Opinion
A157033
06-18-2021
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. KEHINDE J. JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC205160A
SANCHEZ, J.
Kehinde Jackson appeals from convictions for felony false imprisonment by violence and misdemeanor battery stemming from an altercation on a public street between strangers. On appeal, Jackson contends his Sixth Amendment right to control his own defense was violated. He also alleges that his right to a fair trial was prejudiced by the prosecution's repeated misconduct, his statutory right to a speedy trial was violated, and the trial court erred in requiring him to testify from counsel table as a precautionary measure. Finally, Jackson asks us to strike his one-year sentencing enhancement for serving a prior prison term based on changes to the law while his appeal was pending. We strike the prison prior but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2018, an information was filed by the Marin County District Attorney, charging Jackson with felony false imprisonment by violence (Pen. Code, § 236, count one) and misdemeanor battery (§ 242, count two). The information alleged that Jackson had suffered a prior strike conviction within the meaning of sections 667 and 1170.12, and that he had served a prior prison term under section 667.5.
All statutory references are to the Penal Code unless otherwise specified.
Jury trial began on December 20, 2018. The victim, Laura A., testified that she and her husband were loading purchases from a local garden store into the trunk of their car on an afternoon in June 2018. Ms. A. was facing across the street when she saw motion in her peripheral vision. As she turned towards the motion, she saw Jackson, a total stranger, sprinting in her direction and drawing his fist back all the way to his shoulder. Laura A. turned her head to avoid being punched in the face and the blow landed on her right temple, snapping her neck to the other shoulder and spinning her around. Jackson then struck Ms. A. several times on her torso, grabbed her hair, which was up in a high, tight ponytail, and began dragging her into the street. It was very painful, and Laura A. screamed and tried to resist. She planted her feet against the ground in an attempt to stop being moved. Laura A.'s husband, who had been loading the trunk, screamed and ran over and tried to separate Jackson from his wife. Jackson dragged Ms. A. approximately 15 feet into the street, ripping out chunks of her hair. Jackson had not said a word during this minutes-long encounter. He eventually let her go, stated he was sorry, and walked away.
Laura A.'s husband called 911 and the police responded promptly, detaining Jackson a short distance away. Both Laura A. and her husband were taken separately to where Jackson was being held, and both identified him as their assailant. Laura A.'s husband also testified at trial and described the incident in similar terms. He showed several photos he had taken of Jackson to the police. When Officer Garanzini arrived on the scene, Laura A. was in pain and showed him how her hair was coming out of her scalp but had no other visible injuries. He testified that Jackson had no objective signs of alcohol intoxication or drug abuse.
Jackson testified in his own defense. He and his fiancée had stayed the night at an inn across the street from the garden center. The couple were standing outside trying to decide what to do next when Laura A. and her husband began “shouting hysterically” at them. Jackson stated that Laura A. and her husband crossed the street and attacked him. Jackson testified that he did not throw a single punch but only blocked them as Laura A. and her husband hit him and made threats. They finally let him go. Jackson claimed he walked away to find a phone to call the police. He described the testimony of Laura A. and her husband as “patently false.”
On December 26, 2018, the jury found Jackson guilty of misdemeanor battery but was unable to reach a verdict on the false imprisonment charge. The judge declared a mistrial as to that charge, and the prosecutor indicated he would seek retrial. Jackson was sentenced on January 22, 2019 to 180 days in county jail on the battery conviction.
The second trial on the false imprisonment charge commenced on March 6, 2019. As Jackson acknowledges, the testimony in the second trial was similar to that given in the first trial. Officer Garanzini testified additionally that, after the incident, Jackson did not appear to have any injuries to his face and did not look like he had been attacked. The prosecution called Sergeant Huber who testified that he did not see any injuries on Jackson. Physician assistant Katzman testified that he treated Laura A. in the emergency room on the day of the altercation. He diagnosed her with muscle strain on the right side of her neck, dispensed pain medication, and discharged her with prescriptions for a muscle relaxer and hydrocodone. He would not have dispensed the medication if he did not believe she was experiencing pain at the level to justify it. Finally, after Jackson testified to being attacked, he acknowledged on cross-examination that his fiancée had a phone but stated that he did not ask her to call the police because she was distraught. On March 12, 2019, the jury convicted Jackson of felony false imprisonment by violence. The next day, the jury found Jackson's prior conviction to be true.
The trial court sentenced Jackson to seven years in prison on count one comprised of a three-year aggravated term, doubled for his prior strike, plus the one-year enhancement for his prior prison term. In doing so, the court expressly found that Jackson had testified falsely at trial. As to count two, the court resentenced Jackson to 180 days and stayed punishment pursuant to section 654. The trial court also resentenced Jackson in a previous case to a subordinate aggravated term of three years, to be served consecutively with eight months imposed and 28 months stayed. (See § 1170.1, subd. (a).) Thus, Jackson's total aggregate sentence was seven years, eight months in state prison. This appeal followed.
Last year, in an appeal filed pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirmed the resentencing in this subordinate matter. (People v. Jackson (June 26, 2020, A157504) [nonpub. opn.].)
DISCUSSION
I. Jackson's Sixth Amendment Right to Control His Own Defense
A. Additional Background
At Jackson's request, the trial court held a Marsden hearing on July 26, 2018, prior to Jackson's first trial. Jackson had several complaints about defense counsel's representation. He disagreed with counsel raising issues regarding his mental state. Defense counsel acknowledged that Jackson “seem[ed] to be opposed” to a mental state defense but characterized their conflict as “not untypical for criminal cases” and indicated he needed “to figure out where the case stands when the client is uninterested in pursuing a defense that may nevertheless be beneficial to him.” The trial court denied the Marsden motion. When Jackson entered a not guilty plea in August 2018, defense counsel noted that they were not entering a dual plea of not guilty by reason of insanity because Jackson had “the absolute right to refuse” to do so, and had expressed opposition to it.
People v. Marsden (1970) 2 Cal.3d 118. There were three Marsden hearings in this matter. The Attorney General has not asked for copies of the sealed transcripts memorializing these hearings, suggesting instead that we review them for any pertinent information. We have done so and have included in this recitation anything we deemed relevant.
On September 4, 2018, after the preliminary hearing at which Jackson was held to answer on the charges, defense counsel declared a doubt as to Jackson's competence. The court suspended proceedings and a second Marsden hearing was held at Jackson's request. Among other things, Jackson reiterated his objection to any questions raised about his mental state. The Marsden motion was denied. After receipt of evaluations from a psychologist and a psychiatrist, the court found Jackson competent in October.
On December 4, 2018, during a hearing on the defense's Romero motion, Jackson's counsel advocated for the dismissal of the prior strike allegation, noting that Jackson had “a different way of thinking, ” failed to act “in his best self-interest at all times, ” and seemed to “fall[] through the cracks in terms of his mental state.” Counsel also pointed to the facts of the crime-in which Jackson attacked a complete stranger for no apparent reason and then said he was sorry-as evidence of “deranged thinking, ” to which Jackson replied: “I object. It goes counter to my constitutional rights against self-incrimination.” The trial court denied the Romero motion, focusing on the serious and dangerous nature of Jackson's conduct during the prior strike and in the pending allegations.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
In opening statements at the first trial, defense counsel described the case with respect to the battery and false imprisonment charges to the jury as follows: “[W]hat you are going to hear is that, first, there was-that [Laura A.] got punched. That's the factual basis for the battery. And the second thing you are going to hear is that [Laura A.] got moved against her will.” Counsel continued: “The issue is going to be whether the Government has proved, beyond a reasonable doubt, that the defendant, in moving [Laura A.], used force that was greater than the force necessary to move her against her will” to prove the factual basis for felony false imprisonment. Counsel suggested that the prosecution would be unable to meet its burden on this point.
After the prosecution rested its case, the court asked Jackson if he was planning to testify. Jackson responded that he was unclear whether any other defense witnesses would be called. When defense counsel stated he did not plan to call witnesses, Jackson replied: “Then I am taking the stand.” Defense counsel informed the court: “This is the first that I've heard of it.... [¶]... I have no idea what he intends to offer.” Jackson then testified that he was attacked without provocation by Laura A. and her husband.
In closing arguments, defense counsel reiterated his opening remarks that Jackson was guilty of simple false imprisonment, not felony false imprisonment by violence. Defense counsel added: “In asking you to find Mr. Jackson not guilty of false imprisonment by violence, I'm not asking you to condone the conduct or to excuse it or to say it's okay. It's not. It's not any of those things. [¶] It's not only not okay; it's bad, and it's a crime. But the question here is: what crime was committed?” He then detailed the reasons why the lesser form of false imprisonment was the appropriate basis for conviction.
On December 26, 2018, after ongoing deliberations, the trial court found the jury deadlocked as to count one and declared a mistrial. Jackson was found guilty of misdemeanor battery under count two. Retrial was later set for March 4, 2019.
Shortly before the start of the second trial, and after several disagreements between defense counsel and Jackson spilled out into open court, the trial court conducted a third Marsden hearing. As grounds for his request that counsel be relieved, Jackson read a laundry list of claims from a prepared motion, including counsel's failure to confer, subpoena witnesses, conduct necessary investigations, present an affirmative defense at the preliminary hearing, and impeach prosecution witnesses. After the trial court stopped Jackson and asked for specific grounds, Jackson described a number of issues he had raised previously.
In response, defense counsel noted that “after we concluded the [first] trial, maybe even during the trial, ” Jackson began refusing his visits and refused to talk with him in the courtroom, causing counsel to communicate by sending Jackson letters with his thoughts on the case. With respect to his alleged failure to assert an affirmative defense, counsel speculated: “I guess maybe he's talking about self defense. He asserted self defense, I guess, at his trial by his testimony, but that didn't really get him anywhere, so I don't know what else to say on that.” Counsel also explained that he tried to locate and subpoena other witnesses such as Jackson's fiancée, but his investigator was unable to find her. Jackson later commented: “He admitted that he didn't provide an affirmative defense. The only witnesses that he subpoenaed were policemen against me. He won't provide any witnesses.”
The trial court denied the Marsden motion, finding that defense counsel had properly represented Jackson and had credible and valid justifications for his strategic decisions. The trial court acknowledged there had clearly been some breakdown in the relationship between Jackson and his attorney. However, the court found “that the breakdown has essentially been the result of [Jackson's] recalcitrance and defiant attitude, and there's no reason why, in the future, [Jackson] cannot be effectively represented by [defense counsel] if he simply communicates with him and works with him on the defense of the case.”
The second trial began with jury selection on March 6, 2019 and proceeded much like the first. During opening statements, defense counsel again identified the central issue in the case as whether Jackson “used more force than was reasonably necessary to make [Laura A.] stay somewhere or make her go that 10 to 15 feet that she didn't want to go.” In doing so, he described the event as “frightening” and “awful.” Laura A. and her husband testified consistently regarding Jackson's unprovoked attack. Jackson testified that Laura A. and her husband had attacked him, and he had only held up his hands and tried to stop the husband's blows. Based on Jackson's testimony, the trial court agreed to instruct on self-defense.
During closing arguments, defense counsel told the jury: “I'm not asking you to excuse or condone what happened here. It was not okay, completely not okay, totally unacceptable. And, you know, not only was it not acceptable, it was unlawful.... [¶] The question is, what crime was committed?” He commented again on Jackson's decision to testify: “You know, wisely or not, he chose to exercise that right. But whatever you might think about him or believe about his credibility as a witness, that does not change what this case it about.”
After deliberating, the jury convicted Jackson of false imprisonment by violence.
B. Legal Framework
“ ‘Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.' ” (People v. Palmer (2020) 49 Cal.App.5th 268, 279-280 (Palmer), quoting People v. Ledesma (1987) 43 Cal.3d 171, 215.) However, “[t]o gain assistance, a defendant need not surrender control entirely to counsel, ” as “ ‘an assistant, however expert, is still an assistant.' ” (McCoy v. Louisiana (2018) 584 U.S. ___ (McCoy), quoting Faretta v. California (1975) 422 U.S. 806, 819-820.) Thus, “[t]rial management is the lawyer's province: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.' ” (McCoy, at p. ___ .) In contrast, “[s]ome decisions... are reserved for the client-notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal.” (Ibid.; accord, People v. Frierson (1985) 39 Cal.3d 803, 812 [counsel has “traditional power to control the conduct of the case” but “with respect to certain fundamental decisions in the course of a criminal action, a counsel's control over the proceedings must give way to the defendant's wishes”].)
Recently, in McCoy, supra, 584 U.S. ___ , the United States Supreme Court added to the list of decisions reserved for the defendant the right to decide that the objective of his or her defense is to assert innocence. Specifically, “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” (Id. at p. ___ .) In McCoy, defense counsel determined that the best strategy for avoiding a death sentence in the face of overwhelming evidence was to concede guilt as to three murders during the guilt phase and plead for mercy during the penalty phase. (Id. at p. ___ .) McCoy told counsel “ ‘not to make that concession' ”and wanted to pursue acquittal instead. (Ibid.) McCoy's request to remove his counsel and counsel's request to be relieved were denied, and the trial court instructed defense counsel it was his decision whether to concede guilt. (Ibid.) Defense counsel then acknowledged during his opening statement to the jury that the evidence unambiguously showed that McCoy had committed the murders. McCoy protested and later testified he was innocent, “pressing an alibi difficult to fathom.” (Id. at p. ___ .) The jury found the defendant guilty and returned three death verdicts. (Ibid.)
The McCoy court framed the issue before it as “whether it is unconstitutional to allow defense counsel to concede guilt over the defendant's intransigent and unambiguous objection.” (McCoy, supra, 584 U.S. at p. ___ .) Noting that the decision to assert innocence is not a “strategic choice[] about how best to achieve a client's objectives” but is instead a choice “about what the client's objectives in fact are, ” the Supreme Court concluded such a decision belongs to the defendant. (Id. at p. ___; .) Thus, under the Sixth Amendment, “[w]hen a client expressly asserts that the objective of ‘his [or her] defence' is to maintain innocence of the charged criminal acts, [defense counsel] must abide by that objective and may not override it by conceding guilt.” (Ibid.)
In reaching this decision, the Supreme Court distinguished its earlier opinion in Florida v. Nixon (2004) 543 U.S. 175 (Nixon). In that case, defense counsel had several times explained to the defendant a proposed guilt-phase concession strategy, but the defendant was “generally unresponsive” and “never verbally approved or protested” the proposed strategy. (Id. at p. 181.) Defense counsel later conceded during trial that Nixon killed the victim in an effort to obtain leniency during sentencing. (Id. at pp. 181-183.) On appeal, Nixon argued his counsel had provided ineffective assistance by conceding his guilt without his explicit consent. (Id. at p. 185.) The Nixon court disagreed, reasoning that, although defense counsel has a “duty to discuss potential strategies with the defendant, ” counsel is not “automatically barred” from conceding guilt where the defendant “neither consents nor objects.” (Id. at p. 178.)
In distinguishing Nixon, the McCoy court noted that “Nixon's attorney did not negate Nixon's autonomy by overriding Nixon's desired defense objective, for Nixon never asserted any such objective... Nixon complained about the admission of his guilt only after trial. [Citation.] McCoy, in contrast, opposed [defense counsel's] assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. (McCoy, supra, 584 U.S. at p. ___ .) The McCoy court thus held: “If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant's best interest. Presented with express statements of the client's will to maintain innocence, however, counsel may not steer the ship the other way.” (Ibid.)
“California courts following McCoy repeatedly have held that [the] case applies only where defendant actively opposes counsel's concession.” (People v. Villa (2020) 55 Cal.App.5th 1042, 1056 (Villa); see People v. Bernal (2019) 42 Cal.App.5th 1160, 1166 [“McCoy does not assist defendant because the record here does not reflect a directive to counsel that defendant's objective at trial was to maintain innocence on all charges.”]; People v. Burns (2019) 38 Cal.App.5th 776, 784 [“McCoy is... predicated on a client's express objection to defense counsel's concession strategy, ” italics added.]; People v. Franks (2019) 35 Cal.App.5th 883, 891 (Franks) [“for a Sixth Amendment violation to lie, a defendant must make his intention to maintain innocence clear to his counsel, and counsel must override that objective by conceding guilt”]; People v. Lopez (2019) 31 Cal.App.5th 55, 66 [“we have found no authority, nor has [the defendant] cited any, allowing extension of McCoy's holding to a situation where the defendant does not expressly disagree with a decision relating to his right to control the objective of his defense, ” italics added].)
For example, in People v. Eddy (2019) 33 Cal.App.5th 472, the appellate court concluded that McCoy applied when the defendant told the court at a posttrial hearing that defense counsel “acted contrary to his wishes” by conceding guilt in closing argument and defense counsel “did not deny” that he conceded guilt “notwithstanding defendant's desire to maintain his innocence.” (Id. at pp. 477-478, 481.) In People v. Flores (2019) 34 Cal.App.5th 270, “[f]rom the outset, Flores expressed considerable discontent” with defense counsel for “trying to make me admit to something that I don't want to admit” and later complained that counsel was “incriminating [him]” by admitting elements of a charged offense. (Id. at pp. 275-276.) McCoy was implicated in that case because Flores had repeatedly objected to counsel's concessions and expressed his desire to maintain his innocence. (Id. at p. 280.)
In contrast, in In re Smith (2020) 49 Cal.App.5th 377 (Smith), the petitioner testified in his own defense at trial that he did not kill the victim and objected at closing when defense counsel conceded his guilt to second degree murder. (Id. at p. 384.) Nevertheless, McCoy did not apply because “petitioner did not object or seek to substitute counsel prior to the defense counsel's closing argument.” (Id. at 390.) The record failed to show that petitioner expressly and unambiguously indicated an intent to maintain his factual innocence. (Ibid.) Similarly in Franks, supra, 35 Cal.App.5th 883, no McCoy violation was established because there was no evidence the defendant “made it clear to his counsel (or the court) that the objective of his defense was to maintain innocence.” (Id. at p. 891, italics added.) The trial court repeatedly denied Franks' Marsden motions, stating that Franks was not cooperative with defense counsel and refused to talk to him. (Id. at pp. 886-887; see also Villa, supra, 55 Cal.App.5th at p. 1056 [defendant's not guilty plea and failure to admit guilt insufficient to establish McCoy violation where there was “no evidence Villa opposed his attorney's trial strategy”]; Palmer, supra, 49 Cal.App.5that p. 282 [counsel's concession of guilt during closing argument not a Sixth Amendment violation because there was “nothing in the record to establish defense counsel knew Palmer objected to a concession strategy or that Palmer ever instructed his counsel not to pursue such a tactic”].)
We review de novo the legal question whether a defendant's constitutional rights were violated. (Palmer, supra, 49 Cal.App.5th at p. 280.) “ ‘A violation of the client's right to maintain his or her defense of innocence implicates the client's autonomy (not counsel's effectiveness).' ” (Ibid.) Accordingly, such an error is structural and not subject to harmless error review. (Ibid.)
C. No Sixth Amendment Violation
Jackson maintains that, under McCoy, defense counsel's strategic decision to concede that Jackson was guilty of simple false imprisonment violated his rights under the Sixth Amendment to choose the objective of his defense. Specifically, he argues that-as evidenced by his trial testimony-he wanted defense counsel to put on a defense of factual innocence and counsel's tactical concession at both trials unconstitutionally disregarded this objective. We agree that defense counsel pursued a partial concession strategy as a means of avoiding a felony conviction on the charge of false imprisonment by violence. However, Jackson's trial testimony alone was insufficient to establish a constitutional violation under McCoy. We have reviewed the record in this matter at length and conclude that Jackson did not unambiguously oppose defense counsel's partial concession strategy either in his communications with counsel or his statements in court.
It is no doubt true that Jackson expressed considerable discontent with defense counsel's representation throughout this case. However, despite multiple complaints made during three Marsden hearings and at other trial-related proceedings, there is no indication in the record that Jackson expressly and unambiguously communicated his opposition to a partial concession strategy. It is helpful to examine this question over the four phases of proceedings: the pre-trial hearings, the first trial, the third Marsden hearing, and the second trial on count one.
Prior to the first trial, the court held a Romero motion and two Marsden hearings. At no point did Jackson express that he wanted his counsel to focus exclusively on a factual innocence defense. On the contrary, when Jackson wanted to raise an issue before the trial court, it is apparent he knew how to do so. For example, he was adamant at the first Marsden hearing in July 2018 that he did not want his counsel to pursue a mental state defense at trial. When Jackson entered a not guilty plea in August, defense counsel noted they were not entering a dual plea of not guilty by reason of insanity because Jackson had “the absolute right to refuse” to do so, and he was opposed to it. At his December Romero motion, Jackson objected to his counsel's characterization of his actions as “deranged thinking, ” replying: “I object. It goes counter to my constitutional rights against self-incrimination.” The record thus discloses that Jackson was capable of objecting to a defense counsel strategy of a mental state defense, and that his counsel was equally aware that fundamental decisions must be left to the client.
At the first trial, Jackson did not object to defense counsel's partial concession strategy at any point during opening or closing arguments. As noted above, trial counsel sought to persuade the jury that Jackson was guilty of simple false imprisonment, and not the more serious offense of felony false imprisonment by violence. Counsel essentially conceded that it was Jackson who had attacked the victim Laura A., not the other way around. Counsel added that while Jackson's actions should not be condoned, the jury's task was to determine if the evidence proved beyond a reasonable doubt that sufficient force was used to convict on the felony offense charge. Counsel's strategy succeeded in part because the jury deadlocked on the false imprisonment count.
On appeal, Jackson contends that his intention to maintain his innocence was made clear when he chose to testify in his own defense. In his testimony, Jackson asserted that Laura A. and her husband crossed the street and attacked him without warning, and he did not throw a single punch, only blocking their attacks. Jackson now contends that “after [his] testimony made obvious his defense objective, it was incumbent on trial counsel to respect [Jackson's] right to autonomy and to conform his closing argument to that defense objective.” We disagree that his testimony made it apparent to defense counsel that counsel should forego a partial concession strategy. It is equally plausible that Jackson was willing to allow his counsel to pursue a partial concession strategy while he raised an alternative theory of self-defense. As we discuss below, that, in fact, occurred at the second trial when the trial court instructed the jury on self defense. Because Jackson never objected to his counsel's opening or closing arguments at the first trial, it is far from apparent what defense objective Jackson was pursuing. (Compare Smith, supra, 49 Cal.App.5th at pp. 392, 390 [despite defendant's trial testimony that he was innocent, McCoy inapplicable where defendant did not “ ‘adamantly object[] to any admission of guilt' ”].)
The trial court did not instruct on self defense in the first trial after concluding there was not substantial evidence to support such an instruction. It reasoned that Jackson did not testify that “he did any of these acts to defend himself or in response, but he has completely and absolutely denied doing any of the acts.”
Nor were Jackson's intentions made clear at the third Marsden hearing shortly before retrial on count one. Although Jackson complained that defense counsel failed to “assert affirmative defenses at the preliminary hearing” and defense counsel speculated that Jackson might be referring to self-defense given his trial testimony, Jackson did not clarify what he meant. Jackson responded: “He admitted that he didn't provide an affirmative defense. The only witnesses that he subpoenaed were policemen against me. He won't provide any witnesses.” Thus, even at this point, Jackson was only arguing for a further defense of some sort, not demanding in unequivocal terms that his counsel pursue a defense strategy of factual innocence to the exclusion of any other strategy.
The Marsden hearing also revealed the extent of the breakdown in communications between Jackson and his defense counsel. Even before the hearing, there is substantial evidence that defense counsel was unaware of Jackson's specific desires with respect to his defense because Jackson consistently refused to talk to him. Prior to opening statements in the first trial, defense counsel did not know whether Jackson was willing to waive a jury for his prior convictions, stating: “There are many things I have not discussed with him by his choosing. That's one of them.” When Jackson stated that he wanted to testify after the close of the prosecution's case, counsel indicated that was the first he had heard of it and had “no idea” what Jackson planned to offer. During the third Marsden hearing, defense counsel informed the court that “after we concluded the [first] trial, maybe even during the trial” Jackson began refusing his visits and refused to talk with him in the courtroom, causing counsel to communicate by sending Jackson letters with his thoughts on the case. And prior to Jackson's testimony in the second trial, defense counsel reiterated that he could only speak to his client in court because Jackson refused to meet with him.
Since McCoy was decided in May 2018 and trial proceedings in this matter occurred between July 2018 and April 2019, there is no reason to believe that defense counsel was unaware of the decision.
Finally, Jackson's failure to object or voice opposition to defense counsel's partial concession in opening and closing arguments of the second trial is significant because, by this point, he could anticipate what defense counsel planned to do. These factual circumstances bear a closer resemblance to Nixon, supra, 543 U.S. at p. 178 [rejecting constitutional claim of ineffective assistance where client failed either to verbally approve or protest a known defense strategy] than to McCoy, supra, 584 U.S. at p. ___ [finding ineffective assistance when the defendant “adamantly objected to any admission of guilt” and told counsel “not to make that concession”]. As had occurred in the first trial, Jackson testified that he was attacked and sought only to defend himself. Although the trial court was disinclined to give the self-defense instruction, Jackson personally argued in favor of it. The trial court ultimately agreed to instruct on self-defense, characterizing it as an “alternative defense” theory.
Jackson also relies on Eddy, supra, 33 Cal.App.5th 472, but we find it distinguishable. Defense counsel admitted that his client had instructed him not to concede guilt and that he had disregarded his client's directive. (Id. at p. 479.) Here, it is undisputed that Jackson did not discuss any defense strategy with his attorney because he had largely ended all communication with his counsel by the end of the first trial.
A fair reading of the record thus indicates that Jackson was content to allow his trial counsel to pursue a partial concession defense theory, while his testimony would form the basis for an alternative theory of self defense or factual innocence. While these positions stood in tension with one another, his defense counsel took pains to work around it. In closing remarks, counsel mentioned that “[Jackson] exercised his right to testify. You know, wisely or not, he chose to exercise that right. But whatever you might think about him or believe about his credibility as a witness, that does not change what this case is about.” He went on to explain why the prosecution had not proven that the level of force used by Jackson to move Laura A. met the threshold required to convict under felony false imprisonment.
Under the circumstances, we are unable to find evidence that Jackson's defense counsel conceded guilt “over the defendant's intransigent and unambiguous objection.” (McCoy, supra, 584 U.S. at p. ___ , italics added.) To the extent Jackson may have wanted to pursue an objective of maintaining factual innocence, to the exclusion of a partial concession defense, he failed to communicate his intention clearly to the court or to defense counsel. We find no constitutional violation.
II. Claims of Prosecutorial Misconduct
Jackson next contends that the prosecutor erred throughout the second trial- particularly in his closing argument and rebuttal-by improperly describing the beyond-a-reasonable-doubt standard, using Jackson's prior convictions as impermissible character evidence, vouching for witnesses, appealing to the jury's sympathy, mischaracterizing the reasonable person standard, and repeatedly highlighting Jackson's courtroom attire. Jackson has forfeited these issues by failing to object at trial. Anticipating this possibility, he urges us to exercise our discretion to reach the merits of his claims. While we conclude that two claims warrant closer examination, we find no reversible error.
A. Misconduct Claims Are Forfeited
“ ‘The standards governing review of misconduct claims are settled. “A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.”' ”' ” (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) “ ‘Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' ” (People v. Jablonski (2006) 37 Cal.4th 774, 835.)
However, “[m]isconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected.” (People v. Shazier (2014) 60 Cal.4th 109, 127, 175.) Moreover, “ ‘a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety, ” where such a request would not have been futile. (People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) “ ‘ “The reason for this rule... is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.' ”' ” (People v. Williams (2017) 7 Cal.App.5th 644, 682.)
Advocates “are given significant leeway in discussing the legal and factual merits of a case during argument.” (People v. Centeno (2014) 60 Cal.4th 659, 666.) “ ‘ “ ‘The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' ”' ” (Hill, supra, 17 Cal.4th at p. 819.) When a claim of misconduct “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
As Jackson acknowledges, defense counsel did not object to any of the prosecutor's statements he now challenges on appeal. Further, nothing in this record indicates that an objection would have been futile or that curative action would have been ineffective. Jackson has therefore forfeited his claims of misconduct.
B. Counsel Was Not Ineffective For Failing To Object
Jackson nevertheless asks us to review the merits of his misconduct claims. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [“[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party”].) He argues that we should do so because defense counsel's failure to object constituted ineffective assistance. We exercise our discretion to consider two of his misconduct claims.
With respect to his remaining claims, we note that to the extent the prosecutor appealed to the sympathy of the victims or “vouched” for witnesses, it is conceivable that defense counsel did not object because these arguments were consistent with counsel's own strategy of acknowledging that Jackson had been the aggressor but was guilty only of misdemeanor offenses. (See People v. Weaver (2001) 26 Cal.4th 876, 926 (where, as here, “counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.”) Jackson's contention that the prosecutor improperly referenced his professional court attire is not misconduct. (See People v. Price (1991) 1 Cal.4th 324, 454.) We see no deficiency in counsel's failure to object.
Jackson objects to the prosecutor's repeated references to him as a “convicted felon” during closing argument. Felony convictions may be admitted at trial to impeach a witness's credibility (Evid. Code, § 788), and Jackson's prior convictions for first-degree burglary and resisting an executive officer were admitted for this purpose. However, pursuant to Evidence Code section 1101, evidence of prior conduct is generally inadmissible to prove bad character or propensity to commit a crime. The trial court had expressly ruled that Jackson's testimony did not open the door for the admission of character evidence.
During closing argument, the prosecutor mentioned Jackson's prior convictions on two occasions to suggest that his testimony was not credible. We find nothing amiss with these statements. Several other times, however, the prosecutor gratuitously referenced Jackson's status as a convicted felon as if to suggest that his prior convictions made him more likely to have committed the alleged crime. For example, the prosecutor began his closing by asserting that, unbeknownst to Laura A., “she was being attacked by a convicted felon; a convicted felon of a serious crime, first degree residential burglary. He was also a convicted felon in Marin County [for] … resisting an executive officer.... That's the person who attacked [Laura A.] that day; a convicted felon.” The prosecutor later stated that while Laura A. and her husband were casually shopping, not bothering anyone, “[t]his Defendant, this convicted felon, Kehinde Jackson was watching them. And he made a decision when he saw that they were in a vulnerable position.... That's when he attacked her. That's what felons do.” We are troubled by the way the prosecutor repeated the phrase “convicted felon” to convey the impression that Jackson was a menacing presence on the street. Nevertheless, even assuming the prosecutor crossed the line by using Jackson's prior convictions in an inflammatory and improper manner, we cannot find ineffective assistance on this record.
“Competent counsel may often choose to forgo even a valid objection.” (People v. Riel (2000) 22 Cal.4th 1153, 1197.) Counsel's strategy was to concede that Jackson had been the aggressor but that his conduct, while unacceptable, constituted simple false imprisonment. Moreover, defense counsel chose not to argue alternate defense theories. After seeing Jackson testify, counsel apparently concluded that the best tactic was to acknowledge that Jackson's account was not credible. In his own closing argument, defense counsel noted that “wisely or not” Jackson had chosen to exercise his right to testify. Counsel then stated: “But whatever you may think about him or believe about his credibility as a witness, that does not change what this case is about.” Defense counsel later repeated that “however odd [Jackson] might be, however much you might disapprove of what he did, [he] is entitled to a fair trial.” In other words, defense counsel aligned himself with the jury in his disapproval of Jackson's conduct, but emphasized that whether they found Jackson to be unlikeable was irrelevant to the technical question before them-determining if the force used by Jackson to move Laura A. was sufficient to prove the charge of false imprisonment by violence. Counsel may have reasonably concluded that objecting to the prosecutor's comments was unnecessary and might undercut his own message. Under the circumstances, we do not find defense counsel's representation to be deficient.
Jackson also claims the prosecutor misstated the law in his description of the reasonable doubt standard and there is no tactical basis for defense counsel to forego an objection. In his opening remarks, the prosecutor stated: “I'll tell you what's reasonable doubt, beyond a reasonable doubt. You have to say is it reasonable to believe it happened the way Kehinde Jackson said, or does the totality of the evidence show that it's reasonable to believe and convict him of... false imprisonment by violence.” In rebuttal, the prosecutor reiterated: “As I said in the beginning, reasonableness is the key. It is beyond a reasonable doubt.... It is not a mere possible doubt, because everything relating to any of our human affairs you can say yes, that's possible. [¶] You have to say, wait a minute, totality, following the law, is it reasonable to conclude that he's guilty of false imprisonment by violence?”
It is often said that an attorney restates the reasonable doubt standard at his or her own peril. (People v. Medina (1995) 11 Cal.4th 694, 745.) Our high court has held that it is error for a prosecutor to leave a jury “with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden.” (Centeno, supra, 60 Cal.4th at p. 672.) While it is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence proffered by the defense, the prosecution may not suggest that a reasonable account of its own evidence satisfies the prosecution's burden of proof. (Ibid.) That is because “[t]he standard of proof is a measure of the jury's level of confidence.... [The jury] must be convinced that all necessary facts have been proven beyond a reasonable doubt.” (Ibid.)
Taken in isolation, the prosecutor's challenged statements in this case could be read to violate the Centeno rule. However, even if the prosecutor did misstate the law, we see no likelihood that these comments would have been reasonably understood by the jury to lower the standard of proof. We therefore deem any possible error harmless. (Samayoa, supra, 15 Cal.4th at p. 841 [When a claim of misconduct “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”].)
In making his closing argument to the jury, the prosecutor was anticipating defense counsel's argument, made in the first trial, that if two reasonable explanations can be given for the same circumstantial evidence, the benefit of the doubt must be given to the defendant. Defense counsel reiterated his earlier contention that there was no reliable direct evidence of the amount of force Jackson had exerted to move Laura A., and the jury would need to rely primarily on circumstantial evidence to determine that question. Before the jury may rely on circumstantial evidence to convict, however, they “must be convinced that the only reasonable conclusion supported by that evidence is that he's guilty.” Defense counsel added, “you don't have to accept all possible conclusions, only reasonable ones.”
When read in context, it appears the prosecutor was attempting to rebut, albeit inartfully, defense counsel's suggestion that the jury could draw reasonable inferences from the circumstantial evidence to find that Jackson did not use more force than was necessary in moving Laura A. The prosecution stated, “And you would have to ask yourself is it reasonable to believe that [Laura A.] did not feel pain, or is it unreasonable to adopt counsel's interpretation of the evidence? So you have to reject the unreasonable and accept the reasonable.” The prosecution was thus making the permissible argument that the jury should reject impossible or unreasonable interpretations of the evidence. (See Centeno, supra, 60 Cal.4th at p. 672.)
Despite the prosecution's confusing summation, we conclude it is not likely that the jury misunderstood his comments as lowering the prosecution's burden of proof. At the beginning of trial, the court instructed the jury that its verdict must be based on the evidence presented and “the law as I provide it to you” and cautioned that nothing the attorneys said was evidence. At the conclusion of the case, the court repeated its preliminary instructions and reiterated several times that the jury could not convict unless it found Jackson guilty beyond a reasonable doubt The court also instructed the jury: “If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions.”
In closing argument, the prosecutor described the standard of proof correctly by explaining, “you've got to have an abiding conviction. You have to have fixed in your mind, settled in your mind that okay, given the totality of this evidence, … he's guilty of false imprisonment by violence.” Defense counsel also accurately described the standard, explaining: “[a]nd proof beyond a reasonable doubt is that level of certainty that leaves you with an abiding conviction, meaning lasting belief, that the charge is true.” The defense repeatedly stressed that the People's burden was beyond a reasonable doubt. Indeed, defense counsel explained at length this standard of proof, discussing it in the context of other legal standards, including reasonable suspicion, probable cause, preponderance of the evidence, and clear and convincing evidence. Finally, the prosecutor began his rebuttal by acknowledging his burden of proof as beyond a reasonable doubt and then repeated the standard several times.
On this record, there is simply no likelihood that the jury would have misunderstood the applicable standard of proof, even given the ambiguity of the isolated statements challenged by Jackson. Moreover, to the extent any misstatements of law were made, defense counsel adequately responded by clarifying the appropriate standard during his own closing argument. We see no reversible error and certainly no ineffective assistance of counsel.
Because we have concluded that defense counsel's failure to object to the alleged incidents of prosecutorial misconduct were forfeited or required no objection, we have found no error. Thus, Jackson's claim of cumulative prosecutorial error also fails. (See People v. Griffin (2004) 33 Cal.4th 536, 600, disapproved on another ground as stated in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32 (Griffin) [cumulative error claim meritless where there are no errors to cumulate].)
III. Speedy Trial Claims
Jackson next claims that his conviction for false imprisonment must be reversed because his right to a speedy trial was violated when the trial court began his retrial beyond the 60-day period mandated by section 1382. “A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution.” (People v. Lomax (2010) 49 Cal.4th 530, 552-553 (Lomax).) In California, these fundamental guarantees are “ ‘ “re-expressed and amplified”' ” in various statutory enactments, including section 1382. (Lomax, at p. 553.)
Section 1382 provides that unless good cause is shown, a trial court must dismiss a felony case that is not brought to trial within 60 days following a mistrial unless the defendant consents to the delay. (§ 1382, subd. (a)(2)(B).) Unless a general waiver is entered, the defendant must be brought to trial on the date consented to or within 10 days thereafter. (Ibid.) In short, “in the absence of waiver or consent on the part of the defendant, section 1382 ‘requires dismissal when a defendant is not “brought to trial” within the statutorily prescribed period...,' unless good cause is shown.” (See People v. Hajjaj (2010) 50 Cal.4th 1184, 1194 (Hajjaj) italics added.)
A speedy trial claim can reach the appellate courts in two ways: via a pretrial petition for extraordinary writ or through a post-conviction direct appeal. (Serna v. Superior Court (1985) 40 Cal.3d 239, 263.) “Prejudice is presumed when relief is sought on section 1382 grounds pretrial because the statute commands that the court ‘must order the action to be dismissed.' ” (Ibid.) However, a defendant seeking post-conviction relief for a speedy trial violation must demonstrate prejudice from the delay. (Lomax, supra, 49 Cal.4th at pp. 556-557.) In evaluating prejudice, a reviewing court “ ‘must “weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself.”' ” (Id. at p. 557.)
When the jury hung on the felony false imprisonment charge on December 26, 2018, the prosecutor immediately indicated he would retry the matter. The case was continued to January 23, 2019 to set a trial date. Since February 24, 2019 was a Sunday, the 60th day fell on February 25, 2019. At the continued hearing, defense counsel suggested a February 25 trial date, but the prosecutor stated he was not available that week and noted that the case was “under a time waived scenario.” He added that if time were not waived, he would “like to try to get it within the 60 days.” Defense counsel responded: “There is no time not waived. Once you've waived time you can't retract that.” Jackson interjected, “I never waived time.” The prosecutor then informed the court that because of the unavailability of one of his key witnesses over several weeks in February, he proposed the week of March 7 or 14. Defense counsel stated that either week was fine for him. The court and counsel agreed on March 4th.
On March 4, 2019, Jackson, himself, asked for a continuance, but also claimed that he was not waiving time. Defense counsel responded it was his job to make the procedural decisions in the case, he was not asking for a continuance, and it was in Jackson's best interest to proceed to trial as quickly as possible to preserve potential sentencing benefits in connection with another pending case. Motions in limine were then heard on March 4, with a jury selected and evidence commencing on March 6. Seventy days had elapsed from the declaration of mistrial on December 26, 2018 to the commencement of trial on March 6, 2019. (See Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 780 [describing when a case is “ ‘brought to trial' ” under section 1382].)
On appeal, Jackson contends that time was never waived in this case, contrary to the assumption of both attorneys. Moreover, defense counsel erred in stating a time waiver could not be withdrawn once given. Thus, according to Jackson, his speedy trial rights were violated because the second trial began outside of the statutory timeframe without good cause or his acquiescence. Jackson argues that he was effectively deprived of his Sixth Amendment right to counsel because his attorney was so deficient in his understanding of both the facts and the law that he amounted to no attorney representation at all. Jackson claims in the alternative that counsel's failure to file a petition for extraordinary writ deprived him of a more favorable standard of review on his speedy trial claim. We are not persuaded by these claims.
As the People correctly observe, Jackson has forfeited this issue on appeal because the record does not reflect that any motion to dismiss was filed based on the alleged speedy trial violation. “The right to a speedy trial... will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss.” (People v. Wilson (1963) 60 Cal.2d 139, 146-147 (Wilson); see also People v. Anderson (2001) 25 Cal.4th 543, 605.) Although Jackson noted that he had never waived time, neither he nor his counsel objected to the March 4 trial date, and no motion to dismiss was filed thereafter. He is barred from raising the issue for the first time on appeal. (Wilson, at p. 146.)
Even if we reach the merits of his claim, Jackson's contention fails because defense counsel consented to the delay. A defendant's right to a speedy trial is not absolute and may be curtailed under appropriate circumstances. (See generally Lomax, supra, 49 Cal.4th at pp. 552-558.) Defense counsel ordinarily may waive the defendant's statutory speedy trial rights-even over the client's objection-so long as counsel is acting competently in the client's best interest. (Id. at p. 553.) However, “ ‘appointed defense counsel lacks authority to waive his or her client's statutory speedy trial rights when the client personally objects to a continuance and the sole reason for the continuance is defense counsel's obligation to another client.' ” (Ibid.) Here, no clear objection was interposed by Jackson as to the March 4 date. Moreover, defense counsel agreed to the trial date even though he might have to juggle an obligation to another client. Defense counsel thus validly consented to the trial date on Jackson's behalf.
Although Jackson briefly mentions his federal speedy trial rights on appeal, he provides no meaningful analysis of a federal claim, arguing only that his speedy trial rights were violated under California law, specifically section 1382. We decline to consider any asserted federal violation in the absence of any reasoned explanation. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Indeed, defense counsel may well have consented to the March 4 trial date because he recognized that good cause existed for the brief delay, thus making it permissible under section 1382. (See Hajjaj, supra, 50 Cal.4th at pp. 1197-1198 [a trial court has broad discretion to determine whether good cause exists to continue trial].) “[D]elay arising from unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses constitutes good cause to avoid dismissal.” (People v. Johnson (1980) 26 Cal.3d 557, 570.) In this case, the delay was occasioned by the unavailability of a key witness followed by the prosecutor's one-week absence for planned out-of-state travel. Given the brief delay and its apparent lack of prejudice to either party, typical scheduling issues such as these would fall well within the good cause required under section 1382 to extend the 60-day deadline.
For the same reasons, we also find no basis for Jackson's assertion that his counsel rendered ineffective assistance. Jackson makes a great deal out of certain potential factual or legal misstatements by defense counsel at the setting hearing and suggests he was prejudiced by counsel's failure to file a pretrial writ petition. Jackson fails, however, to make any reasoned argument as to why counsel's decisions with respect to trial setting were incompetent. Defense counsel agreed to a short delay in the trial setting to accommodate witness and counsel availability. He almost certainly did so because he recognized that the delay was amply supported by good cause and therefore any attempt to require that the matter be set within the statutory timeframe, or a petition seeking dismissal, would be futile. Moreover, as defense counsel stated at the trial setting hearing, he believed any further delay in the proceedings would not be in Jackson's best interests due to certain time-sensitive sentencing benefits related to another pending case. We fail to see how counsel's actions could be construed as deficient.
IV. Testimony from Counsel Table in First Trial
At the first trial in this matter, when Jackson indicated he intended to testify, the bailiff informed the court that Jackson would be seated in a heavy security chair at the witness stand with an invisible belt restraint during his testimony because the witness stand is very close to the judge. In addition, an unseen deputy would be stationed in the alcove leading to the closest escape route. Defense counsel objected to the use of restraints without a showing of need. The court asked if Jackson could just testify from the table where he had been sitting with his attorney throughout the trial, and defense counsel stated he would not object to that procedure. The prosecutor, however, did object and so a hearing was held on the matter.
The prosecutor requested that Jackson be restrained. He informed the court of various behaviors he had witnessed from Jackson before other judges, including repeatedly arguing with defense counsel and addressing the court directly in a disruptive fashion. He also highlighted Jackson's prior conviction for resisting a police officer. A deputy sheriff testified concerning eight recent incidents in which Jackson was argumentative or verbally resistive in jail but acknowledged that he had never been physically aggressive or tried to escape. The deputy indicated that his concern was based on the “violent and spontaneous nature” of Jackson's charged offenses, Jackson's previous expressions of displeasure regarding the court and the attorneys, his closeness to court staff, and his propensity not to obey deputy's orders.
The court concluded that it would not issue a shackling order. Based on everything it heard, the court concluded there were “many reasons” which would justify concern for the safety of the people in the courtroom, including Jackson's prior conviction, his pending charges for attacking a stranger, the “very small” courtroom, and Jackson “consistently not following the rules laid down by the judge and by the bailiffs and the sheriffs.” However, these concerns could be addressed unobtrusively by having Jackson testify unrestrained from counsel table. Jackson stated he would like his “full rights” but ultimately agreed to the arrangement. Thereafter, when defense counsel called Jackson to the stand, the court stated in front of the jury: “Okay. Well, since Mr. Jackson is already seated at the microphone, he can testify from there.” On appeal, Jackson asserts that the trial court committed prejudicial error by forcing him to choose between physical restraints and testifying from the counsel table without an adequate showing of manifest need to restrain him.
The claim lacks merit because Jackson was never physically restrained. While he challenges “the trial court's decision to employ physical restraints in the first trial, ” Jackson does not explain how testifying from counsel table amounted to a physical restraint. It does not. The authorities he relies upon concerning appellate review of shackling orders are therefore inapposite.
In California, “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291.) However, “[a] trial court has broad power to maintain courtroom security and orderly proceedings.” (People v. Hayes (1999) 21 Cal.4th1211, 1269; see also Code Civ. Proc., § 128.) California precedent has consistently drawn a distinction between the use of physical restraints and other less inherently prejudicial ways of monitoring a defendant's courtroom conduct. (See, e.g., People v. Stevens (2009) 47 Cal.4th 625, 634 [placing deputy at witness stand during defendant's testimony permissible and does not require a specific showing of manifest need]; People v. Marks (2003) 31 Cal.4th 197, 222-224 [allowing defendant to choose between testifying from the counsel table or at the witness stand with a nearby deputy not subject to review for manifest need]; see also Holbrook v. Flynn (1986) 475 U.S. 560, 569 [deployment of armed guards in courtroom generally not inherently prejudicial].) Where a defendant is not physically restrained, as was the case here, we review the trial court's security precautions for abuse of discretion. (Stevens, at p. 632.) In other words, while “[a]ny discretionary ruling must take into account the particular circumstances of the individual case and will be reviewed in that context... if a practice is not inherently prejudicial, it need not be justified by a compelling case-specific showing of need.” (Id. at p. 637.)
We conclude there was no abuse of discretion in having Jackson testify at the counsel table. Jackson's history of disruptive and non-conforming behavior in jail and in courtrooms, his prior conviction for resisting a police officer, and the spatial constraints of the courtroom all supported the trial court's determination that some precaution was warranted to protect courtroom staff. Furthermore, the trial court minimized any perceived irregularity by offering an innocuous explanation for Jackson's presence at counsel table. We find no error, and certainly no error of a constitutional magnitude.
V. Prison Prior
The trial court imposed a mandatory one-year enhancement pursuant to section 667.5, subdivision (b) for Jackson's prior prison term. (See People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) The parties agree-as do we-that the enhancement must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) because the prior prison term was not for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (See id. at pp. 340-341.) No remand for resentencing is necessary because Jackson has already received the maximum possible sentence in this matter. (Id. at p. 342.)
DISPOSITION
Jackson's judgement is modified to strike the one-year enhancement imposed pursuant to section 667.5, subdivision (b). The trial court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur. HUMES, P.J., BANKE, J.