Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. INF53587 John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop, for Defendant and Appellant Dominic Alexander Heath.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Ehon Michael Baker.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., Marvin E. Mizell, and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Dominic Alexander Heath appeals from his conviction of the attempted voluntary manslaughter of Luis Hernandez (Pen. Code, §§ 664, 192, subd. (a)) with an associated firearm use enhancement (§ 12022.5, subd. (a)). Heath contends: (1) he was denied due process by being subjected to trial while physically restrained in leg braces without a showing of manifest need; or, in the alternative, (2) if the record is insufficient for a determination of whether the shackling denied him due process, he should be granted a new trial; and (3) the imposition of the upper term on the section 12022.5 enhancement violated his due process.
All further statutory references are to the Penal Code unless otherwise noted.
Defendant Ehon Michael Baker appeals from his convictions of assault with a firearm against Robert Fierro (§ 245, subd. (a)(2)) with an associated firearm use enhancement (§ 12022.5, subd. (a)), and of assault by force likely to cause great bodily injury against Joseph Diaz (§ 245, subd. (a).) Baker contends: (1) the trial court erred by failing to give a unanimity instruction as to count 4; (2) the prosecutor committed numerous instances of misconduct resulting in prejudice; and (3) the prosecutor failed to elect between two separate acts that might have constituted assault with a firearm. In addition, Baker joins in Heath’s arguments to the extent they are relevant.
We find no prejudicial errors, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
On February 11, 2006, George Michael Hodges threw a party at his home in Indio. Thirty to 40 people, including Rogelio Fierro (Roy), his brother Robert Fierro (Robert), Pedro Ordonez, Joseph Diaz, and Luis Hernandez, attended the party.
Multiple witnesses testified at defendants’ trial, and as might be expected, their accounts of the events varied considerably. Because no issue on appeal requires a detailed analysis of the evidence, we will not attempt to reconcile all the various testimonies in our statement of facts, but will rather present a generalized summary of the events.
Hodges knew Baker from high school and considered him a friend; Heath was an acquaintance of Baker. Defendants were not invited to the party but learned about it from a telephone call. Defendants arrived at the party at around 11:00 p.m. with a group of several of Baker’s friends. Most of the people at the party, including defendants’ group, consumed alcohol at the party.
Baker was armed with a concealed and loaded.38-caliber gun; Heath was armed with a concealed and loaded nine-millimeter gun with two loaded magazines. Hodges and Diaz learned that defendants were carrying weapons and asked defendants to leave, and defendants’ group began to do so.
Around that time, members of defendants’ group, including Joseph Martinez, gave Roy “hard looks, ” in the front yard, and Roy and Martinez exchanged words. Baker pulled out his gun and pointed it at Roy. Martinez shoved Roy and knocked his hat off, hit Roy with a closed fist, and tried to hit him with a beer bottle. Still pointing the gun at Roy, Baker said, “What the hell are you going to do now?” Roy turned and started to move away, and his brother Robert arrived.
Robert saw that people were restraining Martinez and screaming at each other. Robert yelled, “Who is messing with my brother?” Robert saw Baker holding a gun and heard him cock it, although the gun was pointing toward the ground. Robert and Baker yelled at each other from a distance of about five feet, while Baker moved slowly backward toward the street. At the end of the driveway, Baker stopped, but Robert continued to advance. Baker pointed his gun at Robert’s stomach, and Robert asked if Baker was going to shoot him.
Ordonez stepped up and punched Baker in the face; Baker stumbled backwards. Diaz attempted to wrest the gun from Baker, but Baker pulled the gun away and hit Diaz in the head with it, which caused it to discharge. Baker fired the gun as he walked towards Martinez’s car. Various witnesses testified Baker fired into the air, at shoulder height, or both. While Baker was running to seek cover, Robert was shot through the leg.
At some point, after being hit with a thrown bottle, Heath began shooting his gun. He emptied one clip, then reloaded and started firing again. One bullet hit the ground in front of Ordonez, and another bullet hit Hernandez, who fell to the ground. Various witnesses testified that Heath was firing at people, shooting up in the air, shooting into the crowd, or shooting at Hodges’s house. After the shooting, defendants’ group drove away.
Robert sustained a through-and-through shot to his leg. Hernandez was treated for a gunshot wound to his buttocks. Diaz was treated for a wound to his forehead; an emergency room physician testified it was a superficial gunshot wound, but another physician testified the wound was more likely caused by blunt force. Sixteen expended nine-millimeter casings and six expended.38-caliber casings were found at the scene.
Baker, who was 19 years old at the time of the party, testified he had drunk about five beers and a couple shots of tequila that night. After Martinez hit Roy in the face, Roy took a step toward Martinez, and Baker stepped between them. Baker showed Roy his gun inside his jacket pocket, and Roy backed off. Hodges told defendants’ group to leave, and they began moving toward the street. Roy, Robert, and others came from the backyard and yelled at them. Baker turned around and pointed his gun toward the ground and cocked it to scare them. Robert approached Baker with clenched fists and said he was not afraid of the “fucking gun.” Baker pointed the gun at Robert, and the gun touched Robert when Robert walked into it.
Baker stepped back, continuing to point the gun at Robert, and the two exchanged words. Ordonez punched Baker in the chin, and Baker went backwards. Diaz grabbed the barrel of the gun and tried to take it away. Baker pulled the gun away and hit Diaz in the head with the butt. The gun went off accidentally. Baker stepped back and fired another shot into the air. Baker knew Diaz from high school and apologized because he had wanted to hit Ordonez. Baker and Diaz shook hands. Ten or 15 seconds later, Baker heard gunshots. Diaz backed away, and Baker began walking backwards, firing his gun into the air until it was empty. Baker got into the car. He denied ever firing his gun towards anyone.
Hodges’s neighbor told a defense investigator he had seen someone walking fast, running, and shooting into the air the night of the party. At trial, however, he did not recall telling the investigator he had seen someone firing into the air.
Heath’s mother testified he had been 18 years old at the time of the party. Heath testified he had taken a gun and three magazines to the party, and he knew Baker also had a gun. Heath had drunk alcohol at the party.
Heath saw Martinez arguing with Roy and saw Martinez knock Roy’s hat off. Hodges asked defendants’ group to leave. Baker was surrounded and cocked his gun, and Heath started to walk toward Baker, when Hernandez grabbed him from behind and attempted to throw him. They both lost their balance. Heath was about to hit Hernandez when a bottle crashed in the middle of the street and Heath heard a gunshot. He believed the crowd was shooting at him. He ran to the side, cocked his gun, and fired into the air more than four times. Everyone except Hernandez started running to the cars for cover. Heath fired a shot over the car’s hood to scare Hernandez, who ran across the driveway near some trucks, stopped, and looked at Heath. Heath fired at the trucks to scare Hernandez, then walked up the driveway and fired at the ground.
Dr. Michael Groban, an emergency room physician, testified Hernandez had denied using drugs or alcohol. However, Hernandez tested positive for cocaine, cannabis, methamphetamine, and alcohol. Dr. Groban stated his opinion that Diaz’s forehead wound was more likely caused by blunt force than by a gunshot. In his opinion, Robert had been struck by a single bullet that travelled through both his legs.
Dr. Evelyn Edelmuth, a physician, psychiatrist, and toxicologist, testified that Hernandez’s positive toxicology screen meant Hernandez had been intoxicated and might have shown more aggression and poor judgment as a result.
Heath’s mother, a police officer for the City of Desert Hot Springs, testified she had taken Heath target shooting as a child, and he was an accurate shooter.
Jury Verdicts and Sentences
During trial, the trial court dismissed count 5, alleging assault with a firearm of Roy, as to both defendants “in the interest of justice” under section 1385 as a sanction for the prosecutor’s Brady violation (discussed at more length below).
From Brady v. Maryland (1963) 373 U.S. 83 (Brady).
The jury found Heath guilty of the attempted murder of Hernandez as charged in count 2 and found that the crime was deliberate and premeditated. The jury also found true allegations under sections 12022.53, subdivisions (c) and (d), as to count 2. The jury found Heath not guilty of all other counts.
After trial, the trial court ordered that Heath’s conviction on count 2 be reduced to the lesser included offense of attempted voluntary manslaughter (§§ 664, 192, subd. (a)) and reduced the finding on the firearm enhancement to one under section 12022.5, subdivision (a). The trial court sentenced Heath to the upper term of five years six months with a consecutive 10-year enhancement for firearm use (§ 12022.5, subd. (a)).
The jury found Baker guilty of the attempted premeditated and deliberate murder of Robert in count 1 and of the assault with a firearm on Robert in count 4, and found true firearm use allegations as to those counts. The jury was unable to reach a verdict as to count 6 (assault with a firearm on Diaz) (§ 245, subd. (a)(2)) and found Baker not guilty of all other counts. The trial court granted Baker’s motion for a new trial on count 1. The information was subsequently amended to charge as count 7 a violation of section 245, subdivision (a)(1), assault by force likely to cause great bodily injury on Diaz; Baker entered a plea of guilty to that charge. The trial court sentenced Baker to the upper term of four years for count 4, a consecutive upper term of 10 years for the personal firearm use as to that count, and a consecutive one-year term for count 7. The trial court then dismissed counts 1 and 6.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
Unanimity Instruction
Baker contends the trial court erred in failing to give a unanimity instruction in regard to count 4, assault with a firearm on Robert (§ 245, subd. (a)(2)). Baker contends the prosecutor claimed both that Baker pointed his gun at Robert’s stomach and fired his gun at Robert, and it was not certain the jury unanimously relied on only one of those acts to find him guilty of count 4. In supplemental briefing, Baker raises the additional contention that the prosecutor did not make a sufficiently clear election of which act he relied on to establish count 4.
Additional Background
Several witnesses testified that while Robert and Baker were arguing, Baker pointed his gun at Robert and stuck his gun in Robert’s stomach. Baker admitted he had pointed his gun at Robert. The witnesses, including Baker, testified Baker had fired multiple shots. The police found six bullet casings consistent with Baker’s gun at the crime scene.
In argument to the jury, the prosecutor highlighted the evidence relevant to count 1, the attempted murder of Robert, and contended the evidence established that Baker had fired his gun at Robert. In discussing counts 4 and 6, the prosecutor argued, “I’m not going to waste a lot of time. Count [4] is [Penal Code section] 245 with a gun on Robert Fierro. Did he assault him with a gun, of course he did. He took the gun and pointed at his stomach and assaulted him with a firearm.” The prosecutor continued, “The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person. His own admission he pointed the gun at Robert Fierro. This is a separate and distinct crime when he shot at him. Pulling a gun at somebody, pointing it at them, sticking at their belly, touching their belly when it is cocked and loaded, and we know that it has the ability to fire because he did fire, it meets these elements.”
Heath’s counsel similarly argued that “Count [4] is a charge of Ehon Baker pointing a gun at Robert Fierro’s stomach. You recall the testimony. The prosecutor wants to prove that Ehon Baker pulled the gun on Robert Fierro and committed assault.”
Finally, Baker’s trial counsel argued there was no evidence to support count 1, the attempted murder of Robert, because there was no evidence Baker had shot at Robert. Baker’s trial counsel then argued that Baker had not assaulted Robert with a firearm because, although Baker had pointed the gun at Robert, either (1) Baker had not touched Robert with the gun, (2) Robert had walked into the gun, or (3) Baker had touched Robert with the gun in self defense.
The trial court instructed the jury on unanimity as to count 6, assault with a firearm on Diaz, but did not state that the instruction also applied to count 4. The jury found Baker guilty on counts 1 and 4 and found Heath not guilty on both those counts. The trial court later granted Baker’s motion for a new trial on count 1, and that count was later dismissed.
Analysis
The jury must unanimously agree that a criminal defendant committed a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) When the prosecution charges the defendant with a single crime, and the evidence tends to show more than one unlawful act that could constitute the crime, either (1) the prosecution must elect the specific act it relies on to prove the crime, or (2) the court must sua sponte instruct the jury that it must unanimously agree on the same specific act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) “If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction.” (Id. at p. 1539.)
The portions of the prosecutor’s argument set forth above establish that the prosecutor unmistakably relied only on the act of pointing the gun at Robert’s stomach as the basis for count 4. (See People v. Lucas (1997) 55 Cal.App.4th 721, 740 [prosecutor’s argument to the jury made it sufficiently clear that the object of a conspiracy was only one of two possible victims]; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 [prosecutor clearly informed the jury that the People were electing one of two possible threats in a § 422 prosecution]). Thus, the prosecutor did make a sufficiently clear election, and, moreover, both defense counsel reinforced the prosecutor’s election in their arguments to the jury.
Baker argues, however, that the following language from the prosecutor’s argument could have confused the jury as to which act was relied on as the basis for count 4: “His own admission he pointed the gun at Robert Fierro. This is a separate and distinct crime when he shot at him.” (Italics added.) In our view, the only reasonable interpretation of that statement, when taken in context, is that the prosecutor was differentiating the act of shooting at Robert, the basis for count 1, from the act of pointing the gun at Robert’s stomach, the basis for count 4. There was therefore no error in the trial court’s failure to give a unanimity instruction as to count 4.
Prosecutorial Misconduct
Baker contends the prosecutor, Peter Nolan, committed multiple acts of misconduct resulting in an unfair trial and the denial of due process. Specifically, Baker contends Nolan (1) misled the jury by claiming that the evidence showed Baker was the only person who could have shot Robert; (2) systematically ignored court rulings during final argument; (3) violated the court’s in limine ruling by interjecting gang information during opening statement; (4) wrongly requested a defense investigator’s report in front of the jury; and (5) violated Brady by failing to disclose to defense counsel before a prosecution witness’s testimony that the witness had seven felonies charged against him.
In our criminal justice system, prosecutors play the dual role of both advocates and administrators of justice (United States v. Young (1985) 470 U.S. 1, 9, fn. 7), and they have a “‘“sworn duty to see that the defendant has a fair and impartial trial, and that he be not convicted except by competent and legitimate evidence....”’ [Citation.]” (People v. Bryden (1998) 63 Cal.App.4th 159, 182.) “Vigorous advocacy is admirable, but when it turns into a zeal to convict at all costs, it perverts rather than promotes justice.” (People v. Daggett (1990) 225 Cal.App.3d 751, 758.) However, although we deplore prosecutorial overreaching, not every instance of prosecutorial misconduct results in reversible error.
A prosecutor commits misconduct under the Fourteenth Amendment of the federal Constitution when his or her egregious pattern of intemperate behavior infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Doolin (2009) 45 Cal.4th 390, 444.) A prosecutor commits misconduct under California law if his or her conduct involves the use of deceptive or reprehensible methods to attempt to persuade the court or the jury. (Ibid.; People v. Guerra (2006) 37 Cal.4th 1067, 1124, overruled in part on other grounds as stated in People v. Rundle (2008) 43 Cal.4th 76, 151.) Federal constitutional error is reviewed under the standard of Chapman v. California (1967) 386 U.S. 18, 24. State law error is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836.
Here, as we discuss below, the trial court specifically found prosecutorial misconduct in several instances, as a result of which the trial court sustained numerous defense objections, dismissed one count, and specially instructed the jury. While we deplore and condemn Nolan’s misconduct, we conclude the trial court imposed appropriate and effective sanctions, and the misconduct does not require reversal.
Misrepresentation of Evidence
Baker contends Nolan misled the jury by claiming that the evidence showed Baker was the only person who could have shot Robert. The challenged argument related only to count 1. Any prejudice resulting from that argument was necessarily dispelled, because the trial court granted a new trial on count 1, and count 1 was thereafter dismissed as part of a plea bargain.
Baker argues, nonetheless, that the error affected not only count 1, but also count 4. He argues, as discussed above, that the prosecutor did not elect which act constituted count 1 and which act constituted count 4. As discussed above, we have rejected that argument, and we accordingly reject Baker’s contention that the misconduct could have affected count 4.
Failure to Disclose Witness’s Felonies
Baker contends Nolan committed misconduct by failing to disclose that a prosecution witness had seven felonies charged against him when he testified. Roy first testified on July 5, 2007. On July 9, 2007, the defense informed the trial court that defense counsel had not been told that Roy had been arrested on June 29, 2006, and that criminal charges had been filed against him on June 12, 2007, in a case alleging seven felony counts: one count of conspiracy, three counts of embezzlement, and three counts of commercial burglary. The trial court told Nolan, “If your office knows about this and don’t turn it over, this is a serious Brady problem. I don’t care how good or bad the case is. If somebody has charges pending, and then they testify for the prosecution, a jury has to know that. I mean, they will do anything to get out of whatever they are under. Everybody knows that. This could be very, very serious.” The trial court thereafter dismissed count 5, alleging assault with a firearm against Roy, as a sanction for the Brady violation. Roy later testified again, and the jury learned of the pending charges. The court informed the jury about Nolan’s late disclosure of his criminal charges and instructed the jury it could consider the late disclosure on “the weight and significance of that evidence.”
The dismissal of count 5 (the alleged assault against Roy, § 245, subd. (a)(2)) as a sanction for the failure to disclose and the trial court’s instruction to the jury on untimely disclosure necessarily dispelled any prejudice from the prosecutor’s misconduct.
Baker notes, however, that although the trial court initially struck Roy’s testimony, it later reinstated that testimony. Baker argues the jury could have used Roy’s testimony to corroborate that of other witnesses, including Jeremy Martin (one of the men who had accompanied defendants to the party) and Martinez, who were granted immunity for their testimony. However, Baker has failed to develop his argument by any relevant citations to the record or by any meaningful discussion of any material respects in which Roy’s testimony could have corroborated that of Martin and Martinez. We therefore consider the contention waived. (See Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.)
Requesting Defense Investigator’s Report
Baker contends Nolan committed misconduct by requesting a defense investigator’s report in front of the jury.
During defense cross-examination of Martin, Baker’s counsel, Clark Head, established that he had sent an investigator to take a statement from Martin. Nolan objected to Martin’s testimony about what Martin had told the investigator on the ground that the investigator’s report had not been provided to him. The trial court directed Head to give a copy of the report to the prosecutor.
Head filed a written motion for a mistrial based on the incident. The trial court conducted a hearing and ordered the report returned to Head. The trial court later instructed the jury as follows: “I have an admonition I am going to read. [¶] Last Thursday during Mr. Head’s cross-examination of Jeremy Martin he asked Mr. Martin about what Mr. Martin told his investigator.... [¶] At that time I ordered Mr. Head to provide a copy of his investigator’s report to Mr. Nolan. Mr. Head had no duty to provide the report to Mr. Nolan. There is a concern that some jurors might have thought that Mr. Head did something wrong based on the court’s order. Mr. Head did nothing wrong. He has a right to keep the investigator’s report confidential. [¶] That is trying to clear the air, in case. I don’t take sides. I hope you know that. I would never pick on a defense attorney or prosecutor to let jurors think I’m on one side or another. I do make rulings. I do. And every once in a while I make a mistake. I’m happy to say it is rare, but I do make them. And when I make them, I own up. [¶] That was not discoverable, period. No ands, ifs or buts.” The trial court inquired whether any jurors had concerns, and they responded in the negative.
We conclude that the trial court’s admonishment to the jury was sufficient to dispel any prejudice from Nolan’s misconduct.
Ignoring Trial Court Rulings During Final Argument
Baker contends Nolan systematically ignored the trial court’s rulings during final argument.
Nolan argued to the jury that defense counsel was trying to “get up from under these charges.” The trial court sustained a defense objection to that line of argument. Nolan nonetheless continued, “you want to see if there is anyway you can get out from under these charges.” The trial court sustained a defense objection to the argument, but Nolan repeated, “you want to find out if there is no way to get out from under the charges.” The trial court told Nolan in front of the jury to “please cease and desist.” During a recess, the trial court admonished Nolan to not go “back over what was sustained” and pointed out that the defense was concerned “that the jury is going to think that the attorneys are manipulating, lying, unethical, et cetera, and that you are not allowed to do so.”
Later, Nolan argued, “Somebody who has a gun pointing walking backwards is different than somebody... who has a gun running forward. No question. But this isn’t self defense. They [defense counsel] want you to believe that these guys didn’t have a right to ask them to leave their party, that these guys didn’t have the right to use force to get them to leave the party, if necessary. That is the law. You can use force to repel a trespasser from your property.” Heath’s counsel objected that the argument was outside the scope of the case, and the jury had not been instructed on that point. The trial court sustained the objection. Nolan nonetheless continued, “You have a right to ask people to leave your-” The trial court interjected, “Mr. Nolan, if I sustain an objection, don’t go back to the same neighborhood. They were asked to leave the party. That is in evidence. Anything beyond that is wild speculation.” Nolan stated, “I believe I’m allowed to argue the law, ” to which the trial court responded, “Don’t argue with me or there will be consequences, please, which I have never done, by the way. [¶] And for the jury, just ignore my comments.”
The trial court consistently sustained defense counsels’ objections to Nolan’s argument and admonished Nolan in the jury’s presence to follow the court’s rulings. We conclude the trial court’s response was sufficient to dispel any prejudice from Nolan’s improper argument.
Violating Trial Court’s in Limine Ruling
Baker contends Nolan violated the trial court’s in limine ruling by interjecting gang information during opening statement. During his opening statement, Nolan stated that Heath was “wearing a bandana around his face, over the nose-” Defense counsel objected, and Nolan claimed he had misunderstood the court’s in limine ruling. The defense agreed that the jury should not be admonished. Defendant concedes on appeal that the incident, considered alone, did not give rise to prejudicial error.
Cumulative Prejudice
Baker contends that cumulative prejudice from Nolan’s misconduct deprived him of a fair trial.
Here, Baker was ultimately convicted only on count 4. We conclude that with respect to that count, the instances of misconduct were harmless not only singly but also cumulatively. In other words, Nolan’s misconduct could not have affected the jury’s verdict on count 4.
Leg Braces
Heath contends his conviction must be reversed, because subjecting him to trial while physically restrained in leg braces without a showing of manifest need violated his right to due process. In the alternative, Heath argues that, if the record is insufficient to address whether the shackling during trial deprived him of due process, he should be granted a new trial under section 1181, subdivision (9). Baker joins Heath’s arguments to the extent they are relevant to him.
Additional Background
The clerk’s transcript reflects that leg braces were used on both defendants during trial. The minute orders for the first day of trial state, “Out of the Presence of Prospective Jurors: [¶] Counsel Stipulate: w/clients consent to place leg braces on defendant.” However, no reporter’s transcript of the oral proceedings corresponding to those minute orders was included in the record on appeal. Counsel for Heath filed a motion, joined by counsel for Baker, to augment the reporter’s transcript to include proceedings at which the leg braces were ordered placed on defendants. This court granted the motion. The court reporter for that day’s proceedings filed a declaration stating she had “reported no proceedings related to the shackling of the defendants.”
This court granted Heath’s request for an order authorizing his counsel to proceed by obtaining a settled statement, and a hearing was conducted in the trial court. The parties agreed that the transcript of the hearing would “speak for itself, ” and a separate settled statement would not be necessary.
At the hearing, the trial court stated it remembered there had been no formal hearing on the issue of physical restraints, but the matter had been discussed in chambers. The trial court’s practice was to hold a hearing if the defense did not agree that the defendant would wear restraints; and “[i]f there was no hearing there was an agreement to use the leg brace.” Heath’s trial counsel represented that the issue of shackling had come up on the second or third day of pretrial proceedings, and a discussion of the issue had taken place in chambers. She stated the minute order was incorrect in saying she had “stipulated” to Heath’s wearing leg braces. The prosecutor agreed there had been no such stipulation, and the trial court so found.
With respect to whether there had been an objection to the use of leg braces, Heath’s trial counsel stated she had “submitted” on the issue because the leg braces were already on Heath, who “did not seem to voice to [sic] much objection.” She “acquiesced” because she “didn’t foresee the fight that is going to be raised, and I submitted on the issue.... I agree I did not ask for a hearing, but I don’t think-I’m concerned with the fact that there was no objection at all.” The trial court responded, “That is a fact. There was no objection....” Heath’s trial counsel stated, “I would say I raised it because I objected to it, but I submitted on the issue and let’s go with it.” The court stated that Heath’s counsel’s “word is as good as mine.” The trial court concluded there had been “no objection to the use of the leg braces.”
Forfeiture
A defendant must object to the use of physical restraints at trial, or any claim of error is forfeited on appeal. (People v. Stankewitz (1990) 51 Cal.3d 72, 95.) In People v. McWhorter (2009) 47 Cal.4th 318, the court held that defense counsel waived any claim on appeal with respect to the defendant’s shackling during trial when counsel acquiesced in the removal of visible waist chains but made no further objection to the defendant’s leg restraints. (Id. at p. 375.) In People v. Alvarez (1996) 14 Cal.4th 155, the court stated that a defendant must make a motion to limit physical restraints. (Id. at p. 192, fn. 7; People v. Tuilaepa (1992) 4 Cal.4th 569, 583.)
“[S]ettlement of the record is primarily a question of fact to be resolved by the trial court.” (People v. Clark (1993) 5 Cal.4th 950, 1011, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Here, the trial court expressly found that “there was no objection to the use of the leg braces.” We conclude, therefore, that both defendants have forfeited the issue on appeal. In any event, unjustified shackling is harmless error when there is no evidence the jury saw the shackles. (People v. Tuilaepa, supra, 4 Cal.4th at pp. 583-584. Here, the record contains no evidence that the jury could see defendants’ leg braces. Any error was harmless. (People v. Cleveland (2004) 32 Cal.4th 704, 740.)
Sufficiency of Record
In the alternative, Heath claims that the record was insufficient for review of the issue on appeal, and he is therefore entitled to a new trial under section 1181, subdivision (9). Section 1181 provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.”
In a death penalty case, all proceedings, including conferences in chambers, must be conducted with the court reporter present. (§ 190.9, subd. (a)(1).) However, no such statutory requirement applies to a noncapital prosecution. (See People v. Seaton (2001) 26 Cal.4th 598, 700 [“conferences at the bench and in chambers are generally not reported in noncapital trials”].) Thus, section 1181, subdivision (9) does not apply-defendant had no statutory right to a phonographic reporting of the in-chambers discussion, and the record does not reflect that defendant requested that such proceedings be recorded.
Imposition of Upper Term on Enhancements
Heath contends the 10-year upper term imposed for his section 12022.5 enhancement violated his constitutional rights to due process and a jury trial under Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Baker claims to have joined in Heath’s brief on the issue to the extent it is relevant to him. However, Baker, like Heath, did not object in the trial court to any sentencing decision and, like Heath, has forfeited any challenge on appeal. Moreover, the arguments Heath has raised are fact specific and relate to the trial court’s reasons for imposing upper terms on Heath only. As such, Heath’s arguments are not relevant to Baker. We conclude Baker has failed to raise any issue concerning his sentence.
Additional Background
Before imposing the upper term on Heath for attempted voluntary manslaughter, the trial court stated, “I know he has prior felonious assaultive behavior as a juvenile, assaultive behavior on an authority. Even if Blakely did apply, I could still get to an upper term.”
With respect to the sentence for the section 12022.5 enhancement, the trial court stated: “I could divide them up like the old days when you can’t use the same facts twice. I don’t know what the Supreme Court is going to do with it, but there are lots of aggravating facts about things that happened that night where I could divide them up. I can do that. If you are not objecting, I think you are stuck on appeal.” (Italics added.) Defendant’s trial counsel responded, “Fine.” The trial court continued: “The upper term is appropriate, if for nothing else, the number of shots, and even in the air, you put people at danger. But the gun did come down eventually, and he for sure wanted to hurt Mr. Hernandez real bad.”
Forfeiture
The People contend defendant forfeited his argument by not objecting on that basis in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.) Acknowledging that his counsel did not call the purported error to the attention of the trial court and that under the general rule, the issue might be deemed forfeited, Heath argues that the “highly unusual circumstances” of his case preclude a finding of forfeiture.
Heath first argues that neither the trial court nor counsel was aware of the holding in the recently decided case of People v. Lincoln (2007) 157 Cal.App.4th 196, and they all had made the “reasonable and logical” assumption that the Legislature had amended section 1170.1, subdivision (d) congruently with subdivision (b). Thus, he argues, “failure to make an objection does not constitute waiver when the law has changed ‘“so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.”’ [Citation.]” We are unpersuaded by this argument. A mere reading of the amended statute would have revealed that no changes were made to section 1170.1, subdivision (d). There was not an unanticipated change in the law, but rather a failure to amend an existing statute.
Following Cunningham, the Legislature amended section 1170, subdivision (b) pertaining to three possible prison terms for crimes, but did not amend section 1170.1, subdivision (d) pertaining to three possible prison terms for enhancements. In People v. Lincoln, supra, 157 Cal.App.4th at p. 205, the court held that section 1170.1, subdivision (d) retains “the same presumption of the middle term for enhancements that the former section 1170, subdivision (b) did for sentencing on criminal offenses, ” and section 1170.1, subdivision (d) therefore “suffers from the identical constitutional infirmities” the United States Supreme Court identified in Cunningham, “and is similarly unconstitutional.”
Heath next argues that we should reach the merits of the issue to forestall a petition for writ of habeas corpus on the ground of ineffective assistance of counsel. (See People v. Chaney (2007) 148 Cal.App.4th 772, 780.)A defendant cannot establish ineffective assistance of counsel unless he shows both that counsel’s performance was deficient and that prejudice resulted. (Strickland v. Washington (1984) 466 U.S. 668, 686-694; People v. Mayfield (1997) 14 Cal.4th 668, 783-784.) To show that counsel’s performance was defective, a defendant must establish that counsel had no sound tactical reason for an action or failure to act. (See In re Cudjo (1999) 20 Cal.4th 673, 692.) Here, the trial court stated on the record that it could have imposed the upper term for the assault offense on alternative grounds, but if counsel did not object, defendant would be “stuck on appeal.” Thus, on this record, trial counsel had a plausible sound tactical reason for failing to raise an objection-the trial court could have reached the same result on other bases. Any claim of ineffective assistance of counsel must therefore fail on direct appeal.
Heath further argues that his prior juvenile adjudications did not provide a basis for imposing an upper term because they were not prior criminal convictions determined by jury trial. While this appeal was pending, the California Supreme Court held in People v. Nguyen (2009) 46 Cal.4th 1007 that a prior juvenile adjudication may qualify as a strike conviction for purposes of the “Three Strikes” law even through there is no right to a jury trial in juvenile proceedings. (People v. Nguyen, supra, at pp. 1014-1015.) The court recognized that the application of its holding depended upon “a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, ...” (id. at p. 1019) and a showing that the juvenile had been afforded “all the constitutional protections applicable to such matters....” (Ibid.).
Heath asserts the record in his case did not establish that his juvenile adjudications were based on “‘substantial procedural protections, including proof beyond a reasonable doubt....’” However, the standard of proof beyond a reasonable doubt applies to juvenile adjudications. (See In re Winship (1970) 397 U.S. 358, 368; In re Eddie M. (2003) 31 Cal.4th 480, 501.) In the absence of any contrary evidence, we presume the juvenile proceedings were conducted in accordance with the law. (Evid. Code, § 664.) We therefore reject Heath’s contention.
IV. DISPOSITION
The judgments are affirmed.
We concur: MCKINSTER J., RICHLI J.