Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County Nos. FSB050929 & FSB704584, Arthur Harrison, Judge.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
Introduction
Defendant Charles Arthur Plunkett was convicted of second degree murder. On appeal, defendant contends he was prejudiced by a court order permitting him to be shackled while in the presence of the jury. However, there was no such order, and the possibility that one juror might have seen defendant in shackles while in the hallway outside the courtroom, or while being transported into the courtroom, did not prejudice him. Defendant has failed to establish his trial counsel was ineffective for failing to request instructions or an admonition to the jury.
Defendant also argues the trial court erred by instructing the jury with CALCRIM No. 362, concerning defendant’s false and misleading statements regarding the crime. We conclude there was sufficient evidence to support giving the instruction, and the instruction did not violate defendant’s due process rights.
We therefore affirm.
Statement of Facts and Procedural History
Javier Diaz regularly picked up his grandchildren at school every day, and visited his wife’s grave at the Mountain View Cemetery in San Bernardino every evening. He always brought a folding chair and flowers with him to the gravesite. On July 6, 2005, Diaz ate dinner at a friend’s house, and left around 4:00 p.m. Diaz’s daughter, Irma Gutierrez, was unable to reach him when she repeatedly called his home phone from 7:00 p.m. to 11:00 p.m. or the following morning. Diaz did not pick up his grandchildren at school on July 7. Gutierrez went to Diaz’s home, but he was not there. Gutierrez reported Diaz missing about 7:00 p.m. on July 7.
Defendant and his friend Robert Tolson were riding bicycles at the home of Mike Lujan and his daughter, Melinda Lujan, around 2:00 p.m. on July 6, 2005. Defendant’s bicycle made a “clinking” sound as he pedaled. The two left the Lujans’ house around 3:30 p.m., stopped to eat at a hamburger place, and went their separate ways between 5:30 p.m. and 6:30 p.m.
The grounds foreman at Mountain View Cemetery found a bicycle, a folding chair, and a box used to carry flowers at Diaz’s wife’s gravesite before dark on July 6. The bicycle made a “[l]oud tinking noise” as it was moved. Tolson identified the bicycle found at the cemetery as the one defendant had been riding.
Sheila Velarde was at the Lujans’ house at 5:00 a.m. sometime between July 6 and 10, when defendant and Mike Lujan arrived. Velarde heard defendant say “he had hurt somebody really bad. And he thinks he killed him and he put him somewhere,” and “he needed to wash up because he had blood on him.” About 2:00 a.m. the following morning, Velarde saw defendant and Mike Lujan pull into the driveway of the Lujans’ house in a car later identified as Diaz’s car.
San Bernardino Police Officers Joey Zink and Gerald Beall saw defendant standing next to a white Chevrolet in a gas station on July 8. By running the license plate, the officers learned the car belonged to a missing person, and determined it was Diaz’s car. The officers approached defendant, who told them the car was not his and he was waiting for a friend whose name he did not know. Defendant then claimed a friend named Patrick had asked him to watch the car. When the officers told defendant the car belonged to an elderly man, and asked if he knew where the car’s owner was, defendant replied, “[h]ave you checked the hospitals because old people go to the hospital all the time.” While being transported to the police station for further questioning, defendant spontaneously said something about “[t]he old man being hurt.” Defendant also said, “I can’t believe my family would hurt that old guy. Now it makes me look ba[d].” Defendant also stated, “[w]hoever hurt that old guy should get double done to them what they did to him.”
The officers searched the car, and found receipts from AutoZone and Wal Mart, ATM receipts, and Diaz’s Visa debit card under the driver’s seat of the car. Some of the items listed on the AutoZone receipts were found in the trunk of the car. Defendant admitted he had made the purchases and withdrawn the money reflected on the receipts.
The officers also found a methamphetamine pipe in the car and a knife in defendant’s pocket. He was in possession of $1,005, which he said he had withdrawn from his own bank account, using his ATM card. He did not, however, have an ATM card in his own name on his person or in the car. He then explained that the cash had been obtained from his Social Security payments, and through his day laborer wages. Eventually, he acknowledged obtaining the cash from Diaz’s account, using Diaz’s ATM card and access code. Defendant said his uncle, Patrick Pinnell, had given him the card and the access code when Pinnell asked defendant to keep an eye on the car for him. Defendant claimed to have never looked at the name on the card at any time he used it. When the detectives told defendant that Pinnell had been incarcerated on the day he allegedly gave defendant the car and the ATM card, defendant stated he must have obtained them from someone who looked like Pinnell.
When defendant was interviewed by the detectives on July 8, he explained the presence of scratches and blood on his right arm as the result of pruning rose bushes at the site of his former residence a few days earlier.
On July 11, 2005, in a lot near where defendant had previously lived, the detectives discovered parts from Diaz’s car, a piece from a golf bag found in the trunk of Diaz’s car, and a portion of Diaz’s driver’s license. Diaz’s body was discovered on July 15, at the bottom of an embankment a few miles from defendant’s former residence. An autopsy determined Diaz died as the result of blunt force trauma resulting in multiple skull fractures.
Defendant was charged with second degree murder (Pen. Code, § 187, subd. (a) [count 1]), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a) [count 2]), receiving stolen property (Pen. Code, § 496, subd. (a) [count 3]), and grand theft (Pen. Code, § 484g, subd. (b) [count 4]). A jury convicted defendant on counts 2, 3, and 4. The jury could not reach a verdict on count 1, and the trial court declared a mistrial as to that count.
Following a second trial, a jury convicted defendant on count 1. The trial court sentenced defendant to 15 years to life on count 1. The sentences on counts 2, 3, and 4 were stayed, pursuant to Penal Code section 654. Defendant timely appealed.
Discussion
I.
Shackling
A Factual background
During defendant’s second trial, Alternate Juror No. 2 informed the court that Juror No. 1 had told him “that he could tell by [defendant]’s eyes that he was guilty.” The court questioned Juror No. 1, who denied making the statement about defendant’s guilt but confirmed he had seen defendant in shackles. The court engaged in the following colloquy with Juror No. 1:
“The Court:... [P]rior to this afternoon’s session, I understand you may have been in the hallway when the defendant was brought down to court.
“Juror No. 1: Yes.
“The Court: You could tell he was in custody?
“Juror No. 1: Yes.
“The Court: Did you mention that fact to anybody?
“Juror No. 1: No.”
Outside the presence of all the jurors, defense counsel requested that Juror No. 1 be dismissed, and the following exchange ensued:
“[Defense counsel]:... I believe [Juror. No. 1] made the statement and I believe the statement is evidence of bias. And for that reason, I would request the Court dismiss him, as well as he had seen [defendant] in shackles. That would be an additional reason.
“The Court: It’s my understanding there may have been two jurors in the hallway. I am not sure who the other one may have been.
“[Defense counsel]: Just for the Court’s information, [defendant] told me... one of the female jurors walked into the courtroom while he was – I don’t know if they were taking the shackles off or what was happening, but I don’t know for sure which juror that is or what she saw.
“The Court: I can address the custody issue with the jurors if you like. I think you have probably seen me before indicate that bail is set. If we have the financial wherewithal to post bail, we are released from custody. If we don’t, we are kept in custody. And then all in custody individuals are brought in the court down the hallways the same way for the safety of everyone, that there’s nothing about this particular defendant that has brought about any distinct treatment. It would be the same whether it were a DUI [driving under the influence] case or this case. If you want me to go there, I will go there. If you don’t
“[Defense counsel]: I guess I should ask for a mistrial, and if you deny it, then I request that you take the remedy you indicated.
“The Court: I think it’s not appropriate at this point and I would deny that. I think through the course of several days, trial jurors rapidly get the sense that a defendant is in custody, sometimes correctly and sometimes incorrectly. [¶] On the issue of Juror No. 1 and his excusal, whether he said anything or not, if I were in the shoes of [defendant], I would be very uncomfortable having him in this jury panel even if the information were erroneous, so I would be inclined to release the juror.” (Italics added.)
Juror No. 1 was then dismissed from the jury. The appellate record shows no attempt to further determine whether the other juror referred to by defense counsel observed defendant in shackles, and, if so, what she saw and whether it affected the case.
Later, defense counsel raised the issue with the trial court again:
“[Defense counsel]:... And I think you were also going to say something about people who can’t bail out of state custody.
“The Court: I am more than happy to do that. Is that what you want me to do?
“[Defense counsel]: I think they are going to know he is in custody. Somehow the Court knew one of the jurors had seen [defendant] shackled. I know that efforts are made to make sure that doesn’t happen. If I knew it wasn’t going to happen, I would want the precaution that everyone is moved in shackles, and it doesn’t tell them anything. But I knew if none of them had seen him, I wouldn’t have a reason for the admonition to be given.
“The Court: When he arrived for the afternoon session, the security officer indicated there were two jurors that unfortunately were able to observe him being brought to court. [¶]... [¶]... One of those we’ve eliminated from the panel at this point.
“[Defense counsel]: Let’s leave it alone.
“The Court: You tell me if and when you want me to say something. It can be in final instructions, it can be whenever, or I can leave the subject. I have told them to disregard everything outside of the courtroom. I will leave it on your shoulders. Let me know if you want me to give them a further advisal.
“[Defense counsel]: Okay. Thank you.”
Before finalizing the jury instructions, the following exchange occurred:
“The Court: [¶]... [¶] I do have [CALCRIM No.] 204, Defendant Physically Restrained, that I have not read at this juncture. I have referenced they should not consider anything that happens outside of the courtroom, should not consider it in your deliberations. Also indicated that they not infer or assume — because one may have been arrested, charged with an offense or is standing trial, that they not infer or assume they are more likely to be guilty than not. [¶] If you wish any other treatment of the chaining of the defendant, transport of him down the hall, where I believe at least one juror did observe that, based upon what has been related to me by the custody officers, I can further address it, too, or we can leave it lie. I would leave it lie.
“[Defense counsel]: I would leave it lie.
“The Court: That’s your request at this point?
“[Defense counsel]: Yes.
“The Court: I will not get into that any further, then.”
The trial court did not instruct the jury with CALCRIM No. 204.
Given the limited amount of questioning on this topic, it is not clear whether the unidentified female juror might have observed defendant being transported down the hallway and into the courtroom, or whether she might have observed defendant in shackles in the courtroom. Given our analysis of the issue, post, the distinction is not significant.
B The trial court did not order defendant shackled.
Defendant contends the trial court improperly issued a shackling order and “restrain[ed defendant] in shackles during his trial.” He contends that this prejudiced his defense and violated his due process rights. We disagree.
The Attorney General argues that defendant has forfeited this issue because he failed to object to it at the trial court level. As discussed post, there was no shackling order. Defendant cannot be faulted for failing to object to a nonexistent order.
Defendant points to a number of cases holding that a defendant cannot be shackled during trial unless certain factors are established. (See Deck v. Missouri (2005) 544 U.S. 622, 633, 635; Illinois v. Allen (1970) 397 U.S. 337, 343-344; People v. Cox (1991) 53 Cal.3d 618, 651; People v. Duran (1976) 16 Cal.3d 282, 290 291; People v. Soukomlane (2008) 162 Cal.App.4th 214, 229-231.) These cases apply to situations in which the defendant was shackled during the course of trial, in the presence of the jury. Thus, defendant’s claim has merit only if the trial court ordered him shackled in that context, without first making findings on the requisite factors.
Defendant’s appellate briefs do not refer to any shackling order in the record. We have searched the appellate record and find no indication that the trial court ordered defendant shackled in the presence of the jury during trial. Defendant, in essence, asks us to assume that there was a shackling order. We decline to do so.
Defendant was shackled while he was transported through the courthouse hallway and into the courtroom, but not during the trial itself, or during any proceedings at which the jury was present. “The customary practice of utilizing physical restraints while transporting a prisoner from place to place, e.g., from jail to courtroom and back, is a matter of common knowledge and generally acknowledged as acceptable for the protection of both the public and defendant. It has, in fact, been established that it is legally permissible to transport a prisoner to the courtroom in physical restraints. [Citations.]” (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141; see also People v. Hill (1998) 17 Cal.4th 800, 841, fn. 7 [transportation of prisoner in shackles outside the courtroom and not in the jury’s presence is not prejudicial].) A juror might have seen defendant in shackles under these circumstances. Such shackling was incidental to a normal and legally acceptable means of transporting defendant, and not due to an improper court order.
C. Defendant fails to establish prejudice.
Defendant argues he was prejudiced because two jurors might have seen him being transported in shackles into the courtroom. We disagree.
Defendant identifies one occasion on which two jurors—Juror No. 1 and an unidentified female juror—allegedly saw him in shackles. Juror No. 1 was later dismissed for another reason. At most, therefore, one other juror out of 12 might have seen defendant in shackles. But defendant does not identify anything in the record showing that the remaining juror actually observed defendant in shackles, or that such an observation (if it occurred) prejudiced the juror’s evaluation of defendant’s case or affected the juror’s ability to impartially consider the charges against him, or even that she was a jury member who deliberated, as opposed to an alternate juror.
The recent case of People v. Miller (2009) 175 Cal.App.4th 1109 is inapposite. There, the appellate court held that although “there is no affirmative evidence that the jury saw defendant’s restraints” (id. at p. 1115), it was reasonable to infer the jury did see the defendant in shackles based on the trial court’s instruction with CALJIC No. 1.04, which informed the jury it must not consider the defendant’s physical restraints for any purpose (People v. Miller, supra, 175 Cal.App.4th at p. 1113). In People v. Miller,the defendant had been shackled throughout trial, and the Attorney General conceded the trial court had erred in denying the defendant’s motion to be unshackled. (Id. at p. 1114.) We agree it is reasonable to infer the members of the jury in People v. Miller observed the defendant in shackles when the court denied a motion to unshackle the defendant, and the jury was instructed not to consider the defendant’s physical restraints. In this case, defendant was not shackled during trial, and there was no motion to shackle or unshackle him during trial. Nor was there a jury instruction regarding shackling; indeed, defendant’s counsel declined such an instruction.
A similar argument was made in People v. Tuilaepa (1992) 4 Cal.4th 569, 582, in which the defendant was shackled during the course of trial, but in such a manner as to be unnoticeable by the jurors. The defendant nevertheless maintained that there were several occasions on which the jurors might have seen his shackles and that this prejudiced his defense. (Id. at pp. 582-583.) The California Supreme Court rejected this argument, stating, “[p]rejudicial error does not occur simply because the defendant ‘was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen.’ [Citation.]” (Id. at p. 584.) Here, the record shows that Juror No. 1 observed defendant in shackles and was later dismissed; as already noted, there is nothing in the record to establish that any other juror saw defendant in shackles at all. In any event, it was, at most, a brief observation as defendant was transported into the courtroom. There is no showing in the appellate record that this observation prejudiced any juror against defendant or impacted the ultimate verdict.
We have found nothing in the record showing defendant was shackled during trial or that the jurors saw him shackled, other than the one occasion defendant cites. Even if a juror glimpsed defendant in shackles once, any error would be harmless. The evidence against defendant, detailed ante, was overwhelming. It is not reasonably probable defendant would have obtained a more favorable result if a juror had not briefly seen him in shackles. (People v. Watson (1956) 46 Cal.2d 818, 836.)
D. Defendant did not receive ineffective assistance of counsel.
Defendant also raises a claim of ineffective assistance of counsel because his attorney failed to request a mistrial or request curative instructions. We disagree.
In order to successfully claim ineffective assistance of counsel, defendant must prove two components: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) The first prong of the Strickland v. Washington standard is met only “if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th 415, 442.)
The record illustrates that defense counsel requested a mistrial, but his request was immediately denied. The trial court properly denied defense counsel’s request because one juror’s brief glimpse of defendant in shackles was not prejudicial error. (See People v. Jacobs, supra, 210 Cal.App.3d at p. 1141; People v. Tuilaepa, supra, 4 Cal.4th at p. 584.)
Defendant has failed to prove there was no “rational tactical purpose” for defense counsel not to have requested CALCRIM No. 204 or other jury instructions regarding defendant’s shackles. As soon as he became aware that one or more of the jurors might have seen defendant in shackles, defense counsel expressed concern to the trial court, and, after requesting a mistrial, asked for curative jury instructions, which the trial court agreed to provide if requested at the close of trial. Defense counsel later raised the juror’s observation again and stated that if there was a likelihood the incident would be repeated, he would want a specific instruction given to the jury to disregard the shackling. When the court suggested it would not happen again, defense counsel chose not to pursue the issue further. Before the close of trial, defense counsel declined the trial court’s offer to include jury instructions regarding the shackling.
Only two jurors might have been present when defendant was transported in shackles into the courtroom, and one of them had since been dismissed. The appellate record contains nothing showing that any juror or alternate juror saw defendant in shackles. Admonishing the entire jury might have “invite[d] initial attention to the restraints and thus create[d] prejudice which would otherwise be avoided.” (People v. Duran, supra, 16 Cal.3d at p. 292.) Defense counsel could have reasonably concluded that one isolated incident in which one remaining juror might have seen defendant in shackles was not worth bringing to the attention of the entire jury given the risks inherent in doing so.
Even if defense counsel improperly failed to request jury instructions regarding one juror’s brief observation of defendant in shackles, defendant has failed to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) The evidence strongly demonstrated defendant’s guilt; it is not reasonably probable that one juror’s brief glimpse of defendant in shackles determined his fate. Accordingly, defendant has failed to establish either of the two prongs of a claim for ineffective assistance of counsel, under Strickland v. Washington, supra, 466 U.S. at page 687.
II.
CALCRIM No. 362
The trial court instructed the jury with CALCRIM No. 362, as follows: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” Defendant argues the trial court erred by giving this instruction, which violated his rights to due process.
The Attorney General argues defendant forfeited this issue by failing to object to the instruction at trial. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Without determining whether this instruction affects defendant’s substantial rights, we will address the argument on its merits, if for no other reason than to forestall an inevitable ineffective assistance of counsel claim.
Defendant first argues that there was insufficient evidence to support the giving of CALCRIM No. 362. To the contrary, the record shows defendant made many false and misleading statements about how he obtained Diaz’s car and ATM card. Defendant originally claimed Diaz’s car was given to him by a friend whose name he did not know. Defendant then claimed a friend named Patrick asked him to watch the car. Later, defendant told the police his uncle, Patrick Pinnell, had asked defendant to watch the car so it would not be stolen, and Pinnell had given Diaz’s ATM card and access code to defendant to satisfy an outstanding debt. When the police told defendant that Pinnell had been incarcerated during the relevant time period, defendant again changed his story and claimed he obtained the car and the ATM card from someone who “looked like” Pinnell.
Defendant also made false and misleading statements regarding the substantial amount of cash he was carrying when stopped by the police. Defendant claimed the cash was taken from his own personal bank account, using his own ATM card. Defendant later said the money came from his Social Security payments, and his earnings as a day laborer. When confronted with the ATM receipts reflecting withdrawals from Diaz’s bank account using Diaz’s ATM card, defendant admitted making the transactions.
Defendant’s argument is based on the premise that the murder was completely separate from the other crimes of which he was convicted in the first trial. Defendant’s false and misleading statements about his acquisition of Diaz’s car and acquisition and use of Diaz’s ATM card and access code are unquestionably related to the murder charge. That evidence has more than a mere tendency in reason to connect defendant to Diaz’s murder. There was ample evidence supporting the trial court’s use of CALCRIM No. 362 to instruct the jury.
Defendant next argues that giving CALCRIM No. 362 violated his due process rights “by telling the jurors that certain evidence indicated guilt without reciprocally telling the jurors that any particular evidence was consistent with innocence.” CALCRIM No. 362 did not tell the jury defendant’s multiple false and misleading statements indicated his guilt. To the contrary, it advised the jury that defendant’s statements, by themselves, could not prove his guilt. CALCRIM No. 362 benefits the defendant, not the prosecution. “The cautionary nature of the instructions [regarding defendant’s consciousness of guilt] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) Whenever the prosecution properly relies on evidence of consciousness of guilt, relevant instructions must be given. (See People v. Turner (1990) 50 Cal.3d 668, 694.)
People v. Jackson, supra, 13 Cal.4th 1164, considered CALJIC No. 2.03, which reads: “If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” The minor differences between CALJIC No. 2.03 and CALCRIM No. 362 do not affect our analysis in this case. (See People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.)
Likening CALCRIM No. 362 to CALJIC No. 2.03, the Third District Court of Appeal rejected a challenge that instructing with CALCRIM No. 362 constituted reversible error, stating: “‘[CALCRIM No. 362]... does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.]... If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence.... There was no error.’ [Citation.]” (People v. McGowan, supra, 160 Cal.App.4th at pp. 1103-1104.)
Discussion
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.