Opinion
A119501
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. ARTURO JESUS HERNANDEZ, Defendant and Appellant.
Opinion following remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05707604)
This is an appeal from a conviction of aggravated assault. We initially reversed the conviction, finding that the trial court abused its discretion in placing a uniformed and armed courtroom deputy behind appellant while he testified and refusing a requested instruction directing the jury to disregard the deputy's placement. We also found the trial court erred in failing to instruct the jury that an alleged enhancement for inflicting great bodily injury had to be proved beyond a reasonable doubt. Because we reversed the conviction, it was not necessary for us to determine whether this error was prejudicial.
In People v. Hernandez (2011) 51 Cal.4th 733 (Hernandez), the California Supreme Court agreed that the trial court erred in stationing the deputy, but found the error harmless. The case was returned to us with directions to determine whether appellant was prejudiced by the instructional error regarding the enhancement.
Though the trial in this case was short and simple, the trial judge's inexplicable and embarrassing indifference to established protocols and fundamental instructional principles has led to years of appellate inquiry and three appellate opinions. The errors that occurred here could easily have been avoided had the trial court approached its duties in a more thoughtful manner. The difficulty has never been the determinations of error, which were manifest, but the questions of prejudice.
Appellant now urges the enhancement finding must be reversed due to the instructional error. He further contends that the error in stationing the deputy, which the Supreme Court found harmless with respect to his conviction, was prejudicial with respect to the enhancement finding, and that the enhancement finding must be reversed due to cumulative errors at trial. We affirm.
STATEMENT OF THE CASE
On July 17, 2007, after a jury trial, appellant was found guilty of assault with force likely to produce great bodily injury, with an enhancement for personal infliction of great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) The jury found appellant not guilty of assault with a deadly weapon.
Appellant was sentenced to a total prison term of five years, consisting of the lower term of two years for the assault and a consecutive three years for the great bodily injury enhancement.
On July 10, 2009, this court filed its opinion reversing appellant's conviction. A related petition for writ of habeas corpus was denied as moot.
On September 9, 2009, the California Supreme Court granted a petition for review. Hernandez, supra, 51 Cal.4th 733, reversing our decision, was filed on February 28, 2011.
STATEMENT OF FACTS
The facts underlying the offense are set forth in detail in Hernandez, supra, 51 Cal.4th 733. The victim, Deva Belarde, was injured during an altercation with appellant while the two were walking to a bus stop shortly after 10:00 p.m. on March 11, 2007. Both had been drinking.
Belarde testified that she was walking with appellant because he was "staggering somewhat," although he wanted to walk alone. According to Belarde, appellant insulted her and called her a prostitute; she pushed him; he grabbed her arm, turned her around and punched her in the left eye; they shoved each other; appellant hit her on the side of the face with a "stick" or "branch," then appellant ran off and she fell down bleeding. She later identified the branch defendant had used to hit her. When the police found appellant sitting between some shrubs nearby, his knuckles were bleeding, his forearm was scraped, and he smelled of alcohol.
A paramedic who treated Belarde at the scene testified that she had bruising and swelling around her left eye and lip and two cuts in those areas. Photographs taken after the incident showed swelling and bleeding around Belarde's left eye. The injuries did not require stitches or surgery. A police officer who interviewed Belarde on March 19 testified that her left eye was swollen closed, the left side of her face was bruised, and her hands trembled. At trial, Belarde testified that she still felt swelling and pain to the touch on her cheekbone and temple, had difficulty sleeping, and continued to feel an "extreme amount of stress" from the incident. Belarde testified that she lost consciousness on the night of the assault but did not know for how long, although she had told a paramedic at the scene that she had not lost consciousness.
According to appellant, on the night of the assault Belarde followed him when he began to walk to the bus stop, hooking her arm through his and asking him for money, which he refused. She "paw[ed]" at him and kept putting her arm around his waist after he pushed it away, and repeated her request for money, telling appellant he was a "nice guy" and "making motions" toward the wallet in his back pocket. When appellant pushed her away, she became angry and called him names; he put out his arm to keep her away but she pushed it aside and reached for his wallet. He got mad and pushed her "pretty much harder than before," and she "went down on one knee." As he tried to walk faster, Belarde "just came at me just wild, screaming," hitting his back and reaching for his wallet. Angry, he turned and grabbed Belarde in a headlock, but she broke free. She came at him again, "swinging wildly and then yelling all kinds of stuff," and he grabbed her by the back of the neck and her jeans and "threw her on her face." Appellant explained he was "pretty pissed" and "just slammed her, threw her." He saw her land on her face but "didn't mean to do that." When Belarde stood up, she was bleeding and swearing. Appellant denied punching Belarde or "throw[ing] any blows," and denied having used the stick she identified. He agreed that Belarde sustained "serious injuries," but insisted he was defending himself and did not intend to cause them. He testified that the blood on his hands was from crawling through the bushes when he was hiding from the police.
In a videotaped interview shown to the jury, appellant told the police Belarde had dragged him and chased him down the block and also claimed Belarde had tried to stab him, but at trial he admitted these statements were lies. Defendant initially told the police he had bloodied his knuckles when he pushed Belarde and she dragged him down, then said he scraped them when crawling through the bushes where the police found him.
DISCUSSION
I.
We previously determined that the trial court erred in failing to instruct the jury before it retired to deliberate that the great bodily injury enhancement had to be proven beyond a reasonable doubt. The question now before us is whether this error was prejudicial.
At the beginning of jury selection, the court informed the prospective jurors that appellant was charged with "assault by both deadly weapon and by force likely to produce great bodily injury," and that it was "further alleged pursuant to Penal Code Section 12022.7(a) that in the commission, an attempted commission of the above offense, that the defendant personally inflicted great bodily injury upon" Belarde. Before opening statements, in instructing the jury about the "ground rules" for the trial, the court instructed that the presumption of innocence "requires that the People prove each element of a crime and special allegation beyond a reasonable doubt." Among the instructions given before the jurors retired to deliberate, and provided in written form for their use during deliberations, was an instruction pursuant to CALCRIM No. 220, that the presumption of innocence "requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt." After defining "beyond a reasonable doubt," the court instructed the jury: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial" and find the defendant not guilty "[u]nless the evidence proves the defendant's guilt beyond a reasonable doubt." In connection with the instructions concerning the charge of assault with force likely to produce great bodily injury, the jury was instructed that "great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." The court was not requested to, and did not, give CALCRIM No. 3160, which defines "great bodily injury" in the language just quoted and instructs that if the jury finds the defendant guilty of the charged or lesser crimes, it must then decide whether the People have proved, beyond a reasonable doubt, the "additional allegation that the defendant personally inflicted great bodily injury" upon the victim.
We found the trial court erred in failing to explicitly instruct the jury before deliberations that the enhancement allegation had to be proven beyond a reasonable doubt. The fact that the verdict forms used different language with respect to the charged offenses and enhancement—"guilty" and "not guilty," as in the beyond a reasonable doubt instruction, for the offenses, but "true" or "not true" for the special allegation— could have been misunderstood by jurors to mean that they were required to apply the beyond a reasonable doubt standard only to the questions pertaining to appellants "guilt." This possibility was enhanced because the predeliberation instructions and written instructions supplied to the jury addressed the need for the prosecution to prove appellant "guilty" beyond a reasonable doubt without mentioning that the same requirement applied to the enhancement allegations.
Appellant contends the trial court's error was structural, requiring reversal of the enhancement regardless of prejudice. He relies upon caselaw holding that omission of a jury instruction stating the prosecution's burden of proof beyond a reasonable doubt is structural error and reversible per se. (People v. Crawford (1997) 58 Cal.App.4th 815, 823-824 (Crawford); People v. Phillips (1997) 59 Cal.App.4th 952, 957-958 (Phillips).)
In Crawford, supra, 58 Cal.App.4th 815, the trial court failed to instruct the jury before deliberations on the presumption of innocence and the prosecution's burden to prove its case beyond a reasonable doubt. (Id. at pp. 818-819.) The court did describe the presumption of innocence and beyond a reasonable doubt standard to the prospective jurors at the outset of jury selection. (Id. at p. 820.) It also told the prospective jurors it would be instructing on the applicable law at the end of the trial. (Id. at p. 819.) In the predeliberation instructions, the court referred to reasonable doubt in instructions on circumstantial evidence and use of a deadly or dangerous weapon, told the jury it was going to instruct them on the law applicable to the case, and directed that if counsel's argument conflicted with the court's instructions, the jury was to follow the instructions. (Id. at p. 820.) Counsel then addressed the beyond a reasonable doubt standard in argument. (Ibid.)
Relying upon Sullivan v. Louisiana (1993) 508 U.S. 275, which held that a constitutionally deficient reasonable doubt instruction cannot be harmless error, a different panel of this court held that the failure to instruct denied the defendant "the most elementary and fundamental right provided by our system of justice, a jury verdict of guilty beyond a reasonable doubt," requiring per se reversal of the judgment. (Crawford, supra, 58 Cal.App.4th at pp. 817, 821-823.) The instructions given to prospective jurors before the jury was impaneled were insufficient because prospective jurors who did not know whether they would serve on the jury " 'could well have viewed the court's remarks as hypothetical and thus have failed to give the instruction the same focused attention they would have had they been impaneled and sworn.' " (Id. at p. 823, quoting People v. Elguera (1992) 8 Cal.App.4th 1214, 1222 (Elguera).) Nor was it sufficient that the court referred to reasonable doubt in isolated applications of the standard, as the jury was not told the same standard applied outside those specific applications and the defendant must be acquitted if the prosecution did not prove each element of the offenses beyond a reasonable doubt. (Id. at pp. 824-825.) For example, the instruction on circumstantial evidence was insufficient because it did not inform the jury that the reasonable doubt standard also governed a determination of guilt based on direct evidence. (Id. at p. 824; People v. Vann (1974) 12 Cal.3d 220, 226-227 (Vann).)
Phillips, supra, 59 Cal.App.4th 952, reached the same conclusion in similar circumstances. In Phillips, the trial court's instructions did not define reasonable doubt or explain the presumption of innocence or the prosecution's burden to prove guilt beyond a reasonable doubt. (Id. at pp. 953-954.) The trial court mentioned the presumption of innocence and beyond a reasonable doubt standard in questioning one of the prospective jurors before trial; otherwise, the requirement of proof beyond a reasonable doubt was discussed only in counsel's arguments and in certain instructions on isolated matters, such as circumstantial evidence and lesser offenses. (Id. at pp. 954-957.) The omission of instructions on the presumption of innocence and reasonable doubt standard was held to be a "structural constitutional defect" requiring reversal per se. (Id. at p. 954.)
Elguera, supra, 8 Cal.App.4th 1214, had previously found reversible error in this situation under Chapman v. California (1967) 386 U.S. 18 (Chapman). The entire trial in Elguera, from jury selection through verdict, was conducted in a single day. (Elguera, at p. 1217.) The trial court instructed on the beyond a reasonable doubt standard at the beginning of jury selection and questioned each of the prospective jurors about whether he or she understood it. (Id. at pp. 1217-1218.) But in its predeliberation charge to the jury, which it described as the " 'law that applies to this case,' " the trial court instructed on the beyond a reasonable doubt standard only in the context of its instructions on circumstantial evidence. (Id. at p. 1218.) The court also told the jury to follow the instructions rather than argument of counsel in case of a conflict between them. (Ibid.) Both attorneys addressed the reasonable doubt standard in their arguments. (Ibid.)
Elguera held that error in failing to give a predeliberation instruction on the reasonable doubt standard should be analyzed for prejudice under the Chapman test for federal constitutional error, following the holding of Vann, supra, 12 Cal.3d 220, the relevant facts of which were similar to those in Elguera. (Elguera, supra, 8 Cal.App.4th at pp. 1219-1220.) Decided before Sullivan, Elguera declined to view the error as structural because the case did not involve a "complete failure to instruct" or "an instruction that would actually tend to mislead the jury," but rather "a failure to repeat in the final charge an instruction that had been read to the jury before trial." (Elguera, at p. 1220.)
People v. Flores (2007) 147 Cal.App.4th 199, 210-211 (Flores), another case in which the court instructed on reasonable doubt during jury selection and gave predeliberation instructions that referred to reasonable doubt in specific contexts, but did not generally instruct that the prosecutor was required to prove each element of the offenses beyond a reasonable doubt, disagreed with our conclusion in Crawford, and that of Phillips, that such error is reversible per se. Flores emphasized that Sullivan involved a deficient instruction on the requirement of proof beyond a reasonable doubt, as a result of which "there had been no jury verdict within the meaning of the Sixth Amendment" and the question addressed in harmless error analysis, " 'whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error' " was therefore " 'utterly meaningless.' " (Flores, at p. 207, quoting Sullivan, at pp. 280-281.) Flores also noted the holding of Victor v. Nebraska (1994) 511 U.S. 1, that " '[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. [Citation.] Rather, "taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury." [Citation.]' (Ibid . . . .)" (Flores, at p. 208, italics omitted, quoting Victor v. Nebraska, at p. 5.) Flores concluded that the high court cases did not undermine the California precedent established in Vann, and followed in Elguera, that "at least in a case where the jurors have been told the prosecution must prove its case beyond a reasonable doubt and there has not been an erroneous definition of that burden of proof, the harmless-error standard applied by our Supreme Court in Vann, supra, 12 Cal.3d 220 remains the controlling law." (Flores, at p. 211.) Having found the error amenable to harmless error analysis, however, Flores found it reversible for the same reasons identified in prior cases: Instruction on the reasonable doubt standard during jury selection or in isolated contexts was insufficient to inform the jury the prosecutor was required to prove every element of the offenses beyond a reasonable doubt.
Flores distinguished People v. Mayo (2006) 140 Cal.App.4th 535 (Mayo), which found a trial court's failure to include the general reasonable doubt instruction in its predeliberation charge harmless because the instructions on the charged offenses expressly directed that each element of the offense must be proven beyond a reasonable doubt. (Flores, supra, 147 Cal.App.4th at pp. 209-210, citing Mayo, at pp. 545-547.) Because of these instructions on the charged offenses, Mayo held that omission of the general instruction on reasonable doubt did not amount to federal constitutional error and, therefore, found it unnecessary to decide whether such error was reversible per se or subject to analysis under Chapman. (Flores, at p. 210, citing Mayo, at pp. 548-549 and fn. 13.)
The present case differs from those discussed above in a critical respect. In all those cases, to the extent the trial court instructed on the requirement of proof beyond a reasonable doubt, it was in a specific application, such as the instruction on circumstantial evidence, or to prospective jurors, before the actual jury was empanelled and the trial began. Here, the trial court did instruct the empanelled jury that the prosecution had to prove the enhancement allegation beyond a reasonable doubt during the trial. The problem was the court's failure to repeat that instruction at end of the trial, before the jury's deliberations. Unlike the situation in Crawford or Phillips, there is no basis for viewing this failure as structural error.
"[L]ike other instructional error claims, those challenging the timing of instructions as an abuse of discretion or a violation of due process are determined based on a review of the instructions as a whole in light of the entire record. (Estelle v. McGuire [(1991)] 502 U.S. [62,] 72; People v. Musselwhite [(1998)] 17 Cal.4th [1216,] 1248; e.g., People v. Webb (1967) 66 Cal.2d 107, 128 [giving instructions on circumstantial evidence at the beginning rather than the end of the trial was not an abuse of discretion]; People v. Frederick (2006) 142 Cal.App.4th 400, 415 [no court error in failing to reinstruct jury on an element included in preinstructions to the jury]; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075 [incomplete preinstructions do not devaluate the complete and written instructions given before deliberations]; People v. Valenzuela [(1977)] 76 Cal.App.3d [218,] 221 [a court that chooses to preinstruct the jury on the law is not required to repeat those instructions at the completion of the trial unless it is a long trial or there is evidence that the jury became confused or was misled regarding the preinstructed law].)" (People v. Smith (2008) 168 Cal.App.4th 7, 16.)
In assessing the impact of the error here, the question is whether we can say beyond a reasonable doubt that the error did not contribute to the verdict—if we view the error as one of federal constitutional magnitude—or—if we view the omission as an error of state law—that it is not reasonably probable the result would have been different in the absence of the error. We are convinced the error was harmless under either standard.
The instruction that expressly informed the jury of the standard governing proof of the special allegation did not refer to "guilt." As we have said, the court told the jury that the presumption of innocence "requires that the People prove each element of a crime and special allegation beyond a reasonable doubt." Since the enhancement was the only charge the jury was asked to consider other than the two charged "crimes," there was no other "special allegation" the jury could have thought this instruction referred to. The jurors were also specifically told during voir dire that appellant was charged with assault and it was "further alleged" he had personally inflicted great bodily injury upon the victim. Perhaps most importantly, the jury was offered no standard other than beyond a reasonable doubt by which to assess whether appellant had committed any act. In its predeliberation instructions, which the jury had in written form during deliberations, the court told the jury, "Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt." Defense counsel, in closing argument, expressly included the question whether Belarde's injuries rose to the level of great bodily injury in a list of questions the prosecution was required to prove beyond a reasonable doubt. We see no way the jury could have failed to understand that its findings on the crimes and enhancement were all required to be made according to the one standard it was given.
Although a reasonable doubt instruction given during jury selection is insufficient to avoid error in failing to give such an instruction during trial (Flores, supra, 147 Cal.App.4th at p. 215), we view the trial court's comments during voir dire as relevant to an examination of prejudice where, as here, the reasonable doubt instruction was given at trial, but at a time that may have left open a potential for jury confusion.
Respondent urges the error was harmless under any standard because appellant admitted that he assaulted Belarde and caused her to suffer "significant" and "serious" injuries. (Hernandez, supra, 51 Cal.4th at p. 747.) We do not accept this analysis. Appellant's view that Belarde's injuries were "significant" or "serious," whatever those terms mean to him, do not substitute for a jury's determination whether the injuries were significant enough to meet the legal definition of "great bodily injury."
II.
Appellant further contends that, despite the Supreme Court's determination that the error in stationing the armed deputy behind appellant while he testified was not prejudicial as to his assault conviction, that error was prejudicial with respect to the great bodily injury enhancement. Appellant's argument is that the question whether Belarde's injuries were serious enough to constitute great bodily injury was much closer than the Supreme Court believed was the case for the assault charge. Respondent's brief fails to address this issue.
The Supreme Court made clear that the standard by which we assess the impact of the error regarding the deputy's placement is whether it is reasonably probable the defendant would have obtained a more favorable result absent the error. (Hernandez, supra, 51 Cal.4th at p. 746.) Finding the error harmless with regard to the assault conviction, the Supreme Court noted that appellant "was monitored by a single deputy," there was no indication the deputy's "demeanor was anything other than respectful and appropriate," and there was little other indication appellant was in protective custody. (Ibid.) That the case required the jury to evaluate appellant's credibility against Belarde's, the Court stated, was not unique, and the record reflected "significant lies and inconsistencies" in appellant's testimony as well as the inconsistencies in Belarde's testimony that appellant emphasized. (Ibid.) Because appellant "admitted that he assaulted Belarde and caused her to suffer significant injuries," the only issues for the jury to determine involved appellant's claim of having acted in self defense. (Id. at p. 747.) The court viewed the evidence supporting appellant's self-defense claim as "markedly weak" in that appellant told the police Belarde was "a little girl" and "she punched me, but she didn't hurt me," and he admitted at trial that he assaulted Belarde "out of anger, not fear of imminent harm, and that he used substantial force," lost his temper, used excessive force to push her away, and caused her to suffer "serious" injuries. (Id. at p. 747.)
In contrast to this weak defense against the assault charge, appellant argues the evidence that Belarde suffered great bodily injury was far from clear. He points to evidence that Belarde's injuries were more modest, including that they consisted of bruising and swelling around her left eye and lip and two cuts in those areas, and did not require stitches or surgery; that Belarde told medical personnel she had not lost consciousness and on examination was found to be oriented to person, place, time and event and to have no problems with vision; and that Belarde was released from the hospital the same night. Appellant suggests that while the police officer who questioned Belarde more than a week after the assault described her shaking and trembling, Belarde acknowledged that she "got the shakes" when she did not drink and that she had not been drinking during the police interviews and for several days after the incident, and prior medical records showed she had suffered blackouts and alcohol related tremors and seizures in the past.
Appellant also suggests there was evidence he could not have hit Belarde with the force she alleged because his hands would have been badly swollen or broken if he had done so. His citation to the record for this point is not to evidence, but to closing argument where defense counsel questioned the absence of more serious injuries to appellant's hands.
There was also evidence supporting the jury's conclusion that Belarde's injuries were more severe. The police officer who met with Belarde over a week following the assault testified that her left eye was swollen closed and the left side of her face was bruised. Belarde testified that at the time of trial, about four months after the assault, she still felt swelling and pain to the touch on her cheekbone and temple, had difficulty sleeping, and continued to feel an "extreme amount of stress" from the incident.
The question here is whether there is a reasonable probability the jury would have found the great bodily injury enhancement not true if the deputy had not been stationed behind appellant while he testified. (Hernandez, supra, 51 Cal.4th at p. 746.) Appellant urges that the stationing of the deputy communicated to the jury that the court believed him to be dangerous, or an escape risk, and that the deputy's proximity tended to make appellant more nervous and jittery, distracting the jury from any positive aspects of his demeanor and testimony.
The enhancement allegation asked the jury to decide whether appellant personally inflicted great bodily injury upon Belarde. As indicated above, the jury was informed that "great bodily injury means significant or substantial physical injury" and "an injury that is greater than minor or moderate harm." Unlike the situation with the assault charge, appellant's credibility was not directly at issue with regard to the enhancement. The jury's determination whether Belarde suffered great bodily injury depended on the medical and photographic evidence, and on her credibility in describing the continuing effects of her injuries, not on appellant's description of what happened or what he intended. Any adverse inference the jury might have drawn from the deputy's presence went to the questions underlying his conviction—whether he committed the assault by means of force likely to inflict great bodily injury and whether he acted in self defense— but not to the question whether, as a result of appellant's actions, Belarde in fact sustained great bodily injury. In short, the jury's view of appellant's credibility and even his dangerousness was not relevant to this particular question. It is not reasonably probable appellant would have obtained a more favorable result if the deputy had not been positioned behind appellant during his testimony.
For the same reason, we are not persuaded by appellant's contention that the error regarding stationing the deputy, combined with the instructional error created prejudice despite the absence of prejudice from the individual errors.
DISPOSITION
In a related petition for writ of habeas corpus filed on June 20, 2011 (No. A132354), appellant alleged that he received ineffective assistance of counsel at trial in that his attorney failed to object to the trial court's placement of the deputy near appellant during his testimony and failed to develop the record with regard to this issue. By declarations from himself, trial counsel and another Contra Costa County public defender, appellant sought to demonstrate that the Contra Costa trial court did not follow a policy or practice of such stationing of courtroom deputies, that his testimony was negatively affected because he was distracted by the deputy's close proximity and his awareness that the jury would infer he was dangerous, and that his attorney could have done more to demonstrate to the trial court that he was not a violent person and that the placement of the deputy was unwarranted. Appellant declared that if he had known the deputy would be stationed by him while he testified, he "probably would not have waived" his right not to be a witness, and trial counsel declared that she "would have considered advising [petitioner] not to testify."
In a separate order filed concurrently herewith, we deny the petition in writ No. A132354 because, even with the allegations accepted as true, it failed to establish a prima facie case for relief. (See People v. Duvall (1995) 9 Cal.4th 464, 474475; In re Martinez (2009) 46 Cal.4th 945, 955956.) To the extent appellant argued he received ineffective assistance of counsel because trial counsel's subjected his claim to the risk of forfeiture by the timing of her objection, there was no prejudice: Appellant's claim has been addressed on the merits by this court and the California Supreme Court. To the extent the ineffectiveness claim was based on counsel's failure to put more evidence before the trial court to influence its decision, the trial court's unequivocal insistence on its position refutes any inference that it would have granted the continuance counsel would have needed to obtain evidence in support of the arguments the court had already rejected. The suggestion that appellant might not have testified if he had known how the deputy would be stationed was both equivocal and speculative. It also ignored the fact that, since appellant and trial counsel were both surprised by the procedure the court used, there was no way counsel could have prevented the jury from seeing the deputy escort appellant to the stand. At best, an immediate objection might have allowed appellant to change his mind and not testify after having initially taken the stand, but such a change would have carried its own risk of prejudice in the jury's eyes.
Kline, P.J.
We concur:
Haerle, J.
Richman, J.