he drove to his friend’s house. Hausmann’s friend helped him find his glasses, which had been lost in the scuffle, and permitted him to get cleaned up. Both Marlena and Patricia called Hausmann that night. Patricia told Hausmann that if he did not pay her some money, he would go to jail.
The first amended information charged Hausmann with (1) one count of kidnapping (Marlena), (2) one count of false imprisonment by violence (Marlena), (3) one count of misdemeanor battery (Marlena), (4) two counts of criminal threats (Marlena and Patricia), (5) two counts of furnishing marijuana to a minor over the age of 14 (Marlena and Patricia), and (6) one count of misdemeanor resisting arrest. In addition, the information alleged that Hausmann had suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b) through (i). This conviction also was alleged to be a serious felony within the meaning of section 667, subdivision (a)(1).
Section 207, subdivision (a) (count 1).
Section 236 (count 2).
Section 242 (count 7).
Section 422 (counts 3 and 4).
Health and Safety Code section 11361, subdivision (b) (counts 5 and 6).
Section 148, subdivision (a)(1) (count 8).
Hausmann elected to represent himself. The charges were tried to a jury. The jury found Hausmann not guilty of (1) kidnapping and the lesser included offense of attempted kidnapping, (2) false imprisonment and the lesser included offense of attempted false imprisonment, and (3) both counts of criminal threats and the lesser included offenses of attempted criminal threats. The jury returned guilty verdicts on (1) both counts of furnishing marijuana to a minor (Marlena and Patricia), (2) misdemeanor false imprisonment (Marlena), a lesser included charge of false imprisonment, (3) misdemeanor battery (Marlena), and (4) misdemeanor resisting arrest. The prior conviction allegations also were tried to the jury and found to be true.
The trial court sentenced Hausmann to an aggravated term of five years on each count of furnishing marijuana to a minor, and then doubled the terms pursuant to section 667, subdivision (e). The two counts were imposed concurrently, for a total term of 10 years. In addition, the trial court found Hausmann had violated his probation in the trailing case based on his convictions in this case. The trial court imposed a two-year midterm sentence, concurrent with the term in the current case.
DISCUSSION
I. Trial in a Jail Jumpsuit
Hausmann attended trial each day in the red jumpsuit provided by the jail. He contends the trial court erred in allowing him to do so.
“It is established that a court may not require a defendant to attend trial wearing jail clothing, because such a requirement would impair the presumption that a defendant is innocent unless and until proved guilty beyond a reasonable doubt. [Citations.] ‘The Supreme Court has observed that the defendant’s jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. [Citation.]’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1335-1336.)
“There are substantial reasons for the rule that a criminal defendant is entitled to be tried in ordinary clothing. Foremost is the rationale that compelling a defendant to go to trial in jail clothing could impair the fundamental presumption of our system of criminal justice that the defendant is innocent until proved guilty beyond a reasonable doubt. [Citations.] To implement and protect the presumption of innocence, ‘courts must be alert to factors that may undermine the fairness of the factfinding process.’ [Citation.] The Supreme Court has observed that the defendant’s jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. [Citation.] The clothing inexorably leads to speculation about the reason for defendant’s custody status, which distracts the jury from attention to permissible factors relating to guilt. In most instances, parading the defendant before the jury in prison garb only serves to brand the defendant as someone less worthy of respect and credibility than others in the courtroom. ‘The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the Due Process Clause forbids toleration of the risk. Jurors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs.’ [Citation.]
“Another reason for disfavoring the use of prison clothes during trial was articulated in People v. Zapata (1963) 220 Cal.App.2d 903, 911. That court recognized that beside the potential prejudice raised in the minds of the jurors, the defendant may be handicapped in presenting his defense by the embarrassment associated with his wearing jail garb.” (People v. Taylor (1982) 31 Cal.3d 488, 494-495.)
The right to be tried in civilian attire is not absolute, however. A defendant who fails to object to his appearance in jail clothing will forfeit this right. (Estelle v. Williams (1976) 425 U.S. 501, 512-513.) “There are two reasons for this limitation. First, the potential harm is of a type that may be avoided if the matter is brought to the court’s attention. A timely objection allows the court to remedy the situation before any prejudice accrues. [Citation.] In addition, there may be instances where for tactical reasons the defendant may wish to be tried in jail garb. [Citations.] Recognizing that the defendant is entitled to be tried in ordinary clothing, an attorney may nevertheless decide, based on the peculiar circumstances of an individual case, not to exercise that right.” (People v. Taylor, supra, 31 Cal.3d at pp. 495-496.)
In the event an objection is made and overruled, automatic reversal is not required. Reversal is required only if the reviewing court determines that the error is not harmless beyond a reasonable doubt. (People v. Taylor, supra, 31 Cal.3d at p. 499.) “Where federal constitutional error is involved, the test to be applied is that laid down by the Supreme Court in Chapman v. California (1967) 386 U.S. 18. [Citation.] Chapman requires that ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ (Chapman, supra, 386 U.S. at p. 24.) This test has been previously applied to error involving the use of prison garb at trial. [Citation.]” (Taylor, at p. 499.)
It is undisputed that Hausmann appeared at trial dressed in a red jail-issued jumpsuit. A thorough review of the facts leading to this result will simplify resolution of the issue.
On Thursday, September 21, 2006, Hausmann appeared for trial confirmation in his capacity as a propria persona defendant. The judge presiding over the trial confirmation informed Hausmann that trial would begin the following Monday. The judge also informed Hausmann, “You must also have appropriate attire so that you are dressed out properly for trial purposes.” Hausmann did not ask any questions about dressing for trial. After discussion of some other issues, the trial judge again reminded Hausmann, “You need to make arrangements for your attire so you’re properly dressed out for trial purposes.”
The matter was not assigned to trial until Monday, October 23, 2006, a full month after Hausmann was first warned to obtain appropriate attire for trial. The trial court again addressed Hausmann’s dress on the first day of the trial. “And Mr. Hausmann, you’re not dressed out for trial. You’re dressed in the jail jumpsuit. Do you have street clothes to wear for trial?” Hausmann stated that he did not have any clothes in Fresno because they had been stolen, but that he did have clothes in Southern California, although he did not have the means to retrieve the clothes. The trial court then asked the investigator assigned to assist Hausmann, Rick Barclay, whether he could “make arrangements to get street clothing for Mr. Hausmann to wear for the purposes of trial?” Barclay replied, “I suppose I can.” The trial court then moved on to other issues.
The trial court again addressed the issue of Hausmann’s appearance in the afternoon session. “First, is that as I’ve addressed earlier, my preference would be that you be dressed out for trial so that there would be no prejudice by the jurors seeing you in your jail-issued clothing. If you’re unable to provide yourself with clothing, I will admonish and caution the jurors the fact that you are in jail clothing is not to be considered by them in any way, that it’s irrelevant to the proceedings and that they could not consider that in any way in this case or hold it against you.”
The following morning the issue again was addressed by the trial court. “As to one of the issues that we addressed yesterday, your clothing, you still are in your jail jumpsuit. And have you made arrangements to have clothing for purposes of trial?” When Hausmann responded that there was no one for him to call, the trial court asked, “Have you talked to Mr. Barclay about his ability to run an errand for you to get clothes, either to purchase or to get clothes from friends for you for purposes of trial?” Hausmann reiterated that, basically, he did not have any clothes available that could be picked up by Barclay.
The trial court responded, “Well, we still have that issue of clothing. If you do not have, and you have not made arrangements to be dressed out for trial, we will proceed with you in your jail jumpsuit. And I will admonish the jury that they cannot take that into consideration for any reason. I will admonish the jury that the mere fact that you have been arrested for or charged with an offense or the fact that you’re in custody is not evidence of guilt and cannot be considered in any way by them, to at least caution the jurors that your inability to have street clothing for purposes of trial can’t be used against you. The fact that you may be in jail clothing can’t be used against you. And again, I want to encourage you to take whatever steps you can to be dressed out for trial rather than being in a prison jump, or the jail jumpsuit simply because there could be that negative connotation to that.”
On the third day of trial, the trial court again asked what, if anything, Hausmann had done to obtain clothing for trial. Hausmann replied, “I can’t. I’m trying to call people in Los Angeles, see if they could bring some up.” After Hausmann finished his comments, Barclay stated, “Your Honor, nothing has been done to get clothes[,] to answer your questions.” Hausmann replied, “I’m sorry, your Honor. I’m sorry. But I’m tired of losing stuff, people stealing my stuff and lying. It’s not fair.” The trial court informed Hausmann that his failure to obtain street clothing would not delay the trial.
Jury selection did not begin until the fourth day of trial. Prior to calling the panel, the trial court again addressed the issue of clothing. “The next issue, Mr. Hausmann again is not dressed out for trial today. He is in his jail jumpsuit and the court has given him opportunities for a period of time to get clothing. And either for an inability to do so or an unwillingness to do so, we’re going to proceed to jury selection today with him in his jail jumpsuit and I will admonish the jury that they cannot consider that for any matter in this case.” Hausmann ignored the trial court’s comments and addressed unrelated issues.
As promised, the trial court instructed the jury during the initial instructions that the members of the jury “must not be biased against the defendant just because he’s been arrested, charged with a crime, brought to trial, kept in custody, the fact that he has not dressed out in street clothes for trial. None of those factors are evidence in this case. None of those can be considered as a bias against him. In other words, you cannot be biased against a defendant because of any of those things.”
We have reviewed in detail the numerous attempts by the trial court to encourage Hausmann to obtain appropriate dress because these facts are dispositive of this issue. We have reviewed every case cited by Hausmann, and they all stand for the same proposition -- a defendant’s right to due process is violated only if the state requires him to appear at trial in clothing that easily is identified as jail-issued clothing. The trial court here did not require Hausmann to appear in the jail jumpsuit, but instead encouraged him to obtain appropriate clothing. The cases cited by Hausmann simply do not apply to this situation.
Under the facts of this case, Hausmann’s argument can be interpreted only as suggesting that the state is required to provide civilian clothing to a defendant to ensure that he or she does not appear for trial in jail-issued clothing. None of the cases cited by Hausmann provides authority for this assertion.
Even if the Constitution required the state to provide civilian clothing to an indigent defendant, such a requirement would not be violated here because Hausmann never requested the trial court provide him with civilian clothing. Instead, he frequently changed the subject or began a diatribe about how all of his things had been stolen. Perhaps more importantly, the trial court attempted to assist Hausmann in obtaining civilian clothing by enlisting the aid of the investigator assigned to assist Hausmann. From the comments made by the investigator to the trial court, it appears Hausmann failed to take advantage of this opportunity to obtain civilian clothing. Under these circumstances, Hausmann has forfeited any claim he may have had related to his appearance at trial in the jail-issued jumpsuit. (People v. Partida (2005) 37 Cal.4th 428, 433-435.)
II. Aggravated Sentence
Hausmann contends that when the trial court imposed an aggravated sentence it did so in violation of his Sixth Amendment right to a jury trial. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].)
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law violated the Sixth and Fourteenth Amendments to the extent it permitted aggravated sentences to be imposed based on factors, other than a prior conviction, not found true by a jury applying the beyond-a-reasonable-doubt standard. (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 860, 863-864, 868, 871].)
In response to Cunningham, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. These two cases provide the current framework for analyzing sentencing issues.
As pertinent to this case, Black held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (People v. Black, supra, 41 Cal.4th at p. 813.) In reaching this conclusion, the Supreme Court rejected the defendant’s contention that all aggravating circumstances must be found true by a jury because the presence of a single aggravating circumstance renders it lawful for the trial court to impose an aggravated term. (Id. at pp. 814-815.)
In Sandoval, the Supreme Court first recognized the two exceptions permitted by United States Supreme Court to the general rule that aggravating factors must be found true by the jury using the beyond-a-reasonable-doubt standard. The first exception is for a prior conviction. The second exception is for facts admitted by the defendant. (People v. Sandoval, supra, 41 Cal.4th at pp. 836-837.) The trial court, however, had imposed an aggravated sentence based on facts it found to be true, but that did not fall within these two exceptions. (Id. at p. 837.) The issue, therefore, was whether the error required reversal of the judgment.
The Supreme Court first stated that such errors are “reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18.” (People v. Sandoval, supra, 41 Cal.4th at p. 838.) According to the Supreme Court, the issue under this standard is “whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.) Since, as explained in Black, a single aggravating factor found in accordance with the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny made a defendant eligible for an aggravated term, any error under Cunningham would be harmless if the reviewing court concluded beyond a reasonable doubt the jury would have found at least one aggravating factor was true. (Sandoval, at pp. 838-840.)
Here the trial court imposed an aggravated sentence on Hausmann after finding that it was warranted because of his numerous prior convictions. The fact of a prior conviction also was found true by the jury using the beyond-a reasonable-doubt standard. These circumstances, one an exception to the jury trial requirement and the other a finding consistent with Hausmann’s Sixth Amendment right to a jury trial, made Hausmann eligible for an aggravated term. Hausmann’s argument necessarily fails.
III. Court Security Fee
The trial court imposed a $20.00 court security fee pursuant to section 1465.8, subdivision (a)(1) on both the current violation and the violation of probation. Section 1465.8 was enacted in 2003. The underlying crime in the violation of probation matter occurred in 2001. Hausmann claims that imposition of the fine in the violation of probation matter violated the ex post facto provision of both the state (Cal. Const., art. 1, § 9) and federal (U.S. Const., art. 1, § 10, cl. 1) Constitutions. Hausmann also contends the fee violates section 3 of the Penal Code, which prohibits retroactive application of the code. These arguments recently have been rejected by the California Supreme Court. (People v. Alford (2007) 42 Cal.4th 749, 752.) We are bound by the decisions of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.