Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09NF0372, Richard M. King, Judge.
Allison K. Simkin, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant and petitioner Robert Walter Sanders of one count each of domestic battery with bodily injury (Pen. Code, § 273.5, subd. (a); all further statutory references are to this code unless otherwise stated) and aggravated assault (§ 245, subd. (a)(1)), with a finding of great bodily injury (§§ 667.5, 1192.7, 12022.7, subd. (e)) for each count. After bifurcation, defendant admitted he had a prior prison term. The court sentenced him to a total of seven years, consisting of three years for the domestic battery and four years for the enhancement. The sentence on the assault count was stayed pursuant to section 654, and the court struck the prior prison term for purposes of sentencing.
Defendant’s lawyer filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Having examined the record we find no error.
Defendant also filed a petition for a writ of habeas corpus, which we consolidated with the appeal, claiming his due process was violated by the requirement he keep his hands in his pockets while walking to and from the witness stand and having two deputies “shadow” him at that time and while testifying. He also claims, alternatively, ineffective assistance of counsel if we deem these issues forfeited because there was no objection in the trial court. Although the court abused its discretion in failing to determine whether these security measures were necessary in this trial, the error was harmless. Consequently, we deny the petition.
FACTS
Defendant and Charlene P. dated for seven years, living together for part of that time. They were heavy methamphetamine users when they met.
At the time of the incident in February 2009 the two were living in defendant’s car parked in a friend’s driveway. That evening Charlene offered to heat up a frozen dinner she had stored in the freezer of a house three doors away from the car. When she entered the house she was ill and had to vomit. By the time she was finished and went to the freezer, defendant, who seemed violent, had come to the door and was screaming at her that she was taking too long. As she walked toward the back yard, defendant called, “Hey.” When Charlene turned around, defendant, who was about 20 feet away, threw an unopened can of soup at her and hit the bridge of her nose. Charlene, in a lot of pain, started bleeding heavily and almost passed out. She sat down in the yard and had a beer to regain her composure. Fearful, she then walked to the house of a friend, Daniel Demeter, a couple of doors away. Demeter cleaned her up, called the police, and took her to the hospital, where she was diagnosed as having a broken nose. Charlene still has a crooked nose and has trouble breathing through one side of it.
In 2001 Charlene was convicted of possessing narcotics for sale. In 2004 defendant had held Charlene down on the bed by her hair and “pummel[ed her] face with his fist.” Defendant was arrested.
Testifying in his own defense, among other things, defendant stated his and Charlene’s heavy methamphetamine use in 2004 was the reason for his violence against her in 2004. It also explained two prior instances of domestic violence, against his ex-wife in 1994 and his ex-girlfriend in 1997. He said that when Charlene took so long to return with the dinner he feared she was using methamphetamine and went to the house to check. According to defendant, Charlene had hit him in the face two days earlier, causing him a lot of pain. When he reached the house and began arguing his face still hurt and he feared she would hit him again. When he walked away from her he picked up the soup can and threw it over his shoulder to “divert her.”
DISCUSSION
1. Appeal
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the facts and proceedings below. She did not argue against defendant but advised the court she had not found any issues to present on his behalf. (People v. Wende, supra, 25 Cal.3d 436.) Pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493 ], counsel identified several possible, but not arguable, issues to aid us in our independent review of the record: (1) did the court err in ruling in limine that evidence of defendant’s two prior incidents of domestic violence would be admitted if he testified and relied on a self-defense theory; (2) were defendant’s constitutional rights violated when the court required him to keep his hands in his pockets while walking to and from the witness stand; (3) was it error to instruct the jury about the two uncharged acts of domestic violence; and (4) whether reversal is required due a typographical error on the verdict form that identified the enhancement as violating section 12022.7, subdivision (3) instead of subdivision (e). As to the first two issues he also argues ineffective assistance of counsel in the alternative. Defendant was given 30 days to file written argument on his own behalf but did not do so.
The ineffective assistance arguments are not the proper subject of an appeal. They are raised in the habeas petition and discussed in that portion of the opinion as is the issue of the requirement defendant keep his hands in his pockets. As to the other issues, none has merit.
a. Admission of Prior Acts of Domestic Violence
Prior to trial the prosecution moved to admit two prior incidents of domestic violence, a 1994 conviction for misdemeanor domestic violence against defendant’s ex-wife and a 1997 conviction for domestic violence against a girlfriend. Defendant moved to limit their admission should he choose to testify. The court tentatively ruled it would disallow admission of the prior incidents since their potential prejudice outweighed their benefit. It stated the evidence would be probative, however, if defendant testified and relied on a theory of self-defense, and admissible under that section. The court stated it would revisit the issue at that time. It also tentatively granted defendant’s motion to preclude cross-examination based on the prior incidents subject to reconsideration if defendant testified and the prosecution sought to use them for impeachment. Defendant did rely on self-defense in his direct testimony, and his lawyer had him testify to the two priors.
A ruling on a motion in limine is necessarily without prejudice. The court may always change its decision based on the evidence elicited at the time of the testimony. (People v. Collins (1986) 42 Cal.3d 378, 384.) A defendant does not have the right to testify free from impeachment. (Id. at pp. 387-388.)
In a domestic violence action evidence of a defendant’s prior acts of domestic violence generally may be admitted so long as not otherwise inadmissible under Evidence Code section 352. (Evid. Code, § 1109, subd. (a)(1).) If the prior acts are over 10 years old, they are admissible only if the court finds it would be in the interests of justice. (Evid. Code, § 1109, subd. (e).) Although a court’s decision to admit the evidence is reviewed for abuse of discretion in its balancing of the probative value against the prejudice (People v. Johnson (2010) 185 Cal.App.4th 520, 539-540), we have nothing to review because defendant himself testified to the two prior incidents.
b. CALCRIM No. 852
The court instructed the jury with CALCRIM No. 852 relating to evidence of uncharged acts of domestic violence. It stated that if the jury determined defendant had committed those acts it could decide “defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit crimes alleged in [c]ount[s] one and two, as charged....” Defendant objected to the instruction as to aggravated assault count because it was not “actually charged as a domestic violence count” and the prior acts evidence was not “necessarily” admissible under Evidence Code section 1109.
Evidence Code section 1109, subdivision (a)(1) applies as to a crime “involving domestic violence.” (Italics added.) The assault occurred within the context of a domestic relationship and did not need to be charged as a domestic violence crime per se. (See People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 [evidence of prior acts of domestic violence admissible under Evidence Code section 1009 in aggravated assault case].)
c. Verdict Form
As to both counts defendant was charged with an enhancement of committing great bodily injury in the course of committing domestic violence under section 12022.7, subdivision (e), which provides for additional punishment. On the aggravated assault verdict form the section was listed as 12022.7, subdivision (3); it was correctly denoted on the domestic battery verdict form. While deliberating the jury asked for an explanation as to the difference between the two subdivisions. The court replied that the law regarding great bodily injury was set out in designated slides. Those slides contained CALCRIM No. 3163, which defines great bodily injury in the context of domestic violence.
The court did not realize there was an error on the verdict form until the jury reached its decision. At that point it concluded it was merely a typographical error, it was “so obvious that [the jurors] were instructed as to the [great bodily injury] under the (e) section” and it would “not... do anything at this time.” Neither counsel objected. We agree the jury was properly instructed and the typo on the verdict form was harmless.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.
2. Writ Petition
Defendant challenges two related trial court procedures. First, he was required to keep his hands in his pockets when he walked to and from the witness stand. Second, two officers walked with him to and from the witness box and one was seated behind him while he testified. Trial counsel did not object to either of these requirements and, as an alternative argument, defendant asserts ineffective assistance of counsel on that basis. Because we hold that any error was harmless, we need not address the latter argument.
The facts giving rise to the petition are set out primarily in the declaration of Case Barnett, defendant’s trial lawyer. He stated the court required defendant to “place his hands in his pockets” and “keep his hands in his pocket[s] while walking past the jury, ” although he was allowed to remove his hands “once he was out of the jury’s range.”
Barnett explained that during trial two deputy sheriffs were present, one at the bailiff’s desk and the other sitting “directly behind” defendant. When it was time for defendant to testify Barnett “believe[s]” one deputy was behind the witness box before defendant walked up to it and remained there for defendant’s entire testimony. The other deputy “walked backwards, facing [defendant], as [defendant] walked up to the witness box.” That deputy then returned to his desk. When defendant’s testimony was completed both deputies “followed [defendant] back to the defense table.”
At the request of defendant’s lawyer, the court gave the following admonition: “I want to remind you again, as I indicated before, the defendant is in custody. Obviously, I’ve indicated that to you. Custody is a function of money. It’s not a function of guilt. You’re not to even discuss the fact that the defendant is in custody. [¶] Also, as you saw, the defendant had his hands in his pocket when he walked up. It’s not a sign of disrespect. It’s a requirement that any inmate who is in custody who is going to testify have that. It’s a requirement. Okay. For obviously, security concerns. You’re not to discuss that. That’s not evidence. [¶] All right. The defense did request that admonition, is that correct?” Defense counsel acknowledged he had.
The Attorney General asserts that because defendant did not object to either procedure but in fact requested an instruction, his claims on these issues are forfeited. Defendant counters that, because these were the court’s normal procedures, any objection would have been futile. As discussed below, it is not at all certain these were common practices, but we will decide the claim on the merits.
Defendant argues requiring that he keep his hands in his pockets on his trip to and from the witness stand was the equivalent of shackling, which has been held to be inherently prejudicial and proper only upon a “showing of manifest need.” (People v. Hernandez (2011) 51 Cal.4th 733, 742.) People v. Stevens (2009) 47 Cal.4th 625 rejected a claim that stationing a bailiff near a defendant who was testifying was the equivalent of shackling and held it was not inherently prejudicial as long as the officer keeps a “respectful distance from the defendant and does not behave in a manner that distracts from, or appears to comment on, the defendant’s testimony....” (Id. at p. 639.) In our view, requiring a defendant to keep his hands in his pockets is even less obtrusive and obvious than being guarded by a deputy. Having a deputy near the defendant provides more security than requiring a defendant to keep his hands in his pockets. Thus, we reject defendant’s claim that the court could not impose such a requirement without finding a manifest need to do so.
Having said that, however, our Supreme Court has held that “the trial court must exercise its own discretion in ordering [that a deputy walk with a defendant to and from the stand] and may not simply defer to a generic policy.” (People v. Stevens, supra, 47 Cal.4th at p. 644.) Because the requirement a defendant keep his hands in his pocket is a heightened security measure, by extension the court should employ the same analysis before imposing it. Here the court did not engage in any analysis for either procedure.
The record reveals no discussion about having the deputies walk with defendant and have one seated behind him during his testimony. In contrast, as to the hands in the pocket requirement, the court’s instruction suggests it might be the norm. It told the jury it was “a requirement [for] any inmate who is in custody who is going to testify.... It’s a requirement.” Assuming that is the court’s general practice it is an abuse of discretion. And even if not the common procedure, the court abused its discretion by failing to engage in a fact-specific analysis of whether it was necessary. (People v. Hernandez, supra, 51 Cal.4th at p. 744 [“heightened security measure... ordered based on a standing practice... constitutes an abuse of discretion”].) This was the same practice the court proscribed in Hernandez where the trial court required a deputy to sit behind the witness stand while the defendant was testifying, stating it was ordered “‘in every trial I’ve ever done... because of security.’” (Id. at p. 743.)
Nevertheless, under the circumstances of that case, Hernandez held the error was harmless, using the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836, finding it was not reasonably probable the result of the trial would have been more favorable. (People v. Hernandez, supra, 51 Cal.4th at pp. 744-745.) The same is true here.
Citing People v. Vance (2006) 141 Cal.App.4th 1104, defendant argues we should use the Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] standard, but Vance was decided before Hernandez. Defendant’s reliance on Vance to support his argument the error was not harmless is ill-founded as well. There the jury was being asked to determine whether the defendant’s commitment to a mental hospital should be extended because he posed a “‘substantial danger of physical harm to others....’” (Id. at p. 1107.) The defendant was shackled and the judge repeatedly advised the jury that law enforcement, not he, had determined the shackles were necessary. Jurors were conscious of the shackling, one having commented on it during voir dire. The court commented to the jury it should not pay attention to the shackling in determining whether defendant was dangerous but it failed to include an instruction on that issue when reading the formal jury instructions. In finding the error was prejudicial the Court of Appeal stated, in part, it was “unrealistic and unfair to presume the jurors followed the court’s admonition to disregard the shackles....” (People v. Vance, supra, 141 Cal.App.4th at p. 1115.)
The situation is not the same in the instant case. Defendant was not shackled and as stated above, the requirement he keep his hands in his pockets was not inherently prejudicial. Further, the court had instructed the jury as to why defendant’s hands were in his pockets with language that minimized the procedure. There is no reason here to disregard the well-established rule that the jury is presumed to have followed the instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Defendant argues the jury instruction could have frightened a reasonable juror but it is just as likely, if not more so, that the jurors would have had their minds eased when told the procedures applied to all defendants.
Defendant also points to a question from the jury asking whether the police report noted that Charlene had hit defendant on the cheek two times. The court answered that the police report was not in evidence and could not be considered but the jury could rely on all the testimony. Defendant maintains this shows the jury was evaluating his self-defense claim but their “impression” of him was “tainted” by the procedures that “gave... the impression... [he] was a violent man.” But the record does not support this claim. The instruction was to the contrary and there was no evidence the court appeared fearful of defendant or that the deputies’ “demeanor[s were] anything other than respectful and appropriate.” (People v. Hernandez, supra, 51 Cal.4th at p. 746.)
Further, as stated in Hernandez, the fact the jury had to evaluate the credibility of Charlene as opposed to that of defendant is hardly unique. “‘In nearly every case when an accused testifies in his own defense, the jury will have to weigh the credibility of the defendant and the alleged victim.’ [Citation.]” (People v. Hernandez, supra, 51 Cal.4th at p. 746.) Here defendant admitted throwing the can, even though his explanation of the circumstances differed. But that explanation was weak when compared to Charlene’s account. All things considered it was not reasonably probable the result would have been different absent the disputed procedures.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: ARONSON, J., IKOLA, J.