Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS062130
McAdams, J.
A jury found defendant Gregg Lee Reynolds guilty of attempted murder and other offenses. In this post-conviction appeal, defendant claims: (1) the jury was tainted by exposure to improper comments by prospective jurors, and (2) the court erred in refusing to instruct the jury to disregard the presence of security personnel present in court during trial. We will affirm.
As reflected in the abstract of judgment, defendant sustained convictions for these Penal Code violations: two counts of attempted murder (§ 664/187); two counts of assault with a deadly weapon by a life prisoner (§ 4500); and one count of possession of a weapon by a prisoner (§ 4502). In addition, various special allegations against defendant were found true. Further unspecified statutory references are to the Penal Code.
BACKGROUND
Given the nature of defendant’s appellate claims, a brief summary of the underlying facts and procedural history will suffice.
On July 14, 2005, at Salinas Valley State Prison, defendant attacked two correctional officers with inmate-manufactured weapons. Defendant stabbed Officer Lopez in the face, neck, and finger; he stabbed Officer Cota in the left shoulder, upper lip, and right arm. Two dagger-like weapons were recovered, one measuring about five and three-quarters inches long and the other about seven and one-quarter inches long. Defendant was clutching one weapon when he was restrained after the attack. The other weapon was found under defendant’s left hip.
In December 2007, by amended information, the Monterey County District Attorney charged defendant with these offenses: attempted murder (§ 664/187, counts 1 and 2); assault by a life prisoner (§ 4500, counts 3 and 4); assault with a deadly weapon (§ 245, subd. (a)(1), counts 5 and 6); and custodial possession of a weapon (§ 4502, count 7). The amended information also contained special allegations against defendant, including personal use of a deadly weapon (§ 1192.7); personal infliction of great bodily injury (§ 12022.7); prior convictions for murder, attempted murder, and armed carjacking (§ 1170.12); and prior serious felony convictions (§ 667, subd. (a)(1)).
Trial on these charges commenced in December 2008. As described in greater detail below, jury selection was conducted on December 8th, 9th, and 10th. Evidence was presented starting on December 11th. The jury began deliberating on December 18th. During deliberations, the jury presented six written questions to the court. The jury returned its verdicts on December 19th.
The jury rendered guilty verdicts against defendant on all counts, but it found that the attempted murders were not willful, deliberate, or premeditated. The jury found true the special allegations that defendant had personally used a deadly weapon and personally inflicted great bodily injury. The court found true the special allegations that defendant had suffered prior convictions as alleged and that defendant was a life prisoner.
At a hearing in March 2009, the court denied defendant’s motion for new trial, and it pronounced sentence. The court stayed punishment on counts 1, 2, and 7. The court struck the convictions on counts 5 and 6 as lesser-included offenses. For counts 3 and 4, and with enhancements, the court imposed indeterminate prison terms totaling 54 years to life, plus determinate prison terms totaling 36 years.
In this timely appeal, defendant seeks reversal based on (1) improper comments by prospective jurors and (2) the court’s refusal to instruct the jury to disregard courtroom security.
DISCUSSION
We address each of defendant’s contentions in turn.
I. Prospective Jurors’ Comments
In his first claim on appeal, defendant asserts the denial of a fair trial based on remarks made by several prospective jurors during voir dire. According to defendant: “The jury’s exposure to the prospective jurors’ comments violated the Sixth Amendment requirement that the jury verdict be based on the evidence produced at trial, ” and it “also violated appellant’s Sixth Amendment right to confront the witnesses against him.”
A. Factual Background
As noted above, jury selection took place over several days in December 2008.
On December 8th, the court questioned a prospective juror, identified as Juror 11, who had been “the inmate programs manager for a county jail” and who had “worked very closely with inmates.” She expressed her opinion that inmates blame others, have a “criminal thinking” system, lie frequently, “and can be very charming, manipulative and persuasive while telling a lie.”
Outside the jury’s presence, defendant’s trial counsel moved to strike the entire panel due to its exposure to Juror 11’s comments. Counsel argued that “those comments were leading and tainted this jury into thinking that there should be some presumption – that the Court is making a presumption that because he’s an inmate you can’t believe anything he says.” Counsel asked to “start with a fresh jury.” The court denied the request, saying: “I don’t think there was anything improper. I don’t think the jury’s been improperly tainted or the jury pool. [¶] The prospective juror in my mind clearly was expressing an inability to believe inmates.” The court added that it had not “asked anything that wasn’t already described in some fashion or brought up before the rest of the panel by the prospective juror already.” Juror 11 was later excused.
On December 9th and 10th, several other prospective jurors made negative statements about inmates in general. Juror 36 worked with inmates and “normally” did not “have a feeling of trust towards them.” Juror 38 knew many inmates – including a number of close relatives – and likewise did not trust them. Juror 41’s brother was formerly a doctor at Soledad who spoke of bizarre goings-on there. Juror 87 had a family member and a good friend, both of whom had been attacked by inmates. Defendant’s trial counsel made no motion to strike the panel based on these remarks. All four of these prospective jurors were excused, including one who was excused by the People (Juror 41).
On December 10th, after the jury was empanelled, prospective alternate jurors were questioned. Among them was Juror 110, a former correctional officer who had retired a year before. He thought that he had heard of the case through in-service training. Commenting on the presence of four armed officers, Juror 110 said: “And that tells me that basically it’s a high risk.” Citing his experience with “hospital coverage and funeral escorts with inmates, ” Juror 110 made the somewhat confusing remark that “body receipt or something like an order, it tells you what kind of inmate, if he’s a high risk or what.” He added: “And based on my observation in this room, I think this is a high-risk person.” This prospective alternate juror was excused.
Outside the jury’s presence, defendant's trial counsel objected to the statements by Juror 110. In counsel’s words, “for this jury to hear from a correctional officer that my client is ‘high risk, ’ has tainted all of them and is denying him a fundamental right to a fair trial.” Counsel further asserted, “it’s obvious that he’s not going to get a fair trial with this jury, given the statements by Juror 110.” She asked the court to “seat an entirely new jury” for those reasons. The court refused the request, saying: “I’m not going to declare a mistrial. I don’t think the jury is tainted.” As the court explained, “from the beginning of this trial, everyone here that’s a potential juror understands that he is currently incarcerated as an inmate at Salinas Valley State Prison. There are prison guards here for security purposes.... There’s nothing about the fact pattern that’s been presented to them, including the fact that he’s alleged to have stabbed two security guards with a dagger-like weapon, ... that would do... any more harm than one retired correctional officer’s determination that he thinks the defendant’s a high risk prisoner.” The court continued: “How anybody on the jury wouldn’t think your defendant is a high-risk prisoner because of the charges and the fact that he’s in Salinas Valley State Prison anyway, I don’t understand.” The court also dismissed counsel’s “bold assertion that everybody on the jury’s been tainted by that statement” as “just an assumption... that anybody gave it any credence whatsoever, let alone what they thought that even meant by the term that he’s ‘high risk.’ ” The court invited defense counsel to brief the issue, if she wished, or to follow up with questions about it to the jury panel. The court denied the motion “without prejudice” to reconsideration in the event counsel briefed the matter.
B. Legal Principles
1. Constitutional Rights
A criminal defendant has the constitutional right to a determination of guilt or innocence by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265; People v. Martinez (1991) 228 Cal.App.3d 1456, 1459-1460.)
2. Dismissal of Jury Panel
The California Supreme Court discussed the standards for dismissing a jury panel in People v. Medina (1990) 51 Cal.3d 870. As the court explained, “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (Id. at p. 889.) That “drastic remedy” is not “appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks.” (Ibid.)
3. Appellate Review Standard
The refusal to dismiss a jury panel is reviewed for an abuse of discretion. (People v. Medina, supra, 51 Cal.3d at p. 889; People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42.) As explained in Medina, “the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina, at p. 889.) For that reason, the trial court’s determination “on the question of individual juror bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion.” (People v. Martinez, supra, 228 Cal.App.3d at p. 1466.)
4. Forfeiture
As a general rule, “only those claims properly raised and preserved by the parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.) As more particularly relevant here, the claim that a prospective juror’s views “tainted the entire venire... is not cognizable on appeal” where “defendants did not ask the court to dismiss the venire or even admonish the jury.” (People v. Cleveland (2004) 32 Cal.4th 704, 736.) “Defendants cannot proceed with the jury selection before this same panel without objection, gamble on an acquittal, then, after they are convicted, claim for the first time the panel was tainted.” (Ibid.)
There are exceptions to the forfeiture rule. “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile.” (People v. Hill (1998) 17 Cal.4th 800, 820.) Furthermore, in order for the forfeiture doctrine to apply, “there must be a meaningful opportunity to object” to the error in the trial court. (People v. Scott, supra, 9 Cal.4th at p. 356; People v. Hill, at pp. 820-821.)
C. Analysis
Applying these principles to the case before us, we reject defendant’s claim on the merits.
1. Consideration on the Merits
As noted above, defendant’s trial counsel unsuccessfully moved to dismiss the venire twice: once on December 8th, following comments by Juror 11, and again on December 10th, following comments by Juror 110. But counsel did not object to statements made on December 9th and 10th by Jurors 36, 38, 41, and 87.
In his opening brief on appeal, defendant argues: “With respect to each of the inappropriate comments by [those four] prospective jurors, objection would have been futile and counterproductive.” He thus maintains that “the issue is not forfeited on appeal.” Alternatively, defendant maintains, failure to preserve these objections constitutes ineffective assistance of counsel.
Given defendant’s alternative claim of ineffective assistance of counsel, we shall address the merits of his contentions concerning all of the prospective jurors. (People v. Coffman (2004) 34 Cal.4th 1, 118.)
2. California Law Governs This Case
a. Relevant California Cases
Our decision in this case is guided by California law, particularly the California Supreme Court’s decision in People v. Medina, supra, 51 Cal.3d 870. There, several prospective jurors made inflammatory remarks, including that the defendant’s own counsel thought he was guilty and that frontier-style justice should prevail. (Id. at p. 888.) Despite the nature of those remarks, the Medina court held that it was within the discretion of the court to deny the defense motion for mistrial. (Id. at p. 889.)
Defendant attempts to distinguish Medina, asserting that the offending juror comments in that case “were made in a court elevator” whereas the remarks in this case “were made in open court in the presence of the entire panel.” The Medina court’s factual recitation does not support defendant’s interpretation. (People v. Medina, supra, 51 Cal.3d at p. 888.) As recounted in the decision: “Prospective juror Sturgeon stated on voir dire that she had heard her fellow venirepersons make statements such as ‘even his own lawyers think he’s guilty, ’ and ‘they ought to have [sic] him and get it over with.’ [¶] At defendant’s request, the court held a hearing on the matter. On further examination, Sturgeon asserted that at least five prospective jurors had made such remarks, and she identified some persons whom she believed had either made such comments or had overheard them being made. Prospective juror Durling confirmed that he and a few other venirepersons, while in the court elevator, had made statements such as ‘in frontier justice style, ’ the authorities should ‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’ Prospective juror Clasen stated he had heard similar comments from other venirepersons.” (Ibid., italics added.) As that excerpt indicates, while offending comments were made in the elevator, at least some of them apparently were repeated in open court, while prospective juror Sturgeon was on voir dire.
In any event, what guides us here is Medina’s holding, which teaches that striking the entire venire is not “appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks.” (People v. Medina, supra, 51 Cal.3d at p. 889.) That “drastic remedy” instead is “reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (Ibid.) Even the remarks in Medina were not sufficiently egregious to strike the venire. (Ibid.) Since the comments in this case pale in comparison, Medina supports the trial court’s decision to retain the panel.
Other authority likewise supports the trial court’s decision, including People v. Cleveland, supra, 32 Cal.4th 704. One issue in that capital case concerned remarks made during voir dire by a prospective juror who “was a retired law enforcement officer with substantial experience in homicide cases who had testified in court over a thousand times.” (Id. at p. 735.) On appeal, the defendant argued that “the prospective juror’s statements that the death penalty was too seldom used due to legal obstruction, and that he would be unfair to the defense based on his knowledge of how these trials were conducted, tainted the entire venire.” (Id. at p. 736.) Rejecting the contention that a new venire should have been summoned, the court observed: “Many prospective jurors express many different general opinions regarding the judicial system. These expressions of opinion do not taint the jury. The comments here did not give the other prospective jurors information specific to the case, but just exposed them to one person’s opinion about the judicial system. [Citation.] The circumstance that this particular opinion came from a retired peace officer with experience in homicide cases and trial proceedings does not change matters. It would no more prejudice a jury panel to hear that a retired (or active) peace officer believes the system is tilted in favor of defendants than to hear a criminal defense attorney express the opposite view.” (Id. at p. 736.)
Other California cases are to the same effect, including People v. Nguyen, supra, 23 Cal.App.4th 32. In that case, this court rebuffed the claim that “the jury panel was tainted by statements made by... a prospective juror, during voir dire questioning.” (Id. at p. 40.) In response to trial court questions about fear of retaliation as a member of the Vietnamese community, the prospective juror indicated that he felt he could render an impartial verdict. (Id. at pp. 40-41.) Rejecting the appellant’s characterization of the statements as “ ‘inflammatory, ’ ” this court concluded that the prospective juror’s “comments did not contain any information which suggests that the entire jury panel would have been prejudiced against appellant.” (Id. at p. 41.)
Another such case is People v. Martinez, supra, 228 Cal.App.3d 1456. There, the defendant claimed that various statements by prospective jurors “tainted the entire jury panel because they were inflammatory, hostile and biased against him and the criminal justice system.” (Id. at p. 1459.) The offending statements reflected some prospective jurors’ “strong opinions about persons charged with crimes, about the criminal justice system, about defendants who do not speak English, and about police officers.” (Id. at p. 1461.) Defendant moved to discharge the entire jury venire, but the trial court denied the request. (Id. at p. 1461.) On appeal, the court affirmed, explaining: “Defense counsel questioned the remaining jurors regarding the impact of the ‘hostile comments.’ The record does not reflect the remaining jurors were affected by the opinions expressed by those jurors who had been excused.” (Id. at p. 1465.) “To the extent the remaining jurors may have found some merit in the comments, it does not appear they were unable to set aside their frustration with the system in order to judge the case against appellant fairly and impartially.” (Id. at p. 1466.) Under the circumstances, the court found, there was no abuse of discretion in denying the defendant’s motion to strike the venire. (Id. at p. 1467.)
The same result obtained in People v. Henderson (1980) 107 Cal.App.3d 475. As the court succinctly explained there: “During jury selection, a prospective juror was excused for cause after she revealed that the victim had been her client in psychotherapy ‘this year.’ The trial court denied defendant’s motion to dismiss the entire panel of prospective jurors. It was within the sound discretion of the court to conclude the prospective juror’s statement was nonprejudicial and to refuse to dismiss the entire jury panel.” (Id. at p. 493; cf. People v. Vernon (1979) 89 Cal.App.3d 853, 865 [prospective juror’s statement during voir dire that defendant had been tried for raping her niece was not unduly prejudicial].)
b. Federal Authority
Defendant relies on a federal case, Mach v. Stewart (9th Cir., 1998) 137 F.3d 630. That habeas corpus proceeding followed Mach’s conviction in Arizona state court of child sexual abuse. (Id. at p. 631.) Among the prospective jurors was Bodkin, a social worker with Arizona child protective services. (Ibid.) During voir dire questioning by the court, Bodkin stated repeatedly “that she had never, in three years in her position, become aware of a case in which a child had lied about being sexually assaulted.” (Id. at p. 632.) “The court asked the other jurors whether anyone disagreed with her statement, and no one responded.” (Id. at p. 633.) Mach argued that Bodkin’s comments “impermissibly tainted the jury pool to the extent that the court should have granted a mistrial.” (Id. at p. 632.) The Ninth Circuit agreed, saying: “At a minimum, when Mach moved for a mistrial, the court should have conducted further voir dire to determine whether the panel had in fact been infected by Bodkin’s expert-like statements. Given the nature of Bodkin’s statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused. This bias violated Mach’s right to an impartial jury.” (Id. at p. 633.)
Defendant’s reliance on Mach is misplaced, for three reasons.
First, because it is an intermediate federal court decision, Mach does not control here. In the words of the California Supreme Court, “we are not bound by decisions of the lower federal courts, even on federal questions.” (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)
Second, Mach is legally inapposite. The Mach court presumed prejudice based on the prospective juror’s comments. (Mach v. Stewart, supra, 137 F.3d at p. 633.) But California law does not indulge in a presumption of jury taint or prejudice. To the contrary, as reflected in decisions of the California Supreme Court, it is within the trial court’s “broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina, supra, 51 Cal.3d at p. 889.) California’s reviewing courts therefore “defer to the trial court’s determination of the states of mind of [prospective] jurors in the face of conflicting or equivocal answers to questions concerning impartiality.” (People v. Morris (1991) 53 Cal.3d 152, 186, fn. 4, disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) We are bound to follow these principles enunciated by our state’s high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Third, Mach is factually distinguishable from our case in several important respects. For one thing, in Mach, the prospective juror’s assurances about the credibility of the child witness were “directly connected to Mach’s guilt.” (Mach v. Stewart, supra, 137 F.3d at p. 634.) In this case, the comments by Jurors 87 and 110 addressed dangerousness, not guilt; Juror 87 recounted attacks by other inmates on people he knew, while Juror 110 considered defendant high risk. For another thing, the comments in Mach about child victims’ credibility not only were “expert-like” but also were delivered repeatedly and with “certainty” by the prospective juror. (Id. at p. 633.) Here, the comments concerning credibility, given by Jurors 11, 36, and 38, were of a different sort; they concerned inmates as a group, were phrased in general terms, and were not proffered as expert views. The remark by Juror 41 was even more attenuated, referring only to bizarre goings-on at Soledad, without identifying inmates as their source. These general remarks “did not give the other prospective jurors information specific to the case, but just exposed them to one person’s opinion” about collateral matters. (People v. Cleveland, supra, 32 Cal.4th at p. 736.) There is yet another significant factual difference between Mach and this case. In Mach, there was silence when the court asked whether anyone on the panel disagreed with the services worker’s statement that “she had never known a child to lie about sexual abuse.” (Mach v. Stewart, at p. 633.) Here, there was silence when the court asked if anyone had “any quarrel with the rule of law which requires the People to prove their case beyond a reasonable doubt or with the presumption of innocence?” Opposite inferences arise from the jury pool’s silence in Mach and in this case.
For these reasons, Mach has no application here.
3. No Abuse of Discretion in Retaining the Jury Panel Here
As stated above, the trial court has “broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina, supra, 51 Cal.3d at p. 889.) The trial court’s determination of this point will be “reversed on appeal only upon a clear showing of abuse of discretion.” (People v. Martinez, supra, 228 Cal.App.3d at p. 1466.)
As this deferential review standard implicitly recognizes, “the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination.” (People v. McPeters (1992) 2 Cal.4th 1148, 1175, questioned on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) The trial judge likewise has a superior vantage point “to gauge the level of bias and prejudice created by juror comments.” (People v. Martinez, supra, 228 Cal.App.3d at p. 1466; accord, People v. Nguyen, supra, 23 Cal.App.4th at p. 41; cf. People v. Crittenden, supra, 9 Cal.4th at p. 118 [trial judge who presided over voir dire “was in a good position to determine” whether prosecutor impermissibly challenged prospective juror based on race].)
In this case, we find no basis for reversing the trial court’s exercise of discretion. In denying defense counsel’s first request to strike the panel, which was based on comments about inmate trustworthiness by Juror 11, the court said: “I don’t think there was anything improper. I don’t think the jury’s been improperly tainted or the jury pool.” In denying defense counsel’s second request to strike the panel, which was based on comments by Juror 110 characterizing defendant as high risk, the court rejected counsel’s “bold assertion that everybody on the jury’s been tainted by that statement” and it questioned her assumption “that anybody gave it any credence whatsoever....” We defer to these determinations by the trial judge, who was in a better position to assess both the character and the impact of the statements. (People v. Martinez, supra, 228 Cal.App.3d at p. 1466; accord, People v. Nguyen, supra, 23 Cal.App.4th at p. 41.) Having heard the jurors’ comments, the trial court determined that they were not so inflammatory as to taint the entire panel. There is no basis on this record for disturbing that determination.
Furthermore, the jury was properly instructed on its duty to base its verdict solely on evidence presented during trial (CALCRIM 104). It was also instructed on its role as arbiter of credibility (CALCRIM 226). “We presume the jury followed the court’s instructions.” (People v. Avila (2006) 38 Cal.4th 491, 574.)
In sum, applying governing California law to the facts of this case, we find no abuse of discretion in the trial court’s decision to leave the jury panel in place.
II. Courtroom Security
In his second claim on appeal, defendant contends that he was prejudiced by the trial court’s refusal to instruct the jury on the presence of several uniformed correctional officers in the courtroom during trial.
A. Factual Background
On December 18, 2008, the court held a hearing “for objections or comments by counsel as to the jury instructions.”
As relevant here, defense counsel objected “to the Court not giving CALCRIM 204” – which instructs the jury to disregard physical restraints – as adapted to refer to “ ‘the presence of security in the courtroom.’ ” In making this objection, counsel stated that “it’s most relevant because we had a potential juror that commented on the fact there was a large amount of security. He said that made him think that this defendant was particularly dangerous.” Counsel also argued that “it would be appropriate to give the instruction” based on “the fact that we do have, I believe, three officers seated behind” defendant.
Expressing its disagreement with counsel, the court said: “I’m not going to give that instruction.” The court continued: “Your comment just now that there were three security officers behind the defendant is a little misleading. There has been at all times during the course of the trial a bailiff in the courtroom placed in various locations.... [¶] In addition to that, there have been three uniformed, to the Court’s recollection, correctional officers present in the courtroom during the testimony and whenever your client has been in the courtroom. One of them has been stationed essentially about five feet behind him over by the wall, and another has been stationed in what we’ll call the attorney chairs right behind counsel table, which is about five feet from your client, and then a third has been in essentially the visitor or spectator area of the courtroom in various locations. That’s the Court’s recollection about where the correctional officers have been stationed. [¶] So your motion’s denied.”
Defense counsel responded: “I would disagree with the Court’s placement of where the officers have been throughout the trial for the record.” She placed the officers in chairs located an estimated “two to three feet behind counsel table, behind where Mr. Reynolds is seated.” At other times, counsel believed, one or more officers were seated in a row of the spectator section “about two to three feet behind defense table.” Counsel voiced concern over “the appearance” that two or three officers were “in proximity” to defendant during trial.
B. Legal Principles
1. Courtroom Security
“A trial court has broad power to maintain courtroom security and orderly proceedings.” (People v. Hayes (1999) 21 Cal.4th 1211, 1269; accord, People v. Stevens (2009) 47 Cal.4th 625, 632.) On the other hand, “certain security measures may burden the right to a fair trial. In particular, to require the defendant to appear before the jury under physical restraint may impair that right, for example by leading the jury to infer he is a violent person and by tending to dispel the presumption of innocence.” (People v. Jenkins (2000) 22 Cal.4th 900, 995, citing People v. Duran (1976) 16 Cal.3d 282, 290.)
Both the United States Supreme Court and the California Supreme Court have distinguished “between security measures, such as shackling, that reflect on defendant’s culpability or violent propensities, and other, more neutral precautions.” (People v. Jenkins, at p. 996, citing Holbrook v. Flynn (1986) 475 U.S. 560, 567-568; see also, e.g., People v. Marks (2003) 31 Cal.4th 197, 224 [maintaining “distinction between shackling and the deployment of security personnel” in the courtroom]; People v. Stevens, supra, 47 Cal.4th at p. 634 [distinguishing between “physical restraints placed on the defendant’s person” and “most other security practices”].)
Under high court authority, both federal and state, “ ‘the use of identifiable security guards in the courtroom during a criminal trial is not inherently prejudicial, ’ in large part because such a presence is seen by jurors as ordinary and expected and because of the many nonprejudicial inferences to be drawn from the presence of such security personnel.” (People v. Jenkins, supra, 22 Cal.4th at p. 998; see also, e.g., People v. Stevens, supra, 47 Cal.4th at p. 629 [“the stationing of a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice”].) In a case decided just last year, the California Supreme Court observed that “after a nationwide search, ” it had not found “a single conviction that has been reversed under Holbrook based on the presence of excessive security in the courtroom.” (People v. Stevens, at p. 635.)
2. Jury Instruction
As a general rule, “on request, the trial court must instruct the jury on points of law pertinent to the legal issues presented.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1273.) Even in the absence of a request for instruction, the court has a sua sponte duty to “instruct on the general principles of law relevant to the issues raised by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
As more specifically relevant here, when the defendant is visibly shackled, the court has a sua sponte duty to instruct the jury “that such restraints should have no bearing on the determination of the defendant’s guilt.” (People v. Duran, supra, 16 Cal.3d at pp. 291-292.) There is “no equivalent sua sponte duty to instruct regarding the increase in courtroom security” however. (People v. Jenkins (1987) 196 Cal.App.3d 394, 402, disapproved on other grounds in People v. Brown (1993) 6 Cal.4th 322, 336.) But even though there is “no sua sponte duty for it to do so, the court should consider, upon request, giving a cautionary instruction, either at the time of the defendant’s testimony or with closing instructions, telling the jury to disregard security measures related to the defendant’s custodial status.” (People v. Stevens, supra, 47 Cal.4th at p. 642; see id. at p. 641 [“jury was properly instructed to disregard the fact that defendant was in custody”]; People v. Marks, supra, 31 Cal.4th at p. 223 [jury was admonished “not to speculate as to the reasons” for the deputy’s proximity to the defendant nor to consider it in deliberations].)
C. Analysis
We reject defendant’s claim that the trial court’s failure to give the requested instruction constitutes reversible error.
1. Error
As our state’s high court has explained in a different context (instruction on lesser included offenses), speculation is not a proper basis for requiring a jury instruction. (People v. Sakarias (2000) 22 Cal.4th 596, 620; People v. Wilson (1992) 3 Cal.4th 926, 942.) On the other hand, as more recent California Supreme Court authority teaches, “the court should consider, upon request, giving a cautionary instruction... telling the jury to disregard security measures related to the defendant’s custodial status.” (People v. Stevens, supra, 47 Cal.4th at p. 642.)
In this case, the trial court did consider giving the requested instruction, as evidenced by its discussion of the defense request. The court ultimately rejected the requested instruction, however, implicitly finding that it was not warranted under the circumstances of this case. Those circumstances included both the jury’s awareness of defendant’s status as a prison inmate and the number and location of the correctional officers present in the courtroom. The record supports that determination.
Absent a demonstrated need for the requested instruction, there is no error in refusing to give it. (Cf. People v. Sakarias, supra, 22 Cal.4th at p. 620 [there was no “substantial evidence justifying an instruction” on the lesser included offense of theft].)
In any event, as we now explain, any error in failing to instruct was harmless.
2. Prejudice
Failure to give the requested instruction is tested for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. Where a “proposed instruction is not constitutionally based, its erroneous omission does not warrant reversal unless a different result would have been reasonably probable” under the Watson test. (People v. Marks, supra, 31 Cal.4th at p. 222.)
In this case, even assuming that the court erred in refusing to instruct the jury to disregard courtroom security, “the error was harmless. Under the state law standard of prejudice, defendant must show a reasonable probability that the lack of [such an] instruction affected the outcome.” (People v. Sakarias, supra, 22 Cal.4th at p. 621; cf. People v. Zavala (2005) 130 Cal.App.4th 758, 771 [error in giving unwarranted instruction likewise tested under Watson standard].)
Defendant cannot show a reasonable probability of a more favorable outcome here. For one thing, as the People point out, the only disputed evidence resolved against the defendant was his intent to kill the two correctional officers. The jury had difficulty reaching a verdict on the contested counts, as evidenced by the multiple requests for information during deliberations. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [“closeness of the case is also indicated by juror questions”].) This difficulty gives rise to an inference that the jury “carefully weighed and considered the evidence” of defendant’s guilt, independently of the increased courtroom security. (People v. Zavala, supra, 130 Cal.App.4th at p. 771 [inference from acquittal on one count].) For another thing, there was strong evidence that defendant committed the charged acts. (Ibid. [commission of the charged acts was “corroborated by numerous witnesses”]; People v. Sakarias, supra, 22 Cal.4th at p. 621 [evidence of “theft rather than robbery was, at best, extremely weak”].) Finally, the requested cautionary instruction “was almost entirely irrelevant to the central disputed issue... and therefore it is not reasonably likely [defendant] would have obtained a more favorable result absent the [lack of] instruction.” (People v. Zavala, supra, 130 Cal.App.4th at p. 771.) All of these factors demonstrate the lack of prejudice.
In argument to the jury, defense counsel admitted that her client had committed the two assaults but disputed the attempted murder charges.
In sum, this record discloses no reasonable probability that the requested instruction would have affected the outcome. Thus, there is no prejudice and no basis for reversal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.