Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C155046
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Anthony Smith (Smith) appeals from a judgment entered after a jury convicted him of first degree residential burglary. (Pen. Code, § 459.) Smith contends the trial court abused its discretion by ordering him visibly restrained during trial and that the CALCRIM No. 220 instruction is inadequate. We disagree and affirm the judgment.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2007, an information was filed, charging Smith with first degree residential burglary, in violation of section 459. The information further alleged that Smith had suffered six prior convictions, including two “strike” convictions (§§ 667, subd. (e), 1170.12), two serious felony convictions (§ 667, subd. (a)(1)), and three prison term convictions within the meaning of section 667.5, subdivision (b).
Smith, who represented himself, was tried by jury and found guilty of first degree residential burglary. The trial court found true five of the six prior conviction allegations, and Smith was sentenced to prison for a total of 38 years to life. This timely appeal followed.
As the underlying facts are not relevant to the issues on appeal, we will only briefly summarize them. On February 3, 2007, Piedmont police responded to a report that a man was trying to break into a home. The police found no one on the property, but discovered an open window at the rear of a neighbor’s home. A man, later identified as Smith, was noticed walking around inside the neighbor’s house. Upon seeing the police, Smith exited through the front door of the house and was eventually taken into custody. When the neighbor arrived home he discovered that several drawers had been opened, the contents of a satchel had been dumped onto his bed, and that a black jacket was missing. Upon his arrest, Smith was wearing a black jacket that was later identified as the neighbor’s.
At trial, Smith testified that he used drugs, particularly rock cocaine, on a regular basis. On the night of February 2, 2007, he met a man named “John,” who told him “I got a spot for you to kick back for the night. Just leave in the morning or so.” John directed him to the neighbor’s house and opened the door. According to Smith, he slept on the couch, took a shower the next morning, and left when he saw the officer at the back door. Smith testified that he “might have” received the jacket from a friend.
II. DISCUSSION
Smith makes two claims: the trial court violated his constitutional rights by ordering him visibly restrained during trial, and the court’s instructions on reasonable doubt and the presumption of innocence were inadequate. We separately address each of Smith’s claims below.
A. Physical Restraints
Smith maintains that the trial court violated his constitutional rights to due process and a fair trial by ordering him to appear before the jury in shackles. Because of its relevance to the proper application of the governing legal standard, we must first set forth the relevant excerpts from the record.
1. The Record
After Smith had testified in his own defense, Joshua Millard (Millard), whom Smith had identified as “John,” asserted his Fifth Amendment privilege not to testify. The trial court sustained the claim of privilege and excused Millard as a witness. Outside the presence of the jury, the court directed that “there be no mention [to the jury] of this witness, or his presence in the courtroom, or the fact that he claimed the Fifth Amendment. . . . It’s simply a nonevent of which the jury will not be informed.” Once the jury was reconvened, the record reflects the following:
“THE DEFENDANT: People, I want to say this
“THE COURT: Hang on.
“THE DEFENDANT: I had
“THE COURT: Move him to the
“THE DEFENDANT: John came to the court, and they didn’t even want him to testify or nothing, man.
“(The defendant flips counsel table over.)
“THE DEFENDANT: John came to court. John came to court to tell them that he took me there
“THE COURT: Hang on. Let’s ask everybody to sit tight and disregard what they’re saying right now.
“We’re off the record.
“(Pause in proceedings.)
“THE COURT: We’re on the record. . . . The record will reflect that Mr. Infante [the prosecutor] is present. The jurors are present. Mr. Smith was removed from the courtroom following a verbal outburst, and him standing up and throwing the table–tipping the table over. He’s out of the courtroom right now.
“Ladies and gentlemen, as hard as it might be, I’m going to direct you to disregard that outburst, and what you witnessed of Mr. Smith’s conduct. As I told you before, your decision is to be based on the evidence presented in this case, and frankly, that’s not part of the evidence. So I want you to do your best to ignore that, altogether. Since he’s representing himself, it complicated things for me, because he has a right to be present when the proceedings are going on, and what I was about to start to do is tell you, all of the evidence that is going to be presented has been presented, and I’m going to instruct you on the law, and we’re going to hear from Mr. Infante’s opening argument. Well, we’re going to have to take another break and come back a little bit later after we’ve given Mr. Smith an opportunity to calm down and see if we can accomplish that a little bit later, and I think that’s just going to have to be after lunch.”
After a recess, the trial court stated for the record, outside the presence of the jury, that “Mr. Smith suddenly erupted in a verbal outburst, directed at the jury, was literally yelling, stood up from his chair, grabbed the table and flipped counsel table over, sending it flying over against the clerk’s desk in a violent manner. Mr. Smith was physically wrestled to the ground by two bailiffs, who are in the courtroom, and was immediately removed from the courtroom, but all the while, he was yelling loudly. There was such a commotion that I couldn’t really make out–I wasn’t following what he was saying, but it was all directed at the jury, and his complaining about how the proceedings had been conducted. But yelling loudly and nonstop until he was finally gotten out of the courtroom and the stairwell door was closed. I want that to be a clear matter of record.”
Later, still outside the presence of the jury, the trial court stated:
“Mr. Smith is present back in the courtroom. Mr. Infante is present. Mr. Smith is wearing waist chains and leg irons, and his arms are shackled, cuffed to his waist chain.
“The reason that was done, Mr. Smith, is pretty obvious, considering the outburst that you engaged in last time you were here in the courtroom in the presence of the jury. . . . I want to talk about that. What I was getting ready to do is start instructing the jury on the law, after which Mr. Infante would argue. And then the–in the course of things, you would argue to the jury, and then Mr. Infante would give a closing argument, which is normal procedure.
“You’re representing yourself. Ordinarily, if a person engaged in that kind of conduct in the courtroom [they] would simply be thrown out of the courtroom for the remainder of the trial, and his attorney would proceed in his absence. You would be considered to have given up, waived, or forfeited your right to be present. You’re representing yourself, however, so I want–you don’t have an attorney to stand in for you, so what we’re going to do instead is this: at 1:30 [p.m.], the jury is going to come back, and we’re going to bring the jury back here, and my intention is to have you here in the courtroom and Mr. Infante. And when the jury comes down, you will have–you will be in your seat already. Under the circumstance, given the outburst that occurred, I have no choice but to find that it is likely that, unless you’re restrained, the same sort of physical outburst and display could be expected to happen again. And simply stated, you stood up and you grabbed that counsel table, and you literally threw it, as you flipped it against the clerk’s desk, while yelling loudly to the jury and continuing to yell, even when you were being wrestled to the ground by the deputies.
“I think you pose a threat to the people in the courtroom, as well as a threat to disrupt these proceedings, if you’re not shackled, so I find that it is necessary, in view of your conduct in front of the jury, to have you shackled when the jury is here, and have you remain in that seat shackled throughout the proceedings.”
The trial court informed Smith: “[Y]ou are going to be shackled like you are now, simply because I’ve found that it is absolutely necessary given your conduct. I can’t expect any other kind of conduct, and I’m just not going to have you in a position where–we’re going to do everything we can to minimize the likelihood that you’re going to engage in that kind of conduct again. . . . I’m making the order for you being shackled. I think the record adequately justified that.”
2. Legal Standard & Analysis
In Deck v. Missouri (2005) 544 U.S. 622, a majority of the United States Supreme Court held that “the [federal] Constitution forbids the use of visible shackles during [trial], unless that use is ‘justified by an essential state interest’—such as the interest in courtroom security—specific to the defendant on trial. [Citations.]” (Id. at p. 624.) California follows similar principles. In People v. Duran (1976) 16 Cal.3d 282 (Duran), the California Supreme Court reaffirmed the rule that “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints. [Citation.]” (Id. at pp. 290-291, fn. omitted.) “Manifest need” arises on a showing of unruliness, an announced intent to escape, or when there is “[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .” (Id. at pp. 291-293, fn. 11.) “[E]ven when the record in an individual case establishes that it is appropriate to impose some restraint upon the defendant as a security measure, a trial court properly must authorize the least obtrusive or restrictive restraint that effectively will serve the specified security purposes. [Citations.]” (People v. Mar (2002) 28 Cal.4th 1201, 1226; accord Duran, supra, 16 Cal.3d at p. 291.)
In Duran, the Supreme Court explained how manifest need should be determined. “In the interest of minimizing the likelihood of courtroom violence or other disruption the trial court is vested, upon a proper showing, with discretion to order the physical restraint most suitable for a particular defendant in view of the attendant circumstances. The showing of nonconforming behavior in support of the court’s determination to impose physical restraints must appear as a matter of record and, except where the defendant engages in threatening or violent conduct in the presence of the jurors, must otherwise be made out of the jury’s presence. 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.” (Duran, supra, 16 Cal.3d at p. 291.) A trial court’s determination of the necessity of restraint, when made in accordance with the principles laid down in Duran, “cannot be successfully challenged on review except on a showing of a manifest abuse of discretion.” (Id. at p. 293, fn. 12.)
We conclude the trial court did not abuse its discretion by ordering Smith physically restrained. As outlined above, a clear record was made of Smith’s violent and disruptive conduct inside the courtroom. It was reasonable for the trial court to believe that Smith posed a continued threat of violence and disruption in the courtroom if not restrained.
Smith argues that even if the trial court did not abuse its discretion in ordering restraints, “[t]he record . . . fails to demonstrate that less obtrusive and less visible restraints would have been ineffective to insure safety.” Smith essentially asks us to substitute our judgment for that of the trial court. Smith points to no evidence that a lesser restraint was available or would have effectively prevented future disruptions of a similar nature. Although it is conceded that the restraints were visible, the trial court could have reasonably concluded that lesser restraints would not be sufficient, given Smith’s violent outburst. (See Duran, supra, 16 Cal.3d at p. 291, fn. 9 [“We recognize that shackles or manacles are not easily hidden from the jury’s view and do not wish to imply that they should not be used simply because they are obtrusive. We simply note that less drastic and less visible restraints should be employed when, in the exercise of his discretion, the judge concludes it is safe to do so”]; People v. Jackson (1996) 13 Cal.4th 1164, 1215 [“It does not appear from the present record, in light of defendant’s escape history and violence against correctional personnel, that the trial court abused its discretion in ordering [visible] hand shackling”].)
We point out that efforts were made to minimize the impact of the restraints. Smith had already testified when the shackling order was given. Smith was directed to be seated at a table when the jury reentered the courtroom and to give his closing argument from his seat at the table. Finally, the trial court complied with its duty to “instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant’s guilt.” (Duran, supra, 16 Cal.3d at pp. 291-292.) On this record, we conclude there was no abuse of discretion.
The court stated: “[Y]ou may have noticed that Mr. Smith is physically restrained at this point. You are not to let that affect your decision about what the evidence proves or doesn’t prove either, that you’re to disregard it completely, and rely upon the evidence and the law as I’ll instruct you now in deciding the case.”
B. CALCRIM No. 220
Smith’s other argument is that the trial court misinstructed the jury on reasonable doubt and the presumption of innocence. The trial court told jurors that “[a] defendant in a criminal case is presumed to be innocent” and that the prosecution had the burden of proving Smith’s guilt “beyond a reasonable doubt,” using Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM instruction number 220.
The court instructed with CALCRIM No. 220 as follows:
The United States Constitution does not require jury instructions to contain any specific language, but they must convey two concepts: the accused is presumed innocent until proven guilty and the accused may be convicted only on proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 (Victor); Taylor v. Kentucky (1978) 436 U.S. 478 (Taylor); Coffin v. United States (1895) 156 U.S. 432 (Coffin); People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093.) When reviewing such an instruction, the relevant inquiry is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet” the constitutional standard. (Victor, supra, 511 U.S. at p. 6.)
First, Smith argues that the court’s instruction, that the jury was required to “impartially compare and consider all the evidence,” undermined the presumption of innocence. Smith claims the instruction “supplanted [the presumption of innocence] with a mere civil standard of impartiality”—implying that the evidence need only preponderate in favor of the prosecution to convict. The identical argument was rejected in People v. Stone (2008) 160 Cal.App.4th 323, 330-335 (Stone), where the court held that CALCRIM No. 220 “does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side.” (Stone, supra, 160 Cal.App.4th at p. 332; see also People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) The trial court in this instance specifically instructed that “[a] defendant in a criminal case is presumed to be innocent” and that “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he’s entitled to an acquittal . . . .” We are convinced that no reasonable juror would interpret the “compare and consider” language in the manner suggested by Smith.
The People contend Smith failed to object to CALCRIM No. 220 in the trial court and thereby forfeited his right to challenge the instruction on appeal. We assume, without deciding, that his right to challenge has not been forfeited and address the alleged instructional errors on the merits.
Nor are we convinced otherwise by the authority relied on by Smith, including Coffin, supra, 156 U.S. 432, and Taylor, supra, 436 U.S. 478. In Coffin, the United States Supreme Court did not hold that a certain definition of the presumption of innocence was necessary. Rather, it found that it was error for the trial court to refuse to give any instruction regarding the presumption of innocence, even though it had given a reasonable doubt instruction. (Coffin, supra, 156 U.S. at pp. 452-453, 460-461.) Similarly, in Taylor,the court held only that the trial court’s refusal to instruct on the presumption of innocence, even though it had given a reasonable doubt instruction, violated the defendant’s right to a fair trial. (Taylor, supra, 436 U.S. at pp. 480-481, 490.)
Next, Smith urges that it was improper for the court to instruct the jury that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” Smith maintains that “[t]he phrase ‘abiding conviction’ conveys the idea of a determination that will last, but it cannot convey the idea of a conviction based on weighty evidence. The concept of proof beyond a reasonable doubt embodies the requirement of gravity of proof, not simply a decision that is lasting.” In Smith’s view, CALCRIM No. 220 fails to adequately instruct regarding “the requirement of a subjective certitude that is both grave and abiding.”
The settled authority we review supports our conclusion that the jury was correctly instructed. In Victor, supra, 511 U.S. at pages 14-15, the United States Supreme Court stated: “An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” The California Supreme Court has similarly approved an instruction that described reasonable doubt as “ ‘that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’ ” (People v. Freeman (1994) 8 Cal.4th 450, 504, fn. 9.) Not surprisingly, every Court of Appeal in California of which we are aware has approved language similar, if not identical, to the language used in this instance. (See, e.g., Stone, supra, 160 Cal.App.4th at pp. 332-334 [rejecting argument that “abiding conviction” language in CALCRIM No. 220 conflates the separate concepts of weight and duration]; People v. Zepeda (2008) 167 Cal.App.4th 25, 29-32 [rejecting argument that CALCRIM No. 220 fails to convey subjective element of reasonable doubt standard]; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268; People v. Light (1996) 44 Cal.App.4th 879, 884-889.)
Smith again misplaces his reliance on Coffin. As stated above, the United States Supreme Court held, in Coffin, that it was error for the trial court to refuse to give any instruction regarding the presumption of innocence, even though it had given a reasonable doubt instruction. (Coffin, supra, 156 U.S. at pp. 453, 460-461.) The reasonable doubt instruction itself was not challenged. (Id. at pp. 452-461.) Accordingly, it is of no significance that the reasonable doubt instruction given in Coffin referred to an “abiding conviction” as “such an abiding conviction as you would be willing to act upon in the most weighty and important affairs of your own life.” (Id. at p. 453.) We are confident that if the United States Supreme Court believed the concept of reasonable doubt must be defined as set forth in Coffin, it would have told us at some point during the more than a century since that case was decided.
At bottom, no reasonable juror would apply the instruction in the manner suggested by Smith, and we conclude that the court did not misstate the reasonable doubt and presumption of innocence standards by instructing with CALCRIM No. 220.
III. DISPOSITION
The judgment is affirmed.
We concur: SIMONS, ACTING P.J., NEEDHAM, J.
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”