Opinion
H030223
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK RUIZ, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Frederick Ruiz of first degree murder. Thereafter, the trial court found true allegations of (1) a special circumstance (previous murder conviction) for purposes of a life-without-parole sentence, and (2) two prior convictions for purposes of the Three Strikes law. On appeal, defendant contends that (1) the trial court abused its discretion by shackling his legs during trial, (2) the trial court erred by instructing the jury as to the "lying in wait" theory of first degree murder without substantial trial evidence supportive of that theory, (3) the trial court erred by failing to instruct the jury sua sponte in the language of CALCRIM Nos. 357, 358, and 359 (law applicable to admissions), (4) the trial court erred by failing to instruct the jury sua sponte as to the principles set forth in People v. Dewberry (1959) 51 Cal.2d 548 (when evidence is sufficient to convict of charged offense or uncharged lesser offense and there is reasonable doubt as to which offense was committed, jury must convict of lesser offense), (5) he received ineffective assistance of counsel because trial counsel failed to object to prosecutorial misconduct during argument, (6) the trial court erred by recording a consecutive life-without-parole sentence for the special circumstance allegation in the abstract of judgment because it did not orally pronounce such a sentence, and (7) the trial court erred by imposing a suspended parole revocation fine because the fine is inapplicable to his without-parole sentence. In a separate petition for writ of habeas corpus, which we ordered to be considered with the appeal, defendant supplements his shackling claim by alleging that he received ineffective assistance of counsel because his counsel failed to object to the shackling. We agree with defendant that his shackling constituted prejudicial error. We therefore reverse the judgment on that basis, which makes it unnecessary to address defendants secondary issues. We also dispose of the habeas corpus petition by separate order filed this day.
GENERAL BACKGROUND
On March 25, 2000, 785 inmates of the correctional training facility at Soledad were present in the facilitys central yard, which contained a soccer field, a baseball field, tennis courts, basketball courts, and restrooms. California Department of Corrections Sergeant Bruno Banda saw several inmates move away from the canteen area he was observing and expose a staggering and bloodied Reynaldo Najera. Najera approached Sergeant Banda and collapsed onto the ground. He died from a five-and-a-half-inch-deep stab wound to the neck that had punctured the carotid artery. Investigators found a pair of large wet blue jeans and an extra large sweatshirt in garbage cans. Inmates commonly wear sweatshirts and pants many sizes larger than one would normally expect. In July, defendant refused a request to test his DNA. In May 2001, investigators obtained the DNA by executing a search warrant. Blood on the sweatshirt and jeans matched Najeras profile. There was a mixture of DNA from three individuals on the sweatshirts collar. Defendant was a "major" contributor to the mixture. There was a mixture of DNA from two individuals on the jeans knee area. Defendant was a "major" contributor to the mixture. Authorities did not find the murder weapon.
Inmate witness 1B testified to the following: he and defendant were friends; he conversed with defendant in the prison yard before Najera was killed; defendant told him that he was going to "book" Najera, meaning that defendant was going to stab Najera; a few days later, he conversed with defendant about the killing; he said to him, "I hope you got away"; defendant replied, "I hope so too"; afterward, defendant beat him up in the belief that he had "told on him"; he became angry at defendant and told the prison authorities what he knew; and he asked the prison authorities to take care of a disciplinary charge against him but they did nothing about it. On cross-examination, witness 1B admitted the following: in August 2000, he told law enforcement investigators that (1) he did not know anything about the killing, (2) defendant was not wearing extra clothes at the time of the killing, and (3) defendant exited the prison yard after the killing in the same clothes he wore when he entered the yard before the killing; a couple of hours after talking to the law enforcement officers, defendant and another inmate beat him up; he then told prison investigators (1) what was consistent with his direct testimony, (2) that defendant had told him that defendant had tossed the knife over the prison yard fence, and (3) that he wanted a chance "to get back at them"; and, as for his testimony, "it was because [he] got beat up [he] decided to tell the story."
Inmate witness 1A testified to the following: he was in the prison yard at the time of the killing and saw defendant approach Najera from the side and behind and "[t]hrow what was like a punch" to Najeras "[n]eck and head area"; he saw no weapon or blood; soon afterward, he saw defendant repeatedly flushing a toilet without having used the toilet for elimination, an inmate activity frequently associated with disposal of evidence; in 2002, defendant told him that "[s]omeone was ratting him out, snitching on him"; he did not tell law enforcement what he knew until August 2003; in exchange for his information, he received a transfer to a penitentiary closer to his home; in exchange for his testimony, he expected a letter to the parole board for a 2006 hearing as to his having served 25 years for kidnapping and robbery.
Defendant presented a defense via inmate Aaron Herrera who testified to the following: on the day the prison yard was closed for three months (he did not know there had been a murder until three weeks had passed), he and defendant were in the yard together for 40 minutes; the authorities then closed the yard; the authorities separately escorted him and defendant to their respective buildings; and defendants habit was to wear small pants. On cross-examination, Herrera admitted that he had (1) learned defendant had been accused of the murder three weeks after the incident, (2) not told any law enforcement authorities about his knowledge of the incident, (3) refused to speak with a law enforcement officer two years previously, and (4) spoken with defendants representatives for the first time only that day before his testimony.
SHACKLING BACKGROUND
Before the trial court summoned prospective jurors, the parties had preliminary discussions in chambers that the trial court memorialized as follows: "Then there was the question of clothing and shackling, and those have been resolved; the defendant is dressed in civilian clothes, and he is unshackled, with the exception of the chain between his ankles, which are cuffed, and theres a chain between his two ankles. However, those restraints are not visible to the jury, as this courtroom is configured."
Defendants counsel replied as follows: "If I may just be heard very briefly on that. I know when we get a full panel in here, the prospective jurors will be seated behind counsel table, and I would renew my request that he not be shackled in any way that may be seen by any of the prospective jurors."
The trial court then stated that, "I dont believe those shackles are visible," and asked the bailiff to go where the jury would be walking in or seated to see whether the shackles were visible. The bailiff did so and said, "From right here if I was looking, I could see them." The trial court inquired, "If youre standing up?" And the bailiff confirmed, "Yes, and if Im looking at his feet." (Emphasis added.)
The trial court continued as follows: "The other—obviously there are some obvious issues with respect to that: One, hes been convicted of a murder five years ago; secondly, hes charged with having committed another one on the yard, while in prison; third, it is possible to obtain weapons in this courtroom, because people have obtained them before. State prison inmates transported here in custody have obtained weapons in this courtroom. Its possible to have them secreted, and it is possible to have them transferred; its possible in theory to pick them up while walking in. And the other thing is, he has a second strike for an assaultive felony thats charged, or is it charged? Yes, he has two prior strikes charged, both of violence. Then people are going to know hes in custody because the [prison authorities] are here with him. So the facts of the case show that he was a state prison inmate in 2005, and theres no way to keep from the jury the fact that he is still a state prison inmates [sic]. [¶] And, finally, this courtroom is on the extreme edge of the courthouse campus. There really is—there are only two doors, and one window between this defendant and the great outdoors. So I am reluctant to remove the leg restraints: (a), I dont believe they are or will be seen by anyone who isnt making a point of looking for his feet in this courtroom; his feet cannot be seen, even if youre trying from the jury box. If youre seated in the pews, or whatever you want to call them that are behind the bar, you cant see his feet, or can you? [Bailiff answers, `No. And if theyre sitting right there, then you cant.] [¶] Now, its true that while walking from a seat to the jury box, there might be a point where an attentive juror who was making a point of looking at his feet could see—could see them. But thats unlikely to happen, I dont think. And the other thing is that over the course of the week, there is no way that were going to be able to keep a jury milling around here and bring him to court and take him from court without them knowing that he is some of the time in restraints. So given the—and—and theres the possibility—there is the possibility of an episode taking place. If an episode takes place in front of the jury, my experience is that that works big time against the interest of the defendant who was involved in it. And it seems to me prudent under all the circumstances to remove, as we have, all of his restraints, with exception of the leg restraints, which are subtle, and not visible, except to somebody who was making a major point of examining his feet. And that removes any temptation to attempt to escape, or to act out in court. Or it certainly lessens any inclinations to do those things, which is I think to everybodys benefit. And it does not meet the defendant—I dont believe it prejudices him, because I dont think its going to be perceived. And even if it were, I dont think it would it—it would surprise anyone, given the fact he is here charged with a homicide, and that he is still a state prison inmate in custody." (Emphasis added.)
DISCUSSION
The parties agree on the law governing the use of physical restraints at criminal trials. "[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jurys presence, unless there is a showing of a manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran); see also Pen. Code, § 688 ["No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge"].) " `Manifest need arises only upon a showing of unruliness, an announced intention to escape, or `[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained. " (People v. Cox (1991) 53 Cal.3d 618, 651 (Cox), quoting Duran, supra, at p. 292, fn. 11.) "Moreover, `[t]he showing of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion. " (Cox, supra, at p. 651, quoting Duran, supra, at p. 291.) The burden is on the People to establish in the record the manifest need for the shackling. (People v. Prado (1977) 67 Cal.App.3d 267, 275.)
The People concede that the trial court abused its discretion by ordering the shackling. We agree that the concession is appropriate given that the record does not show defendants violence, threat of violence, or other nonconforming conduct. The People argue, however, that defendant forfeited the issue on appeal by failing to object and, in fact, agreeing to be shackled in a way not visible to the jury. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583 ["It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal. Defendants failure to object and make a record below waives the claim here"].) We conclude that defendant has sufficiently preserved his claim of trial court error.
It is true that defendant stated on the record a renewed request that he "not be shackled in any way that may be seen by any of the prospective jurors." But, at best, the objection is ambiguous. It stems from what occurred off the record in chambers when the parties discussed shackling. It could mean that defendant (1) requested in chambers that he be shackled but not visibly, or (2) acquiesced in chambers to the trial courts announced intention to shackle by requesting that he not be visibly shackled. For purposes of forfeiture on appeal, we conclude that it is more likely that defendant objected to shackling and acquiesced to nonvisible shackling off the record and, recognizing the reality in the courtroom, renewed his acquiescence on the record when he believed the shackling to be visible or nonvisible shackling to be impossible.
The People then argue that the trial courts error was harmless. (People v. Anderson (2001) 25 Cal.4th 543, 595-596 [reversal is warranted only on a showing "that physical restraints impaired the fairness of defendants trial and thus caused prejudice"].) We disagree given the circumstances of this case.
The California Supreme Court has not explicitly decided whether trial court error in approving restraints is subject to harmless error analysis under Watson or Chapman. (See People v. Mar (2002) 28 Cal.4th 1201, 1225, fn. 7; Duran, supra, 16 Cal.3d at p. 296, fn. 15.) But at least one appellate court has examined the question. In People v. Jackson (1993) 14 Cal.App.4th 1818, the court concluded: "Unless the record affirmatively shows that the jury saw the restraints, we believe the error is not constitutional error, and it should therefore be tested under the Watson test." (Id. at p. 1829.) The court held on the other hand, "evidence establishing that the jury saw the restraints means that the error rises to the level of constitutional error to be tested under the Chapman test." (Id. at p. 1830.)
Here, there is no affirmative evidence that the jury saw defendants restraints. But it is reasonable to infer that the jury saw them. This follows because (1) the bailiff said that she could see them from where the jury would be walking in, (2) the trial court agreed with that assessment, and (3) the trial court agreed that there was "no way" during the course of trial to keep the jury from knowing that defendant was "some of the time in restraints."
Because we infer that the jury saw defendants restraints, we assume (without deciding) that the Chapman standard applies. We thus consider whether the judicial error committed in this case was harmless beyond a reasonable doubt. (People v. Jackson, supra, 14 Cal.App.4th at p. 1830.) In answering that question, the critical factors are the impact on the defendants ability to participate at trial and the potential for juror prejudice. (People v. Anderson, supra, 25 Cal.4th at p. 596.) Applying those two factors here, we cannot say that the trial courts error was harmless beyond a reasonable doubt.
First, although defendant does not argue that the shackles and prison garb affected his decision not to testify, "Even when the jury is not aware that the defendant has been compelled to wear [a restraint]"—there, a stun belt—its presence "may preoccupy the defendants thoughts, make it more difficult for the defendant to focus his or her entire attention on the substance of the court proceedings, and affect his or her demeanor before the jury—especially while on the witness stand." (People v. Mar, supra, 28 Cal.4th at p. 1219.) That observation reinforces these similar statements in the courts 1998 decision in People v. Hill (1998) 17 Cal.4th 800, 846: "Although the record does not disclose the jury ever saw or heard the chains restraining defendant, the use of such restraints (assuming for argument they were unjustified) raises other possibilities of prejudice. Shackles may affect a defendants mental state during trial. . . . Shackles may also impair a defendants ability to cooperate or communicate with counsel. [Citations.] The pain and `consequential burden placed on the body and mind of the defendant [citation] must also be considered." Hill, in turn, reinforces the high courts pronouncements in Duran, where the court described the long common law history holding "that the prisoner should be unshackled in the courtroom so as to have ` "use of his reason, and all advantages, to clear his innocence."" (Duran, supra, 16 Cal.3d at p. 288.) "Recognizing these common law pronouncements," the Duran court said, "we held over 100 years ago in People v. Harrington (1871) 42 Cal. 165, that `any order or action of the Court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense; and especially would such physical bonds and restraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness and testifying in his own behalf." (Ibid.)
Second, although the jury inevitably would learn that defendant was a prison inmate, that fact does not erase the visual, psychological, and emotional impact of seeing a defendant shackled or negate the natural tendency to wonder and perhaps worry about why shackles are necessary and whether defendant is a violent and dangerous criminal.
Third, the trial court neither admonished the jury nor gave the jury a formal instruction to disregard the restraints or not take the restraints into account. (See CALCRIM No. 204.)
Finally, the case against defendant was far from open and shut. The DNA evidence linking defendant to the jeans and sweatshirt having the victims blood suggested no more than that the jeans and sweatshirt belonged to defendant. No evidence showed that defendant had worn the clothes at the time of the murder. Moreover, that evidence also showed that others besides defendant had worn those clothes. There was no evidence of a motive. In addition, the evidence implicating defendant stemmed from one witnesss change of story motivated by revenge (witness 1B) and another witnesss three-years-after-the-fact story motivated by favorable consideration for housing and parole after 25 years imprisonment (witness 1A). And, though defendants exonerating witness was less than impeccable, defendant did have a defense.
We therefore cannot say with assurance—beyond a reasonable doubt—that the restraints placed on defendant had no prejudicial effect on his ability to participate at trial or the jurys perception of him.
The California Supreme Court has consistently denounced the imposition of unnecessary restraints on a defendant during trial. The practice is condemned because of "possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant[]." (Duran, supra, 16 Cal.3d at p. 290.) We join our high court in denouncing unnecessary shackling as an "affront to human dignity," which can foment "disrespect for the entire judicial system." (Ibid.) And we heartily endorse statements by both the California Supreme Court and the United States Supreme Court that physical restraints should be used only as a last resort. (Ibid., citing Illinois v. Allen (1970) 397 U.S. 337, 344.)
disposition
The judgment is reversed.
We Concur
Rushing, P.J.
Elia, J. --------------- Notes: Generally speaking, to the extent that a criminal defendants appeal raises federal constitutional claims, courts apply the Chapman rule and examine the record to determine whether any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24; People v. McClary (1977) 20 Cal.3d 218, 230, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17.) To the extent that the appeal rests on other grounds, the Watson standard is generally employed. (People v. Watson (1956) 46 Cal.2d 818, 836-838; People v. Flood (1998) 18 Cal.4th 470, 490; People v. Cahill, supra, at p. 492 [Watson "represents the harmless-error test generally applicable under current California law"].) Under Watson, reversal is warranted only on a determination that it is reasonably probable that defendant would have obtained a more favorable result in the absence of any error. (People v. Watson, supra, at pp. 836-838.)